State of Minnesota, Appellant, vs. Ronald Erwin Schmidt, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1078

 

State of Minnesota,

Appellant,

 

vs.

 

Ronald Erwin Schmidt,

Respondent.

 

Filed December 28, 2004

Affirmed in part and reversed in part

Kalitowski, Judge

 

Murray County District Court

District Court File No. K5-04-12

 

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

 

Paul M. Malone, Murray County Attorney, 2605 Broadway Avenue, P.O. Box 256, Slayton, MN 56172-0256 (for appellant)

 

Mark D. Nyvold, 332 Minnesota Street, Suite W-1610, St. Paul, MN 55101 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge; Wright, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant State of Minnesota challenges the district court's decision to suppress respondent's incriminating statements, made on January 20, 2004, to an officer of the Murray County Sheriff's office.  The underlying facts regarding respondent's statements are undisputed, and respondent's interviews with the officer were recorded on videotape.  The state argues that (1) respondent's initial statement should not be suppressed because respondent initiated the conversation, the statement was not made in response to custodial interrogation, and the statement was voluntary; (2) respondent's subsequent incriminating statements should be admitted because they corroborate the victim's testimony and are critical to the prosecution of their case; and (3) the district court erred in ruling that respondent's statements cannot be used for impeachment purposes.  Because appellant's initial statement on January 20 was made without a knowing and intelligent waiver of his previously invoked right to counsel, and his subsequent statements were taken in violation of Minnesota's clarifying question rule, we affirm the district court's suppression of respondent's statements.  But we reverse the district court's ruling that respondent's January 20 statements cannot be used for impeachment purposes if respondent testifies in his own defense.

D E C I S I O N

I.

            When the state appeals a pretrial suppression order, it "must clearly and unequivocally show both that the trial court's order will have a critical impact on the state's ability to prosecute the defendant successfully and that the order constituted error."  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (citing State v. Zanter, 535 N.W.2d 624, 630 (Minn. 1995)) (quotation marks omitted).  "Critical impact has been shown not only in those cases where the lack of the suppressed evidence completely destroys the state's case, but also in those cases where the lack of the suppressed evidence significantly reduces the likelihood of a successful prosecution."  State v. Kim, 398 N.W.2d 544, 551 (Minn. 1987). 

            Here, the state has satisfied the critical impact requirement.  The alleged criminal sexual conduct occurred over a number of years, and there are no eyewitnesses.  Because the alleged conduct was reported after the fact, there was no DNA evidence.  Without respondent's confession, the state will be forced to prosecute its case by relying almost entirely on the testimony of the victimrespondent's teenage stepdaughter.  The likelihood of a successful prosecution will therefore be significantly reduced without respondent's confession.

II.

            "[W]hen reviewing a pre-trial order suppressing evidence where the facts are not in dispute and the trial court's decision is a question of law, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed."  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).  But the district court's underlying factual findings are subject to a clearly erroneous standard of review.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).

The right to have counsel present during all custodial interrogations is undisputed.  State v. Ray, 659 N.W.2d 736, 741 (Minn. 2003) (citing Miranda v. Arizona, 384 U.S. 436, 469, 86 S. Ct. 1602, 1625 (1966)).  The U.S. Supreme Court elaborated on this right in Edwards v. Arizona, where it held that once a suspect has expressed a desire to deal with police only through counsel, he cannot be further interrogated absent counsel unless the suspect reinitiates further conversation.  451 U.S. 477, 484-85, 101 S. Ct. 1880, 1884-85 (1981). 

From the Edwards ruling, a three-part test has evolved to determine whether a suspect's constitutional rights have been violated after he has already invoked his right to counsel.  State v. Munson, 594 N.W.2d 128, 138 (Minn. 1999); see also State v. Staats, 658 N.W.2d 207, 213 (Minn. 2003) (applying the three-part Edwards test in Minnesota).  First, this court determines whether the suspect unequivocally invoked his right to counsel during a custodial interrogation.  Id.  Second, if the suspect invoked his right to counsel, we examine whether he reinitiated discussion with the police.  Id. at 138-39.   Third, if the suspect reinitiated discussion with the police, this court must consider whether he properly waived his invoked right to counsel before the police proceeded to take his statement.  Id.; see also State v. Hannon, 636 N.W.2d 796, 804-05 (Minn. 2001) (holding that the inquiries into whether a suspect reinitiated discussions with the police, and whether subsequent events indicated a waiver of the right to counsel, are separate).

In Minnesota the supreme court recognized a fourth layer of protection afforded to suspects whose right to counsel is at issue in State v. Risk:        

[I]n order to protect an accused's right against compelled self-incrimination under the Minnesota Constitution, police are required to cease questioning an accused once he or she has made an ambiguous or equivocal statement that could reasonably be construed as an invocation of the accused's right to counsel, except for narrow questions designed to clarify the accused's true desires regarding counsel.  Only if the narrow clarifying questions asked by the police confirm that the accused is not expressing a desire to deal with the police only through counsel may the police resume the custodial interrogation.

 

598 N.W.2d 642, 648-49 (Minn. 1999).  The court, in Risk, acknowledged that "this rule provides more protection than is required by the United States Constitution," and that "the rule we announced in Robinson, and reaffirm here, is consistent with our ‘long tradition of assuring the right to counsel.'"  Id. at 649 (quoting Friedman v. Comm'r of Pub. Safety, 473 N.W.2d 828, 831 (Minn. 1991)).  See Hannon, 636 N.W.2d at 805 n.2; State v. Al-Naseer, 678 N.W.2d 679, 690 (Minn. App. 2004).       

The facts here require that appellant's January 20, 2004 statements be analyzed under both the three-part Edwards test and the Risk clarifying question rule.

            1.         Did Respondent Unequivocally Request Counsel?

            We review the district court's findings regarding whether respondent invoked his right to counsel for clear error.  Munson, 594 N.W.2d at 139.  A request for counsel must be clear and unequivocal for it to be effective.  Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 2355 (1994). 

            It is undisputed that respondent unequivocally requested counsel on January 18, 2004, when he stated, "I might as well just stop this because I feel like I'm being boxed . . . . I want to wait for a lawyer."  After hearing this statement, the officer promptly stopped questioning respondent and provided him with a telephone book and telephone.  Respondent was unable to obtain counsel that day and he had no further contact with the officer until January 20, 2004.  

            2.         Did Respondent Reinitiate Discussions with the Officer?

            Neither side disputes that respondent reinitiated the discussion with the officer.  Respondent's statement that he wanted to talk to the officer is clearly audible on the videotape of his confession.  And the district court found that "on January 20, 2004 at approximately 4:30 p.m., [the officer] was informed by dispatch that [respondent] wanted to speak with [him]."  Thus, it is clear that this part of the Edwards test has also been satisfied.

            3.         Did Respondent Knowingly and Intelligently Waive his Right to Counsel Before his Confession?

            While noting that "[u]pon [the officer's] arrival . . . [respondent] stated ‘[t]he reason I wanted a lawyer the other night is I am willing to confess,'" the district court failed to address the issue of waiver as it applies to this statement or its timing.  Instead, the district court recited Minnesota's clarifying question rule, followed by the broad proposition that "[i]f questioning does not cease after the accused requests an attorney, any evidence obtained as a result of the interrogation is not admissible against the accused at trial."

            But the clarifying question rule is designed to protect a suspect's constitutional right to an attorney where his requests are equivocal or ambiguous.  Risk, 598 N.W.2d at 648-49.  Here, while respondent did make an equivocal request for counsel immediately after saying, "[t]he reason I wanted a lawyer the other night is I am willing to confess," his initial statement was made without any prompting by the officer.  As such, application of the clarifying question rule to this particular statement was premature.  See Risk, 598 N.W.2d at 648-49.          

            To determine whether respondent's initial statement to the officer is admissible, our inquiry must focus on the third prong of the Edwards testi.e., whether, after reinitiating contact with the officer, respondent knowingly and intelligently waived his previously invoked right to counsel prior to making the statement at issue.  On appeal, this court conducts an independent review, on the basis of the facts as found by the district court, of whether the state has shown by a fair preponderance of the evidence that respondent knowingly and intelligently waived his previously invoked right to counsel.  Hannon, 636 N.W.2d at 806.  Whether a suspect voluntarily waived his constitutional rights is determined by examining the totality of the circumstances.  Al-Naseer, 678 N.W.2d at 690 (citing State v. Pilcher, 472 N.W.2d 327, 333 (Minn. 1991)).

            Respondent's statement that "[t]he reason [he] wanted a lawyer the other night is [he was] willing to confess," was made to the officer before the officer had a chance to determine whether respondent had waived his right to counsel.  And it is undisputed that respondent made an unequivocal request for counsel on January 18, 2004two days before reinitiating conversation with the officer.  See Staats, 658 N.W.2d at 214-15 (holding that, where neither officer discussed the suspect's previously invoked right to counsel, but simply gave the suspect new Miranda warnings, the state could not meet its burden of proving the suspect waived his invoked right to counsel); see also Hannon, 636 N.W.2d at 806-07 (holding that, where a suspect made an incriminating statement after reinitiating conversation under Edwards, the "statement cannot, by itself, suffice to show a waiver of appellant's asserted right to counsel").

            The record indicates that respondent first attempted to gain access to a public defender on January 17, 2004, and that the officer told respondent he did not know how respondent could obtain a public defender.  Respondent also made an unequivocal request for counsel on January 18, 2004.  And he was given an opportunity to obtain counsel, but was unsuccessfulmost likely because January 18, 2004, was the Sunday before the Martin Luther King Jr. holiday.  On January 20, 2004, immediately after telling the officer that he was "willing to confess," respondent stated that he "tried to find out this morning how to see the public defender." 

            These facts indicate that, based on the totality of the circumstances, respondent did not knowingly and intelligently waive his previously invoked right to counsel.  The fact that respondent reinitiated discussions with the officer and promptly made an incriminating statement to him, does not constitute a valid waiver of a previously invoked right to counsel in Minnesota.  See Hannon, 636 N.W.2d at 806-07 (holding that the state's "heavy burden" to demonstrate a knowing and intelligent waiver was not satisfied by the accused's incriminating statement alone, where the accused had previously made an unequivocal request for counsel, and then reinitiated discussion with police).  Thus,  we affirm the district court's suppression of this statement.   

            4.         Did the Officer Abide by the Clarifying Question Rule?

            The district court found that, after respondent's initial admission, the officer failed to follow the clarifying question rule with regard to respondent's statements.  We agree.  The district court correctly held that "[the officer] failed to either halt the interrogation or to clarify that [respondent] was not expressing a desire to deal with the police only through counsel" at any time throughout the January 20, 2004 exchange between himself and respondent.

            Most importantly, immediately after respondent's initial admission, respondent made the following statement:  "I tried to find out this morning how to see the public defender, so we could take care of this earlier today."  At this point, the officer was required to cease questioning respondent and to determine the specifics of respondent's desire to obtain counsel.  Risk, 598 N.W.2d at 648-49.  Because the officer did not cease the questioning, the district court properly suppressed respondent's subsequent inculpatory statements. 

III.

            Finally, the state argues that the district court erred in determining that respondent's statements were not admissible for purposes of impeachment.  As respondent points out, the district court's finding on this issue was likely a  typographical error.  It is unlikely that the district court would grant a motion to suppress respondent's statements and then intentionally formulate the next sentence as "[h]owever, the Court notes that the statements may be inadmissible at trial for impeachment purposes."

            But if the district court intended to hold that respondent's statements cannot be used for impeachment purposes, the court erred.  "A confession obtained in violation of [respondent's] constitutional right to counsel may be used for the purposes of impeachment, but only if voluntary."  State v. Slowinski, 450 N.W.2d 107, 111 (Minn. 1990).  Whether a confession is voluntary depends on the totality of the circumstances.  Id.  Here, despite our finding that respondent's right to counsel was violated, the record indicates that respondent voluntarily made a statement to the officer that he had sexually abused his stepdaughter.  Respondent did not challenge the trustworthiness of his confessions and the record does not indicate that the officer coerced respondent to confess.  Accordingly, respondent's January 20, 2004 statements, while properly suppressed for use by the state in its case-in-chief, are admissible in the proper circumstances to impeach respondent. 

            Affirmed in part and reversed in part. 

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