This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1437

 

State of Minnesota,

Appellant,

 

vs.

 

James Sydney Allen-Davis,

Respondent.

 

Filed December 20, 2005

Affirmed
Klaphake, Judge

 

Washington County District Court

File No. K0-05-1717

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Doug Johnson, Washington County Attorney, Michael C. Hutchinson, Assistant County Attorney, 14949 62nd Street North, P.O. Box 6, Stillwater, MN  55082-0006 (for appellant)

 

Edward W. Simonet, III, 522 South 4th Street, Stillwater, MN  55082 (for respondent)

 

            Considered and decided by Halbrooks, Presiding Judge, Klaphake, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            The State of Minnesota appeals from a pretrial order suppressing statements made to police by respondent James Sydney Allen-Davis.  Because the district court did not err by suppressing statements made by respondent after he unambiguously invoked his right to remain silent, we affirm.

D E C I S I O N

            On motion of the prosecuting attorney, an appellate court will reverse a pretrial order if “the state demonstrates clearly and unequivocally that the [district] 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).  The suppression of evidence has a critical impact when “the lack of the suppressed evidence significantly reduces the likelihood of a successful prosecution.”  State v. Joon Kyu Kim, 398 N.W.2d 544, 551 (Minn. 1987).  In State v. Ronnebaum, 449 N.W.2d 722, 724 (Minn. 1990), also a criminal sexual conduct case, the supreme court observed that “when a [district] court suppresses a confession in a case of this sort, the suppression normally will significantly reduce the likelihood of a successful prosecution.”  We conclude that the state here met its burden of proving critical impact.

            If a suspect in custody makes an “unambiguous and unequivocal invocation of the right to remain silent,” questioning must cease.  State v. Day, 619 N.W.2d 745, 749 (Minn. 2000).[1]  The police may not fail to honor “a person’s invocation of his right to remain silent ‘either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind.’”  Id. at 750 (quoting Michigan v. Mosley, 423 U.S. 96, 105-06, 96 S. Ct. 321, 327 (1975)).  Once a suspect has invoked the right to remain silent, only “narrow questions designed to clarify the accused’s true desires “regarding the right to counsel and to remain silent” are permitted.  State v. Staats, 658 N.W.2d 207, 213 (Minn. 2003).

            Here, respondent told the interrogating officer that he was advised by an attorney not to say anything; when the officer asked if that was his choice, he said, “I, all I, I’m just going with what I’m told, so I would love to talk to you some more but I, I’m thinking that he was advising me.”  The officer then said, “Okay, so you’re opting not to say anything more?” to which respondent replied, “I, yes.”  This is an unambiguous assertion of respondent’s right to remain silent.  The investigator’s continuing attempts to encourage respondent to talk violated his right to remain silent. 

            The state argues that respondent reinitiated contact when he agreed to talk “off the record.”  A suspect who has invoked the right to remain silent can waive this right by reinitiating contact with the police.  Id.at 213-14.  The question of whether a suspect has reinitiated contact with the police is a legal question reviewed de novo by the appellate court.  Id. at 214.  The state has the burden of showing that a suspect’s waiver of rights is “knowing, intelligent, and voluntary,” and that “the suspect affirmatively acknowledges that he or she is revoking a previously invoked right.”  Id. (quotation omitted).

            Respondent unequivocally invoked his right to remain silent by indicating that an attorney told him to answer no further questions.  The investigator skillfully prodded respondent into continuing to talk by agreeing that respondent had the right to remain silent, but suggesting that he was “just trying to find out what happened.”  Respondent stated that he would like to explain, but he wanted to go “off the record,” apparently assuming that an off-the-record conversation would not be used in any way.  Although the investigator switched off the audiotape at respondent’s request, the videotape continued to play, unbeknownst to respondent.  By so doing, the investigator failed to scrupulously honor respondent’s invocation of his right to remain silent.

            Given the totality of the circumstances here, we cannot conclude that respondent made a knowing, intelligent, and voluntary waiver of his right to remain silent as instructed by his attorney when he agreed to speak “off the record.”  Because the state has failed to sustain its burden of proof, the district court’s order suppressing the statements is not erroneous.

            Affirmed.