State v. Ellvanger, Cr. N

• Decision Date: 28 March 1990
• Docket Number: Cr. N
• Citation: 453 N.W.2d 810
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Brandon ELLVANGER, Defendant and Appellant. o. 890144.
• Court: North Dakota Supreme Court

Page 810

453 N.W.2d 810

STATE of North Dakota, Plaintiff and Appellee, v. Brandon ELLVANGER, Defendant and Appellant.

Cr. No. 890144.

Supreme Court of North Dakota.

March 28, 1990.

Wade G. Enget (argued), State's Atty., Stanley, for plaintiff and appellee. Appearance by William E. Woods, Jr., Sp. Asst. State's Atty.

Farhart, Lian, Maxson, Howard & Sorensen, P.C., Minot, for defendant and appellant; argued by Brenda M. Zent.

MESCHKE, Justice.

Brandon Ellvanger appealed from jury convictions of manslaughter and attempted manslaughter, from denial of his motion for acquittal, and from denial of his motions for a new trial. We rule that admissions by an intoxicated and unrepresented juvenile should not have been used as evidence. We reverse and remand for a new trial.

After school on November 25, 1987, fifteen-year-old Brandon Ellvanger checked his trap line around the farm where he lived with his father, Gregory Ellvanger. Sometime after 9 p.m., Brandon left the farm and visited with his grandfather, Floyd Ellvanger, for about half an hour in a Stanley restaurant. Brandon left the restaurant intending to go home and check his traps again.

Instead, Brandon met two friends, James Kyllonen and John McGinnity. They drove around Stanley and drank beer. They later went to a party in Palermo, where Brandon continued drinking alcoholic beverages. Brandon did not recall leaving the party. The next thing Brandon recalled was pain in his back and hearing his father order him to get out of bed and to go outside.

Brandon's father, Gregory Ellvanger, returned home after a truck-driving trip, about 4:30 a.m. on November 26, 1987. Gregory found two people sleeping in a car that he did not recognize. After unsuccessfully attempting to awaken the driver of the car, Gregory entered the house. Gregory struck Brandon on the back, awakened him, and ordered him to get dressed and to go outside.

Gregory went outside again and awakened the driver of the car, James Kyllonen. While Gregory and Kyllonen were arguing, Brandon came outside with a semi-automatic .22 rifle slung over his shoulder. Gregory started toward Brandon and yelled at him in a loud voice. Brandon responded by talking about his traps. Kyllonen also started walking toward Brandon. Gregory turned his back on Brandon when he was about five feet away. Gregory heard the sounds of a scuffle and shots. He ran toward Brandon and disarmed him. Kyllonen was killed and Gregory was wounded.

Brandon was charged with murder and attempted murder. Prosecution of the offenses was transferred from juvenile court pursuant to NDCC 27-20-34. The jury convicted Brandon of manslaughter and attempted manslaughter.

Brandon appealed a number of issues. We address only three:

1) Should Brandon's admissions to investigating officers have been used as evidence?

2) Should the trial court have read the charging information to the jury?

3) Was it prejudicial for the trial court to remark, "I'll end up sentencing him."?

Brandon asserted that the trial court erred in denying his motion to suppress statements he allegedly made to law enforcement officials. We agree.

To be admissible evidence at a criminal trial, a confession must be voluntary. State v. Rovang, 325 N.W.2d 276, 279 (N.D.1982). "Whether or not a confession is voluntary must be determined under the totality of the circumstances." Id. We summarized the relationship of voluntariness, waivers, and Miranda warnings in State v. Newnam, 409 N.W.2d 79, 83-84 (N.D.1987):

When a defendant attacks the voluntariness of a confession on due process grounds, the outcome depends on the totality of the circumstances. State v. Discoe, 334 N.W.2d 466 (N.D.1983); State v. Carlson, 318 N.W.2d 308 (N.D.1982), cert. denied 459 U.S. 1040, 103 S.Ct. 456, 74 L.Ed.2d 609 (1982). The same approach determines whether a defendant voluntarily, knowingly, and intelligently waived his rights. North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); State v. Carlson, supra. The prosecution must show waiver by at least a preponderance of the evidence. Colorado v. Connelly, U.S. , , 107 S.Ct. 515, 523, 93 L.Ed.2d 473, 485 (1986). A confession may be involuntary and inadmissible even if police have complied with the Miranda requirements. Miranda v. Arizona [384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ] supra.

Factors to consider in the totality of the circumstances of a confession include "the lack of any advice to the accused of his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment such as the deprivation of food or sleep." (Citations omitted.) Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854, 862 (1973). As we recently explained in State v. Pickar, 453 N.W.2d 783 (1990), the characteristics and condition of the accused at the time of the confession, as well as the details of the setting in which the confession was obtained are relevant.

Additional factors come into play and special concerns are present when the voluntariness of a confession by a juvenile is challenged. As the United States Supreme Court pointed out in Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197, 212 (1979), testing the voluntariness of a juvenile's confession requires "evaluation of the juvenile's age, experience, education, background, and intelligence, and ... whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights." A youth's ability to understand is especially important.

In In re Gault, 387 U.S. 1, 55, 87 S.Ct. 1428, 1458, 18 L.Ed.2d 527, 561 (1967), the Supreme Court held "that the constitutional privilege against self-incrimination is applicable in the case of juveniles as it is with respect to adults" and declared:

The participation of counsel will, of course, assist the police, Juvenile Courts and appellate tribunals in administering the privilege. If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.

Statements by a youngster, unrepresented by counsel, must be scrutinized for voluntariness.

The need of children for additional protection has been recognized by our Legislature. NDCC 27-20-26 mandates that "at all stages of any proceedings" under NDCC Ch. 27-20, the Uniform Juvenile Court Act, "[c]ounsel must be provided for a child not represented by his parent, guardian, or custodian." This court applied that provision in In Interest of D.S., 263 N.W.2d 114, 120-121 (N.D.1978):

We conclude, upon a careful examination of Sec. 27-20-26, N.D.C.C., that this section imposes a mandatory duty to provide counsel for a child at all stages of the proceedings under the Uniform Juvenile Court Act providing the child is not represented by his parent, guardian, or custodian. Furthermore, we conclude that this right to counsel cannot be waived by a child who is not represented by his parent, guardian, or custodian. See, K.E.S. v. State, 134 Ga.App. 843, 216 S.E.2d 670 (1975). Any other interpretation would be contrary to the clear and unambiguous language of Sec. 27-20-26, N.D.C.C.

Investigational interrogation which focuses on an unrepresented juvenile is a critical stage of a criminal proceeding. In Interest of J.D.Z., 431 N.W.2d 272 (N.D.1988). "[T]he investigation must focus on the individual before the right to counsel applies." In Interest of M.D.J., 285 N.W.2d 558, 562 (N.D.1979). Violation of NDCC 27-20-26 renders a confession inadmissible. In Interest of J.D.Z., supra. NDCC 27-20-27 directs: "An extra-judicial statement, if obtained in the course of violation of this chapter or which would be constitutionally inadmissible in a criminal proceeding, shall not be used against" a juvenile.

The State argued to us that by acquiescing in transfer of these charges from juvenile court to adult court Brandon gave up all protections mandated by the Uniform Juvenile Court Act, including the right to counsel during interrogational stages under NDCC 27-20-26. Therefore, the State argued, all of Brandon's statements to investigating officers were admissible evidence. This argument is too sweeping. By statute, the only effect of a transfer is to terminate jurisdiction of the juvenile court over the child. NDCC 27-20-34. Transfer to adult court does not retroactively revoke any other right. It remains important that the greatest care has been taken to assure that admissions by a juvenile were voluntary.

When someone claims that a confession made during police interrogation was not voluntary, "it is the duty of an appellate court, ... 'to examine the entire record and make an independent determination of the ultimate issue of voluntariness.' Davis v. North Carolina, 384 U.S. 737, 741-742, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895, 898 (1966)." Beckwith v. United States, 425 U.S. 341, 348, 96 S.Ct. 1612, 1617, 48 L.Ed.2d 1, 8 (1976). Where adequately explained, we show great deference to a trial court's determination on voluntariness. State v. Larson, 343 N.W.2d 361 (N.D.1984); State v. Discoe, 334 N.W.2d 466 (N.D.1983). As registered by State v. Rovang, 325 N.W.2d at 280, our standard of review is whether the trial court's determination of voluntariness is manifestly against the weight of the evidence.

The trial court held an evidentiary hearing on Brandon's motion to suppress his statements to law enforcement officials. Kenneth Halvorson, Mountrail County Sheriff; Richard Hickman, an investigator for the North Dakota Bureau of Criminal Investigation; Floyd Ellvanger, Brandon's grandfather; and Gregory Ellvanger, Brandon's father, testified.

Halvorson...