State v. Burrell

HANSON, Justice

[concurring and dissenting).

Although I agree with the conclusion of the majority that some errors were made *606in Burrell’s trial, I do not agree that any error has been shown to be so prejudicial as to warrant a new trial. I would conclude that: (1) the admission of the videotape of Burrell’s interrogation was not error because Burrell voluntarily waived his Miranda rights and, even if the admission was error, it was harmless because Bur-rell’s statements were exculpatory; (2) to the extent that Dr. Bruggemeyer’s expert testimony included vouching for the testimony of James Turner, any error was harmless; (3) to the extent that expert testimony about criminal gangs was overboard and conclusory, any error was harmless; (4) a remand to the district court to conduct a hearing on whether Marketta Burrell’s statements were “testimonial” is the appropriate remedy for Burrell’s Crawford claim; and (5) a remand for an in camera review of the Tyson and Williams plea negotiations is the appropriate remedy for Burrell’s Brady claims.

1. Videotape of Burrell’s Interrogation

At the pretrial hearing on Burrell’s motion to suppress the videotaped interrogation, Burrell relied on the argument that his Miranda waiver was ineffective because he was denied access to his mother. On appeal, Burrell expands his challenge to the videotaped interrogation by also arguing that investigators mischaracter-ized statements that had been made by Burrell’s codefendants about Burrell’s involvement in the murder, investigators failed to advise Burrell that any statements he made could be used in adult court, and investigators delayed giving the Miranda warning. I would conclude that Burrell waived these additional grounds by not including them in his motion to suppress. See, e.g., State v. Roby, 463 N.W.2d 506, 508 (Minn.1990). But even if we were to consider all grounds argued on appeal, as does the majority opinion, I would conclude that the totality of the circumstances demonstrate that Burrell’s waiver of his Miranda rights and his statements to police were made knowingly, intelligently and voluntarily.

a. Denial of access to mother

The repeated references in the majority opinion to the number of times Burrell asked to speak to his mother, implies that police should have honored that request. But we have held that a juvenile does not have a.right to interrupt interrogation to speak to a parent and that interrogation must cease only when a juvenile unambiguously invokes the right to speak with counsel or the right to remain silent. See, e.g., State v. Jones, 566 N.W.2d 317, 323-24 (Minn.1997). Although Burrell asked to speak to his mother three times before the Miranda warning was given, he appears to have done so in the context of wishing to notify her of his whereabouts. He did not say that he wanted to speak to her about his right to counsel or to remain silent, and he did not condition his waiver of his Miranda rights on consultation with his mother. Burrell’s requests cannot reasonably be interpreted as a request to consult with counsel or to remain silent, neither of which were ever mentioned.

These requests to talk to his mother can be considered as one factor in a totality of the circumstances analysis, but under the circumstances of this record and the way in which the requests were made, I would not give them significant weight. And I would give no weight to the additional requests that Burrell made after he waived his Miranda rights, particularly those that came after police had begun interviewing Burrell’s mother separately.

b. Mischaracterizations by interrogators

I agree with the conclusion reached by the majority that investigators mischarac-*607terized information they had from Tyson and Williams when they said “they’re putting you in the middle of some stuff’ and “they’re hooking you into this stuff.” But the investigators’ statements and suggestive questions were general, they did not suggest precisely how Burrell was said to have been involved, and any mischaracteri-zation was slight. We have said that investigators may use miseharacterizations without rendering the resulting statements involuntary unless the “deceit is the kind that would make an innocent person confess.” Jones, 566 N.W.2d at 326. The statements by the investigators were part of the preliminary explanation about why Burrell had been brought in for interrogation. The videotape reveals that they were made in a cordial manner, were not coercive and were not designed to overcome Burrell’s will. In fact, the statements did not overcome Burrell’s will because he did not confess. Accordingly, I would not give the investigators’ mischar-acterizations any significant weight in the analysis of the totality of the circumstances.

c. Possibility of prosecution as an adult

I agree with the conclusion of the majority that the failure of the investigators to inform Burrell that he could be prosecuted as an adult and that any statements that he made could be used in adult court, did not materially affect the validity of Bur-rell’s waiver of his Miranda rights. Under the circumstances of the interrogation, it is fair to impute to Burrell knowledge of the possibility that he could be prosecuted in adult court.

d. Delay in providing a Miranda warning

The investigators did not give Burrell the Miranda warning until about 10 min.utes after they began talking to him in the interrogation room. Although the majority does not find it necessary to consider this circumstance, I would conclude that it did not taint the interrogation. We have criticized a process where the investigators seek to obtain inculpating statements before giving the Miranda warning, and then to have the suspect repeat those statements after giving the warning. State v. Bailey, 677 N.W.2d 380, 390 (Minn.2004), rehearing denied (Minn. Apr. 22, 2004). Recently, in Missouri v. Seibert, the United States Supreme Court likewise condemned any deliberate attempt to make an “end run” around Miranda. 542 U.S. 600, 124 S.Ct. 2601, 2606-07, 159 L.Ed.2d 643 (2004). The circumstances here do not present the concerns raised in Bailey and Seibert because the investigators did not ask Burrell any questions about the shooting during the pre-Miranda segment. They only used this time for preliminary matters, such as to explain why they wanted to question Burrell. They actually tried to prevent him frqm making any statements, about the shooting until after the Miranda warning was given. -The investigators were undoubtedly trying to put Burrell at ease and to encourage him to talk. These are appropriate law enforcement goals and they.did not violate Bur-rell’s constitutional rights.

e.Totality of the circumstances

I disagree slightly with the majority’s statement of the standard of review. The majority opinion states that we ‘'‘make a subjective factual inquiry to determine whether under the totality of the circumstances the waiver was valid” and later that “we subjectively analyze the totality of the circumstances to determine whether the district court committed clear error by ruling that the state has proven by a preponderance of the evidence that Burrell’s *608Miranda waiver was knowing, intelligent, and voluntary.” (pp. 17 and 27-28.) These statements are drawn from State v. Camacho, 561 N.W.2d 160, 168-69 (Minn.1997), but there the court appears to have conflated the review of the district court’s fact-findings and conclusions of law into one test (stating that “the district court’s conclusion that a waiver was knowing, voluntary and intelligent will normally not be reversed unless that finding is clearly erroneous.”) (Emphasis added.) The better statement is that contained in Jones, that

we will not reverse the trial court’s specific findings unless they are clearly erroneous, but we will make an independent determination, on the basis of the facts as found, of whether the state has shown by a fair preponderance of the evidence that the waiver was knowing, intelligent and voluntary.

566 N.W.2d at 324. In Jones, we gave some deference to the district court’s findings. The majority’s analysis gives no deference to district court’s findings.

At the omnibus hearing, the district court heard testimony from two of the interrogating officers and viewed the entire videotape of Burrell’s interrogation. The lead investigator explained that he did not accede to Burrell’s request to talk to his mother because it became apparent that Burrell intended to use his mother as an alibi witness and it would go against good police practice to interview two fact witnesses together or to allow them to speak freely to each other before giving a statement. The investigator also testified that he fully explained to Burrell why police wanted to speak to him and he gave an extensive Miranda warning and asked questions to test Burrell’s comprehension of that warning.

Another investigator testified about the arrival of Burrell’s mother at the station, that investigator’s conversation with her, and the subsequent interrogation of Bur-rell based on information obtained from his mother. The investigators testified about Burrell’s demeanor during their respective interrogations, stating that he was alert, focused, relaxed, responsive, not unduly nervous, not angry, and not intoxicated or otherwise disabled. Both testified that no threats were made and no coercion was used. The second investigator testified that when he disagreed with Burrell or confronted him with a conflict with his mother’s statement, Burrell stood his ground. A review of the videotape confirms that the investigators’ firsthand observations are accurate.

The lead investigator also testified about his knowledge of Burrell’s previous contacts with law enforcement, which included several contacts with Minneapolis police, four arrests and at least one prior Miranda warning.

The district court made detailed findings. The court determined that no questions were asked of Burrell until after a full Miranda warning was given; that Burrell demonstrated his knowledge and understanding of the Miranda rights “by repeating a number of the rights in his own language”; that Burrell demonstrated that he “accurately understood what rights were involved”; that Burrell demonstrated his understanding of the questions asked and his “willingness to speak to the officers”; that Burrell was provided with water, was allowed to use the restroom and was not restrained; that Burrell appeared to be comfortable and without physical distress; and that the questions were not overly coercive. The court found that Burrell “made a knowing, intelligent waiver of his rights” and that the “statements that he gave to the police were given freely and voluntarily.”

I would conclude that the district court’s findings are supported by the evidence, *609are not clearly erroneous and support the conclusion under the totality of the circumstances that Burrell’s waiver of his Miranda rights was intelligently and knowingly made and that his- statements were voluntary. Even if no deference is given to the district court’s findings and we were to review the evidence independently, I would likewise conclude that the evidence concerning Burrell’s age, experience, education, background and intelligence demonstrated that he was fully capable of understanding, and did understand, the warnings about the nature of his rights and the consequence of waiving those rights. Given the comprehensive discussion with Burrell of the Miranda warning, the open and non-coercive nature of the interrogation, Burrell’s frequent volunteering of information and ready responses to questions, the absence of any confessions by Burrell, the fact that his requests to speak with his mother did not suggest any unwillingness to continue the interrogation and did not invoke his right to counsel or to remain silent, and the fact that the mischaracterizations of evidence made by the interrogators in preliminary discussions were slight and did not appear to intimidate or otherwise influence Burrell, I would conclude that Burrell’s statements were voluntary. Accordingly, I would rule that the videotape was admissible.

Even if the admission of the videotape was error, I would conclude that it was harmless. The tape does not contain any confessions. Burrell consistently denied any involvement with the shooting and even denied that he had been with Tyson and Williams. In fact, Burrell’s failure to object to admission of the videotape suggests a deliberate trial strategy. The admission of the tape allowed Burrell to present his. exculpating story to the jury without subjecting himself to cross-examination. Having chosen this strategy, Bur-rell cannot genuinely argue that the admission of the tape affected his substantial rights. See State v. Litzau, 650 N.W.2d 177, 182 (Minn.2002); Minn. R.Crim. P. 31.02.

The majority finds that Burrell’s substantial rights were “at risk” because the investigator’s mischaracterizations were presented to the jury. But those mischar-acterizations were slight and nonspecific and the court instructed the jury that they were not evidence. Further, I disagree with the statement of the majority that we “cannot say whether [the codefendants’] statements * * * turned out to be true.” Although Tyson and Williams did not testify to their eyewitness accounts, the intended victim, Oliver, did. When Oliver testified that Burrell was the shooter, he provided evidence that was far more specific, detailed and relevant than the investigator’s generalized statements that Tyson and Williams were “putting [Burrell] in the middle of some stuff.”19

The majority opinion understates the impact of Oliver’s testimony in its harmless error analysis. It acknowledges that there was “testimony from Oliver, a potential rival gang member who said, ‘Little Skits’ was the shooter.” (p. 31.) But Oliver went much further. He said that Bur-rell was “Little Skits,” he identified Bur-rell as the shooter in a photo lineup, and, during his trial testimony, he identified Burrell as' the person who was standing alone in the area where the shots had been fired and who pointed a gun at him and *610pulled the trigger. Thus the case against Burrell was not circumstantial, but was based on direct eyewitness testimony.

Oliver’s testimony was corroborated by the physical evidence. The trajectory rod placed in the bullet hole in the wall of the home where Tyesha Edwards was shot, pointed to an area in the side yard across Chicago Avenue. Police found discharged cartridge casings in that yard, in the same general area where the trajectory rod from the bullet hole pointed. Oliver testified that he heard nine or ten shots coming from the location where the casings were found and, when the shots stopped, he saw Burrell standing alone in that yard pointing a gun at him and trying to fire it, but there were no more shells in the gun. Oliver testified that there was daylight and there were no obstructions to his view. He saw Burrell standing there alone with the gun in hand, aimed at Oliver. After the shooting, Oliver observed two holes in his pants that had not been there before the shots were fired. Oliver’s testimony was also partially corroborated by admissions that Burrell made to his cousin and to James Turner.

The slight mischaracterizations by police in the videotape, which were presented to the jury without objection by Burrell, were insignificant in the face of Oliver’s eyewitness testimony about Burrell’s actions, as corroborated by the physical evidence and Burrell’s own admission that he had been with Williams and Tyson when Edwards was shot.

2. Dr. Bruggemeyer’s testimony

Dr. Bruggemeyer’s statement that she believed that James Turner was “being truthful” was improper expert opinion, but was an isolated statement. Further, it was not responsive to the state’s question and Burrell failed to move to strike the answer after it was given. In the context of Oliver’s direct evidence identifying Bur-rell as the shooter, this “vouching” was harmless.

3. Gang expert’s testimony

Although the Gang Strike Force officer’s testimony about criminal gangs went beyond the guidelines we suggested in DeShay and Lopez-Rios, this trial took place before those decisions were filed. Moreover, each of those decisions held that similar gang testimony was harmless error. See State v. DeShay, 669 N.W.2d 878, 888 (Minn.2003); State v. Lopez-Rios, 669 N.W.2d 603, 613 (Minn.2003). I would reach the same conclusion here because the officer’s testimony was no more prejudicial than that in DeShay and Lopez-Rios, and because Burrell admits that “there was ample other testimony indicating that the shooting was committed for the benefit of a gang.”

. The majority mentions a "post-Miranda suggestion that Tyson had 'blamed' Burrell for the shooting." To be completely accurate, the investigator did not say, pre-Miranda, that Tyson "blamed" Burrell for the shooting. Further, this is not an accurate description of what was said post-Miranda. Instead, the investigator only asked: "Is it wrong if Ike's blamed it on you?”