This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-304

 

 

In the Matter of the Welfare of: W. W. H., Juvenile.

 

 

Filed November 9, 2004

Affirmed

Robert H. Schumacher, Judge

 

Brown County District Court

File No. J50350394

 

 

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant W.W.H.)

 

Mike Hatch, Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Michelle A. Dietrich, Redwood County Attorney, Post Office Box 130, Redwood Falls, MN 56283 (for respondent State of Minnesota)

 

 

Considered and decided by Halbrooks, Presiding Judge; Schumacher, Judge; and Huspeni, Judge.*


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

ROBERT H. SCHUMACHER, Judge

Appellant W.W.H. challenges his adjudication as delinquent on one count of fleeing a peace officer; one count of first-degree criminal damage to property; and two counts of motor-vehicle theft. We affirm.

FACTS

At approximately 4:00 a.m. on January 19, 2003, the Redwood County Sheriff's Department received several calls reporting an individual was driving a vehicle through the city of Morgan and colliding with parked vehicles. The responding deputy, Julie Mertens, observed several severely damaged vehicles on the streets of Morgan, including an occupied maroon pickup truck. When Mertens approached the truck with her emergency lights flashing, it sped off; Mertens pursued the truck, lost contact with it, and then found it abandoned near an intersection in which she observed a second occupied pickup that also sped off at her approach.

Mertens gave chase, joined by Morgan Police Chief Robert Fischer in another marked police car. The police cars both of which had their emergency lights and sirens on followed the truck out of Morgan at nearly 100 m.p.h. The chase proceeded for several miles over gravel roads and forest trails. After losing track of the truck, the police found it abandoned in a field and discovered it was registered to W.W.H.'s father, whose residence was a mile and a half away.

The police contacted W.W.H.'s parents and learned W.W.H. was not at home; his parents brought him to the Brown County Law Enforcement Center that evening. Fischer interviewed W.W.H. in his mother's presence. Before the interview, Fischer advised W.W.H. of his Miranda rights and both W.W.H. and his mother read and signed a written Miranda warning and waiver of Miranda rights before the interview, which was tape recorded. In the course of the interview, W.W.H. confessed that the previous evening, he had driven his father's pickup truck into Morgan, stolen a car and a truck, and used the stolen vehicles to ram into at least six other vehicles; he also admitted to fleeing the police in his father's truck and abandoning that truck.

The police investigation in Morgan revealed numerous automobiles and several street signs had been damaged by the maroon pickup truck and by a white automobile that had also been reported stolen and was subsequently found extremely damaged. Debris from the truck and the automobile was found near some of the damaged automobiles. The total damage was in excess of $45,000.

By delinquency petition, the state charged W.W.H. with four felonies: two counts of motor-vehicle theft in violation of Minn. Stat. 609.52, subd. 2(17) (2002); one count of fleeing a peace officer in a motor vehicle in violation of Minn. Stat. 609.487, subd. 3 (2002); and one count of first-degree criminal property damage in violation of Minn. Stat. 609.595, subd. 1 (2002). W.W.H. pleaded not guilty and noticed his intent to assert a mental-illness defense; the parties agreed to a bifurcated proceeding. Before the adjudication hearing, W.W.H. filed a motion to suppress his interview with Fischer, but the record indicates that at the hearing his counsel suggested a transcript of the statement be entered into evidence and did not object when the state offered the statement. The record also indicates that W.W.H. did not testify at the adjudication hearing.

The district court adjudicated W.W.H. delinquent as charged. After the mental-illness hearing, at which W.W.H. testified, the court rejected W.W.H.'s argument that a combination of sleep apnea and antidepressant medication had prevented him from knowing the nature of the charged acts or that they were wrong.

D E C I S I O N

1. W.W.H. argues his statement to Fischer was inadmissible because his Miranda advisory and waiver were not tape recorded; his Miranda waiver was not knowing, intelligent, and voluntarily; and his confession was not voluntary. "Rulings on evidentiary matters rest within the sound discretion of the trial court . . . ." State v. Chomnarith, 654 N.W.2d 660, 665 (Minn. 2003). The appellant carries the burden of demonstrating that he was prejudiced by the admission. Id.

W.W.H. did not object to the admission of the statement at the adjudication hearing. Indeed, his counsel specifically suggested that the state offer a transcript of the statement into evidence. "Generally, failure to object to evidence at trial constitutes waiver of those issues on appeal" unless the district court's error in considering the evidence was a "plain error affecting substantial rights [that] had the effect of denying the defendant a fair trial." Van Buren v. State, 556 N.W.2d 548, 551 (Minn. 1996).

There is no such error here. W.W.H. argues the admission was plain error because the advisory and waiver were not tape recorded pursuant to State v. Scales, which requires the electronic recording of "all custodial interrogation including any information about rights, any waiver of those rights, and all questioning." 518 N.W.2d 587, 592 (Minn. 1994). Whether a failure to record is "substantial" enough to warrant suppression depends on several factors, including the extent of deviation from lawful conduct; the extent to which the violation was willful; the extent to which the violation led the defendant to misunderstand his position or his legal rights; and the extent to which the violation influenced the defendant's decision to make the statement. Id. at 592 n.2.

It is undisputed W.W.H. and his mother reviewed and signed the Miranda advisory and waiver and that the interview proper was tape recorded. W.W.H. contends his depression and sleep apnea required an oral advisory, but does not explain how those conditions compromised his ability to understand the written advisory or why reading the advisory and signing a waiver made him more inclined to confess than he would have been had the advisory been spoken aloud. The failure to tape record the advisory and waiver did not make admission of the statement plain error.

W.W.H. next argues the admission of his statement was plain error because he did not knowingly, intelligently, and voluntarily waive his Miranda rights or voluntarily confess. The factors to be considered to determine "[w]hether an accused [juvenile] 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) (citation omitted). Relevant factors "include the juvenile's age, maturity, intelligence, education and prior criminal experience, as well as any physical deprivations during the interrogation, the presence or absence of parents, the length and legality of the detention, the lack of or adequacy of warnings, and the nature of the interrogation." State v. Scott, 584 N.W.2d 412, 417 (Minn. 1998) (quotation omitted).

W.W.H. contends his waiver was not knowing, intelligent, and voluntarily because at the time of the interview he was sleep-deprived from a combination of untreated sleep apnea and antidepressant medication. In support, he cites to a psychological report prepared prior to the hearing and stating the theory attributing the charged offenses to sleep deprivation is "weakly supported." But the same report unequivocally states W.W.H. was operating free of any "psychological or psychiatric disorder . . . at the time of the alleged offenses." And the report does not state, as W.W.H. contends, that medications may have caused him to commit the charged acts. Neither W.W.H.'s intellect nor his mental health compromised his ability to understand the waiver. Cf. In re Welfare of S.W.T., 277 N.W.2d 507, 513 (Minn. 1979) (holding 12-year-old boy's waiver of Miranda rights invalid because of psychiatric testimony that he was exceedingly emotionally disturbed, was functioning at intellectual level of eight year old, and was incapable of understanding or intelligently waiving his rights).

W.W.H. also contends his age (16) at the time of the interview and his lack of experience with the criminal-justice system rendered the waiver and confession involuntary. We disagree in light of W.W.H.'s conceded average or above-average intelligence, his mother's presence throughout the interview, and his failure to reference substantiating record evidence or legal authority supporting the proposition that a first-time juvenile arrestee's Miranda waiver is per se involuntary. The interview transcript reflects W.W.H. was confused by certain questions but also makes clear he understood the other questions posed by the police, followed the discussion, and responded specifically and relevantly about the charged offenses.

W.W.H. argues his confession was involuntary because the police used "coercive, manipulative, and overpowering" interrogation techniques including asking leading questions; promising prosecutorial leniency; lying about the evidence against him; and "play[ing] on [his] emotions." Police deception during an interrogation does not generally render resulting statements inadmissible unless the subject has been coerced into "believ[ing] his situation hopeless." State v. Thaggard, 527 N.W.2d 804, 808-09 (Minn. 1995) (quoting Model Code of Pre-Arraignment Procedure, Commentary to  140.4 at 355-57 (1975)). Here, the transcript of the interview does not indicate coercion. The police made no promises of leniency in exchange for a confession or ask excessively leading questions. The police's statements to W.W.H. that Deputy Mertens had positively identified him as the driver responsible for the charged offenses is not supported by the record. But "lying to a suspect as to the strength of the state's case against him generally is not by itself enough to render a confession involuntary." Id. at 810.

2. W.W.H. argues he was denied his right to present a defense because he was not advised of his right to testify at the adjudicatory hearing and because he did not expressly waive that right on the record. The waiver of the right to testify must be knowing and voluntary. State v. Walen, 563 N.W.2d 742, 751 (Minn. 1997). If the record is silent on waiver, we presume "the decision not to testify was made . . . voluntarily and intelligently." State v. Smith, 299 N.W.2d 504, 506 (Minn. 1980).

Because the record before us is silent as to waiver, we conclude W.W.H. voluntarily and intelligently waived his right to testify. We also observe W.W.H.'s claim that he was denied his right to testify or present a defense is undermined by the record, which indicates he testified and raised a mental-illness defense at the second hearing.

W.W.H. also contends his decision not to testify was the result of substandard legal assistance and that the matter should be remanded to the district court for a hearing to determine whether he received ineffective assistance of counsel. He argues he was required to raise this issue on direct appeal because the Rules of Juvenile Delinquency Procedure make no provisions for postconviction proceedings. But Minn. R. Juv. Delinq. P. 16.01 sets forth a variety of post-hearing motions available to juvenile defendants. W.W.H. did not file such a motion in order to create a record concerning consultations with his attorney related to his decision not to testify at his adjudicatory hearing. Instead, he now argues the record is sufficient on appeal for this court to consider the ineffective-assistance claim without additional facts in the interests of justice. This argument is without merit in light of W.W.H.'s failure to order a transcript of the adjudicatory hearing. Moreover, the fact that W.W.H. presented a defense and testified at the mental-illness hearing but not at the adjudicatory hearing suggests that his counsel's advice about whether to testify was strategic and tactical, and as such is not susceptible to review. See State v. Doppler, 590 N.W.2d 627, 633 (Minn.1999) (holding that appellate courts do not review matters of trial tactics or strategy for competency).

3. W.W.H. argues the evidence presented at the hearing was insufficient as a matter of law to support a finding of delinquency. On a claim of insufficient evidence, our review is limited to a "painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did." State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). "The reviewing court will not disturb the verdict if the [finder of fact], acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense." State v. Dick, 638 N.W.2d 486, 492 (Minn. App. 2002), review denied (Minn. Apr. 16, 2002); see also State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) ("In reviewing the record, [appellate courts view] the evidence in the light most favorable to the jury's verdict, assuming the [finder of fact] believed the state's witnesses and disbelieved any evidence to the contrary.").

We conclude the state's evidence, including W.W.H.'s statements to the police and the testimony of the two officers who pursued W.W.H., was sufficient to support the district court's conclusion W.W.H. committed the charged acts.

Affirmed.



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