This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Deborah Ann Kenard,


Filed May 4, 1999


Toussaint, Chief Judge

Hennepin County District Court

File No. 98000145

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101; and

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant Hennepin County Attorney, C-2000 Government Center, Minneapolis, Minnesota 55487 (for respondent)

John M. Stuart, Minnesota State Public Defender, Marie L. Wolf, Suite 600, 2829 University Avenue SE, Minneapolis, MN 55414 (for appellant)

Considered and decided by Short, Presiding Judge, Toussaint, Chief Judge, and Huspeni, Judge.[*]


TOUSSAINT, Chief Judge

Appellant Deborah Ann Kenard appeals her conviction of aiding an offender, arguing that her confession was involuntary and was obtained in violation of her right to counsel. Kenard also challenges her sentence, arguing that the trial court abused its discretion in assigning a severity level to her unranked offense. Because Kenard's statement to police was voluntary and not taken in violation of her right to counsel, and because the district court's sentence was not an abuse of discretion, we affirm.



A trial court's decision regarding the admissibility of a confession will not be reversed unless it is found to be clearly erroneous. But we conduct an independent assessment of the voluntariness of the confession based on our review of the record. In re Welfare of G.M., 560 N.W.2d 687, 696 (Minn. 1997).

The Fourteenth Amendment's Due Process Clause prohibits the admission of a confession unless it was made voluntarily. State v. Jensen, 349 N.W.2d 317, 319 (Minn. App. 1984) (citing Haynes v. Washington, 373 U.S. 503, 513, 83 S. Ct. 1336, 1342 (1963)). "The voluntariness of a confession is an issue separate from the Miranda issues." State v. Pilcher, 472 N.W.2d 327, 333 (Minn. 1991). The state must prove that a confession was voluntary. State v. Merrill, 274 N.W.2d 99, 106 (Minn. 1978).

Whether a confession was voluntary is reviewed from the totality of the circumstances. State v. Moorman, 505 N.W.2d 593, 600 (Minn. 1993). Whether a confession was voluntary depends on the defendant's state of mind when she made the confession. State v. Orscanin, 283 N.W.2d 897, 899 (Minn. 1979). A statement is not voluntary if "'the defendant's will was overborne at the time he confessed.'" Jensen, 349 N.W.2d at 319 (quoting Lynumn v. Illinois, 372 U.S. 528, 534, 83 S. Ct. 917, 920, (1963)). Factors to consider when making the determination include

the age, maturity, intelligence, education and experience of the defendant as well as his or her ability to comprehend, the lack of or adequacy of the warnings, the length and legality of the detention, the nature of the interrogation, and physical deprivations and limits on counsel and friends.

Moorman, 505 N.W.2d at 600 (citation omitted). To be voluntary "a confession must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises." Malloy v. Hogan, 378 U.S. 1, 7, 84 S. Ct. 1489, 1493 (1964).

Despite Kenard's argument to the contrary, the record supports the trial court's determination that her confession was voluntarily given. Some of the statements made by police during their interview of Kenard suggested that she would not be prosecuted if she told them the truth about her role in the death of Ronald Hare. The officers told Kenard that "provided the truth comes out, you will keep Robert [her son], life will continue for you, life will go on." However, these statements did not render Kenard's confession involuntary. "Sometimes the making of a promise will render a confession involuntary, sometimes not." State v. Thaggard, 527 N.W.2d 804, 811 (Minn. 1995). Kenard, who was forty-one-years-old, received the proper Miranda warnings, had past involvement in the criminal justice system, and her will was not overborne by the officers' suggestions that she would not be prosecuted if she told the truth. Indicative of Kenard's understanding of the statements made by the officers were the questions she asked later in the interview. On multiple occasions, Kenard asked, "Am I going to prison?" and "Am I going to jail?" These questions reveal that Kenard did not perceive the officers' statements to constitute a grant of immunity.

Somewhat more troubling are the officer's repeated comments regarding Kenard's custody of her four-year-old son. During the interrogation, the officers learned that Kenard had regained custody of her son from the child protection authorities in Illinois only months before the death of Hare. Throughout the interview, the officers implicitly and explicitly threatened Kenard's custody of her son. One of the officers stated, "I just told you you're going to have to cooperate with us fully or your child -- you've seen the last of your child." Despite the potentially coercive nature of the officers' comments regarding Kenard's custody of her son, Kenard's age and experience indicate that her will was not overborne by these statements. Kenard lost custody of her son when he was an infant and, in her efforts to regain custody of him, she had extensive contact with child protection authorities in Illinois. Due to these experiences, Kenard likely understood that the officers would not determine whether the child remained in her custody. Additionally, Kenard probably understood that, regardless of her efforts to cooperate with police, she would lose custody of her son due to the fact that a homicide was committed in her apartment.

In Lynumn, the supreme court held that, because a woman was told that she would lose custody of her child if she did not cooperate with police, her subsequent statement to police was involuntary. 372 U.S. at 534-35, 83 S. Ct. at 920-21. However, the facts underlying the Lynumn decision are distinguishable from the case at bar. In Lynumn, the defendant made her oral confession only after "the police had told her that state financial aid for her infant children would be cut off, and her children taken from her, if she did not 'cooperate.'" Id. Additionally, Lynumn's statement was made "while she was encircled in her apartment by three police officers and a twice convicted felon." Id. Finally, Lynumn had no experience with the criminal justice system. Here, Kenard was seated in an interview room across from two plainclothes police officers, the officers did not threaten to deprive Kenard of a large portion of her income, and she had significant experience in the criminal justice system. Due to these differences, the environment in which Lynumn gave her confession was much more coercive than the environment in which Kenard made her inculpatory confession. Based on the totality of the circumstances, the trial court did not err in its finding that Kenard's statements to police were voluntary.


We must also address Kenard's claim that her confession was obtained in violation of her right to counsel. If an accused invokes the right to counsel during an interrogation, all custodial interrogation must cease. Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S. Ct. 1602, 1627-28 (1966). Federal law requires the request for counsel to be clear and unequivocal. Davis v. United States, 512 U.S. 452, 458-62, 114 S. Ct. 2350, 2355-56 (1994). However, since the supreme court's decision in Davis, the Minnesota Supreme Court has retained a more protective rule:

In the context of an ambiguous or equivocal invocation of Miranda's right to counsel protection, when an accused utters a statement that is arguably subject to a construction that the accused is invoking his right to counsel, this court has held that all further questioning must stop, except narrow questioning designed to clarify the accused's true desires respecting counsel may continue.

State v. Williams, 535 N.W.2d 277, 284 (Minn. 1995) (citing State v. Robinson, 427 N.W.2d 217, 223 (Minn. 1988)). Generally, the police and the courts must examine the language used by the defendant in determining whether the defendant has attempted to invoke her right to counsel. Id. at 283.

In this case, there is no dispute that the interview of Kenard constituted a custodial interrogation. Additionally, Kenard does not contend that the officers failed to give her the appropriate Miranda warnings or that she failed to understand her right to counsel. But, it is necessary to determine whether Kenard's statement was improperly obtained after she invoked her right to counsel under the Fifth Amendment to the United States Constitution and Article I, Section 7 of the Minnesota Constitution. Shortly after the interrogation began, Kenard asked, "Well, do I need a lawyer?" Although not a clear invocation of her right to counsel, this question is subject to a construction that Kenard was requesting counsel. See State v. Doughty, 472 N.W.2d 299, 303 (Minn. 1991) (holding that question, "Shouldn't I have an attorney so you don't ask me any illegal questions?" was an equivocal invocation of the right to counsel). Cf. State v. Hale, 453 N.W.2d 704, 708 (Minn. 1990) (holding that defendant's "fleeting, off-hand comment" about a future need for a good attorney was not enough to require clarifying questions or the cessation of the interview). Accordingly, the officers conducting the interview were required to cease all questioning or clarify Kenard's desire for counsel.

The officers stated, "That's up to you," which was plainly an attempt to get Kenard to clarify her desire for counsel. The officers then informed Kenard that they were not "pulling any tricks or surprises," that they were not "mean guys," and that they were just trying to find the truth. Although these comments could be construed as attempts to dissuade Kenard from exercising her right to counsel, they were not interrogation. The officer concluded by saying, "Okay?" Kenard responded by stating, "All right." The officers then resumed the interrogation, asking Kenard questions regarding Hare's death. Eventually, Kenard revealed that her boyfriend, Emmett Thomas killed Hare and that she helped Thomas to clean up evidence of Hare's death. The officers did not strictly comply with the supreme court's directive to pose "question[s] designed to clarify the accused's true desires respecting counsel." Williams, 535 N.W.2d at 284. However, the conduct of the officers was not intimidating, they did not deny any explicit request for counsel, and Kenard had ample opportunity to clarify her desire for counsel. Under these circumstances, the officers' actions did not violate the Minnesota Constitution and the trial court correctly admitted the videotape of Kenard's confession into evidence.


Finally, we must determine whether the trial court erred in assigning a severity level of VII to Kenard's unranked offense of aiding an offender and sentencing her to an executed term of 68 months. When a person is sentenced for an unranked offense, the trial court has discretion to assign an appropriate severity level to the offense. Minn. Sent. Guidelines, comment II.A.05. Such a decision will not be reversed absent an abuse of discretion. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

When determining the appropriate severity level for Kenard's offense, the trial court considered much more than the severity of Thomas's actions that Kenard helped to conceal. At the sentencing hearing, the trial court stated, "Well, I have obviously given this matter a lot of thought." The trial court also acknowledged that it had reviewed the pre-sentence investigation explaining the relevant mitigating factors and considered the propriety of a "probationary-type of sentence." Under these circumstances, the trial court did not abuse its discretion in ranking Kenard's violation of Minn. Stat. § 609.495, subd. 3 (1998) as a severity level VII offense.

Moreover, the sentencing framework supports the trial court's conclusion. Under § 609.495, subd. 3, a defendant convicted of aiding an offender may be sentenced to no "more than one-half of the statutory maximum sentence of imprisonment * * * that could be imposed on the principal offender for the crime of violence." The maximum sentence for murder in the second degree is forty years and the maximum sentence for manslaughter in the first degree is fifteen years. Minn. Stat. §§ 609.19-.20 (1998). Under the statute, Kenard could have been sentenced to a term as long as twenty years. Accordingly, the legislature has recognized that a sentence much longer than 68 months may be appropriate for the offense of aiding an offender. For these reasons, the trial court's decision to assign a severity level of VII to Kenard's offense was not an abuse of discretion.


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