This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






In the Matter of the Welfare of: B.V.


Filed February 4, 2003

Affirmed in part, reversed in part, and remanded

Minge, Judge


Hennepin County District Court

File No. J20162652


Leonardo Castro, Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401-0809 (for appellant B.V.)


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


Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487  (for respondent State of Minnesota)


            Considered and decided by Shumaker, Presiding Judge, Lansing, Judge, and Minge, Judge.


U N P U B L I S H E D  O P I N I O N


MINGE, Judge


This appeal is from an adjudication of delinquency for committing damage to property for the benefit of a gang.  Appellant argues that his statement to police should have been suppressed because: (a) appellant did not validly waive his Miranda rights; (b) appellant’s statement was not voluntary; and (c) appellant’s interrogation was not recorded in its entirety.  We conclude that the state did not meet its burden of showing that appellant’s Miranda waiver was valid and that the confession must be suppressed, but the state did meet its burden of showing that appellant’s statement was voluntary.  We affirm in part, reverse in part, and remand.



Appellant is a juvenile male who was involved with a gang.  In April 2001, when appellant was 11 years old, he and several of his gang associates went to the house of a member of a rival gang and broke several exterior windows with sticks and beer bottles.  On June 4, 2001, there was a gang-related shooting in Minneapolis.  Police suspected that appellant and his gang associates were involved in both incidents. 

On June 12, 2001, police went to appellant’s house with a search warrant.  When the police arrived, appellant, who had turned 12, was home alone, sleeping.  Appellant’s father returned home while the police were still there.  The police arrested appellant and took him to a juvenile detention center.  Appellant’s father did not accompany him.     

At the detention center, Officer Christopher Tayson interrogated appellant.  The record indicates that there was one other officer in the room with appellant and Officer Tayson.  The other officer did not participate in the questioning.  At the outset of the interrogation, Officer Tayson had appellant acknowledge on a written form that appellant understood his Miranda rights.  Officer Tayson testified that the form is used only to acknowledge that a suspect understands his or her Miranda rights, not to establish that a suspect is waiving those rights.  Officer Tayson directed appellant to place his initials on the form to indicate that appellant had been informed of and understood his Miranda rights.  Upon being directed to initial the form, appellant asked “My name?”  Officer Tayson responded “Just initial, put your name, initials, whatever you want.”  Appellant indicated that he understood each right as it was read to him.

After appellant completed the form, Officer Tayson began questioning appellant about his involvement in the April 2001 property-damage incident.  Officer Tayson did not expressly ask appellant if appellant would waive his Miranda rights, but appellant immediately answered Officer Tayson’s questions.  Within the first few minutes of the interrogation, appellant admitted his involvement in the April 2001 property-damage incident.  Appellant corrected Officer Tayson when Officer Tayson suggested appellant threw a stick through a window.  Appellant said he threw a beer bottle, not a stick, through the window.  Officer Tayson continued to question appellant about the details of the incident and about appellant’s involvement with the gang.  After several minutes of questioning on those matters, Officer Tayson switched his line of questioning to the shooting.  For the rest of the interview, Officer Tayson questioned appellant about the shooting. 

The record shows that at the time of the interrogation, appellant had been interrogated by the police once before and had waived his Miranda rights.  That interrogation took place approximately one month before the interrogation in this case.  Appellant had had contact with police before, including a tampering charge, truancy, and disorderly conduct.

The interrogation in this case lasted two hours and 15 minutes.  Appellant was not given, nor did he ask for, any bathroom breaks, food, or beverages.  Appellant’s father was not present for the interrogation.  Officer Tayson testified that he did not feel it was necessary to call appellant’s father because appellant is a “streetwise kid.”  Officer Tayson did not inform appellant that appellant could request his father’s presence.

Appellant is Hmong, and it appears that English is not his native language.  Several times throughout the interview, appellant had to ask Officer Tayson what he meant.  Each time, Officer Tayson either repeated what he said or used a different phrase.  Each time Officer Tayson did this, appellant indicated he understood and proceeded to answer Officer Tayson’s questions.  For example, when Officer Tayson used the term archrival, appellant asked what that meant.  Officer Tayson said it meant enemy, and appellant then answered the officer’s question.  Appellant also responded to several of Officer Tayson’s questions by saying “Huh?”  When Officer Tayson did not respond, appellant would answer the question.  Several times throughout the interview, appellant corrected misstatements made by Officer Tayson.  Officer Tayson did not offer, nor did appellant request, an interpreter for the interrogation.  At the evidentiary hearing, Officer Tayson testified he did not have an interpreter at the interrogation because he did not have any trouble communicating with appellant.  

The interrogation was tape-recorded, but the tape of the interrogation ends abruptly with Officer Tayson saying “You guys.”  Officer Tayson testified at the evidentiary hearing that he tape-recorded the entire interrogation.  When questioned specifically about the abrupt ending of the tape, Officer Tayson testified that it was fair to say the interrogation could have ended when the tape did or that it could have gone on longer.  The officer was not questioned any further about whether the interrogation continued, and if so, what happened once the tape stopped.   

Appellant was charged with one count of property damage committed for the benefit of a gang.  Appellant moved to suppress the statement he made during the interrogation on the grounds that he had not knowingly, intelligently, and voluntarily waived his Miranda rights and that his statement was not voluntary.  Appellant argued, inter alia, that there was a language barrier, which prevented a knowing, intelligent, and voluntary waiver.  The juvenile court denied the motion to suppress, finding that appellant made a knowing, intelligent, and voluntary waiver of his right to remain silent and that appellant’s statement was voluntary.  The juvenile court found that there was no language barrier.  Appellant proceeded with a trial on stipulated facts and was adjudicated delinquent.  He now appeals the order adjudicating him delinquent, arguing that the juvenile court should have suppressed his statement.





The central issue is whether appellant made a knowing, intelligent, and voluntary waiver of his Miranda rights.  Appellant argues that he did not waive his Miranda rights, and that even if he did, it was not a knowing, intelligent, and voluntary waiver.  Appellant argues that he could not make a knowing, intelligent, and voluntary waiver because he was only 12 years old at the time of the interrogation, is immature, did not have his father with him during the interrogation, did not have an interpreter present during the interrogation, and did not have any breaks during the interrogation. 

We review the trial court’s findings of fact surrounding the giving of a statement during a custodial interrogation under the clearly-erroneous standard, accepting the trial court’s findings of fact unless they are clearly erroneous.  State v. Johnson, 463 N.W.2d 527, 533 (Minn. 1990).  But this court makes an independent determination, based on the trial court’s findings of fact, of whether a waiver was knowing, intelligent, and voluntary.  In re Welfare of D.B.X., 638 N.W.2d 449, 453 (Minn. App. 2002).   

For a statement obtained from an accused during a custodial interrogation to be admissible, the state must prove by a preponderance of the evidence both that the accused knowingly, intelligently, and voluntarily waived his right against self-incrimination and that the accused freely and voluntarily gave the statement.  Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 521-22 (1986); State v. Merrill, 274 N.W.2d 99, 106-08 (Minn. 1978). 

Whether an accused has knowingly, intelligently, and voluntarily waived his right to remain silent and whether he has voluntarily confessed are two separate issues.  But the relevant factors to be considered are the same. 


State v. Williams, 535 N.W.2d 277, 287 (Minn. 1995).  Because the relevant factors are the same, analysis of the two issues significantly overlaps. 

The relevant factors referenced in Williams make up the totality of the circumstances test this court applies to determine whether a suspect made a valid waiver and whether a suspect voluntarily confessed.  The factors considered in the totality of the circumstances test include:

         --  the juvenile’s age, maturity, intelligence, education, prior criminal experience, and language barriers,

         --  the presence or absence of parents during the interrogation and access to an attorney and friends, 

         --  the length and legality of the detention, lack of or adequacy of warnings, and nature of the interrogation, as well as any physical deprivations during the interrogation.

State v. Jones, 566 N.W.2d 317, 322-23 (Minn. 1997); State v. Dominguez-Ramirez, 563 N.W.2d 245, 254 (Minn. 1997).

A.  Waiver of Miranda Rights

Appellant first argues that there was no waiver of his Miranda right to remain silent because Officer Tayson did not explicitly ask for such a waiver and because appellant did not explicitly state that he was making such a waiver.  This argument lacks merit.   

Several cases have held that a suspect can make an implicit waiver of Miranda rights.  In Merrill, the court explained:

An express statement by the accused that he is willing to answer questions is the best indication that he has voluntarily waived his right to remain silent.  But waiver can be inferred from other conduct, for example, answering questions without hesitation or volunteering information in the absence of questioning.  To determine whether a defendant’s conduct implies an effective waiver, a court must look at the circumstances of the particular case.  Absent circumstances indicating that the accused did not understand the warning or that his statements were not freely and voluntarily made, a confession made by an accused after he has been given a Miranda warning may imply that he has voluntarily waived his right to remain silent.  The burden is on the state to prove that such circumstances did not exist. 


Merrill, 274 N.W.2d at 106.  In Jones, the court held that if the police advise an accused of his Miranda rights and the accused acknowledges that he understands the rights but still makes incriminating statements, “the state is deemed to have met its burden of proving” that the accused made a knowing and intelligent waiver of Miranda rights.  Jones, 566 N.W.2d at 322 (citing Williams, 535 N.W.2d at 286).

            In this case, the officer did not specifically ask appellant to waive his Miranda rights, and appellant did not explicitly state that he was waiving his Miranda rights.  But appellant was informed of his Miranda rights and answered the questions that Officer Tayson asked.  Appellant implicitly waived his Miranda rights by answering Officer Tayson’s questions.  Merrill, 274 N.W.2d at 106.  The state has met its burden of proving that appellant made a knowing and intelligent waiver of his Miranda rights.  Jones, 566 N.W.2d at 322.

            B.  Voluntariness of Waiver

            Next, however, this court must evaluate the totality of the circumstances to determine whether appellant’s waiver was also voluntary.  Jones, 566 N.W.2d at 322 (citing State v. Ouk, 516 N.W.2d 180, 184 (Minn. 1994)). 

The juvenile court found that appellant “has had previous experience with the criminal system, including previous occasions where [appellant] received Miranda warnings (and in one instance refused to waive his rights).”  But the record is clear that appellant had been interrogated only one time before the interrogation in this case and that appellant waived his Miranda rights in that interrogation.  The record is also clear that the occasion when appellant refused to waive his Miranda rights did not occur until after the interrogation in this case.  Thus, the juvenile court’s finding is unsupported by the evidence. 

As a result of its erroneous finding, the juvenile court credited appellant with more sophistication and experience than appellant actually had in dealing with the criminal justice system.  The juvenile court noted that appellant’s “prior experience and maturity are sufficient to outweigh considerations of his young age and lack of having parents present at the interview.”  But without the incident where he refused to waive his Miranda rights, appellant’s prior contacts with the police do not establish the level of experience and maturity attributed to appellant by the juvenile court.  Nor do the other facts found by the juvenile court support a conclusion that appellant’s waiver was voluntary. 

We conclude that appellant’s confession should be suppressed.  Since the case was tried to the juvenile court on a stipulated record of appellant’s taped interrogation, we reverse the delinquency determination.  The case is remanded for further proceedings at the option of the prosecutor.


A related issue is whether appellant’s confession was voluntary and therefore admissible for impeachment purposes.  See generally State v. Slowinski, 450 N.W.2d 107 (Minn. 1990) (holding that confession obtained in violation of Miranda may be used for impeachment if the confession is voluntary).  A juvenile’s confession is considered voluntary “if the totality of the circumstances show that the statement was the product of a free-will decision.”  In re Welfare of G.M., 560 N.W.2d 687, 696 (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.’


Jones, 566 N.W.2d at 326 (quoting State v. Pilcher, 472 N.W.2d 327, 333 (Minn. 1991)).  Coercive police activity is a “necessary predicate” to a finding that a confession is not voluntary, but the police must be allowed to encourage a suspect to talk when that suspect has not already refused.  Williams, 535 N.W.2d at 287.  Coercive police activity does not necessarily mean threats or intimidating techniques; “[t]he question is whether the defendant’s will was overborne.”  State v. Riley, 568 N.W.2d 518, 525 (Minn. 1997) (citation omitted). 

In this case, we examine appellant’s confession that he damaged property.  That confession occurred very early in the interrogation.  Most of the interrogation was in regard to the shooting.  Appellant argues that the court should examine the entire interrogation, but the state argues that any coercion occurring in the latter portion of the interview would not have coerced the earlier confession.  We find the state’s argument persuasive.  If the interrogation was proceeding in an acceptable manner when appellant confessed to the damage-to-property incident, anything that happened later in the interrogation would not have coerced appellant’s confession at the beginning of the interrogation.  In State v. Scott, the Minnesota Supreme Court determined that coercive tactics at the end of an interrogation did not impact the voluntariness of a confession made at the beginning of the interrogation.   State v. Scott, 584 N.W.2d 412, 420 (Minn. 1998).  Thus, we consider only that portion of the interrogation regarding the damage-to-property incident.   

            As stated above, coercive police activity is a necessary predicate to a finding that a defendant’s confession was involuntary.  Coercive police activity includes threats, deceit, other stress-inducing techniques, and promises of leniency that cannot be backed up with action.  Scott, 584 N.W.2d at 420; D.B.X., 638 N.W.2d at 455.

            Appellant cites instances of alleged coercion in his brief.  But all of the instances referred to occurred during the interrogation regarding appellant’s involvement in the shooting.  Appellant cannot point to any instances of coercive activity when Officer Tayson was interrogating appellant about his involvement in the damage-to-property incident.  The record is clear that Officer Tayson did not engage in any coercive activity when he was questioning appellant about the damage-to-property incident.  Officer Tayson simply asked questions in order to elicit responses from appellant.  Officer Tayson did not threaten appellant or make any promises of leniency.  Nor is there any evidence that Officer Tayson deceived appellant in any way.  Without the necessary predicate of coercive police activity, any claim that appellant’s confession was not voluntary fails, and we need not engage in any further analysis.  Appellant’s confession was voluntary.         


            Appellant argues that because the interrogation was not tape-recorded in its entirety, its admission violates the rule announced in State v. Scales that certain custodial interrogations must be electronically recorded.  State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994).  Appellant argues that there is some indication that the interrogation began before the tape recorder was turned on and ended after the tape recorder was turned off.  The state argues that appellant has waived this argument because appellant did not raise the argument at trial.

            Because we have already determined that appellant’s Miranda waiver was not voluntary and that his confession is not admissible, we decline to reach this issue.  We note, however, that there is a second ground upon which we decline to reach this issue.  To reach this issue would require us to make factual findings.  Whether the interrogation started before the tape recorder was turned on and continued after the tape recorder was turned off is an issue of fact.  The trial court did not make a finding of fact on the issue.  The role of the court of appeals is to correct errors, not to find facts.  In re Welfare of M.D.O., 462 N.W.2d 370, 374-75 (Minn. 1990).  It is not within the province of appellate courts to determine fact issues on appeal.  Kucera v. Kucera, 275 Minn. 252, 254, 146 N.W.2d 181, 183 (1966).  Because a determination on this issue would require us to find facts, we decline to address the issue. 

Affirmed in part, reversed in part, and remanded.