Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
Brian Luke Broulik,
Filed June 9, 1998
Douglas L. Ruth, Steele County Attorney, 317 North Cedar, P.O. Box 616, Owatonna, MN 55060 (for respondent)
Richard E. Tollefson, Mark J. Rahrick, Smith & Tollefson, 113 West Main Street, P.O. Box 271, Owatonna, MN 55060 (for appellant)
Considered and decided by Davies, Presiding Judge, Harten, Judge, and Schultz, Judge.
*Retired judge of the District Court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
U N P U B L I S H E D O P I N I O N
Appellant Brian Broulik appeals from an omnibus order and his conviction of one count of second-degree criminal sexual contact after a court trial on stipulated facts under State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), contending that the trial court erred in denying his motion to suppress his confession. We affirm the trial court's finding that appellant did not invoke his right to remain silent when he hesitated before answering two questions by the police.
D E C I S I O N
The right to silence must be unambiguously and unequivocally invoked. State v. Williams, 535 N.W.2d 277, 285 (Minn. 1995). Whether a person has invoked his right to silence is a question of fact for the trial court. State v. Johnson, 463 N.W.2d 527, 532 (Minn. 1990). This court will not reverse a trial court's findings unless an examination of the record as a whole shows that the findings were clearly erroneous. Id.
Appellant contends that his confession should have been suppressed because the officers failed to honor his invocation of his right to remain silent. Appellant argues that he twice invoked his right to silence when, during his police interview, he did not respond to questions posed by the officer. The officer asked, "[W]hat happens on the second floor?" to which appellant did not reply. The officer then said, "Just gotta let `er go, Brian," to which appellant replied, "You know what happened on second floor." The officer followed up with several questions eliciting details. Then the officer asked, "What took place up here?" to which appellant did not reply. Again the officer responded by saying, "Just gotta let `er go here, Brian." Appellant then proceeded to disclose incriminating details and eventually admitted that he had sexually molested two boys.
In its omnibus order, the trial court found that appellant's "non-responsive pauses" were nothing more than "uncomfortable pauses taken before divulging embarrassing information." The court noted that appellant "continued to answer additional questions without hesitation." The court concluded that appellant's failure to immediately respond to two questions during a two-hour interview was not an invocation of his right to remain silent.
The trial court's findings are correct. Appellant's two "non-responsive pauses" are insufficient to constitute an unambiguous and unequivocal invocation of the right to silence. Williams, 535 N.W.2d at 285. Appellant continued to answer questions and never indicated to the officers that he wanted to end the interview. Thus, appellant has failed to establish clear error.