In the Matter of the Welfare of:  Z.M.M., Child.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C0-98-650

State of Minnesota,
Appellant,

vs.

Charles Quenard Ellis,
Respondent.

Filed September 29, 1998
Affirmed
Norton, Judge*

Hennepin County District Court
File No. 97091332

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

Michael O. Freeman, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for appellant)

A. Demetrius Clemons, 425 South Third Street, Minneapolis, MN 55415 (for respondent)

Considered and decided by Klaphake, Presiding Judge, Shumaker, Judge and Norton, Judge.

U N P U B L I S H E D   O P I N I O N

NORTON, Judge

This pretrial appeal by the state is from the trial court order suppressing an interrogating officer's testimony summarizing an inadmissible videotaped interrogation. Because the trial court's denial of the prosecutor's request would not have a critical impact on the trial, we affirm.

FACTS

Respondent Charles Ellis was charged with the October 1, 1997, sexual assault and robbery of K.D., along with two separate incidents of aggravated robbery that occurred in the same area on October 8. K.D. described her assailant as a young, black man of medium build, wearing a royal-blue fleece jacket, and a black, fishing-type hat with a brim, brandishing a silver pistol.

Respondent was apprehended following the October 8 crimes. Because respondent was suspected in the assault on K.D., K.D. viewed a photo line-up that included respondent. K.D.'s attention was drawn to respondent's photo. K.D. also identified the black fishing hat taken from respondent as the hat worn by her assailant.

On October 9, respondent was simultaneously questioned about all three crimes and he was subsequently charged. In April 1998, an omnibus hearing was held. During the hearing, with regard to the sexual assault, respondent moved for suppression of portions of his confession that was videotaped pursuant to State v. Scales, 518 N.W.2d 587 (Minn. 1994). The state indicated that, because respondent's statements about the robberies and rape were inextricably intertwined, it was technologically impossible to edit out and piece together just the portions regarding the rape. The state proposed that the interrogating officer be called to summarize the interrogation, stipulating that, if the context of the statements were disputed or if there were elements of the interview that the defense wanted to emphasize, portions of the video could be presented to the jury.

The trial court ruled the videotape inadmissible because questioning about the sexual assault could not be extricated from the testimony about the robberies. The court further ruled that the interrogating officer could not testify about the contents of the confession because the videotape was the "best evidence."

D E C I S I O N

In an appeal from a pretrial order suppressing evidence in a criminal case, we defer to the trial court's determination unless "the state demonstrates clearly and unequivocally that the trial 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. Edrozo, 578 N.W.2d 719, 722 (Minn. 1998) (quoting State v. Webber, 262 N.W.2d 157, 159 (Minn. 1977)). Although the critical impact rule is a demanding standard that is dependant on the nature of the state's evidence, it "does not require that the suppression order render the available proof insufficient as a matter of law, or so weak as to effectively destroy a successful prosecution." Id. at 723 (citing State v. Joon Kyu Kim, 398 N.W.2d 544, 550-51 (Minn. 1987).

The state urges that the recent supreme court holding in Edrozo supports finding that the exclusion of respondent's statement would have a critical impact. That statement was described by the trial court, as "at best * * * a very, very halfhearted confession by a person who effectively says, 'I really don't know what happened because I was so drunk that I don't really remember, but that's what must have happened.'" In the statement, respondent reluctantly admits to robbing a woman, and, eventually, to a dim memory of having sexual intercourse. In Edrozo, the statement of the defendant, charged with a specific intent crime, allegedly included an admission of his intent to hit his victims. Id. Recognizing that the state had other significant incriminating evidence, including five eyewitnesses, the court ruled that, because the defendant was charged with a specific intent crime, the defendant's confession was important to proving that element of the crime. Id.

Not only are we not persuaded that Edrozo expands the critical impact rule to include respondent's statement simply because it may incriminate him, we are not satisfied that, even if we were to apply a more expansive standard, the state has met its burden of demonstrating critical impact. The state, in its briefing, failed to address critical impact and, during oral arguments, speculated that, if respondent asserted an alibi as a defense, his confession would have a critical impact on the state's case. In contrast to Edrozo, where the defendant's statement was important in proving intent, here respondent's nebulous confession, at most, bolsters the state's evidence that respondent committed the crime. Being provided with little more than a generalized assertion that respondent's statement will critically impact the state's case, we cannot agree that suppressing the officer's testimony rises to the level necessary to satisfy the critical impact rule.

Furthermore, considering the weight of the evidence the state has against respondent, we are not convinced that suppression of respondent's statement significantly reduces the likelihood of successful prosecution in this case. See State v. Alt, 504 N.W.2d 38, 45 (Minn. App. 1993) (suppression of DNA evidence had critical impact, "particularly in light of the [rape] victim's apparent failure to identify [defendant] in a photo display"). Cf. State v. Ronnebaum, 449 N.W.2d 722, 724 (Minn. 1990) (confession had critical impact because victim of sexual abuse was young child); State v. Norberg, 423 N.W.2d 733, 735 (Minn. App. 1988) (defendant's interview statements had critical impact because only other evidence was testimony of mentally ill woman with IQ of 62).

Having concluded that the state failed to satisfy its burden of showing critical impact, we find it unnecessary to reach the issue of whether the trial court erred in suppressing the officer's testimony.

Affirmed.

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