Opinion
No. C9-02-443.
Filed September 3, 2002.
Appeal from the District Court, Carver County, File No. K101873.
Mike Hatch, Attorney General,; and Michael A. Fahey, Carver County Attorney, Martha Edith Mattheis Assistant Carver County Attorney, (for appellant)
John M. Stuart, State Public Defender,; and Mark D. Nyvold, (for respondent)
Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Stoneburner, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
On appeal from an order suppressing respondent's statement to police, the state argues that the district court clearly erred in ruling that the officer's extension of the Reid technique by minimizing the alleged offense and overemphasizing the officer's role as an advocate for respondent made the statement involuntary. Because we conclude that the officer improperly indicated that he would advocate for the respondent and that a confession would not result in criminal punishment, we affirm.
FACTS
After a nine year old described her uncle's sexual misconduct, the child's mother reported the incident to the Chaska Police Department. Detective Jon Kehrberg of the Chaska Police Department interviewed the child, who described two incidents alleged to have occurred about four years prior, when the child was about five years old. According to the child, once or twice, while changing her, respondent Joshua Robert Gevan had touched her in "wrong places" and touched her "privates" with his hands on the inside of her underwear. She thought the touching lasted about five minutes. She also told law enforcement officials that, at a different time, Gevan had touched her with his "pee-pee" when her underwear was off and she was sitting on the bathroom counter.
Kehrberg then phoned Gevan and arranged an interview. Gevan came to the Chaska Police Department a few days later, and the detective interviewed him about the incidents. The interview was conducted in a room with the doors closed, but Kehrberg immediately pointed out that the doors were not locked and that Gevan could leave at any time. A Miranda warning was not given.
Kehrberg began the 80-minute videotaped interview by reminding Gevan that there had been an allegation of improper touching. Gevan initially and repeatedly denied ever inappropriately touching any child. Kehrberg indicated that he knew that Gevan had committed the crime and repeatedly minimized the allegation by explicitly contrasting the alleged crime with much more serious crimes. The detective made a point of differentiating to Gevan, people like Gevan, who may have made a "youthful mistake," from people who were repeat offenders or predatory, indicating that he was concerned about the latter category. Kehrberg repeatedly and explicitly told Gevan that he would not be arrested if he told the officer what happened. He also repeatedly told Gevan that he would act as Gevan's advocate.
Ultimately, Gevan stated that, when he was 18 years old and babysitting his niece, he had touched her sexually. The niece he admitted touching was the same niece who complained to her mother. Gevan's description of the incident was similar to that described by the niece, with the exception that Gevan denied using his penis in any way. Gevan admitted touching only the niece's breasts and outer vaginal area, and stated that the one or two incidents were less than one minute in duration.
Kehrberg told Gevan's sister about Gevan's statements. Gevan was subsequently charged with criminal sexual conduct in the first and second degrees in violation of Minn. Stat. §§ 609.342, subd. 1(a), 609.343, subd. 1(g) (2000).
At the Rasmussen hearing, Gevan challenged the admissibility of his statement to the Chaska Police. The district court suppressed Gevan's statements to Kehrberg, finding that while Gevan's interview was noncustodial, his statements were nonetheless involuntary because Kehrberg had improperly misrepresented his role in the criminal investigation by indicating that he was an advocate for Gevan and that he was not going to "make a big deal" out of whatever Gevan told him. The court found that Kehrberg's interview technique shocked the conscience of the court. This appeal followed.
DECISION
The state argues that the district court erred by suppressing evidence of the confession. In reviewing a pretrial order suppressing evidence where the facts are undisputed and the district court's decision is a question of law, we "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) (citations omitted).
If the state appeals a pretrial suppression order in a felony case, 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)). A decision on the critical impact of the suppression order must precede determination of whether the order was made in error. Id.
Critical Impact
Critical impact is not only evident where the lack of the suppressed evidence completely destroys the state's case, but also "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, Gevan does not challenge the state's assertion that the suppression of Gevan's confession will have a critical impact on it's ability to prosecute this case successfully. Without the confession, the state only has the victim's statements as a nine-year-old about events that occurred when she was five. See State v. Ronnebaum, 449 N.W.2d 722, 724 (Minn. 1990) (holding that suppression of confession in child sex abuse case will normally have critical impact).
Clear Error
Where, as here, the claim is made that a confession was involuntary, the district court must make a subjective factual inquiry into all the circumstances surrounding the giving of the statement. State v. Hardimon, 310 N.W.2d 564, 567 (Minn. 1981). On appeal, this court determines the voluntariness of the statement on the facts as found. Id.
Voluntariness is determined by examining the "effect that the totality of the circumstances had upon the will of the defendant and whether the defendant's will was overborne when he confessed." State v. Pilcher, 472 N.W.2d 327, 333 (Minn. 1991). This determination is made upon consideration of all relevant factors including (1) the suspect's age, maturity, intelligence, education, and experience with the criminal-justice system; (2) the length and legality of the detention, the nature of the interrogation, the physical deprivations involved, and the limits on access to counsel and friends; and (3) the statements of the interrogator, specifically whether they would convince an innocent person to confess. Id.; State v. Ritt, 599 N.W.2d 802, 808 (Minn. 1999); State v. Slowinski, 450 N.W.2d 107, 111 (Minn. 1990). In a pretrial suppression hearing where the defendant seeks to suppress a confession as involuntary, the state has the burden of proving that a confession is voluntary. State v. Thaggard, 527 N.W.2d 804, 807 (Minn. 1995).
The record reflects that at the time of the interview, Gevan was 25 years old, employed and had minimal prior experience with the criminal-justice system. The record does not specifically address Gevan's education or maturity. The interrogation was an hour and a half and no Miranda warning was given; Gevan was told that he could leave at any time.
Thus, the question of the voluntariness of the confession comes down to the tactics used by Kehrberg, and the odds that they, when used against this defendant, might have produced a false confession. Kehrberg testified that the interrogation method he used was a combination of the "Reid technique" of interrogation and some of his own tactics. He also testified that the Reid technique manual does not promote use of the word "advocate" in interrogations, and that, even though he perceives himself to be an advocate of sorts, he knows that is not his role in the criminal-justice system.
The Reid technique is a method of interrogation first catalogued in detail in Inbau and Reid, Criminal Interrogation and Confession (1962) . State v. Thaggard, 527 N.W.2d 804, 808 (Minn. 1995). Common elements of the Reid technique are the officer (1) maintaining privacy with the defendant; (2) positing guilt of the suspect as fact with questions that seek to understand why the crime was committed; (3) minimizing the moral seriousness of the crime; (4) exhibiting confidence in the ability to get a confession; and (5) blaming the victim or society at large. See Miranda v. Arizona, 384 U.S. 436, 449-50 nn. 9-10, 12-13, 86 S.Ct. 1602, 1614-15 nn. 9-10, 12-13 (1966).
These tactics are designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already — that he is guilty. Explanations to the contrary are dismissed and discouraged.
Id. at 450, 86 S.Ct. at 1615. The investigator then looks for signs that indicate that the defendant actually committed the crime. After Miranda, the authors of Criminal Interrogation and Confessions revised the book, not to advocate different techniques, but to advocate first obtaining a Miranda waiver. Thaggard, 527 N.W.2d at 808 (Minn. 1995).
While deceit and trickery are not condoned police practices, confessions obtained with this technique are admissible so long as the specific practices used do not "shock the conscience" or risk inducing a false confession. Slowinski, 450 N.W.2d at 112. We agree with the district court's conclusion that Kehrberg's use of the word "advocate" and the particularly aggressive application of the Reid technique "shocks the conscience" of the court. It is evident that "advocate" was used to imply that Kehrberg would try to prevent a serious criminal charge against Gevan. Kehrberg repeatedly described the accusations as not serious and characterized his interest in them as solely to see if Gevan had committed more serious crimes. Kehrberg repeatedly and unequivocally stated that Gevan would not be arrested and that Gevan would escape any substantial criminal punishment so long as Gevan told him the truth and the truth was nothing more than the allegation.
But even if the use of the word "advocate" had been limited to offering to speak with Gevan's sister on Gevan's behalf, this would nevertheless have improperly suggested that Kehrberg's role was something other than adversarial. See Pilcher, 472 N.W.2d at 333 (noting that, in that case, the transcript did not suggest that the defendant "falsely believed [the interrogator] represented something other than an adversarial role as the questioner").
A key fact in determining the voluntariness of a confession is whether the suspect was aware that he was being investigated for a serious crime. Thaggard, 527 N.W.2d at 812. See, e.g., Pilcher, 472 N.W.2d at 333 (confession of defendant admissible where he was aware that he was arrested for, and was prime suspect in, a homicide investigation). Gevan's confession reveals that he did not appreciate, in any way, that he was being investigated for a serious crime. The record reveals that a young, impressionable defendant distraught over the family consequences of the accusation was never put on notice as to the seriousness of the crime. Kehrberg not only minimized the moral seriousness of the crime, but also he severely distorted the potential legal consequences. Kehrberg told him that he would not be arrested for the crime. In such a situation, there is a significant possibility that Gevan confessed in consideration of the offer of advocacy.
Citing State v. Ritt, 599 N.W.2d at 810, the state argues that, regardless of Kehrberg's tactics, the fact that Gevan disagreed with specific points regarding the allegation shows that the police conduct would not have overborne the will of an innocent person. But here, the points of disagreement all pertained to the severity of the crime, not just to the details as to how it was carried out. Such clarifications are entirely consistent with Gevan trying to admit to what he reasonably believed would not result in serious criminal prosecution to a person representing himself as his advocate.
The district court did not err in suppressing the confession.
Affirmed.