Minn. Stat. § 480A.08, subd. 3 (1996)
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Corey Jermaine Scott,
Dissenting, Short, Judge
File No. 96090580
Michael O. Freeman, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for appellant)
Arthur R. Martinez, Kellie M. Charles, 425 South Third Street, Minneapolis, MN 55415 (for respondent)
Considered and decided by Short, Presiding Judge, Parker, Judge, and Crippen, Judge.
Appellant Corey Jermaine Scott, a 17-year-old, was charged with assault in the second degree, Minn. Stat. § 609.222, and drive-by shooting, Minn. Stat. § 609.66, after being arrested and taken into custody. Prior to the reading of his Miranda rights, he was interrogated by police detectives for more than 15 minutes. Scott made incriminating statements both before and after the Miranda warning was given, and the trial court ordered the statements suppressed. The state appeals, arguing the pre-Miranda questioning was not intended to elicit incriminating responses and the post-Miranda responses were voluntary given. We affirm.
Appellant Scott appears to have been the intended victim of a drive-by shooting that instead resulted in the death of an innocent bystander, 11-year-old Byron Phillips. On August 9, 1996, Scott was arrested by police at gunpoint in connection with several shooting incidents that may have led to the Phillips killing.
Before Scott was taken to the juvenile detention center, police detectives Zimmer and VanSlyke interviewed him for over three hours. Scott was not given a Miranda warning until more than 15 minutes into the interview. Scott was then read the juvenile version of the Miranda warning; however, he appears to have made an incriminating statement before the warning. He made further incriminating statements afterward.
The trial court found that the interrogation was purposefully misleading and ordered Scott's admissions suppressed. The trial court also found there was a coercive attitude during the interrogation that led Scott to incriminate himself prior to the Miranda warning. After viewing the interrogation videotape and reviewing the caselaw, the trial court also concluded that "the Miranda warning here was inadequate, it was severely delinquent and * * * [the statements] must be suppressed because Miranda [was violated] and [they were] not voluntarily made."
D E C I S I O N
In cases in which the claim is made that a confession was involuntary or that the waiver of the Miranda rights was involuntary, the trial court must make a subjective factual inquiry into all the circumstances surrounding the giving of the statement. On appeal, this court will not reverse any findings of fact unless they are clearly in error, but this court will make an independent determination of voluntariness on the facts found.
State v. Hardimon, 310 N.W.2d 564, 567 (Minn. 1981).
This court will, in a pretrial appeal, reverse the determination of the trial court only if the state demonstrates clearly and unequivocally, first, that the trial court erred in its judgment and, second, that unless reversed, the error will have a critical impact on the outcome of the trial.
State v. Kim, 398 N.W.2d 544, 547 (Minn. 1987) (citation omitted).
1. Pre-Miranda Interrogation
The state argues the pre-Miranda portion of the interview was not a custodial interrogation warranting the giving of Miranda warnings. It contends the police were only attempting to elicit information from Scott regarding the shooting of 11-year-old Byron Phillips. It claims the police limited the inquiry to showing Scott identification photos of possible "Bogus Boys" gang members in an attempt to disclose the identity of the shooter of Byron Phillips. The state also argues that when Scott attempted to discuss matters regarding other crimes, police refused to talk to him about any incidents in which he could be considered a defendant. The state contends, therefore, that the first 15 minutes of the interview did not constitute custodial interrogation because Scott was, during that period, questioned only as a victim-witness 2 and not as a suspect. Persons accused of a crime have a constitutionally protected right to be free from self-incrimination. Minn. Const. art. I, § 7. That right, however, attaches only when police have taken the accused into custody. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612 (1966) (a defendant must be given certain warnings before statements he makes stemming from a "custodial interrogation" can be used against him). "Interrogation" is express questioning, except for threshold or background questions, and words or actions intended to elicit an incriminating response. E.g. State v. King, 513 N.W.2d 245, 248 (Minn. 1994). The test for determining the need for a Miranda warning
is not whether the interrogation has coercive aspects to it or whether the investigation has focused on the person being questioned, but whether the person being questioned is in custody or is deprived of his freedom of action in any significant way.
State v. Palm, 299 N.W.2d 740, 741 (Minn. 1980). To determine whether a suspect was "in custody" to require a Miranda warning, "the analysis begins with whether the suspect's freedom of action was restrained." State v. Hince, 540 N.W.2d 820, 823 (Minn. 1995). The test is whether a reasonable person under the circumstances would believe that he or she was in police custody of the degree associated with formal arrest. State v. Rosse, 478 N.W.2d 482, 484 (Minn. 1991) (citing Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151 (1984)). There is no question but that Scott was in custody.
The trial court found the pre-Miranda portion of the interview was misleading. The trial court determined that Scott was led to believe the officers wanted information regarding the shooting of Byron Phillips, but instead continued to interject references to incidents involving Scott's criminal participation in several crimes. Specifically, the trial court noted that, from the outset of the interview, Scott was (1) accused of not being truthful; (2) told that police had already worked up several cases against him; (3) reminded that he was warned at the County Home School of what would happen if he didn't tell the truth; and (4) specifically told that those cases against him would be discussed later. The trial court then found that moments prior to the giving of the Miranda warning, Scott made an incriminating statement because of the line of questions the officers were pursuing. As appears more fully in section III of our analysis, the record sustains this finding of fact. The court later cited the occurrence of unlawful interrogation in reaching the conclusion that appellant did not voluntarily waive his rights for purposes of the post-Miranda statements.
On August 9, 1996, while driving his vehicle, Scott was stopped by police only a few blocks from his home. Firearms were displayed by police, resulting in Scott's arrest. Scott was then taken into custody and subjected to a formal and intense pre-Miranda police interrogation, thereby significantly depriving him of his freedom of action.
Furthermore, immediately prior to the giving of a Miranda warning, Scott stated that "a female told his friend that she heard it was 'Goldie' that I was shooting at." (Emphasis added.) This hearsay statement does not appear to be a clear and unequivocal admission of culpability, and there appears to be some misunderstanding of this answer by the police and possibly by Scott. The interrogating officer appears to have understood Scott to say "it was Goldie who was shooting at me," and Scott later indicates somewhat similarly. However, we conclude the trial court's consideration of this statement as incriminating cannot be termed clear error. The trial court watched the videotape throughout and his order indicates a very diligent effort to determine its content. Under these circumstances, we conclude the questioning of Scott was at all times pursuant to a custodial interrogation, and therefore a Miranda warning was required at the outset.
2. Voluntariness of Waiver
The state argues that even though Scott was a juvenile at the time of arrest and interrogation, he had a lengthy arrest record and was very familiar with the juvenile justice system. It contends that the juvenile version of the Miranda warning was properly administered to Scott and that he made a voluntary and informed waiver of his rights.
At trial, the state cannot introduce a defendant's in-custody statements in the absence of a knowing and intelligent waiver of rights. Miranda, 284 U.S. at 444, 86 S.Ct. at 1612; State v. Douglas, 501 N.W.2d 694, 697 (Minn. App. 1993), review denied (Minn. Aug. 16, 1993). The state must establish a valid waiver by a preponderance of the evidence. State v. Williams, 535 N.W.2d 277, 286 (Minn. 1995). If the state can show that the defendant has been read his rights and understands them, the state has met its burden of showing a knowing and intelligent waiver. Williams, 535 N.W.2d at 286.
The trial court found the Miranda warning given by the police detectives "was postured as an aside, matter of factly, that it was some technical requirement." The trial court also found that despite Scott's familiarity with the criminal justice system, he was a juvenile and should have been informed that he could have a friend or family member present before questioning. The trial court further found the Miranda warning was weak and delinquently given after more than 15 minutes of questioning and after Scott had already uttered an incriminating statement. The trial court then concluded the state had failed to show by a preponderance of the evidence that Scott made a knowing and intelligent waiver of the Miranda rights.
Our independent review of the evidence indicates that the Miranda warning was delinquently given to a juvenile after 15 minutes into a custodial interrogation in which he was told he was being questioned as a witness and victim. The Miranda warning, given as the police began showing Scott photos of persons believed to be members of the Bogus Boys gang for identification as possible suspects in the killing of Byron Phillips, was casual and offhand:
Okay, the way I want to do this is I'll just show you one picture at a time and * * * if you know the person and you know him as and that kind of stuff. Because you're in custody, before--technically before we talk to you and ask you questions, we got to inform you of your rights and stuff, so if--if---you've been under arrest and read your rights?
Furthermore, from our review of the videotape and the transcript, it appears the police detectives failed to complete the warning by asking Scott to verify that he was making a knowing and voluntary waiver of his right to remain silent. Instead, the detective read the Miranda warning line by line and merely concluded:
Okay, having those rights in mind, can we talk about you being shot at and these other alleged shootings and stuff?
Under these circumstances, we cannot say the trial court's conclusion that the Miranda warning was inadequately given is error. Scott was at all times subject to a custodial interrogation pursuant to his arrest. His familiarity with the juvenile justice system does not obviate giving a timely and undisguised Miranda warning. On being given the Miranda warning, moreover, Scott was not told that, as a juvenile, he could have a friend or family member present during questioning. We hold, therefore, the trial court did not err in concluding Scott did not make a knowing and intelligent waiver of Miranda. Our independent review of the videotape and the uncertified transcript leads us to conclude that the state has failed to show, by a preponderance of the evidence, that the purported waiver was knowing, intelligent, and voluntary. We conclude, therefore, that the trial court's suppression of Scott's incriminating statements, insofar as it was based on the inadequacy of the Miranda warning and the invalidity of Scott's waiver, was not error.
3. Voluntariness of the Post-Miranda Confession
The voluntariness of a confession is an issue separate from the Miranda issues, and it must be shown by a preponderance of the evidence. * * * Blood of the accused is not the only hallmark of an unconstitutional inquisition, * * * and the use of promises, trickery, deceit, and stress-inducing techniques in obtaining confessions have all been condemned.
State v. Pilcher, 472 N.W.2d 327, 333 (Minn. 1991) (citations omitted).
The state argues that even if Miranda warnings were required at the beginning of the interrogation, the statements made in the nature of confession subsequent to the Miranda warning were voluntarily given and should be admissible. The state relies on State v. Champion, 533 N.W.2d 40 (Minn. 1995), to support its contention that, here, incriminating statements were voluntarily made incident to a custodial interrogation after the proper administration of the juvenile version of the Miranda warning.
In Champion, pursuant to a noncustodial interview, a defendant confessed to murder but was neither arrested nor given a Miranda warning until some time after he made incriminating statements. Id. at 42-43. Acknowledging the "totality of the circumstances" test, our supreme court also noted two additional inquiries:
If a station house interrogation is noncustodial at the outset and police do not change any of the circumstances of the interrogation during the course of the interrogation, they should be free to continue to ask questions after the suspect makes a significant incriminating statement without first stopping and giving the suspect a Miranda warning, provided that a reasonable person under the circumstances would not believe that he or she was in police custody of the degree associated with formal arrest.
Champion, 533 N.W.2d at 43 (citing State v. Rosse, 478 N.W.2d 482, 484 (Minn. 1991)). Furthermore, in determining that the initial violation of Miranda did not inhibit the voluntary nature of the subsequent incriminating statement, the court noted:
The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements.
Id. at 44 (quoting Oregon v. Elstad, 470 U.S. 298, 318, 105 S.Ct. 1285, 1297 (1985)). The court then concluded that Champion's post-Miranda confession was voluntarily given.
A defendant, however, waives his rights only if he is fully aware of the nature of the rights and the consequences of his decision. Colorado v. Spring, 479 U.S. 564, 574, 107 S.Ct. 851, 857 (1987). A court should consider "the child's age, maturity, intelligence, education, and the presence or absence of parents" when determining whether the confession of a juvenile is voluntary. In Re G.M., 560 N.W.2d 687, 696 (Minn. 1997). A court should also consider the adequacy or lack of a warning, the length and legality of the detention, the nature of the interrogation, and whether the defendant was deprived of physical needs. State v. Camacho, 561 N.W.2d 160, 170 (Minn. 1997) (citing State v. Hince, 540 N.W.2d 820, 824 (Minn. 1995)). In determining whether a confession was voluntarily made, an appellate court must examine the entire record and make an independent determination. Camacho, 561 N.W.2d at 170 (citing Davis v. North Carolina, 384 U.S. 737, 741-42, 86 S.Ct. 1761, 1764-65 (1966)).
Statements will be considered involuntary when the police actions, together with the totality of the circumstances surrounding the interrogation, are "so coercive, so manipulative, so overpowering" that the suspect could not willfully make an admission. Pilcher, 472 N.W.2d at 333. Where a defendant did not make a knowing and intelligent waiver of his rights, an appellate court must determine whether admission of the involuntary statements is harmless error. State v. Robinson, 427 N.W.2d 217, 224 (Minn. 1988).
After the Miranda warning was given, the trial court found, the subsequent incriminating statements were not voluntarily given and should be suppressed. The trial court noted that (1) the officers did not inform Scott that he could be certified as an adult; (2) the officers did not tell Scott that he could have a parent or guardian present; (3) the officers implied that Scott was not telling the truth; (4) the police used a great deal of profanity; (5) Scott was deprived of food and water for three hours; (6) the officers hung a cloud of guilt over Scott's head regarding the shooting of Byron Phillips; and (7) the Miranda warning was inadequate and severely delinquent. Based on the totality of the circumstances, as required in In Re G.M., the trial court concluded that the incriminating statements "were not voluntarily made."
Because the record supports the trial court's findings of fact, we believe the trial court's suppression order of Scott's post-Miranda statement was not error. We perceive no factors overlooked by the trial court in determining whether the Miranda warning was adequate and the subsequent confession voluntarily given. Unlike the defendant in Champion, we note that Scott, a juvenile, was at all times subject to a custodial interrogation pursuant to a formal arrest. Scott was not offered a break for food or beverage and was not told he could have a parent or guardian present during an interrogation that lasted more than three hours. We are troubled by the apparent coercive effects of the police interview techniques, particularly when questioning a juvenile who is unrepresented by counsel or guardian and who has been passively Mirandized. See Pilcher, 472 N.W.2d at 333; see also State v. Davis, 381 N.W.2d 86, 88 (Minn. App. 1986) (holding that based on totality of circumstances, including implied truth of event and pre-prepared confession, resulting confession was involuntary). Scott was told at the outset of the interrogation that he had lied about what he had seen at the site of the Byron Phillips shooting and was told that he was going to have the opportunity to tell the truth. The police made mention they were only trying to elicit information regarding the shooter in the Byron Phillips case and that they were questioning Scott as a victim-witness. However, there were numerous interjections by police in which Scott was repeatedly threatened with prosecution for three earlier shootings if he did not tell the truth. After referring to having solved the other shootings, the police hinted, "you have an opportunity here," and defendant responded by asking, "Opportunity for what?" Furthermore, at no time was Scott informed that he could be certified as an adult in connection with the allegations pending against him.
Shortly before the Miranda warning was given, the police asked Scott if he would help them to identify members of the "Bogus Boys," a gang believed to be implicated in the Byron Phillips shooting. Having been told he was being questioned as a victim-witness and having obtained some degree of cooperation, the defendant was told, "technically, before we talk to you and ask you questions, we got to inform you of your rights and stuff." The identification of Bogus Boys from pictures procedure was then followed, but with questions of his involvement in shooting scrapes with various Bogus Boys members woven in. He was never told that the questioning was now directed at him as a suspect in the three prior shooting incidents. It is this misdirection that the trial court appears to have had in mind when concluding that the statements in the nature of confession were not voluntarily and intelligently given, but were the product of promises, trickery, deceit, and induced stress as an interrogation technique. 4
We hold, therefore, that the trial court's conclusion that Scott's incriminating statements were not voluntarily made is supported by the record of all the surrounding circumstances, including the entire course of police conduct, and that the trial court did not err in ordering the statements suppressed. Furthermore, our own independent conclusion, based on our holding that the trial court's factual findings are not clearly erroneous, is that the state has not shown, by a fair preponderance of the evidence, that the statements in the nature of confession, made after the Miranda warning, were voluntarily given. See Pilcher, 472 N.W.2d at 333.
SHORT, Judge (dissenting).
I respectfully dissent. Scott's waiver of his Miranda rights was knowing, intelligent, and voluntary. See State v. Jones, 566 N.W.2d 317, 324 (Minn. 1997) (holding reviewing court must make independent determination of "waiver" based on all factual findings not clearly erroneous).
Although the police officers delayed giving Scott the Miranda warning, the first 15 minutes and 20 seconds of the interview focused on the shooting of Byron Phillips. In that crime, Scott was the intended victim rather than a suspect. The officers asked Scott who shot at him. The information sought need not have inculpated Scott in other offenses. In addition, the officers carefully explained to Scott that they would question him about other offenses later, after they had finished discussing the Byron Phillips shooting.
The issue here is not whether a police interview that began as a noncustodial interrogation later became custodial. Cf. State v. Champion, 533 N.W.2d 40, 44 (Minn. 1995) (trial court did not clearly err in finding interrogation became custodial after defendant admitted choking victim). Scott was at all times in custody. However, the officers were not seeking incriminating information until they gave the Miranda warning and started questioning Scott about the other incidents. Scott's pre-Miranda reference to "Goldy" was hearsay, not an admission. See generally Village of New Hope v. Duplessie, 304 Minn. 417, 425, 231 N.W.2d 548, 553 (Minn. 1975) (holding statements of third parties that defendant is clearly shown to have adopted as his own by definite and unequivocal conduct or statements are admissible as adoptive admissions). Scott's comment was not induced by police questioning, and the state does not seek to use it against him.
The trial court found the later Miranda warning does not cure the coercive environment surrounding Scott's statement. However, the failure to give a Miranda warning does not render involuntary any subsequent statement made after a proper warning. Oregon v. Elstad, 470 U.S. 298, 309, 105 S. Ct. 1285, 1293 (1985); see State v. Moorman, 505 N.W.2d 593, 600 (Minn. 1993) (determining that defendant's admission made prior to a warning did not make confession made after warning involuntary). Because a later Miranda warning is effective even after a self-incriminating statement, Scott's mere repetition of incriminating hearsay did not invalidate his later Miranda waiver. The trial court clearly erred in suppressing Scott's Miranda confession, and I would reverse the suppression order.
 Scott turned 18 shortly after arrest and was certified to stand trial as an adult. 2 The transcript (p. 4, line 6) reveals the following statement: Voice 1: "We want to talk to you about and get the full truth about what happened when you were being victimized there on Newton and Golden Valley Road."
 Our review of the evidence in this case satisfies us that the trial court's suppression order of Scott's pre-Miranda statement was not error, and the state, at oral argument, acknowledged as much. A transcript of the custodial questioning was included in the court file, but with the caveat that the transcriptionist was unable to certify to the accuracy of the record. The panel has, consequently, viewed the videotape with the aid of the uncertified transcript. The poor quality of the videotape prevented any clear understanding of some passages. 4 The transcript (p. 7, line 6) contains the following colloquy: Voice 1: "We're giving you the opportunity before you're looking at some official shit, you know, with actual charge papers; we're giving you the opportunity--"
Scott: "Opportunity for what?"
Voice 1: "For the three shootings we just talked about, okay, and we'll talk about them in--you know, we'll ask you some questions later on in this deal."