State of Minnesota, Appellant, vs. Khanthaly Sengphet, Respondent. C4-97-1290, Court of Appeals Unpublished, November 10, 1997.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-97-1290

State of Minnesota,

Appellant,

vs.

Khanthaly Sengphet,

Respondent.

Filed November 10, 1997

Affirmed in part and reversed in part

Short, Judge

Nobles County District Court

File No. KX97116

Hubert H. Humphrey, III, Minnesota Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, and

Kenneth J. Kohler, Nobles County Attorney, 912 Third Avenue, P.O. Box 607, Worthington, MN 56187 (for appellant)

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Special Assistant Public Defender, 2829 University Avenue, S.E., Suite 600, Minneapolis, MN 55414 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Short, Judge, and Holtan, Judge.[*]

U N P U B L I S H E D O P I N I O N

SHORT, Judge

Khanthaly Sengphet was charged with aiding an offender in violation of Minn. Stat. § 609.495, subd. 3 (1996). Pursuant to Minn. R. Civ. P. 28.04, subd. 1(1), the state appeals from the trial court's pretrial order suppressing Sengphet's statements that she made while being questioned outside of her home and later at the police station after being given a Miranda warning. We affirm in part, and reverse in part.

D E C I S I O N

We will reverse a trial court's determination on a pretrial matter in a criminal prosecution only if the state demonstrates clearly and unequivocally that (1) the trial court erred in its judgment, and (2) the error will have a critical impact on the outcome of the trial absent reversal. State v. Joon Kyu Kim, 398 N.W.2d 544, 547 (Minn. 1987). Because the facts are not in dispute and the trial court's decision is a question of law, we independently review whether the evidence should be suppressed. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

The state argues the trial court clearly erred in concluding Sengphet was in custody, and therefore illegally detained and questioned at the scene of the suspect's apprehension. We disagree. The record demonstrates police officers: (1) secured the outside area around Sengphet's home; (2) telephoned the occupants of Sengphet's home and requested they exit the residence "with their hands up"; (3) waited outside Sengphet's home with their guns drawn; (4) detained and questioned Sengphet; (5) positively identified the suspect and placed him under arrest; (6) again questioned Sengphet; and (7) failed to issue a Miranda warning to Sengphet. Given these facts, we conclude a reasonable person in Sengphet's position would have understood that she was in custody. See Berkemer v. McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138, 3150 (1984) (holding safeguards prescribed by Miranda become applicable as soon as suspect's freedom of action is curtailed to degree associated with formal arrest); State v. Champion, 533 N.W.2d 40, 43 (Minn. 1995) (holding Miranda warning is required when reasonable person under circumstances would believe he or she was in police custody of degree associated with formal arrest); see also State v. Rosse, 478 N.W.2d 482, 486 (Minn. 1991) (holding defendant should have been given Miranda warning because reasonable person would believe she was in custody and was being restrained to degree associated with formal arrest). The trial court did not err in suppressing Sengphet's statements made at the scene of the suspect's arrest.

II.

The state also argues the trial court clearly erred in suppressing Sengphet's post-Miranda statement under the "fruit of the poisonous tree" doctrine. We agree. The record demonstrates Sengphet: (1) was arrested, taken into custody, and transported to the police station; (2) was asked if she would speak with a police officer; (3) was given a Miranda warning; and (4) waived her rights and gave a statement to a police officer. We conclude Sengphet's post-Miranda statement was obtained by means sufficiently distinguishable from the prior illegal questioning so as to be purged of the "primary taint." See State v. Dakota, 300 Minn. 12, 17-19, 217 N.W.2d 748, 752-53 (1974) (holding although first statement was illegally obtained there was sufficient support for trial court's admission of defendant's post-warning statements); State ex rel. Pittman v. Tahash, 284 Minn. 365, 367-69, 170 N.W.2d 445, 446-48 (1969) (holding full oral confession that was inadmissible because it was obtained without proper warnings did not taint written confession obtained later in day after proper warnings were given). Under these circumstances, the trial court erred in suppressing Sengphet's post-Miranda statements and that error has a critical impact on the outcome of the state's case. See State v. Ronnebaum, 449 N.W.2d 722, 724 (Minn. 1990) (holding critical impact is shown in cases where lack of suppressed evidence completely destroys state's case, and in cases where it significantly reduces likelihood of successful prosecution).

By separate motion, Sengphet requests an award of attorney fees on appeal. See Minn. R. Crim. P. 28.04, subd. 2(6) (permitting defendant's recovery of reasonable attorney fees and costs incurred in responding to appeal of pretrial order by prosecuting attorney). After reviewing the supporting information, we grant Sengphet's motion for $1,050 in attorney fees and costs.

Affirmed in part and reversed in part.

[ ]^* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.