This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-96-1160

In the Matter of the Welfare of:

A.W.J., Child.

Filed December 3, 1996

Affirmed

Huspeni, Judge

Olmsted County District Court

File No. J1-95-510601

Hubert H. Humphrey, III, Attorney General, Suite 1400, NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Appellant Olmsted County)

Raymond F. Schmitz, Olmsted County Attorney, David S. Voigt, Assistant County Attorney, Government Center, 151 S.E. 4th St., Rochester, MN 55904 (for Appellant Olmsted County)

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for Respondent child)

Considered and decided by Lansing, Presiding Judge, Huspeni, Judge, and Norton, Judge.

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

HUSPENI, Judge

Appellant Olmsted County challenges a pretrial order suppressing statements made by respondent A.W.J., claiming that respondent waived his right against self-incrimination. Because we see no error in the trial court's determination that respondent did not knowingly, intelligently, and voluntarily waive his right against self-incrimination, we affirm.

FACTS

Respondent, a thirteen-year-old, is alleged to have been involved in inappropriate sexual contact with at least six other children and was brought to the local law enforcement center by his parents at the request of the investigating police officer. When they arrived, the officer informed them that he was investigating accusations and allegations of inappropriate touching among a group of boys. The investigator informed respondent that he was a police officer, that respondent was not under arrest, and that respondent was free to leave at any time. The investigator then stated, "However, I am in the middle of an investigation * * *." Respondent said, "Okay."

The officer began questioning respondent about allegations that had been made by other boys about respondent's conduct. Respondent's answers to the officer's questions were tentative; he was both positive and negative about his activities and involvement. After several minutes of questioning, the officer stopped and suggested that respondent might be more comfortable if his parents left the room. The officer said, "I understand that this is very embarrassing * * * do you feel comfortable in talking in front of your parents, or would you rather have your parents * * *?" Respondent replied, "Um, maybe leave."

The officer and respondent's parents then discussed any possible consequences of their leaving. The officer stated that he was looking into "some criminal investigation" and any information obtained would be "useable." In speaking about possible criminal consequences, the officer said, "Maybe, maybe not"; consequences would be up to the county attorney and the officer could not discuss them. Respondent's father asked if respondent would be at any disadvantage if his parents left. The officer said that he could not answer that, but it was his experience "that children are uncomfortable in talking in front of their parents" on this type of subject matter.

The officer told the parents that they had a right to be present for respondent's interview and to speak to an attorney. The officer offered to let the parents and respondent speak privately; they did not do so. The officer again stated that respondent was not under arrest and was free to leave or end the interview at any time. Again, respondent's father expressed his concern over putting respondent at a legal disadvantage, but stated that respondent would probably be at a greater disadvantage if he did not talk. Respondent was present during the entire exchange.

Respondent's parents then left the room and the officer said respondent's statements were voluntary. Respondent asked what voluntary meant; the officer said it "means you're doing it of your own free will, okay? If you wanna stop at any time you can, okay?" Respondent did not reply to these statements and continued talking to the officer.

Following the investigation, a juvenile petition for delinquency was filed charging respondent with six counts of criminal sexual conduct. Respondent brought a motion to suppress his statements to the officer. A motion hearing was held at which the officer and respondent's mother testified.

The officer testified that he contacted respondent for questioning after talking to all alleged victims, that he had contacted respondent's mother and told her he was conducting an investigation regarding inappropriate touching and wished to talk to respondent, that he asked the family to come down to the law enforcement center, and that they complied. The officer also testified that he identified himself as a police officer and told respondent and his parents he was conducting an investigation of "some accusations and allegations of inappropriate touching." The balance of the officer's testimony is a narrative of the conversation with respondent and his parents during respondent's questioning.

Respondent's mother testified that respondent does not function at the level of a thirteen-year-old, is immature, and his intelligence is less than his classmates. She also testified that when she first talked to the officer on the phone, the officer told her there had been some complaints of inappropriate touching and that respondent was involved, but, other than the phone conversation, respondent and his parents were never told the nature of the investigation or that respondent was a suspect. She stated that they had never previously been involved with the police or an investigation. Finally, she testified that if they had known respondent was the focus of the investigation or a suspect, they would not have left the room or allowed respondent to speak.

The court granted respondent's motion to suppress his statements. Appellant brought a motion to reconsider; the motion was denied, and this appeal followed.

D E C I S I O N

In a pretrial appeal from an order suppressing evidence in a criminal case, the trial court's ruling will be reversed only "if the state demonstrates clearly and unequivocally that the trial court has erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial." State v. Webber, 262 N.W.2d 157, 159 (Minn. 1977).

Critical Impact

The issue of critical impact is not presented to the trial court, and as such is an exception to the general rule that an appellate court will not consider issues raised for the first time on appeal. State v. Ronnebaum, 446 N.W.2d 699, 701 (Minn. App. 1989), rev'd on other grounds, 449 N.W.2d 722 (Minn. 1990). The critical impact standard is met where the state shows that the lack of the suppressed evidence significantly reduces the likelihood of a successful prosecution. State v. Ronnebaum, 449 N.W.2d 722, 724 (Minn. 1990). If the trial court suppresses a confession in a criminal sexual conduct case, the suppression normally will reduce the likelihood of a successful prosecution. Id.; State v. Hookom, 474 N.W.2d 624, 629 (Minn. App. 1991).

Respondent argues that several witnesses remain who will testify about respondent's alleged behavior and, therefore, suppression of his statements will not have a critical impact. We note, however, that all of the victims and eyewitnesses are children. The child victims will be subject to strong attacks on their credibility and a possible defense of victim fabrication. Additionally, respondent's statements constitute most of the existing evidence for two of the six charges; in one of these two charges, the alleged victim denies sexual contact occurred. On another charge, the alleged victim states only that respondent grabbed him and rubbed against him. Respondent's confession would be needed to establish the contact was sexual in nature. Therefore, the state has met its burden by showing that suppression of respondent's statements significantly reduces the likelihood of a successful prosecution.

Voluntariness of Statements

Even though the critical impact standard is met, we must address whether the trial court clearly erred in suppressing respondent's statements. Where a claim is made that a confession is involuntary, the trial court must make a subjective factual inquiry into all the circumstances surrounding the giving of the statement. State v. Hardimon, 310 N.W.2d 564, 567 (Minn. 1981). Respondent's statements must be voluntary in order to be admissible at trial. The state must prove by a fair preponderance of the evidence that respondent knowingly, intelligently, and voluntarily waived his right against self-incrimination, and that he freely and voluntarily gave the statement. See State v. Williams, 535 N.W.2d 277, 286 (Minn. 1995); State v. Hoffman, 328 N.W.2d 709, 714 (Minn. 1982). The trial court's finding as to admissibility of the confession will not be reversed unless it is clearly erroneous, but the reviewing court makes an independent determination, on the basis of the facts found, as to whether a waiver was knowing, voluntary, and intelligent. State v. Ouk, 516 N.W.2d 180, 185 (Minn. 1994); Hardimon, 310 N.W.2d at 567.

In determining whether a juvenile has voluntarily and intelligently waived the right to remain silent, the court must evaluate the totality of the circumstances. Williams, 535 N.W.2d at 287. Factors to be considered in the totality of the circumstances test include: the child's age, maturity, intelligence, education, the nature of the interrogation, the presence or absence of parents, the child's experience and ability to comprehend, the lack of or adequacy of warnings, prior criminal experience, whether the child has the capacity to understand the given warnings, and the nature of the rights and the consequences of waiving those rights. Id.; Ouk, 516 N.W.2d at 185. A child's constitutional right against self-incrimination may not be waived by the parents; the right belongs to the child. In re the Welfare of S.W.T., 277 N.W.2d 507, 512-13 (Minn. 1979).

The trial court found that even though respondent knew there was an investigation and that he was talking to a police officer voluntarily, respondent was not aware, nor was it readily apparent to him, that he was a suspect in a criminal prosecution. While respondent may have known that he was free to leave or remain silent, he was unaware of why he would do so. The record shows little, if any, inquiry as to what the respondent knew or understood. Respondent has no prior involvement or experience with the criminal system, juvenile system, or the police, and there is testimony that respondent does not function at a thirteen-year-old level and does not do as well as his peers academically.

There is no counter-evidence that would show respondent was capable of understanding. While expert witnesses are not required to show comprehension and the ability to understand, school records or the testimony of teachers might help establish respondent's capabilities. What respondent knew and understood about his situation was unclear and never ascertained.

As the trial court noted, respondent, not his parents, must voluntarily waive his rights. Respondent's parents asked most of the questions and may have been aware of the implications and the surrounding circumstances, but their knowledge cannot be imputed to respondent. Further, the trial court found the police officer was not particularly candid with respondent or his parents. The officer never said that the respondent was a suspect and was very vague when asked about the nature of the investigation and possible criminal implications. Again, what respondent knew and understood is unclear and unascertained.

Based on the evidence and testimony presented, the trial court made credibility determinations. The record supports the trial court's findings. The trial court did not clearly and unequivocally err in its judgment that respondent's waiver was not knowing, voluntary, and intelligent.

Respondent's motion for attorney fees is granted, and reasonable fees will be awarded by separate order.

Affirmed.