This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
In the Matter of the Welfare of: D.J.B., Juvenile.
Affirmed in part, reversed in part
Scott County District Court
File No. 200200699
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Tom Harbinson, Scott County Attorney, Jeanne M. Andersen, Assistant County Attorney, 200 Fourth Avenue West, Shakopee, MN 55379-1220 (for appellant State of Minnesota)
John M. Stuart, State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414; and
Mark D. Nyvold, Assistant Public Defender, 1030 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55102 (for respondent D.J.B.)
Considered and decided by Shumaker, Presiding Judge, Minge, Judge, and Mulally, Judge.*
The state appeals from a pretrial order, issued after an omnibus hearing, suppressing juvenile respondent’s confession. The state argues that the district court erred by ruling that the police interview with respondent at respondent’s school was a custodial interrogation requiring a Miranda warning. The state also argues that the court erred by ruling that the statement was not voluntary. We affirm the determination that the confession was custodial and should be suppressed. We reverse the determination that the confession was not voluntary.
D.J.B., the respondent in this case, is a 14-year-old boy, and he is charged with criminal sexual conduct against a five-year-old girl. Respondent’s mother was the victim’s daycare provider; the alleged sexual conduct occurred in respondent’s home while the victim was there for daycare.
The alleged sexual conduct took place in the summer of 2001. On September 10, 2001, Scott County Human Services informed the Savage Police Department of the victim’s allegations against respondent. On September 11, 2001, as part of the police department’s investigation of the incident, Detective Joseph Brennan went to respondent’s school and interviewed him. Detective Brennan and respondent knew each other because Detective Brennan taught respondent’s D.A.R.E. class, was a resource officer at respondent’s school, and ate lunch with respondent and respondent’s friends on several occasions.
The interview took place in a conference room at respondent’s school. The conference room is in an area of the school not frequented by students, and respondent testified that he had seldom been in the room prior to the day of the interview. Detective Brennan sat between respondent and the only door in the room. Although the door does not lock, it was closed for the interview. The interview was tape-recorded.
At the outset of the interview, Detective Brennan told respondent that he did not have to answer the detective’s questions and that he was free to go at any time. Detective Brennan did not inform respondent that he had a right to have counsel present or that respondent could request to have his parents present. Detective Brennan also did not inform respondent that anything respondent said could be used against him. Detective Brennan testified that the warning he gave respondent constituted a “soft Miranda” warning. Detective Brennan asked respondent if respondent acted out of curiosity or if respondent was “trying to rape somebody.” Detective Brennan repeated this “curiosity versus force” distinction several times.
Respondent denied some of Detective Brennan’s allegations about the specific details of the sexual contact. Respondent also denied touching other children at the daycare. Respondent further disagreed with Detective Brennan when the detective questioned respondent about his mother’s knowledge of the incidents.
Detective Brennan did not seek permission from respondent’s parents before interviewing respondent. Detective Brennan testified at the omnibus hearing that he did not contact respondent’s mother because she was suspected of being aware of the sexual conduct and failing to report it.
At the omnibus hearing, respondent testified that a teacher removed him from class and walked him to the conference room. He stated that he did not know why the teacher was pulling him out of class and that he had never been pulled out of class before. Respondent also testified that he had never been questioned by a police officer before September 11, 2001.
Respondent confirmed that Detective Brennan told him that he was free to leave and that he did not have to answer the detective’s questions. However, respondent stated during his testimony that he would have liked to have had his parents there and that he was scared as Detective Brennan started questioning him. Respondent testified that although he was willing to answer most of the questions that Detective Brennan asked him, he wanted to stop answering questions “during the middle” of the interview and that he did not believe he could stop answering questions or get up and leave without getting in trouble.
The trial court found (1) that respondent was in custody when he provided his statement to Detective Brennan; (2) that the statement was obtained in violation of respondent’s Miranda rights; (3) that the statement was not voluntary; and (4) that the statement should be suppressed. The state argues that the trial court erred by determining that the interrogation was custodial and that the trial court erred by determining that respondent’s statement was not voluntary.
The first issue we must decide is whether the suppression of respondent’s statement will have a critical impact on the outcome of the trial. The state appeals from the pretrial order pursuant to Minn. R. Juv. P. 21.04, subd. 1, and before this court will review the pretrial order, the state must “clearly and unequivocally” demonstrate that the suppression order will have a critical impact on the outcome of the trial. In re Welfare of L.E.P., 594 N.W.2d 163, 168 (Minn. 1999) (citing State v. Webber, 262 N.W.2d 157, 159 (Minn. 1977)). A suppression order will critically impact the outcome of the trial if the order “significantly reduces the likelihood of a successful prosecution.” L.E.P., 594 N.W.2d at 168 (citing State v. Joon Kyu Kim, 398 N.W.2d 544, 551 (Minn. 1987)).
To determine whether the absence of the suppressed evidence will critically impact the outcome of the trial, the reviewing court examines the evidence available to the state. State v. Zanter, 535 N.W.2d 624, 630-31 (Minn. 1995). In particular, the reviewing court examines
the inherent qualities of the suppressed evidence itself, its relevance and probative force, its chronological proximity to the alleged crime, its effect in filling in gaps in the evidence viewed as a whole, its quality as a perspective of events different than those otherwise available, its clarity and amount of detail and its origin.
L.E.P., 594 N.W.2d at 168 (internal citation omitted). The Minnesota Supreme Court has held that suppression of a defendant’s confession will have a critical impact on the prosecution’s case. Zanter, 535 N.W.2d at 631 (citing State v. Ronnebaum, 449 N.W.2d 722, 724 (Minn. 1990)).
In this case, the state argues that the suppression of respondent’s statement will have a critical impact because the only other evidence is the testimony of the five-year-old victim. The state’s argument is supported by the record. There is nothing in the record to suggest that there is testimony from other sources, such as eyewitnesses, to support the young victim’s allegations. We agree that the suppression of the respondent’s statement critically impacts the likelihood of successful prosecution.
The next issue we face is whether the trial court erred by determining that the September 11, 2001 interview of respondent was a custodial interrogation. If the interview was a custodial interrogation, respondent was entitled to a full Miranda warning informing him of his right to remain silent and his right to be represented by counsel. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966); State v. Loyd, 297 Minn. 442, 445, 212 N.W.2d 671, 674 (1973) (extending Miranda protection to juveniles who are subject to custodial interrogation). If the interview was either (1) not custodial; or (2) not an interrogation, respondent would not have been entitled to a Miranda warning.
In this case, the state argues that the trial court erred by determining that the interview was custodial. The state concedes that the interview was an interrogation. The state also concedes that the soft Miranda warning given to respondent is not adequate for a custodial interrogation. Thus, if we conclude that the interrogation was custodial, the state acknowledges that the statement should be suppressed.
An appellate court reviews a trial court’s factual findings of circumstances of an interrogation under the clearly-erroneous standard but independently reviews the trial court’s determination regarding custody. State v. Wiernasz, 584 N.W.2d 1, 3 (Minn. 1998). In this case, the state does not challenge the factual findings surrounding the circumstances of the interrogation. Rather, the state challenges the trial court’s determination regarding custody. Thus, the standard of review is de novo. State v. Miller, 573 N.W.2d 661, 670 (Minn. 1998).
No “bright line rule” exists in determining whether a defendant was in custody. Wiernasz, 584 N.W.2d at 2. A defendant who is not formally arrested is nonetheless in custody if the defendant’s liberty was restrained to the degree associated with a formal arrest. Miranda, 384 U.S. at 444, 86 S. Ct. at 1612; State v. Hince, 540 N.W.2d 820, 823 (Minn. 1995). The test as to whether a defendant’s liberty is restrained is objective. Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 3151 (1984); Hince, 540 N.W.2d at 823. The court determines whether a reasonable person in the defendant’s situation would have felt restrained to the degree associated with formal arrest. Berkemer, 468 U.S. at 442, 104 S. Ct. at 3151; Hince, 540 N.W.2d at 823. In making the determination, the court considers all of the circumstances of the interrogation, including the officer’s behavior and the defendant’s behavior. Wiernasz, 584 N.W.2d at 4-5. Determining whether a person was in custody for Miranda purposes is a mixed question of law and fact involving a two-part analysis: (1) what were the circumstances surrounding the interrogation; and (2) given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Thompson v. Keohane, 516 U.S. 99, 112, 116 S. Ct. 457, 465 (1995).
In this case, the state argues that the circumstances of the interrogation were such that a reasonable person would feel that he or she was free to terminate the interrogation. Thus, we review the second part of the two-part analysis from Thompson. The cases that guide our analysis are In re Welfare of R.J.E., 630 N.W.2d 457 (Minn. App. 2001), rev’d on other grounds, 642 N.W.2d 708 (Minn. 2002), and In re Welfare of G.S.P., 610 N.W.2d 651 (Minn. App. 2000).
In G.S.P., a 12-year-old boy was escorted from class to the principal’s office by the principal and a uniformed police officer. 610 N.W.2d at 654. When G.S.P. asked why he was being taken out of class, the principal said he would tell G.S.P. once they got to the principal’s office. Id. Once they got to the principal’s office, the police officer began asking G.S.P. questions, and the principal told G.S.P. that he had no choice but to answer the officer’s questions. Id. G.S.P. had never been to the principal’s office for discipline prior to the interview; nor had G.S.P. ever been questioned by the police prior to the interview. Id. In addition to the police officer and the principal, there was also a school counselor and a teacher in the principal’s office during the interview. Id. No one told G.S.P. that he was free to leave, that he could talk to his parents, or that he could talk to an attorney. Id. Finally, the interview was tape-recorded. Id. In determining that G.S.P. was in custody, the court focused on the following: the principal telling G.S.P. that G.S.P. had no choice but to answer the questions; G.S.P. was in an unfamiliar environment, having never been disciplined in the principal’s office or questioned by police; the interview was tape-recorded; no one told G.S.P. that he was free to leave; and the officer had an active role in the interrogation. Id. at 658.
In R.J.E., a 15-year-old boy was interrogated by a uniformed police officer with two uniformed school security guards and a school social worker in the room. 630 N.W.2d 457, 459. The police officer, who was the school’s liaison officer, had the two security officers escort the boy from class to the office that the security officers shared with the police officer. Id. Once they arrived at the office, one of the security guards searched R.J.E. Id. During the interrogation, which was tape-recorded, the door to the office was closed. Id. R.J.E. had never been questioned by school officials or by the police prior to the interrogation. Id. R.J.E. was not notified that he could speak with his mother, nor was his mother notified of the interrogation. Id. R.J.E. was not told that he could talk to an attorney. Id. The interview lasted approximately 13 minutes, and R.J.E. was never told that he was free to leave and free to not answer questions. Id. In determining that R.J.E. was in custody, the court focused on the following: the interrogating officer did not inform R.J.E. that he was free to leave; the interrogation was tape-recorded; the interrogation was in a small room with the door closed; the police officer conducted the interview in the presence of two uniformed security guards and a social worker; and R.J.E. had no prior experience with questioning by police or school officials. Id. at 461.
Relying on R.J.E., the state argues that the interrogation in this case was not custodial because respondent was informed that he was free to leave and free to not answer questions. But, R.J.E. does not stand for the proposition that telling a suspect he is free to leave or free to not answer questions precludes a finding of custody. Id. at 457. As discussed above, the court in R.J.E. examined the circumstances surrounding the interrogation, and the failure to tell the juvenile that he was free to leave or free to not answer questions was only part of the court’s analysis. Id. at 461.
While this case is distinguishable from R.J.E. and G.S.P. because respondent was informed that he was free to leave and free to not answer questions, we must consider the other circumstances of this interrogation. Respondent was pulled out of class with no explanation and escorted by a teacher to the administrative conference room. Detective Brennan closed the only door to the room and sat between respondent and the door. Like R.J.E. and G.S.P., respondent is inexperienced with the criminal justice system and was in an unfamiliar, confined environment. In G.S.P., where the juvenile was in an unfamiliar environment because he had never been in trouble at school before, we determined, “the record here is not devoid of psychological intimidation raising Fifth Amendment concerns.” 610 N.W.2d at 658. Also like R.J.E. and G.S.P., respondent was not informed that he had a right to an attorney or that he could request that his parents be present for the interrogation. Just as the interrogations in R.J.E. and G.S.P. were tape-recorded, so, too, was the interrogation in this case. As we noted in R.J.E. and G.S.P., because Minnesota law requires electronically recording interrogations, the recording of the interview was “strongly suggestive of a custodial interrogation.” R.J.E., 630 N.W.2d at 461; G.S.P., 610 N.W.2d at 658.
In R.J.E. and G.S.P., the fact that the questioning officers were in uniform was a factor in the custody analysis. In this case, Detective Brennan was not in uniform. However, because of respondent’s prior relationship with the detective, respondent was fully aware of the fact that Detective Brennan was a law enforcement officer. In this case, the detective’s civilian dress does not affect our analysis of whether respondent was in custody.
The factors in this case are such that a reasonable person would have felt he were in custody. Detective Brennan’s instruction to respondent that respondent was free to leave and free to not answer questions does detract from a finding of custody. But, the other factors in this case, particularly that respondent was inexperienced with the criminal justice system and that he was in a confined setting, are such that a reasonable person would have felt he was in custody to the degree associated with a formal arrest. In fact, the district court found that respondent was in a confined, custodial setting. This determination is not irrelevant to our consideration of the case.
The state concedes that the soft Miranda warning given is not sufficient for an interrogation that is custodial. Because we find respondent was in custody and was not given a proper Miranda warning, respondent’s statement was properly suppressed.
The state argues that the trial court erred in determining that respondent’s confession was the product of coercive police tactics, and therefore not voluntary.
This court reviews the trial court’s findings of fact with regard to the circumstances in which a confession is given under a clearly-erroneous standard of review. State v. Riley, 568 N.W.2d 518, 525 (Minn. 1997). But, “this court will examine the entire record and make an independent determination whether a statement was voluntarily given.” Id. (citation omitted). Here, the state is not challenging the trial court’s findings of fact. Thus, our standard of review is de novo.
The burden is on the state to show, by a preponderance of the evidence, that a defendant’s confession was voluntary. State v. Jones, 566 N.W.2d 317, 324 (Minn. 1997). A confession is not voluntary where
the actions of the police, together with other circumstances surrounding the interrogation “were so coercive, so manipulative, so overpowering that [the defendant] was deprived of his ability to make an unconstrained and wholly autonomous decision to speak as he did.”
Id. at 326 (quoting State v. Pilcher, 472 N.W.2d 327, 333 (Minn. 1991) (alteration in original)).
Coercive police activity is a necessary predicate to an involuntary confession, “but the police must be allowed to encourage a suspect to talk when that suspect has not clearly refused.” State v. Williams, 535 N.W.2d 277, 287 (Minn. 1995). Coercive police activity does not necessarily mean threats or intimidating techniques; “[t]he question is whether the defendant’s will was overborne.” Riley, 568 N.W.2d at 525 (citation omitted). When a suspect continually denies allegations, the continued denials are evidence that the suspect’s will has not been overborne. Id. at 526. The statements officers make and the techniques they use must be of the sort “that would make an innocent person confess.” Williams, 535 N.W.2d at 288. This court has held it is improper for police to suggest it is in a juvenile’s best interests to confess “unless the police sincerely mean it and back up the statement with documentable proof of leniency.” State v. Hough, 571 N.W.2d 578, 581 (Minn. App. 1997), rev’d on other grounds, 585 N.W.2d 393 (Minn. 1998).
To determine whether a defendant’s will was overborne, resulting in an involuntary confession, this court examines the totality of the circumstances. Riley, 568 N.W.2d at 525. The factors examined in the totality-of-the-circumstances test are: the defendant’s age, maturity, intelligence, education, experience, and ability to comprehend; the adequacy or lack of a warning; the length and legality of the detention; the nature of the interrogation; and whether the defendant was denied access to friends and family, or deprived of physical needs. Id.
The respondent argues that Detective Brennan used coercive tactics to encourage respondent to confess. Detective Brennan did imply lesser consequences if respondent would confess that he committed the sexual conduct out of curiosity. We have held that such coercion, whether express or implied, is not permissible. In re Welfare of D.B.X., 638 N.W.2d 449, 456 (Minn. App. 2002). Detective Brennan, as the state notes, repeated his “curiosity versus force” distinction several times. The repetition of the officer’s tactics in D.B.X. was one of the factors that led the court to determine the confession was not voluntary. Id. But, unlike the officer in D.B.X., Detective Brennan did not tell the respondent that the respondent could go home if only he would confess. In determining that D.B.X.’s confession was not voluntary, the court focused on the officer’s “psychological coercion.” Id. at 456. The court commented, “We specifically deplore [the officer’s] suggestion to D.B.X. that he would be able to go home only after he confessed.” Id. The court also considered D.B.X.’s “youth and inexperience with the law, absence of parents, and inadequacy of the Miranda warning” in concluding that D.B.X.’s will had been overborne. Id.
While any coercion Detective Brennan may have used is certainly a factor in the voluntary analysis, the test remains a totality of the circumstances test. In this case, the respondent was only 13 years old when the interview took place. The record indicates he had no prior experience with the criminal justice system and no prior experience with being called to the principal’s office. Age, maturity, and inexperience make voluntariness more difficult for the state to establish. The interview lasted less than an hour, so the respondent was not deprived of physical needs. Though respondent was not informed of his right to have his parents present at the interview, respondent never asked for his parents. The nature of the interview was not as hostile as the interview in D.B.X., and Detective Brennan’s techniques were not as coercive as those used in D.B.X. Respondent denied some of the allegations Detective Brennan made, which indicates that respondent’s will was not overborne. See Riley, 568 N.W.2d at 526 (finding that continued denials demonstrated that defendant’s will was not overborne). Though respondent was relatively young when the interview took place, and though respondent was inexperienced with the criminal justice system, the other factors in this case suggest that respondent’s will was not overborne. The offense was clear. Respondent understood the nature of the inquiry and the nature of the offense of sexual conduct against a five-year-old girl. We conclude that on balance respondent’s confession was voluntary.
We conclude that the trial court properly suppressed respondent’s confession, but that the court improperly found the confession not voluntary.
Affirmed in part, reversed in part.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.