may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1994).
IN COURT OF APPEALS
In the Matter of the Welfare of:
Filed December 3, 1996
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.
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.
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.
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.
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.