This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Roger D. Garbow,
Filed February 1, 2005
Mille Lacs County District Court
File No. K1-03-26
Mike Hatch, Attorney General, Kimberly Parker, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Janice S. Kolb, Mille Lacs County Attorney, Courthouse Square, 525 Second Street SE, Milaca, MN 56353 (for respondent)
John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Harten, Presiding Judge; Klaphake, Judge; and Forsberg, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from the judgment of his conviction of second-degree intentional murder, appellant Roger Garbow, Jr. argues that statements he made during a custodial interrogation were involuntarily made and obtained in violation of his Miranda rightsand thereforethe district court erred in ruling the tape-recorded statements admissible at his trial. We affirm.
Vicki Smith awoke on January 5, 2003, and found her friend Melvin Eagle, Jr. lying on her floor, battered and unconscious. Paramedics arrived and determined that Eagle was deceased. Sergeant Justin Churchill of the Mille Lacs Tribal Police interviewed Smith around 11:00 a.m. on January 5. Smith had been drinking the previous night and into the early morning hours with Eagle, and she and Eagle had been joined by three young men: Coleman Weous, Bryan Sam, and appellant. Eagle was alive and in the company of all three of the men, still drinking, when she last saw him. After speaking with Smith, police focused their investigation of the apparent homicide on the three men.
Police attempted to interview Bryan Sam on the afternoon of January 5. Sam refused to give a statement. Churchill interviewed Coleman Weous shortly after speaking with Sam. Weous gave a statement that implicated Sam and appellant as the primary participants in the beating that caused Eagle’s death. Appellant was located at approximately 8:30 p.m. on the same date. Police took him into custody on a DWI failure-to-appear warrant. Churchill and Agent Jon Hermann of the Minnesota Bureau of Criminal Apprehension interviewed appellant at the police station for approximately two hours starting at 9:10 p.m. The entire interview was recorded on videotape and audiotape. Appellant spoke very quietly and some of his responses to the interrogators’ questions were inaudible on the tape recordings.
Churchill began the interview by informing appellant that he was in custody on an outstanding warrant and proceeded to tell appellant that the police had a lot of information on a pending case and that they would like to talk to him to get his side of the story. Churchill next gave appellant a standard Miranda warning. After reading the full statement, he asked appellant if he understood the rights just read to him and appellant said, “yeah.” Churchill then asked whether, having his rights in mind, appellant wished to talk to him. Appellant responded, “I don’t know.” At omnibus hearings, Churchill and Hermann testified that they were not sure what appellant was saying because he spoke quietly.
Churchill asked, “You don’t know? Is that a ‘yes’ or a ‘no’?”
Hermann: You don’t want to talk or you don’t know?
Appellant: I don’t know, man.
Hermann: It’s hard to understand what you’re saying.
Churchill next suggested that if appellant did not talk, people would wonder, if the case got to court, why he had not told his story to the police when he had the chance. Hermann interjected to clarify that if appellant did not want to say anything that fact could not be pointed out in court. Hermann also reiterated, speaking in a calm and deliberate manner, that appellant could answer questions, not answer questions, stop the interview at any time, ask for a lawyer, or “you can just say ‘no’ and we’ll end the interview. The choice is up to you on how you want to proceed.” Shortly after that, appellant said “sure,” indicating he would talk to the officers.
During the interview the officers told appellant that they had “sat down” with all of the other suspects, the other suspects were telling them facts about what had occurred, and were pointing the finger at him. The officers asked some leading questions. At various points during the interview, the officers suggested that appellant should be “man enough” to tell them what happened, accused appellant of lying, and told him that if he did not tell them the truth, they would go home and he could go to jail.
The entire tape, over appellant’s objections and motion to suppress, was introduced at his jury trial. Appellant was convicted and sentenced to 313 months for second-degree intentional murder.
D E C I S I O N
I. The District Court’s Finding That Appellant Did Not Invoke His Right to Remain Silent Was Not Clearly Erroneous
Whether or not an accused invoked the right to silence is a factual finding made by the trial court. State v. Johnson, 463 N.W.2d 527, 532 (Minn. 1990). On appeal we review the finding for clear error. Id.
If a suspect asserts the right to remain silent after receiving a Miranda warning, the interrogation must cease. State v. Thieman, 439 N.W.2d 1, 5 (Minn. 1989) (citing Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966)). But “[n]othing short of an unambiguous or unequivocal invocation of the right to remain silent will be sufficient to implicate Miranda’s protections.” State v. Williams, 535 N.W.2d 277, 285 (Minn. 1995). When determining whether a suspect unambiguously invoked his right to remain silent, “the proper inquiry is whether the suspect articulated his desire to remain silent sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be an invocation of the right to remain silent.” State v. Day, 619 N.W.2d 745, 749 (Minn. 2000). If “an accused ambiguously or equivocally attempts to invoke his right to remain silent,” police questioning need not be limited to narrow “clarifying” questions designed to ascertain the suspect’s true wishes. Williams, 535 N.W.2d at 285.
Appellant argues that he invoked his right to silence by saying the word “no,” during the initial exchange after Churchill read the Miranda statement. The district court found that appellant’s response when asked whether or not he wanted to speak with the officers was unclear. The court found that “virtually everything [appellant] said was difficult, if not impossible, to understand.” Upon review of the tapes and the officers’ omnibus hearing testimony, we cannot discern any error in the court’s findings.
Appellant’s responses after being read his rights, as captured on the tape recordings, were very quiet and the officers testified that they could not understand what he was saying. Appellant’s initial response when first asked if he wished to speak was, “I don’t know.” This was inherently equivocal. The officers then asked appellant, “You don’t know? Is that a yes or a no?” Appellant then said, “no,” which he contends was a clear invocation of his right to remain silent. But this response, because it could have been directed in answer to either of the two questions Churchill posed, was ambiguous. The officers responded by asking appellant for clarification of his equivocal and ambiguous responses. Even after being asked a second time, he responded, “I don’t know,” once again conveying his uncertainty.
We note that the interrogators went beyond what the law requires of them by again explaining to appellant that he could remain silent, ask for a lawyer, or stop the interview at any time. Even after this second iteration of his rights, at no time did appellant clearly state that he did not want to talk. The record more than adequately supports the district court’s finding that appellant did not unambiguously invoke his right to remain silent. Cf. Day, 619 N.W.2d at 749 (holding suspect’s statement “[s]aid I don’t want to tell you guys anything to say about me in court” was under the circumstances a clear and unambiguous invocation of his right to silence) and State v. Marshall, 642 N.W.2d 48, 53 (Minn. App. 2002) (finding that a suspect’s statement “No. I don’t wish to say anything,” made directly after being read her Miranda rights and being asked if she would like to speak with police, was an unequivocal and unambiguous invocation of right to silence), review denied (Minn. May 28, 2002).
II. The State Met Its Burden of Proving Appellant Made a Knowing and Intelligent Waiver of His Miranda Rights
A custodial suspect’s “waiver of . . . rights cannot be deemed knowing, intelligent and voluntary unless the police inform the person of his or her rights to remain silent and to consult an attorney.” State v. Scott, 584 N.W.2d 412, 417 (Minn. 1998) (citing Miranda, 384 U.S. at 479, 86 S. Ct. at 1602). When the police “fully advise an accused of his or her Miranda rights and the accused indicates that he or she understands the rights but nevertheless gives an incriminating statement, the state is deemed to have met its burden of proving that the accused knowingly and intelligently waived his or her rights.” State v. Jones, 566 N.W.2d 317, 322 (Minn. 1997) (emphasis in original).
Here, appellant was given a full Miranda waiver, indicated he understood by saying “yeah,” when asked if he understood the rights just read to him, and allowed the police to interview him for over two hours without once indicating that he wanted to invoke his right to counsel or right to remain silent. We believe the state met its burden of proving a knowing and intelligent waiver. 
But appellant argues there is contrary evidence supporting a finding that he did not voluntarily waive his right to silence. When an argument is made that evidence supports a finding of involuntariness, a trial court engages in a totality of the circumstances factual inquiry, in which it may consider factors such as age, maturity, intelligence, education, experience, ability to comprehend, lack of or adequacy of warnings, length and legality of detention, nature of interrogation, physical deprivations, limits on access to counsel and friends, State v. Linder, 268 N.W.2d 734, 735 (Minn. 1978), and factors such as familiarity with the criminal justice system, physical and mental condition, and language barriers. State v. Camacho, 561 N.W.2d 160, 168 (Minn. 1997). When reviewing the district court’s conclusion about the voluntariness of a Miranda waiver, we evaluate the district court’s findings of fact for clear error. State v. Miller, 573 N.W.2d 661, 672 (Minn. 1998). We must make an independent determination, on the basis of the facts as found, whether the state met its burden of proving a knowing, intelligent, and voluntary waiver. Linder, 268 N.W.2d at 735.
None of the circumstances cited by appellant suggests that his waiver of Miranda rights was involuntary. Appellant suggests the court should have considered the possibility that he had been “roused out of bed” after a long night of drinking. While intoxication or other conditions bearing on capacity to resist pressure or comprehend are relevant factors in determining voluntariness of a waiver or confession, see Williams,535 N.W.2d at 288, there was absolutely no evidence introduced to support a finding that appellant was intoxicated or excessively fatigued during the interview. We note particularly that appellant never testified that he was intoxicated, the police testified that he sat across the table from them and displayed no signs of intoxication and the tapes do not indicate intoxication or fatigue.
Nor was there any evidence introduced to demonstrate appellant had below-average mental functioning, which is another factor relevant to voluntariness, although low I.Q. is not conclusive on the issue of voluntariness. See Camacho, 561 N.W.2d at 170. On the tapes, appellant does not appear to be lacking in maturity, intelligence, or ability to comprehend the situation and its gravity. The district court found that appellant had previous contact with the criminal justice system. The record supports that there was some contact as a juvenile, and appellant, having been arrested previously for DWI shortly before this interrogation, undoubtedly had been read his rights at least once. The record also reflected that 20 year old appellant was not a juvenile and had completed some high school. Our review of the record convinces us that the only conclusion to be drawn from the evidence is that appellant was a typical 20 year old of at least average maturity and intelligence.
Appellant argues that he did not make a voluntary waiver because the officers suggested that it was in his best interests to talk to them prior to reading him the warning. But this was not improper action on the part of the officers under the circumstances. The officer testified at the omnibus that they had already obtained information that substantially implicated appellant in the crime, most significantly that Weous had primarily blamed appellant and Sam for the victim’s death. It is not improper for police to inform a suspect of the evidence that suggests the suspect is guilty of the crime. See State v. Pilcher,472 N.W.2d 327, 334 (Minn. 1991). The officers informed appellant that, given this information they had, it was in his best interest to tell his version of events. We do not believe these statements, given prior to a complete and accurate Miranda warning, had the effect of preventing appellant from understanding his rights and voluntarily waiving them. And, while one officer did misstate appellant’s right to remain silent by stating that people would wonder why he had not talked to the police, the other officer clearly and accurately corrected the misinformation immediately after it occurred, telling appellant that if he did not want to talk it could not be brought up in court. Considering all of the relevant factors, we conclude appellant voluntarily waived his Miranda rights.
III. Appellant’s Statement to Police, Considering the Totality of the Circumstances, Was Voluntary
The due process clause of the Fourteenth Amendment allows a confession to be admitted at a defendant’s trial only if the confession was made voluntarily. Haynes v. Washington, 373 U.S. 503, 513, 83 S. Ct. 1336, 1343 (1963). A confession is involuntary and inadmissible if “the defendant’s will was overborne at the time he confessed.” Lynumn v. Illinois, 372 U.S. 528, 534, 83 S. Ct. 917, 920 (1963). It is this court’s “duty to examine the entire record and to make an independent determination whether a confession was voluntarily given.” Camacho, 561 N.W.2d at 170. The state bears the burden of proof by a preponderance of the evidence that a confession was voluntary. Id. To determine whether a defendant’s statement was voluntary, we engage in a factual inquiry to “examine[ ] the effect that the totality of the circumstances had upon the will of the defendant and whether the defendant’s will was overborne when he confessed.” State v. Blom, 682 N.W.2d 578, 614 (Minn. 2004) (quotation omitted). “In examining the totality of the circumstances, we will consider such factors as the defendant’s age, maturity, intelligence, education, experience and ability to comprehend; the lack of or adequacy of warnings; the length and legality of the detention; the nature of the interrogation; and whether the defendant was deprived of physical needs or denied access to friends.” Id. (quotation omitted). The factors to be considered are similar to or identical to those relevant to a determination of voluntariness of a Miranda waiver. Williams, 535 N.W.2d at 287. We believe our discussion of the factors raised in relation to appellant’s waiver of his Miranda rights, such as his intelligence level, age and ability to comprehend, applies similarly to the voluntariness of his confession, and we focus here instead on appellant’s specific objections to several interrogation techniques the officers employed.
If police deceive a suspect during an interrogation and it “is the kind [of deception] that would make an innocent person confess,” the confession is involuntary and must be suppressed. Jones, 566 N.W.2d at 326. But “the use of trickery and deception is to be considered along with all the other relevant factors . . . 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.” State v. Thaggard, 527 N.W.2d 804, 810 (Minn. 1995). “The supreme court has consistently held that use of trickery and deceit as a police tactic does not necessarily make the suspect’s response involuntary.” State v. Martinez, 657 N.W.2d 600, 603 (Minn. App. 2003), review denied (Minn. Apr. 29, 2003).
Appellant contends that his confession was involuntary because the police implied that they obtained full statements from all of the suspects, particularly Bryan Sam, when they had not. But by the time police talked to appellant, they had in fact obtained a statement from Weous that implicated appellant in the beating. They also had obtained from Smith the information that appellant was one of the three people she had last seen with the victim while he was still alive. The statements police made to appellant were for the most part accurate: the stories obtained did match up in the sense that the two people who had given statements agreed that appellant was present at Smith’s house and was with the victim shortly before he died. And, the police did not fabricate evidence against appellant by confronting him with statements known to be untrue but passed off as the truth. For instance, while the police suggested that Sam had talked to them, they never affirmatively lied to appellant by telling him that Sam had confessed.
Because the statements were not egregiously inaccurate, given the information police had obtained from Weous, we decline to conclude that this was a situation where incorrect information had the effect of overcoming appellant’s will. See also Williams, 535 N.W.2d at 287 (stating confession should not always be discounted as untrustworthy simply because investigative officers might have made discursive or imprecise statements to defendant); Frazier v. Cupp, 394 U.S. 731, 739, 89 S. Ct. 1420, 1425 (1969) (holding that police misrepresentation to a suspect during interrogation, that a co-defendant/co-suspect had already confessed, although relevant, was insufficient to render otherwise voluntary confession inadmissible); State v. Critt,554 N.W.2d 93, 96 (Minn. App. 1996) (finding juvenile’s confession voluntary despite police officer’s deceptive statement that they had a videotape of juvenile committing the crime, and when other factors supported involuntariness, such as lack of parental presence during interview with juvenile), review denied (Minn. Nov. 20, 1996).
We also find nothing objectionable about the police telling appellant that they would be searching for physical evidence, such as blood, to link him to the crime. It is not improper to inform a suspect of the possible charges or evidence marshaled against him. Pilcher,472 N.W.2d at 334. We note especially that there was no actual fabrication of physical evidence, which may in some circumstances lead to a finding of involuntariness. Cf. State v. Barner, 486 N.W.2d 1, 2 (Minn. App. 1992) (analyzing effect on voluntariness of a police officer’s statement to suspect implying his fingerprints had been found on weapon used to commit the crime when no such evidence existed), review denied (Minn. June 30, 1992). Rather, police informed appellant that they would be searching for physical evidence and correctly informed him that a small amount of blood, through DNA testing, could link him to the crime.
In Williams, the Minnesota Supreme Court found that a suspect’s confession was voluntary despite police officers’ hypotheses about what physical evidence might be discovered at the crime scene and accusation that the suspect was a liar for denying involvement in the homicides under investigation. 535 N.W.2d at 288. An investigator also informed the suspect that one of the victims who lived would be able to identify his assailant, which was “pure speculation.” Id. Considering the statements, the supreme court held that, “[t]hese techniques were not the kind of statements that would make an innocent person confess, and they hardly meet the standard of stress-inducing techniques required to invalidate a confession.” Id. Likewise, we believe that the police officers’ similar statements to appellant about the information they had gathered from his co-defendants, and the information they would attempt to gather through further investigation of physical evidence, were substantially truthful and accurate. On these facts, even if the police stretched the truth somewhat regarding whether Sam had implicated appellant in the murder, the facts related were substantially truthful in that appellant had in fact been implicated in the murder by a co-suspect. We cannot say appellant’s statement was involuntary under these circumstances.
Appellant also contends that his statement was involuntary because, approximately halfway through the interview, police told appellant if he was going to continue to make up lies they would not waste any more time, that they would go home for the evening and he could go to jail. To be voluntary a confession “must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises.” Malloy v. Hogan, 378 U.S. 1, 7, 84 S. Ct. 1489, 1493 (1964). The length and legality of incarceration are also relevant factors in considering whether a confession was voluntary.
We note that appellant was properly in custody for an outstanding failure-to-appear warrant for gross misdemeanor DWI, and it appears he could have been held in jail at least overnight on that bench warrant. And, he had already admitted he was at the scene of the crime, and a co-defendant had already substantially implicated him in the beating. Although we are not deciding the issue of probable cause in this appeal, we note that it appears the police could have detained appellant pending further investigation and a probable cause hearing based on that information they had already received about the circumstances surrounding Eagle’s death. On these facts it does not appear to us that the statement that appellant could go to jail if he wanted to continue lying to police was improperly coercive.
Appellant had been in custody for less than one hour before he gave information placing himself at the scene. He was in custody approximately two-and-a-half hours during the interrogation. This length of in-custody detention prior to his confession is shorter than other detentions courts have found permissible over an involuntariness challenge. See, e.g., Johnson, 463 N.W.2d at 533 (holding five-hour interrogation led to voluntary confession). There is nothing to suggest that the police told appellant, at the outset of the interview or before he gave some information, that he would be detained indefinitely until he confessed. Cf. State v. Budke, 372 N.W.2d 799, 803 (Minn. App. 1985) (suspect was not coerced when police officer threatened him with arrest after confession was made, despite conflicting testimony from suspect that threat of arrest was made prior to confession and based on pure speculation, and suggesting that a threat of arrest could coerce a confession if unsubstantiated by probable cause).
Appellant also suggests that because he was so “timid” and “unassertive” it is obvious he felt he had no choice but to go along with the interview. But appellant never testified that he is particularly timid or actually felt intimidated during the interview. Appellant is over six feet tall and 200 pounds and presented no evidence that he is inherently susceptible to physical intimidation. The police did not at any time threaten appellant with violence or do anything else overtly intimidating such as threaten particular or excessive charges. See State v. Garner, 294 N.W.2d 725, 727 (Minn. 1980) (finding a confession involuntary in part because interrogator had threatened to charge suspect with as many crimes as possible). And, the record reflects that appellant was soft-spoken during the interview, but there is no evidence that would suggest this was due to timidity as opposed to some other unknown reason.
Even assuming appellant was more timid than the typical homicide suspect, the record reflects that he was capable of disagreeing with the officers and asking for his needs to be met. The record reflects that, even near the end of the two-hour interview, appellant asked for a cup of water and disagreed with several of the officers’ statements that he knew or remembered more than he was telling. We believe that appellant displayed in this manner a capacity for self-determination indicating that his will was not overborne during the course of the interview. See State v. Ritt, 599 N.W.2d 802, 810 (Minn. 1999) (finding confession voluntary and an exercise of free will, noting that suspect “appeared to have the ability to accurately verbalize her feelings and made sure that [the police investigator] did not overstate what she said. She disagreed with [the investigator] on certain points.”).
After a careful review of the totality of the circumstances, we find that appellant’s will was not overborne, that his statements were voluntary, and the trial court did not err in playing the tape-recorded statement to the jury at trial.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Smith is appellant’s maternal aunt.
 Under Williams, cited above, the officers were under no obligation to ask only clarifying questions in response to appellant’s ambiguous statements.
 Appellant seems to imply that his waiver was deficient because police did not have him sign a waiver of rights form or test his alcohol level prior to the interrogation. But appellant has not cited any authority establishing that these are necessary prerequisites to a finding of voluntariness. Case law suggests the contrary. See Klingler v. U.S., 409 F.2d 299, 308 (8th Cir. 1991) (“Miranda does not require a written waiver . . . .”). We also note that the state complied with the requirement established in State v. Scales that the giving of the Miranda warning and any waiver be electronically recorded. 518 N.W.2d 587, 592 (Minn. 1994).
 See State v. Greenleaf, 591 N.W.2d 488, 498 n.4 (Minn. 1999) (noting that, “while an accomplice’s uncorroborated testimony will not support a conviction, there is no such rule regarding the sufficiency of the evidence to support probable cause to indict”).