This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Huksaree B. Lee,


Filed April 20, 1999


Halbrooks, Judge

Dissenting, Davies, Judge

Ramsey County District Court

File No. K3973138

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for respondent)

Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant Ramsey County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

Harlan M. Goulett, Joseph P. Tamburino, Allan Caplan & Associates, P.A., 525 Lumber Exchange, Ten South Fifth St., Minneapolis, MN 55402 (for appellant)

Considered and decided by Davies, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.



Appellant contends that: (1) failure to record 30 minutes of his interrogation was a substantial violation of the recording requirement of State v. Scales; (2) the trial court erred by admitting evidence of appellant's incriminating statements made after expiration of the 36-hour "speedy arraignment" period; and (3) the trial court abused its discretion by ordering an upward durational departure in sentencing. We affirm.


Appellant Huksaree Buachee Lee was arrested at approximately 8:30 p.m. on September 23, 1997, after police learned that he may have been involved in a St. Paul burglary, rape, and robbery.

Officer Richard Straka began interrogating appellant at 10:00 p.m. on September 25, 1997. The interrogation was recorded on audio tape until 10:55 p.m. Straka began packing up his papers when appellant asked Straka several questions relating to the crime. Straka told appellant he needed to turn the tape recorder back on. Appellant said he did not want the tape recorder turned on. At approximately 11:25, Straka turned the recorder on. Straka then turned the recorder off within 30 seconds when appellant told Straka that he "promise[d] to tell the truth" only if the tape recorder was turned off. After appellant agreed that Straka could take written notes, Straka turned the tape recorder off and interrogated appellant for approximately 30 more minutes. During that time, appellant made statements incriminating himself in the St. Paul incident. Straka turned the tape recorder on again at 11:55 p.m., and appellant stated that Straka's notes accurately summarized their unrecorded conversation. Straka then ended the interrogation.

Appellant was arraigned on October 14, 1997. He was initially charged with first-degree burglary, first-degree aggravated robbery, and first-degree criminal sexual conduct. A kidnapping charge was later added.

The trial court denied appellant's subsequent motion to suppress evidence of the incriminating statements he made during the unrecorded portion of the interrogation. The court found that, although the statements were obtained after expiration of the 36-hour "speedy arraignment" period, they were still admissible because they were highly reliable and the delay was brief and unintentional. The court also found that the statements, although unrecorded, were admissible because appellant had specifically asked Straka to turn off the tape recorder.

A jury convicted appellant of first-degree burglary, first-degree aggravated robbery, and kidnapping, but acquitted him of first-degree criminal sexual conduct. The court sentenced appellant to consecutive prison terms of eight years for burglary, eight years for aggravated robbery, and four years for kidnapping--an eight-year upward durational departure from the combined presumptive sentences. This appeal followed.


Appellant contends that Straka's failure to record 30 minutes of his interrogation was a substantial violation of the recording requirement set forth in State v. Scales:

[A]ll custodial interrogation including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention. * * * [S]uppression will be required of any statements obtained in violation of the recording requirement if the violation is deemed "substantial." This determination is to be made by the trial court after considering all relevant circumstances bearing on substantiality * * * .

518 N.W.2d 587, 592 (Minn. 1994). Whether there was a "substantial violation" of Scales is a legal question that this court reviews de novo. State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996).

"Relevant circumstances bearing on substantiality" include: (1) the extent and willfulness of the violation; (2) whether suppression of evidence obtained in violation of the recording requirement will tend to prevent future violations; and (3) whether the violation led the accused to misunderstand his legal rights or improperly influenced his decision to make a statement. Scales, 518 N.W.2d at 592 n.5.

While the Scales violation in this case was a serious one because the unrecorded portion of the interrogation was the only time appellant made incriminating statements, there is no evidence that the violation was willful or intended to deprive appellant of his rights. Appellant asked Straka to turn the tape recorder off, and there is no indication that Straka would have done so if appellant had not asked. For this reason, suppression of appellant's incriminating statements would have little tendency to prevent future Scales violations.

Appellant does not claim that failure to fully record the interrogation led him to misunderstand his legal rights or that police used illegal or coercive strategies during the unrecorded portion of the interrogation. Appellant clearly stated on tape that he wished to "tell the truth" and would do so only if Straka turned off the tape recorder. Appellant's incriminating statements were made voluntarily.

For these reasons we conclude that, while the Scales recording requirement was clearly violated in this case, that violation was not substantial enough to justify suppression of appellant's incriminating statements.


Appellant argues that the trial court erred by failing to suppress his September 25, 1997, statements made approximately 11 1/2 hours after expiration of the 36-hour "speedy arraignment" period. See Minn. R. Crim. P. 4.02, subd. 5(1) (requiring arraignment "not more than 36 hours" after arrest, exclusive of day of arrest).

Violation of rule 4.02 does not automatically require suppression of every "late" statement. See State v. Wiberg, 296 N.W.2d 388, 393 (Minn. 1980) (rejecting "rigid exclusion of reliable evidence reasonably related to a violation of Rule 4.02"). When considering the admissibility of a statement obtained in violation of rule 4.02, the trial court must consider: (1) the reliability of the evidence; (2) whether delay was intentional or compounded the effect of other police misconduct; and (3) the length of the delay. Id.

Here, appellant's statements were "corroborated by other evidence procured independently by the police," making them reliable. State v. Pierce, 347 N.W.2d 829, 832 (Minn. App. 1984). Appellant's co-defendants and one of appellant's friends corroborated the details of appellant's incriminating statements. Additional evidence of appellant's guilt was provided by several of the victims, who identified him as the perpetrator based on his clothing.

There is no evidence that the delay was intentional or intended to coerce appellant into making a confession or that the delay had any such effect. From our review of the record, it is evident that appellant's statements were made voluntarily. Likewise, the delay did not compound the effect of any other police misconduct.

Finally, the delay was relatively short. Appellant's statements were obtained less than 12 hours after expiration of the prompt arraignment period. We have refused to suppress statements made after such a delay. See, e.g., State v. Jackson, 469 N.W.2d 457, 460-61 (Minn. App.) (refusing to suppress incriminating statement obtained at least 12 hours after expiration of speedy arraignment period because delay was not "egregious" in duration), aff'd, 472 N.W.2d 861, 863 (Minn. 1991). Appellant's statements were "not the product of any unreasonable delay," and the other circumstances of this case do not justify suppression. Pierce, 347 N.W.2d at 832.


Appellant argues that the trial court abused its discretion by ordering an eight-year upward durational departure from the presumptive sentences.

"The judge shall utilize the presumptive sentence provided in the sentencing guidelines unless the individual case involves substantial and compelling circumstances." Minn. Sent. Guidelines II.D. Departure from the presumptive sentence will be reversed only if the sentencing court abused its discretion. State v. Lee, 494 N.W.2d 475, 482 (Minn. 1992). The sentencing court must determine whether the defendant's conduct was "significantly more or less serious than that typically involved in the commission of the crime in question." State v. Back, 341 N.W.2d 273, 276 (Minn. 1983).

The trial court departed durationally in this case because appellant: (1) violated the victims' zones of privacy; (2) chose victims who were especially vulnerable and unlikely to report his crimes; (3) showed particular cruelty to his victims; and (4) lacked remorse and refused to acknowledge the adverse impact of his behavior. These findings are fully supported by record evidence. Appellant's actions were significantly more serious than those normally involved in the commission of robbery and burglary. An eight-year durational departure was "appropriate, reasonable, [and] equitable." Minn. Sent. Guidelines II.D.


DAVIES, Judge (dissenting).

I concur that there was only a technical Scales violation, if even that. But I respectfully dissent because of the "speedy arraignment" violation.

Minn. R. Crim. P. 4.02, subd. 5(1), states:

An arrested person * * * shall be brought before [a] judge or judicial officer without unnecessary delay, and in any event, not more than 36 hours after the arrest, exclusive of the day of arrest, Sundays, and legal holidays, or as soon thereafter as such judge or judicial officer is available.

(Emphasis added.)

Respondent admits that it violated rule 4.02 by keeping appellant in custody beyond the 36-hour limit without obtaining an extension and despite the availability of a judicial officer. Appellant spent two nights in custody and faced a third at the time of his late-evening confession. This excessive and unnecessary delay in arraignment suggests that appellant may have been under undue pressure to confess.

Respondent argues that it could have received an extension to hold appellant longer than 36 hours without making a first appearance. But respondent does not explain adequately why it failed to seek an extension. And, even if respondent could have asked for and obtained an extension in advance, reasons that might have justified granting--or denying--an extension become more difficult to evaluate and apply after there has been a confession--and conviction. Therefore, Minn. R. Crim. P. 4.02, subd. 5(1), would best be applied as a bright-line rule rather than allowing after-the-fact justifications. Furthermore, the reasons offered for the 36-hour violation in this case are, at best, feeble.

I would reverse appellant's conviction and remand for a new trial because the trial court abused its discretion by admitting evidence of appellant's incriminating statements.