This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-01-2268

 

In the Matter of the Welfare of:

S.L.J., dob: 12/20/1983.

 

Filed August 6, 2002

Affirmed

Randall, Judge

 

Hennepin County District Court

File No. J5-01-056943

 

 

Frederick J. Goetz, Goetz & Eckland, P.A., 2124 Dupont Avenue South, Minneapolis, MN 55405 (for appellant)

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

 

Considered and decided by Randall, Presiding Judge, Willis, Judge, and Parker, Judge.*

U N P U B L I S H E D O P I N I O N

R. A. RANDALL, Judge

Appellant challenges his conviction for aiding and abetting aggravated robbery, arguing that his statement to police should have been suppressed because his waiver of Miranda rights was not knowing and intelligent because of age, lack of experience with the criminal justice system, confusion about his rights, the officer's misrepresentation of the evidence against appellant, and the failure to contact appellant's parents. Appellant also argues that a show-up identification by the victims after they were told to stand by for such a procedure was inherently suggestive and should have been suppressed. We affirm.

FACTS

At approximately 2:00 A.M. on May 6, 2001, appellant S.L.J. and a group of five to nine other individuals saw Najib Ismail, Osman Ibriham, and Liban Mohamed walking in front of them on Nicollet Mall. The group followed the three men for several blocks. At approximately 11th Street and Nicollet Mall, Thomas Shropshire, a member of the group approached the three men and asked them for a cigarette. After Ismail responded that they did not have any cigarettes, Shropshire punched Ismail in the face. The others in the group joined Shropshire and punched and kicked Ismail. During the attack, Ismail's wallet was taken. As one member of the group held Ismail, Ismail slipped from his jacket and ran from the scene, leaving behind a black leather jacket with fur trim and a "Wilda Genuine Leather" patch. Mohamed and Ibriham managed to get away from the scene and called the police to report the assault.

Within an hour, police found three individuals (Shropshire, Charles M. Williams, and appellant), at a bus stop at Nicollet Mall and 7th Street, who matched the descriptions given by the victims. The victims had previously described to the officers that the "main aggressor" was an African American male, shorter than average, wearing a black doo-rag. The victims described the others as wearing dark jackets and dark pants. Shropshire was wearing Ismail's jacket when the police found him.

Police transported the three suspects to the victims' apartment building for a show-up identification. Officer Christopher Tucker conducted the show-up outside the victims' apartment building. Ismail and Ibriham viewed each of the suspects individually. Ismail identified Shropshire as the individual who approached him, asked for a cigarette, assaulted him, and took his jacket. Ismail also identified appellant as one of the men who hit him. Ibriham identified appellant as one of the individuals who assaulted him and confirmed Ismail's identification of Shropshire and appellant, but stated that he did not recognize Williams. During a photographic line-up held a few days after the incident, neither victim could identify appellant. Contrary to his statement to the police at the time of the incident, Ismail at trial testified that appellant had asked him for a cigarette and wore a black doo-rag.

Appellant was transported to the juvenile detention center where Sergeant Mark Osland interviewed him. Osland advised appellant of his Miranda rights. During questioning, appellant stated that he did not understand his right to remain to silent or his right to have an attorney present during questioning. After receiving a negative response from appellant, Osland explained the rights to appellant and then received a positive response. After initially denying involvement, appellant admitted that he punched Ismail.

Appellant, in an extended juvenile jurisdiction petition, was charged with one count of aiding and abetting aggravated robbery and two counts of simple robbery. One count of simple robbery was dismissed. Following a bench trial, the district court convicted appellant of aiding and abetting aggravated robbery. Appellant was sentenced to imprisonment for 48 months with execution of the sentence stayed, subject to certain conditions of probation, until appellant's twenty-first birthday. This appeal follows.

D E C I S I O N

1. Confession

Appellant alleges that he did not voluntarily waive his Mirandarights and, thus, his confession should have been suppressed because he did not understand some of the rights read to him; the police deliberately misrepresented the evidence against him; and his parents were not present during the interrogation. The state argues that due to appellant's age, intelligence, and education he intelligently and voluntarily waived his Mirandarights. The state argues that given the totality of the circumstances, the lack of appellant's parents' presence during the investigation does not render the waiver inadmissible.

The state must show that the defendant knowingly, intelligently, and voluntarily waived his right to remain silent before it can introduce a defendant's confession made during custodial interrogation. State v. Ouk, 516 N.W.2d 180, 184 (Minn. 1994). The determination of whether a juvenile's waiver of his rights is "knowing, intelligent and voluntary is a fact question dependent upon the totality of the circumstances. State v. Jones, 566 N.W.2d 317, 324 (Minn. 1997) (citation omitted). This court does not reverse the district court's specific findings unless clearly erroneous, but does make an independent determination, based on the facts as found, of whether the state has shown that the waiver was knowing, intelligent, and voluntary by a fair preponderance of the evidence. Id. Factors in determining whether a juvenile's confession is voluntary are "the child's age, maturity, intelligence, education, experience, and the presence or absence of parents." Ouk, 516 N.W.2d at 185.

Appellant argues that his confession was not voluntary because the police misinformed him about the evidence they had against him when they claimed they had recovered a victim's cell phone and credit cards. The district court found that this misstatement did not render appellant's confession involuntary because Osland "in good faith, mistakenly suggested the strength of the evidence against" appellant. At a pre-trial hearing, Osland testified that while he was questioning appellant, he had the lost property and recovered property reports, and as he was flipping through the two reports looking for information to ask the appellant, he accidentally confused the two reports. According to Osland, when he told appellant that the police recovered the victim's cell phone and credit cards he thought that they had been recovered. The district court did not find that Osland deliberately lied to appellant about recovered property to help elicit a confession. Rather it found that the officer "negligently misled" appellant about the strength of the evidence against him. We conclude the district court did not abuse its discretion in finding the confession voluntary on this issue.

Next, we disagree with appellant's argument that his confession was involuntary because he did not have his parents present during questioning. The presence of a parent during questioning is only one factor that may weigh in favor of admissibility. In re Welfare G.M., 560 N.W.2d 687, 696 (Minn. 1997). It is not required that parents be present during interrogation or be told they may be present. See Ouk, 516 N.W.2d at 185 (listing presence or absence of parents as one factor); State v. Hogan, 297 Minn. 430, 440, 212 N.W.2d 664, 671 (1973) (stating that parental presence is only one factor, not an absolute prerequisite to voluntariness). Appellant has not argued and there is no evidence that appellant was treated differently from any other juvenile suspect.

We are not convinced by appellant's assertion that his confession was involuntary because of his claim that he did not understand his right to counsel and his right to remain silent. The district court concluded that appellant's waiver was voluntary, finding that Osland tried to explain to appellant that he had the right to remain silent and that he had a right to have an attorney present during questioning. During the interrogation, Osland informed appellant that he had a right to remain silent and asked appellant if he understood the warning. When appellant responded affirmatively, Osland asked him to explain what that meant, which appellant did. Appellant asserts that he answered yes to Osland's questions not because he understood his rights, but rather because he was "trying to give the correct answers to an authority figure he [wanted] to please." In looking at the record as a whole, we find no indication that appellant was incapable of understanding the Miranda warnings. See In re Welfare of S.W.T., 277 N.W.2d 507, 513 (Minn. 1979) (finding a juvenile's waiver involuntary where juvenile was emotionally disturbed, had a low I. Q., and was functioning at an intellectual level of a child 8 years, 8 months old). Although appellant initially stated that he did not understand his rights, he later said that he understood them after Osland restated each right. If appellant still did not understand the warning after Osland's explanation then he could have again said no, which, according to the record, he did not do.

Appellant's age, education, and general level of maturity support the district court's determination that he voluntarily waived his rights. Appellant is 17 years old, an 11th grade high-school student, and has had some prior limited contact with the criminal-justice system. Appellant does not have an extensive criminal history, but the record indicates some contact with the criminal-justice system in the form of truancy and curfew violations, and a 1998 charge of fifth-degree assault, which was dismissed.

In his statement, appellant acknowledges that he was at the scene of the crime and that he punched one of the victims. Appellant's theory at trial was to show that he was only minimally involved in the attack, that he was not part of a plan to aid and abet aggravated robbery, and that he punched someone only in the confusion of the melee. We conclude that appellant's confession that he punched someone during the attack was a knowing, intelligent, and voluntary statement. The district court properly allowed it into evidence.

2. Show-up

Appellant next argues that Officer Tucker's statement implicitly suggested to the victims that any individuals found and brought to them were the attackers. Tucker stated to the victims that the police would be "searching and checking" for anyone matching the victims' descriptions and would bring them to the victims' apartment building. Appellant contends that because of these statements, the subsequent show-up identification was suggestive and created a substantial likelihood of irreparable misidentification. The state contends that the identification procedure followed Taylor and was not unduly suggestive because the victims were not together when they viewed the suspects and did not talk between identifications, and because one-person show-ups are permissible under Minnesota law.

When reviewing a pretrial order suppressing evidence on undisputed facts, a reviewing court may evaluate the facts independently to determine, as a matter of law, whether the evidence must be suppressed. State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999). Whether identification evidence must be suppressed depends on the reliability of the identification. Id. In determining if an identification is reliable, courts conduct a two-part analysis. First, courts consider whether the identification procedure was unnecessarily suggestive. Id. If a court concludes that the procedure was unnecessarily suggestive, it then considers whether under the totality of the circumstances "the identification created a very substantial likelihood of irreparable misidentification." Id. (quotation omitted). In determining whether the identification procedure created a substantial likelihood of misidentification, courts consider five factors: (1) the witness's opportunity to view the criminal when the crime occurred, (2) the witness's degree of attention, (3) the accuracy of the witness's prior description of the criminal, (4) the level of certainty the witness demonstrated when identifying the person, and (5) the time elapsed between the crime and the identification. State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995).

The district court denied appellant's motion to suppress the victims' identification testimony, reasoning that there was no evidence suggesting that the show-ups were either modestly or overwhelmingly suggestive.

Tucker's statement to the victims that he would bring back someone for the show up who "matched the description who we believed might be involved," did taint the identification procedure. Under those circumstances, it is possible that the victims, when they identified appellant, were influenced by the officer's statement and believed that the people they were asked to identify were indeed the people involved in the assault. The victims' inconsistent identifications support the possibility of a suggestive show-up procedure. First, the record shows that the victims were unable to pick appellant's photograph from a line-up presented to them two days after the show-up. Second, the trial testimony of both victims that appellant was the main aggressor contradicts their statements given to police just following the incident. At that time, they stated that Shropshire was the main attacker. We also note from the record that only two victims attended the show up because the third victim passed out due to alcohol intoxication.

Despite the above, the procedure was not so unnecessarily suggestive as to require suppression. Taylor is instructive. In Taylor, the supreme court stated that the use of a one-person show-up is unnecessarily suggestive when the police single out a suspect from the general population based on a description given by the victim and then present the suspect in handcuffs to the victim for identification. Taylor, 594 N.W.2d at 162. This is not the case here. Police found three suspects at a bus stop near Nicollet Mall who matched the victim's descriptions. The show-up was done with each victim and each suspect one at time. Each suspect was brought out individually and turned around 360 degrees, allowing each victim an opportunity to determine if he recognized the suspect. Ismail first identified Shropshire as the man who first approached him and ultimately took his coat. Ismail then viewed appellant and identified him as one of the men who hit him. Williams was then brought out and Ismail identified him as being present at the assault. Once Ismail was finished, the process was repeated with Ibriham. Ibriham identified Shropshire and appellant, but could not identify Williams. Additionally, there is no evidence, as in Taylor, that appellant or the others were handcuffed during the show-up.

We conclude that under the totality of the circumstances, the show-up used here did not cause a substantial likelihood of misidentification. First, Ismail had the opportunity to see appellant. He saw the group when they first approached him and while he was being beaten, which lasted approximately five minutes. Second, Ibriham also saw the group as they approached and again saw them while they were hitting Ismail. Third, Ismail and Ibriham provided the police with descriptions of the attackers that reasonably allowed them to identify a suspect. They described the group of attackers as young, shorter than average, black males, wearing dark pants and dark jackets. They also stated that the suspect who initiated the attack was short and that one of the attackers was wearing a "doo-rag." Fourth, the clothing taken from appellant included a dark-colored jean jacket, dark-colored pants, and a "doo rag." Fifth, Ibriham and Ismail identified appellant at the show-up with certainty. Tucker testified that both of the victims identified appellant and Shropshire fairly quickly without "a lot of debating time." Finally, only one or two hours elapsed between the crime and the identification. See State v. Fox, 396 N.W.2d 862, 864 (Minn. App. 1986) (using identification made several months after crime), review denied (Minn. Jan. 16, 1987). We conclude the show-up was reliable enough, and the district court did not err in denying the motion to suppress the identification.

We next point out that although line-up evidence is never unimportant, its importance is diminished when there is strong independent evidence, such as here, the defendant's own statement, that he was present and participated. It is not in dispute that appellant admitted being at the scene of the crime and involved to some extent. Appellant does not deny his presence at the scene of the crime and does not claim an alibi. Rather, appellant argues that his participation was far less serious than the state claims. Put another way, the claimed errors in the on-the-scene show-up are rendered innocuous by appellant's concession in his statement to the police that he was there and that he did participate in the fight. We do not minimize the importance of having constitutionally protected and reliable pretrial identification evidence. We merely point out that the claimed error in the show-up, if any, did not substantially prejudice appellant's right to a fair trial.

Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, 10.