This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-96-1356

State of Minnesota,

Appellant,

vs.

Adam Lee Moren,

Respondent.

Filed January 14, 1997

Affirmed

Foley, Judge

[*]

Benton County District Court

File No. K0-95-1272

Michael S. Jesse, Benton County Attorney, Suzanne Bollman, Assistant Benton County Attorney, Benton County Courthouse, Foley, MN 56329 (for Appellant)

Michael Michalski, 923 West St. Germain Street, P.O. Box 393, St. Cloud, MN 56302 (for Respondent)

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

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

FOLEY, Judge

The state challenges a pretrial order suppressing statements made by respondent Adam Moren on the ground 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

On September 7, 1995, the Benton County Sheriff's Department was dispatched to an accident in Sauk Rapids, Minnesota. Upon arrival, deputy Michael Thompson observed that there had been an accident involving one motorcycle. The accident apparently occurred when the motorcycle left the roadway, struck a field approach, and became airborne. Two male individuals, respondent and Jay Edward Goedker, had been riding on the motorcycle at the time of the accident; the police were unable from the physical evidence to determine who had been driving. There were no witnesses.

Respondent and Goedker were transported to the hospital for treatment. Upon admittance, respondent was given a blood alcohol test which later indicated a blood alcohol content of .13. Goedker died as a result of his injuries.

On September 11, 1995, four days after the accident, the deputy went to the hospital to speak with respondent about the accident. Respondent was in the intensive care unit and was on pain medication. The deputy appeared in uniform, identified himself, and told respondent he was investigating the accident.

When the deputy asked if respondent could speak, respondent indicated he was in pain and assented to the deputy's statement that respondent did not have to talk to him. Because of his injuries, respondent was often difficult to understand. Respondent said he was to receive treatment the next day, "So, I'll be under more relief." The deputy said that he would ask a few questions and then he would quit, noting that respondent appeared to understand the questions and answered appropriately. The interrogation lasted about five minutes and stopped when the deputy noted that respondent appeared to be in pain because he was "fidgeting." The deputy did not make any promises or threats to entice respondent to speak.

During his interrogation, respondent indicated that at the time of the accident he was the owner of the motorcycle, he was driving, he had been drinking, and he did not have insurance.

On November 17, 1995, respondent made a second statement. In this statement, he confirmed that he owned the motorcycle and had no insurance, but said he was unable to remember anything about the accident. Respondent was subsequently charged with criminal vehicular homicide, driving while under the influence, driving after cancellation, and driving without insurance.

Respondent brought a motion to suppress his statement of September 11, 1995, and a motion to dismiss for lack of probable cause. On March 19, 1996, there was a contested hearing on the motions.

At the hearing, the trial court heard the testimony of the attending physician, Dr. Eric William Green. Green testified that as result of the accident, respondent sustained a broken wrist, pelvic fractures, a transected urethra, multiple tracheal tissue injuries, multiple facial fractures, and a lacerated bladder. Green also testified that on September 11, 1995, respondent was on various medications, including several antibiotics, Zantac to prevent stress ulcers, skin cleaning agents, morphine sulphate, Narcan to reverse the effects of too many narcotics, Pancuronium to help relaxation and control agitation, and opium and belladonna suppositories for bladder control. Finally, Green testified that on that same date respondent was unable to understand complex questions and, because of the medication, it was possible that he would give wrong answers to even simple questions; that respondent had pulled out his nasal tubes both before and after the interview because he did not comprehend his situation; and that respondent was picking at his facial sutures because he did not know why he had sutures, an activity typical of head trauma victims.

After evaluating respondent's medical records and hearing the taped statements, Dr. Timothy Tinus, a psychologist, testified. Based on his expertise, Tinus stated that at the time of respondent's statements, he was incompetent in his thinking abilities and that someone with brain injuries like his, if pushed by questioning, would become agitated and fidgety because complex thinking would unravel. Tinus stated many of the questions asked of respondent would be considered complex for someone with brain injuries.

Finally, respondent's mother, Sandra Lee, testified. She stated that September 11 was the first day after the accident that respondent was able to speak and that he kept asking the same questions over and over again, even after they had been answered many times.

After hearing all the testimony and reviewing the evidence, the trial court determined that even though respondent may have understood why he was being questioned, there was probable cause for questioning, the duration of the interview was short, and that there were no physical deprivations, the officer exerted improper influence over respondent that amounted to "coercive police activity" because respondent's ability to comprehend his situation was clearly impaired by medication. The trial court granted respondent's motion to suppress the statements made on September 11 and dismissed all charges, except driving without insurance, for lack of probable cause. 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 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).

Here, suppression of respondent's statements had a critical impact because without the statements, it was necessary to dismiss for lack of probable cause the charge of criminal vehicular homicide and two counts of driving while under the influence.

Voluntariness of Statements

Where a claim is made that a confession is involuntary, and therefore should be suppressed, 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). The state must prove by a fair preponderance of the evidence 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). 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).

In determining whether a defendant has voluntarily and intelligently waived the right to remain silent, the court must evaluate the totality of the circumstances. State v. Linder, 268 N.W.2d 734, 735 (Minn. 1978). Factors to be considered in the totality of the circumstances test include inter alia: age, maturity, intelligence, education, experience, ability to comprehend, lack of or adequacy of warnings, the nature of the interrogation, and limits on access to counsel and friends. Id. If the circumstances indicate the accused's will was overborne, the confession is not voluntary. State v. Merrill, 274 N.W.2d 99, 106 (Minn. 1978).

The state argues that there was no evidence presented on which the trial court could find that the deputy exerted improper influence over respondent amounting to coercive police activity, and that the suppression of respondent's September 11, 1995 statements was therefore clearly erroneous.

An interrogator need not have used threats of physical harm or intimidating interrogation techniques for a court to find improper influence. Id. at 107.

The judicial inquiry * * * is not concerned with whether the police actions contributed to the utterance of inculpatory statements. Rather, in a subjective factual inquiry, the court examines 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. * * * [The] inquiry examines whether [the officer's] actions, together with other circumstances surrounding the interrogation, were so coercive, so manipulative, so overpowering that [defendant] was deprived of his ability to make an unconstrained and wholly autonomous decision to speak * * * .

State v. Pilcher, 472 N.W.2d 327,333 (Minn. 1991) (citations omitted).

At the time of his questioning, the trial court heard evidence that respondent was in considerable pain from his injuries, that he suffered head/brain injuries, that he was extensively medicated, that the medication and head injuries could make him unable to understand complex questions and possibly give wrong answers to even simple questions, that if pushed by questioning, someone with head injuries could become agitated and fidgety, that respondent was fidgety, that respondent had pulled out his nasal tubes both before and after the interview because he did not comprehend his situation, that respondent picked at his sutures because he did not know why he had sutures, that the day of the interview was the first day respondent was able to speak after the accident, and that during that day respondent kept asking the same questions over and over again, even though the questions had been answered.

Although the deputy identified himself, informed respondent why he was there, did not make promises or threats, did not physically threaten respondent, and did not question him at length, there was sufficient evidence for the trial court to conclude that respondent was deprived of his ability to make an unconstrained and wholly autonomous decision to speak based on the totality of the circumstances. As a result, the trial court's determination is not clearly erroneous.

Affirmed.

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