Opinion
No. C2-99-661.
Filed March 21, 2000.
Appeal from the District Court, Ramsey County, File No. K1982645.
Mike Hatch, Attorney General, and Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, (for appellant)
Considered and decided by Crippen, Presiding Judge, Klaphake, Judge, and Shumaker, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant Reggie R. C. Campbell contends that the trial court erred in refusing to suppress his murder confession, by failing to conduct an in camera review of a motion to disclose an informant's identity, and by refusing to depart from the sentencing guidelines. We affirm.
FACTS
Willie Campbell was shot in the neck on July 1, 1998, and he died. A confidential informant told police that appellant Reggie R. C. Campbell was one of three men who allegedly had said they would kill Willie Campbell because he had assaulted their grandmother.
Between July 13 and July 15, 1998, police questioned appellant five times. Before each interview, an investigator read to appellant a Miranda warning from a police department form. Each time, appellant acknowledged that he understood his rights by placing his initials next to the particular rights printed on the form and then signing the form. All interviews were tape-recorded.
On July 13, investigators told appellant of the evidence they had acquired and of their theory of the case. Appellant admitted that his fingerprints might be found in the car allegedly used to transport the suspects to the scene of the murder. He also admitted that he was at the scene on the day of the shooting and that he was looking for Willie Campbell. But appellant denied involvement in the crime. After these admissions, appellant stated: "I want to talk to my lawyer." The investigator replied that he would ask no further questions, but he continued to describe the evidence the police had obtained. The investigator also repeatedly urged appellant to tell the truth about the incident. Appellant sometimes responded to the investigator's statements, and eventually the questioning continued. At the end of the session, appellant was arrested.
On July 14, the police interrogated appellant twice. Early in the first interview, the investigator asked appellant whether he wanted to stay with his version of the facts from the July 13 interview or to correct that version. The investigator then reminded appellant that he could have had a lawyer for the previous interrogation but that appellant chose not to have a lawyer present. Appellant agreed. During this interrogation, appellant asked if he could call his lawyer before answering additional questions. The investigator said he could do so and allowed him to call his mother first to help him contact a lawyer. As appellant discussed with the investigators his efforts to reach a lawyer, one investigator told him that the police would be presenting a murder case against him to the county attorney that afternoon and that if he had something to say he should do so now. Appellant then said that he had lied in the July 13 interview. He admitted having had the murder weapon in his hand but he denied shooting Willie Campbell. He also named the person who did the shooting.
Early in the second interview on July 14, appellant asked if he could talk to his lawyer. The investigator allowed him to use the telephone. Appellant had a conversation with a person he said was his lawyer. After the telephone conversation, the investigators gave appellant the option of making a further statement. Appellant then called his attorney again. After the call, appellant said that he did not want to make any additional statements. The investigators told him to call them if he changed his mind.
Appellant spoke with the investigators twice on July 15. Both times he called them and asked to speak with them. In the first session, appellant gave further information about the crime. In the second session, appellant admitted that he had lied in the prior interviews to try to save himself from involvement in the case. This time he admitted that he shot Willie Campbell.
On July 17, 1998, the state charged appellant with one count of intentional and one count of unintentional second-degree murder. At a suppression hearing, the trial court suppressed all of appellant's statements on the ground that his waiver of his right to counsel had not been knowing, voluntary, and intelligent. The court denied appellant's motion for an in camera determination of the need for disclosure of the informant's identity. After the state moved for reconsideration of the suppression, the trial court reversed its ruling as to the July 15 statements and determined that, under State v. Warndahl , 436 N.W.2d 770 (Minn. 1989), the statements were admissible.
Appellant waived a jury trial and submitted the case to the trial court on the police reports and the admissible statements. Appellant expressly reserved the suppression issues for appeal. The trial court found appellant guilty of unintentional second-degree murder, denied appellant's motion for a departure from the sentencing guidelines, and imposed the presumptive sentence.
Appellant challenges the trial court's denial of the motion to suppress the July 15 statements, the court's denial of a motion for an in camera review of the issue of disclosure of the identity of the confidential informant, and the court's refusal to depart from the sentencing guidelines.
DECISION
July 15 Statements
Appellant contends that his statements to the police on July 15, 1998, should have been suppressed because he did not knowingly, intelligently, and voluntarily waive his Miranda rights before making the statements. In its initial suppression ruling, the trial court found that the police informed appellant of his rights before he made any statements on July 15; that appellant knew of his right not to say anything because he had spoken with his attorney on previous days; that he did not effectively invoke his right to counsel on July 15; and that his statements on that day were voluntary. The trial court concluded, however, that the police illegally obtained statements on July 13 from appellant and such illegality compromised and tainted the voluntariness of the July 15 statements.
In reversing its ruling, the trial court reaffirmed its factual findings but concluded that, as a matter of law under State v. Warndahl , 436 N.W.2d 770 (Minn. 1989), the July 15 statements were admissible.
On appeal, we will uphold the trial court's factual findings as to the circumstances of a suspect's statements to the police unless the findings are clearly erroneous. State v. Williams , 535 N.W.2d 277, 286 (Minn. 1995); State v. Johnson , 463 N.W.2d 527, 533 (Minn. 1990). But we make an independent determination as to the voluntariness of a confession by applying constitutional principles to the facts. Williams , 535 N.W.2d at 286; State v. Linder , 268 N.W.2d 734, 735 (Minn. 1978).
We apply a bright-line rule that
an accused, * * * , having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.Edwards v. Arizona , 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885 (1981). Once an accused invokes his right to counsel,
a court may admit responses to further questioning only by finding that the accused 1) initiated further discussions with police and 2) knowingly and intelligently waived the right invoked.Warndahl , 436 N.W.2d at 775 (citations omitted). In reviewing the trial court's findings and in applying constitutional principles to those findings, we use a totality-of-the-circumstances test. State v. Munson , 594 N.W.2d 128, 141 (Minn. 1999).
At the time of his interrogations appellant was 18 years old, had an 11th grade education, and had been in a "slow-learners" class. He had little prior experience with the legal system. He was arrested and held in custody at the conclusion of the interview on July 13. For the next two nights he slept only a few hours. By the July 15 interview, he was sick to his stomach and feeling claustrophobic in jail.
From the outset of the interrogations, the police gave appellant both physical and telephone access to his mother. She sat with him during portions of the interviews and the police also explained to her during a telephone conversation what evidence they had and what process they were following. The police never denied appellant access to a lawyer. Appellant spoke with his lawyer without time restriction at least twice before his second statement on July 15. Before each interview, the investigator read through all of appellant's constitutional rights and asked appellant to acknowledge his understanding of those rights. Appellant did so in writing.
By the time of his second statement on July 15, appellant knew his rights. He knew how to invoke his right to counsel, and had done so twice. He did not ask to speak with his lawyer before making his second statement on July 15. He initiated the contact with the police because he had lied in his previous statements and he wanted to ameliorate his legal predicament. The police made it clear that he did not have to say anything further. He chose to do so, however.
In Warndahl , as here, the conduct of the police interrogators raised the question of the applicability of the "fruit of the poisonous tree" doctrine. See Wong Sun v. United States , 371 U.S. 471, 487-88, 83 S.Ct. 407, 417 (1963) (if the evidence in question would not have come to light but for illegal actions of police, the evidence should be suppressed). The court in Warndahl held that the challenged statement "was not the `fruit' of the earlier illegal statement * * * ," and that the defendant himself initiated the contact that led to the challenged statement. Warndahl , 436 N.W.2d at 776.
Here, appellant volunteered statements on July 13 about his connection with the crime. He falsely denied any involvement and tried to explain evidence that linked him to the crime scene and the car observed at the scene. His denial and related statements preceded his request to consult with a lawyer. The police did not obtain these statements illegally.
Appellant persisted in false statements in later interviews. On July 15 he initiated contact with the police so that he could tell the truth about his involvement in the crime. When he admitted shooting Willie Campbell, he corrected his prior voluntary denial of the shooting. Appellant's July 15 admission was the "fruit" of his prior legally obtained statement.
Even if there existed some degree of taint from the illegally obtained statements, appellant's initiation of the contact that led to his admission was an intervening circumstance sufficient to erase any such taint.
The trial court did not err in its findings or in its application of Warndahl .
Confidential Informant's Identity
Appellant next argues that the trial court erred in not conducting an in camera hearing to determine whether the confidential informant's identity should be disclosed.
The supreme court has approved a four-factor test for determining whether a confidential informant should be disclosed:
(a) Whether the informant was a material witness. * * *
(b) Whether informer's testimony will be material to the issue of guilt. * * *
(c) Whether testimony of officers is suspect. * * *
(d) Whether the informant's testimony might disclose entrapment. * * *Syrovatka v. State, 278 N.W.2d 558, 561-62 (Minn. 1979). The defendant bears the burden of making a showing sufficient to require disclosure. Id. at 562.
To protect the identity of a confidential informant when deciding if there is a basis for disclosure, Minnesota appellate courts have permitted or required in camera questioning of the informant. State v. Moore , 438 N.W.2d 101, 106 (Minn. 1989). All that is needed to justify an in camera inquiry is a minimal showing of a basis for inquiry but something more than mere speculation by the defendant that examination of the informant might be helpful. Id.
Here, the trial court concluded that appellant failed to make even a minimal showing to warrant an in camera review. On appeal, appellant's arguments appear merely speculative as to the confidential informant's reliability, involvement in the incident, and motive. Furthermore, appellant fails to establish how an examination of the confidential informant would be helpful. The confidential informant's testimony would not be about the crime itself but would merely place appellant at the scene in a car, with a gun, and in the company of his two cousins.
When the informant is merely a tipster who conveys information and is not an active participant in or witness to the offense, disclosure is not required. State v. Marshall, 411 N.W.2d 276, 280 (Minn.App. 1987), review denied (Minn. Oct. 26, 1987); see also State v. Purdy , 278 Minn. 133, 145, 153 N.W.2d 254, 262 (1967).
Even without the confidential informant's statement, the evidence against appellant consisted of his own confession and the admissions of his two accomplices who identified appellant as the shooter.
Because there was no showing that the confidential informant was a necessary trial witness for the state or for appellant, the trial court did not err in denying appellant's motion to disclose the confidential informant's identity. See State v. Solheim, 477 N.W.2d 785, 787 (Minn.App. 1991)
Sentencing Departure
A departure from the sentencing guidelines rests within the trial court's discretion and will not be reversed absent a clear abuse of that discretion. State v. Spain , 590 N.W.2d 85, 88 (Minn. 1999). Only in "rare" cases will a reviewing court reverse a trial court's imposition of the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Even where grounds exist justifying departure, an appellate court will not ordinarily interfere with the imposition of the presumptive sentence. State v. Back, 341 N.W.2d 273, 275 (Minn. 1983).
In deciding whether to depart, the sentencing court must decide whether the defendant's conduct is more or less serious than that typically involved in the commission of the crime in question. State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984).
Here, appellant claims that his act of shooting Willie Campbell resulted from the heat of passion arising from Campbell's assault on his grandmother. Appellant appears to contend that his heat of passion indicates a lesser degree of culpability and therefore should be considered as a mitigating factor justifying a downward departure. See Minn. Sent. Guidelines II.D.2.a (possible mitigating factors listed in guidelines involve circumstances that, although not rising to the level of a defense, indicate a lesser degree of culpability).
Appellant's argument is without merit. Appellant armed himself with a gun, drove around for hours looking for the victim, and, after locating him, pulled the trigger twice and fatally wounded him. Under these facts the trial court could have reasonably decided that appellant was not less culpable than persons guilty of typical second-degree unintentional murder. This is not the "rare case" contemplated by Kindem. The trial court did not abuse its discretion in determining that substantial and compelling circumstances did not exist to justify a departure.