This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
COURT OF APPEALS
In the Matter of the Welfare of: A. M. A.
Filed December 11, 2007
Affirmed in part, reversed in part, and remanded
Concurring in part, dissenting in part, Randall, Judge
Hennepin County District Court
File No. 304225/JV-06-6662
Leonardo Castro, Fourth District Chief Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue south, Suite 200, Minneapolis, MN 55401 (for appellant A.M.A.)
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Michael O. Freeman, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent State of Minnesota)
Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and Halbrooks, Judge.
P.J.S. awoke in his home in Edina in Hennepin County about 1:00 a.m. on May 3, 2006, and heard whispering downstairs. He initially thought that it might be one of his three children. But when P.J.S. went downstairs to investigate, he found two men he did not know standing in the hallway near his front door. When the men saw P.J.S., they ran out his front door, speaking in a language that P.J.S. did not recognize. P.J.S. chased the men down the street before they jumped into a van and sped away. Although P.J.S. briefly glimpsed one of the men as they drove off, he was never able to positively identify appellant or anyone else as being one of the burglars.
After the van sped away, P.J.S. ran back to his home to ensure that his children were all right and to call the police. He then surveyed his house and garage to determine what the burglars had taken. Items missing included two video-game consoles, video games, DVDs, CDs, athletic equipment, and a set of golf clubs.
Shortly before midnight on the same day, Minneapolis police stopped a minivan and identified its lone occupant and driver as appellant, A.M.A. Appellant was 17 years old at the time. When one of the officers requested appellant’s driver’s license, he stated that he did not have one. The officers decided to tow the vehicle and conducted an inventory search before the tow truck arrived. In the course of the search, the officers found, among other things, a set of golf clubs, a duffle bag containing athletic equipment, a checkbook, and a magazine with P.J.S.’s name on the address label. Upon further investigation, the officers discovered that the checkbook and some other items found in the minivan had been reported stolen in a recent burglary in Eagan. Appellant was placed under arrest for receiving and concealing stolen property. The golf clubs recovered from appellant’s minivan were later identified as the clubs taken during the burglary of P.J.S.’s home.
While appellant was being held at the Minneapolis Police Department’s First Precinct station, Sergeant Nathan Tennessen from the Eagan Police Department arrived to interrogate appellant about several recent Eagan burglaries. Appellant’s Miranda rights were read to him, and he waived his rights. Sgt. Tennessen placed a tape recorder in his shirt breast pocket to record the interrogation. But due to a problem with the tape recorder, the first seven minutes of the 40-minute interrogation, including the Miranda warning, were not recorded. During the interrogation, appellant made several incriminating statements regarding the stolen goods found in his van and his role in acquiring those goods.
Appellant was charged with aiding and abetting first-degree burglary under Minn. Stat. §§ 609.582, subd. 1(a), .05 (2004), and receiving and concealing stolen property under Minn. Stat. § 609.53, subd. 1 (2004). The district court retained jurisdiction over appellant and denied appellant’s pretrial motion to suppress the incriminating statements that he had made to Sgt. Tennessen. The district court subsequently adjudicated appellant delinquent after finding him guilty of aiding and abetting first-degree burglary. The district court’s dispositional order required appellant to successfully complete the Isanti Sheriff’s Youth Program and placed him on probation until age 19. This appeal follows.
Appellant contends that the district court erred in admitting the incriminating statements that appellant made to Sgt. Tennessen during his interrogation. He first argues that he did not intelligently and voluntarily waive his Miranda rights. Second, he contends that Sgt. Tennessen’s failure to record the first seven minutes of the interrogation was a substantial violation of the Scales requirement.
A. Appellant’s Waiver of his Miranda Rights
“For a statement obtained from an accused during 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.” State v. Williams, 535 N.W.2d 277, 286 (Minn. 1995) (citing Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 521-22 (1986)). “Whether a defendant has voluntarily waived her right to remain silent and whether statements made by the defendant were made voluntarily are two separate issues. However, the factors to be considered are the same and, therefore, the analysis of the two issues significantly overlaps.” State v. Mills, 562 N.W.2d 276, 283 (Minn. 1997) (citation omitted).
“Findings of fact surrounding a claimed Miranda waiver are reviewed for clear error; legal conclusions based on those facts are reviewed de novo.” State v. Farrah, 735 N.W.2d 336, 341 (Minn. 2007). “Ordinarily, the state is deemed to have met its burden if it shows that the defendant was fully advised of his Miranda rights, indicated he understood his rights, and gave a statement.” State v. Dominguez-Ramirez, 563 N.W.2d 245, 252 (Minn. 1997).
Miranda’s due-process protections generally apply to juveniles, even those prosecuted in juvenile court. State v. Burrell, 697 N.W.2d 579, 592 (Minn. 2005) (citing In re Gault, 387 U.S. 1, 13, 87 S. Ct. 1428, 1436 (1967)). “When a juvenile’s Miranda waiver is at issue, we examine the totality of the circumstances to determine whether the suspect understood his rights and the consequences that may arise if he waives them.” Id. at 592-93. This totality approach mandates inquiry into “the juvenile’s age, maturity, intelligence, education, physical deprivations, prior criminal experience, length and legality of detention, lack of or adequacy of warnings, and the nature of the interrogation.” Id. at 595. The inquiry into the nature of the interrogation focuses on whether the police used deceit or trickery in securing the waiver or any subsequent admission. Id. at 596. Whether a juvenile had access to a parent before and during questioning is also an important factor in evaluating whether the juvenile’s Miranda waiver and admissions were voluntary and intelligent, but it is not determinative. Id. at 595-97.
Here, the general atmosphere during Sgt. Tennessen’s interrogation of appellant was relaxed, not antagonistic. Sgt. Tennessen stated that he read appellant his Miranda rights, that appellant stated he understood his Miranda rights, and that they talked about his Miranda rights for “a while.” Sgt. Tennessen also told appellant that he “[didn’t] have to talk to me here today.” When appellant subsequently sought to confirm that he was not required to talk to Sgt. Tennessen if he did not want to, Sgt. Tennessen reiterated that appellant could refuse to talk to him and could call an attorney or a parent if he desired. Appellant was also told that if he decided to talk but did not want to talk about a particular matter, such as his accomplices, he could just say “No” and refuse to talk about that matter. After this discussion of his rights, appellant waived his Miranda rights.
The district court found Sgt. Tennessen to be credible. Further, appellant does not dispute the facts as related by Sgt. Tennessen. Therefore, we turn to whether appellant’s waiver of his Miranda rights was voluntary and intelligent under these circumstances.
Appellant had been in custody only a few hours when the interrogation was conducted, and the interrogation was not excessively long. While appellant was informed that he could have a parent present before any questioning took place, he did not ask to contact his parent or an attorney. Further, appellant was not denied any physical requests, such as food or water. Sgt. Tennessen properly read the Miranda warning to appellant. They discussed these rights, and appellant stated that he understood his rights. Sgt. Tennessen also told appellant he did not have to talk to him if he did not want to. Later in the interrogation, Sgt. Tennessen reiterated that appellant did not have to talk to him and that appellant could call a parent or attorney if he desired. He also informed appellant that if appellant decided to talk, he could choose to talk only about certain topics and could refuse to talk about others.
We do note that appellant’s arrest for the burglary of P.J.S.’s home was his first experience with the criminal-justice system. The Minnesota Supreme Court has stated that a defendant’s experience, or lack thereof, with the criminal-justice system is an important factor in determining whether a Miranda waiver was voluntary and intelligent. State v. Miller, 573 N.W.2d 661, 672 (Minn. 1998) (“In assessing voluntariness, this court has focused heavily on . . . a defendant’s . . . familiarity with the criminal justice system.”). But based on the totality of the circumstances present, we conclude that appellant’s Miranda waiver was voluntary and intelligent.
B. Failure to Tape Record Part of Appellant’s Interrogation
In the alternative, appellant argues that Sgt. Tennessen’s failure to record the first seven minutes of the interrogation was a substantial violation of the Scales requirement that warrants suppression of his statements. In State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994), the Minnesota Supreme Court mandated that all custodial interrogation of suspects be recorded when feasible and that such interrogations must be recorded if the questioning is undertaken at a place of detention. “The underlying rationale for [the] decision in Scales was to prevent factual disputes about the existence and context of Miranda warnings and any ensuing waiver of rights.” Miller, 573 N.W.2d at 674 (citing Williams, 535 N.W.2d at 289).
A violation of this recording requirement warrants suppression of a suspect’s statement only if the violation is substantial. Scales, 518 N.W.2d at 592. In evaluating whether a violation of the recording requirement is substantial, the supreme court adopted the factors set out in the Model Code of Pre-Arraignment Procedure §§ 150.3(2), (3). Id. at 592. These factors include: the extent to which the violation was willful; the extent to which suppression will tend to prevent future violations; the extent to which the violation is likely to have influenced the defendant’s decision to make the statement; the extent to which the violation prejudiced defendant’s ability to support his motion to suppress or defend himself at trial; and the extent to which the violation was likely to have led the defendant to misunderstand his position or his legal rights. Id. at 592 n.5. Whether the failure to record a custodial interrogation is a substantial violation of the Scales recording requirement is a legal question, which we review de novo. State v. Inman, 692 N.W.2d 76, 79 (Minn. 2005).
Here, because Sgt. Tennessen interrogated appellant at a place of detention but failed to tape record the first portion of the interrogation, the Scales requirement applies. As a result, we turn to the question of whether this Scales violation was substantial, requiring suppression of appellant’s statements.
In Inman, the police officer did not record Inman’s custodial interrogation, including the reading of Inman’s Miranda rights or his waiver. Id. at 78. At trial, the district court admitted several incriminating statements that Inman made during the unrecorded interrogation. Id. at 78-79. On appeal, Inman argued that the officer’s failure to record the interrogation violated Scales and that the district court erred in refusing to suppress his statements. Id. at 79. The supreme court agreed that the Scales recording requirement was violated. Id. at 80. The court noted that Inman did not dispute at his omnibus hearing that he was read his Miranda rights and that he properly waived these rights. Id. at 81. The court reasoned that because there was no factual dispute regarding this issue, the failure to record the interrogation did not prejudice Inman. Id. Therefore, the supreme court held the Scales violation was not a substantial one, warranting suppression of Inman’s statements. Id.
Here, because appellant does not dispute the facts surrounding his Miranda rights or his waiver, Sgt. Tennessen’s failure to record the first portion of the interrogation due to a machine malfunction did not prejudice appellant. See id. We therefore conclude that the Scales violation was not substantial and that the district court did not err by admitting appellant’s statements.
Appellant next argues the evidence was insufficient to prove that he aided and abetted a burglary in P.J.S.’s garage in Hennepin County, as opposed to some other garage in a different county. We disagree.
“‘[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’” State v. Clausen, 493 N.W.2d 113, 116 (Minn. 1992) (quoting In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970)). The prosecution is held to the same standard in a juvenile-delinquency proceeding. Minn. R. Juv. Delinq. P. 13.06; Winship, 397 U.S. at 368, 90 S. Ct. at 1075.
In considering a claim of insufficient evidence, this court’s 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 allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The fact-finder has the exclusive function of judging witness credibility, Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995), and this court will defer to the fact-finder’s credibility determinations. State v. Kramer, 668 N.W.2d 32, 37 (Minn. App. 2003), review denied (Minn. Nov. 18, 2003). On appeal, we must assume the fact-finder believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). “We will not disturb the verdict if the [fact-finder], acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty of the offense charged.” State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
During trial, both P.J.S. and the police officer responding to his call testified that P.J.S.’s home is located in Hennepin County. When Sgt. Tennessen was interrogating appellant, he was primarily concerned with the stolen items found in appellant’s minivan that were identified as items taken during burglaries in Eagan, which is in Dakota County. Accordingly, Sgt. Tennessen’s questions about the stolen goods found in appellant’s vehicle often focused on what residence in Eagan they were taken from, including some questions about the golf clubs. Appellant never stated where the golf clubs were taken from, and Sgt. Tennessen did not clarify this point through follow-up questioning.
But the following exchanges occurred on direct and redirect examination during appellant’s trial that place appellant in P.J.S.’s garage in Hennepin County:
[Prosecutor]: When you talked to [appellant], did he tell you anything about the golf clubs that were in his car?
[Tennessen]: He indicated that the golf clubs—he had entered the garage where the golf clubs were taken, however, he did not take them. Suspect that was with him with the last name of Ali took the clubs and returned to the car. He also indicated that was the only residence he had gone in that evening.
. . . .
[Prosecutor]: Did [appellant] say whether he took any other property from the home where the golf clubs were taken?
[Tennessen]: He indicated that he only entered the garage with Mr. Ali and was with him when Ali took the golf clubs.
. . . .
[Prosecutor]: [Appellant] did specifically admit though that he went into the garage where the golf clubs were taken from, correct?
At trial, P.J.S. positively identified the golf clubs recovered from appellant’s minivan as the ones stolen from his garage. So while appellant never specifically admitted being in P.J.S.’s garage the night of the burglary, he admitted being in the garage where the golf clubs later identified as P.J.S.’s were stolen from. Based on this evidence, a reasonable jury could conclude that appellant was in P.J.S.’s garage in Hennepin County the night that it was burglarized.
Appellant argues that the district court erred by failing to secure appellant’s express waiver of his right to testify in his own defense. While there is no evidence to suggest that appellant’s right to testify was in any way infringed upon, he contends that a juvenile must expressly waive this right on the record in order for the right to be vindicated.
The right to testify on one’s own behalf is a fundamental constitutional right, and the final decision about whether to exercise this right lies solely with the accused. Erickson v. State, 725 N.W.2d 532, 536 (Minn. 2007) (citing Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312 (1983)). The waiver of a fundamental right must be knowing, intelligent, and voluntary. See, e.g., State v. Ross, 472 N.W.2d 651, 653 (Minn. 1991) (waiver of right to jury trial); State v. Roberts, 651 N.W.2d 198, 201 (Minn. App. 2002) (“fundamental constitutional rights can be waived if the waiver is knowing, intelligent, and voluntary”), review denied (Minn. Dec. 17, 2002). The validity of the waiver of such rights is a question of law, which we review de novo. See State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004) (waiver of constitutional right to jury on sentencing factors reviewed de novo). “A defendant has the burden of proving on appeal that she did not voluntarily and knowingly waive her right to testify.” State v. Berkovitz, 705 N.W.2d 399, 405 (Minn. 2005).
Some fundamental rights cannot be waived by silence, see State v. Osborne, 715 N.W.2d 436, 442 (Minn. 2006) (right to jury trial and counsel cannot be waived by silence), but the right to testify on one’s own behalf is not within this category. When the record is silent concerning a defendant’s waiver of his or her right to testify, Minnesota appellate courts will not presume denial of this right:
Here the record below does not establish either a denial of right to testify or inadequate advice [about the right to testify from counsel]. Rather, the record simply reveals that a criminal defendant, represented by counsel, did not testify. Without anything in the record suggesting otherwise, we must presume that the decision not to testify was made by defendant voluntarily and intelligently.
State v. Smith, 299 N.W.2d 504, 506 (Minn. 1980). This rule has been consistently applied in the context of adult defendants ever since. See, e.g., Berkovitz, 705 N.W.2d at 405; State v. Whalen, 563 N.W.2d 742, 751 (Minn. 1997).
Appellant argues that a different standard applies to juveniles. But appellate decisions addressing a juvenile’s waiver of the right to testify in his or her own defense have also applied the presumption. In In re Welfare of M.E.M., 674 N.W.2d 208, 214 (Minn. App. 2004), this court addressed whether a juvenile in an extended jurisdiction juvenile (EJJ) proceeding had properly waived his right to testify. We first cautioned that “[w]hen applying adult criminal rules to an EJJ proceeding,” the juvenile court should take extra precautions to ensure “any waiver of an essential right is proper and that the juvenile understands the consequences of the waiver.” M.E.M., 674 N.W.2d at 213-14. But we then concluded that the Smith presumption applied to M.E.M.’s right to testify and upheld his conviction, despite the lack of an express waiver. Id. at 214.
This issue arose again in In re Welfare of C.J.W.J., 699 N.W.2d 328 (Minn. App. 2005). While this court stated that the best course of action would be to have a juvenile expressly waive his or her right to testify on the record, C.J.W.J., 699 N.W.2d at 334, following the Smith and M.E.M. precedent, we held that a juvenile need not expressly waive his right to testify for the waiver to be valid. Id.
Notwithstanding this case law, appellant asserts that Minn. Stat. § 260B.163 (2006) requires that the waiver of the right to testify in one’s own defense be expressly stated on the record. Statutory construction is a question of law, which this court reviews de novo. State v. Stewart, 624 N.W.2d 585, 588 (Minn. 2001).
Minn. Stat. § 260B.163, subd. 10(a), states that “[w]aiver of any right which a child has under this chapter must be an express waiver voluntarily and intelligently made by the child after the child has been fully and effectively informed of the right being waived.” (Emphasis added.) This subdivision unambiguously requires that a juvenile expressly waive any rights granted by chapter 260B. But it also unambiguously limits this more stringent waiver procedure to rights granted the juvenile “under this chapter.”
Appellant asserts that Minn. Stat. § 260B.163, subd. 9, provides a statutory right to testify, which in turn requires express waiver under subdivision 10(a). Minn. Stat. § 260B.163, subd. 9 reads, in full: “Rights of parties at hearing. The minor and the minor’s parent, guardian, or custodian are entitled to be heard, to present evidence material to the case, and to cross-examine witnesses appearing at the hearing.” Appellant contends that the phrase “to be heard” encompasses the statutory right to testify in one’s own defense. Respondent argues that such a specific right cannot be derived from such general language and that the language is simply a statutory reiteration of basic constitutional due-process rights. We agree.
The majority of the rights granted in section 260B.163 are statutory reiterations of constitutional due-process rights owed a juvenile regardless of the existence of the statute. Compare Minn. Stat. § 260B.163, subds. 4, 9 (juvenile has a right to present evidence, right to counsel, right to cross-examine witnesses), with Gault, 387 U.S. at 33, 36, 41, 56, 87 S. Ct. at 1446, 1448, 1451, 1459 (constitutional due process provides juveniles with a right to present a defense, right to counsel, and right to cross-examine witnesses). The language of the statute also tracks with Minnesota courts’ descriptions of due-process rights. See, e.g., In re the Welfare of J.W., 391 N.W.2d 791, 794 (Minn. 1986) (the right to be heard, present evidence, and cross-examine witnesses form part of the general guarantees of due process). Furthermore, the right to be heard has consistently been described as the equivalent to the due-process right to a hearing, not as the right to testify in one’s own defense. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 267-68, 90 S. Ct. 1011, 1020 (1970) (stating a “fundamental requisite of due process of law is the opportunity to be heard” and that this is satisfied by a “hearing . . . at a meaningful time and in a meaningful manner”); Powell v. Alabama, 287 U.S. 45, 68-69, 53 S. Ct. 55, 64 (1932) (concluding the due process “opportunity to be heard” requires a “hearing” and that this “right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel”); State v. Mitchell, 577 N.W.2d 481, 492 (Minn. 1998) (“due process demands . . . that [a juvenile facing the possibility of standing trial as adult] have an opportunity to be heard, and this requires that the juvenile court grant a hearing before waiving jurisdiction”); In re Welfare of M.A.C., 455 N.W.2d 494, 497-98 (Minn. App. 1990) (citing In re Gault for the proposition that a juvenile has a due process right “to be heard” and concluding this right was denied because the juvenile’s disposition was changed without a hearing).
Thus, the vast majority of the evidence indicates the phrase “right to be heard” as used in Minn. Stat. § 260B.163 is merely a different semantical choice for the commonly discussed due-process concept of the right to a proper “hearing.” See Minn. Stat. § 645.08(1) (words or phrases that have acquired a specialized meaning should be so construed). Without substantial evidence to the contrary, we do not believe it is our role to extend the reach of this provision by incorporating into its meaning a right not typically associated with the term. If a juvenile is to obtain a statutory right to testify in his or her own defense via Minn. Stat. § 260B.163 (and the stricter waiver procedures accompanying such a statutory right), as opposed is to the constitutional one already owed the juvenile, it must be at the hands of the legislature. See, e.g.,Hutchinson Tech., Inc. v. Comm’r of Revenue, 698 N.W.2d 1, 12 (Minn. 2005) (reiterating that courts may not write into a statute what legislature did not); Martinco v. Hastings, 265 Minn. 490, 497, 122 N.W.2d 631, 638 (1963) (stating that “[i]f there is to be a change in the statute, it must come from the legislature, for the courts cannot supply that which the legislature purposefully omits or inadvertently overlooks”); Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987) (stating that “the task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court”), review denied (Minn. Dec. 18, 1987).
Construing the right to be heard contained in Minn. Stat. § 260B.163, subd. 9, to encompass the right to testify could also produce an absurd and unreasonable result. The statute gives the same rights to the juvenile’s parents as it does the juvenile. If the right to be heard encompasses the right to testify as appellant argues, this could conceivably mean that the juvenile’s parents have a right to testify, even over the juvenile’s objections and to the detriment of the juvenile’s case. We presume the legislature did not intend such an unreasonable result. See Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 278 (Minn. 2000) (courts presume that the legislature does not want statutes to produce an absurd or unreasonable result). We conclude that, for the purposes of the express-waiver requirement in Minn. Stat. § 260B.163, subd. 10, the right to “be heard” does not mean the right to testify.
Appellant’s last claim of error is that the district court failed to make the required findings under Minn. R. Juv. Delinq. P. 15.05, subd. 2(A), and Minn. Stat. § 260B.198, subd. 1(m) (2006), to support appellant’s out-of-home placement in the Isanti Sheriff’s Youth’s Program. Respondent concedes that the district court’s findings are inadequate to support appellant’s disposition, and we agree. Both Minn. R. Juv. Delinq. P. 15.05, subd. 2(A)(1)-(2) and Minn. Stat. § 260B.198, subd. 1(m), require, for every juvenile disposition, that the district court make written findings explaining why the ordered disposition is in the juvenile’s best interests, what alternative dispositions were considered, and why these alternatives were not ordered by the court. In addition, Minn. R. Juv. Delinq. P. 15.05, subd. 2(A)(3), requires that, if the disposition changes the custody of the child, the district court make additional findings addressing why the public safety and the juvenile’s interests are not best served by maintaining the juvenile’s current custody and why the new placement is suitable, given the juvenile’s needs. Because appellant’s disposition here included out-of-home placement, these additional findings are required. Because the rules of juvenile procedure and the statute require the district court to make these findings, we reverse in part and remand.
RANDALL, Judge (concurring in part/dissenting in part)
I concur in part and dissent in part. I concur in the result and I concur with the majority’s analysis, including the remand, on all issues except for issue III, “the failure to secure the juvenile appellant’s express waiver of his right to testify in his own defense.”
The majority and I agree the controlling statute is Minn. Stat. § 260B.163, subd. 9 (2004). Subdivision 9 is short and to the point.
Rights of parties at hearing. The minor and the minor’s parent, guardian, or custodian are [“]entitled to be heard[”], to present evidence material to the case, and to cross-examine witnesses appearing at the hearing.
That seems simple enough. Any gratuitous inclusion of the minor’s parent and/or guardian and/or custodian to the benefits of subdivision 9 is fine, but the quintessential constitutional issue is: whether the minor’s parent/guardian/custodian is included or not, can you have a fair hearing with appropriate due process and appropriate constitutional standards afforded to all Minnesota’s citizens if the (charged) minor did not have an absolute right to testify in his own defense if he so chooses? The answer is as simple as subdivision 9. You absolutely cannot have a fair hearing unless the minor has the right, at his own option, to take the stand. If the ability to testify is not contained and subsumed in the phrase “entitled to be heard” then the state is in the wrong business of drafting statutes and the judiciary of Minnesota has no business protecting the state’s serious error. (I strongly suspect, if it is laid out for the legislature, they would agree the phrase “entitled to be heard” does include the right to take the stand and testify. I am just sorry the debate has to go on in this opinion because the majority does accept the state’s strained analysis that since the right to take the stand is not enumerated in those precise words, it is not a right strictly protected as is the right to cross-examine and to present evidence).
The majority states:
Appellant contends that the phrase “to be heard” encompasses the right to testify in one’s own defense. Respondent argues that such a specific right cannot be derived from such general language and that the language is simply a statutory reiteration of basic constitutional due-process rights.
The majority rejects appellant’s argument that Minn. Stat. § 260B.163 subds. 4,9 (2004) (juvenile has the right to present evidence, right to counsel, right to cross-examine witnesses) includes the right to take the stand. I suggest In re Gault, 387 U.S. 1, 13, 87 S. Ct. 1428, 1436 (1967)settles this issue. The majority cites In re Gault, (constitutional due process provides juveniles with a right to present a defense, right to counsel, and a right to cross-examine witnesses) as corroboration since Gault does not specifically enumerate “the right to take the stand.” What Gault includes is “the right to present a defense.” The Minnesota statute uses the phrase “the right to present evidence.” How can anyone rationally argue the phrase “the right to present evidence” does not include the right to “present one’s self” on the stand and testify? How can anyone rationally argue that “the right to present a defense” does not contain, by commonsense implication, the right to present evidence and to testify on one’s own behalf.
Appellant correctly cites Minn. Stat. § 260B.163, subd. 10 (2004), which provides:
Waiver: (a) Waiver of any right which a child has under this chapter must be an express waiver voluntarily and intelligently made by the child after the child has been fully and effectively informed of the right being waived.
Somehow, the State of Minnesota, argues that “express waiver” is narrowly confined to rights defined “under this chapter” and that somehow – that in a convoluted way− the right to be heard does not include the right to testify on one’s own behalf. I cannot accept that. No court should accept that. The state confines a minor charged with an act of juvenile delinquency, for the purpose of needing an express waiver, to the right to counsel, to the right to a hearing, the right to present evidence. The majority states that a minor’s rights in juvenile court that must be expressly waived do not include the right to take the stand. Rather the majority states “the right to be heard can be handled as long as there is a ‘meaningful hearing.’” I conclude that under In re Gault and its progeny it is an absurd result to assume a bedrock constitutional right to attend a hearing, present evidence, have an attorney, cross-examine witnesses, but no bedrock right to take the stand and testify.
I cannot accept that in Minnesota that is the law. If by some strange interpretation, that is the law, the law is unconstitutional on its face, unless there are any parts that can be saved.
The majority argues that it would be absurd to give minors the constitutional right to testify because the statute gives that right to parents/guardians/custodians, so, the argument goes, that maybe juvenile parents could testify against the juveniles and that would be an unintended “absurd” result. As I said early on, the statute gives a gratuitous right to parents/guardians/custodians. So be it. But any right granted gratuitously to non-defendants cannot take away other constitutional rights of the defendant. There is “no trading.” You cannot take away a juvenile’s right to testify on his own behalf by giving his parents the right to testify. Regardless of what the Minnesota legislature saw fit to give a juvenile’s parent/guardian/custodian, that gratuitous right can in no way circumvent the United States and Minnesota Constitutional guarantee to testify on one’s behalf.
I concur in the result but I disagree strongly with the majority’s analysis that the juvenile’s statutory right to due process and a fair hearing does not include, as a right that must be expressly waived, the right to take the stand and testify. Arguments to the contrary undercut the seminal right that everyone charged with a crime in America has enjoyed since this nation was founded, the right in a criminal case to take the stand and testify.
This issue is narrow. I do not vote to reverse the adjudication of delinquency on these grounds. Appellant’s right to take the stand should have been expressly waived. But I do not find any substantial prejudice to appellant. Appellant and his attorney understood his right to take the stand and testify and waived it by implication. I find error, but I do not find reversible error.
I do concur in the majority result, the adjudication of guilt, and the remand on dispositional issues.
 Appellant remains under investigation for several burglaries in Eagan.
 Appellant was acquitted of the receiving stolen property charge.
Inman did claim at trial he was never read his Miranda rights, but the court concluded this was too late to raise a factual dispute for the purposes of establishing a substantial Scales violation. Id. at 81. The court stated the proper time to raise a factual dispute about Miranda warnings is at the omnibus hearing. Id.