This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-1951
State of Minnesota, Respondent,
vs.
Jason DeWayne Kirk, Appellant.
Filed November 23, 2015 Affirmed Hooten, Judge
Morrison County District Court File No. 49-CR-13-63
Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul, Minnesota; and
Brian Middendorf, Morrison County Attorney, Little Falls, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Ross, Presiding Judge; Chutich, Judge; and Hooten,
Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
Appellant challenges his first-degree criminal sexual conduct conviction, arguing
that the district court erred by denying his motion to suppress his statement to law enforcement and by excluding expert testimony regarding the issue of false confessions.
We affirm.
FACTS
Appellant Jason Dewayne Kirk moved from Tennessee to central Minnesota in
August 2011 to live with R.B., whom he had met on the internet. Kirk’s relationship with
R.B. became romantic shortly after he moved in with her, and he began providing
childcare for R.B.’s young children, K.B. and T.B., on a regular basis.
On January 8, 2013, when K.B. was six years old, she was working on her
homework at her grandmother’s house. K.B.’s homework was to draw what she did last
weekend, and her grandmother became concerned when K.B. drew a picture of a
computer screen depicting a woman performing oral sex on a man. K.B.’s grandmother
and grandfather went to R.B. and Kirk’s house and told them about K.B.’s drawing. K.B.
told her grandparents, her mother, and Kirk that the picture showed what she had seen on
Kirk’s computer.
R.B. contacted a child protection worker, who referred R.B. to Jeff Guith, a child
protection investigator. Guith interviewed K.B., and the interview was videotaped.
During the interview, K.B. initially did not recognize the picture that she drew, but later
told Guith that the picture was of a movie she saw on Kirk’s computer. K.B. explained
that the movie was of a woman “hopping up on the boy where . . . he go peed.” K.B. said
that Kirk had shown her the video in the living room of their home when her mother was
at work. K.B. said Kirk put his hand on her mouth and tried to move her mouth down to
2 his “tail.” Guith clarified that “tail” meant penis. K.B. told Guith that Kirk had put his
“tail” in her butt and that his “tail” was hard at the time.
After speaking with K.B., Sergeant Investigator Jeremy Luberts and Guith, who
often assisted law enforcement in interviewing child abuse suspects, went to Kirk’s job
site. There, they asked Kirk to accompany them to the sheriff’s office to discuss the
allegations. Kirk was cooperative and agreed to speak with Guith and Luberts.
The three did not discuss the allegations during the ride to the sheriff’s office. The
interview took place in a small room with a table and some chairs. Kirk was told at the
very start of the interview that the interview concerned “some inappropriate touching that
occurred.” Kirk was given a Miranda warning by Luberts, and he indicated that he
understood his rights and was willing to speak with the investigators. Guith also
informed Kirk of his privacy rights regarding the child protection investigation and told
Kirk that he did not have to answer any of the questions that he was asked. Kirk
indicated that he understood and that he wished to continue with the interview.
During the interview, which lasted just over one hour, Kirk initially denied
watching pornographic movies with K.B. or inappropriately touching her. Kirk said that
he had only touched her butt when helping her in the bathroom. When Guith suggested
that maybe something happened when Kirk was half asleep or drinking, Kirk again
denied that anything had happened. Guith suggested a number of times that people
sometimes end up in bad situations and make a mistake, and that those people should get
counseling.
3 Luberts stated that he could tell Kirk was hiding something from them and that
“cooperation in these matters goes a long way.” Luberts said that he was not looking to
put Kirk away for life, and that he was just looking to get help for K.B. and for Kirk.
Kirk again denied that anything happened. Guith, after reiterating that some people who
abuse kids actually care about the kids and just made a mistake, said, “We have an
enormous amount of power with the County Attorney’s Office on how these cases end
up. If we make recommendations . . . the County Attorney’s Office almost always takes
that into account.” Luberts reiterated that cooperation was important and told Kirk that
he was “very, very, very likely gonna’ be charged with” this crime. Kirk still denied the
allegations.
Guith told Kirk that the way that the case was handled would depend on whether
Kirk cooperated:
[I]f we have to prove this . . . through physical evidence from the doctor, through physical DNA evidence from you . . . this is gonna’ be one of those cases that goes to the County Attorney’s Office with our recommendation to get the most difficult, harsh sentence possible for you, which is gonna’ be hard time in a state facility. If you are able to help us get to the bottom of this thing . . . we will make sure you get the proper kind of counseling. We will make sure that this is something that gets addressed and that you can have your family back together . . . .
Kirk again denied abusing K.B. Guith said Kirk seemed like a guy who ended up in a
bad set of circumstances.
4 Guith stated that Kirk owed it to K.B. to admit what had happened:
You owe it to [K.B.] after what happened, you made a mistake, and it’s time for you to accept that that’s done now, okay? . . . When I talk to victims of sexual abuse, what hurts them way more than the actual sexual act is people not believing them. . . . They’re the person that this something bad happened to and then when they have the courage to talk about what happened, to then have people turn on them and say that they’re lying. To have the person that sexually touched them turn on them and say, nope, that’s a lie, okay? I know you have it within you. I can tell that you’re the kind of person that has the ability to square up on this thing.
Kirk then stated that he was playing a computer game when K.B. came up to him and
started rubbing his genitals. Kirk said that it felt like “somebody else was there
controllin’ me,” and that he pulled up a porn site on his computer. Kirk stated that he
showed K.B. his penis and that she started rubbing it. Kirk said that K.B. then went into
the bathroom and was having trouble pooping. Kirk stated that he rubbed Vaseline on
K.B.’s anus to help her poop and that he just got more aroused. Kirk then stated that he
put his penis in K.B.’s anus for several seconds and that he ejaculated.
Kirk was charged with one count of first-degree criminal sexual conduct. At his
first appearance, Kirk, appearing pro se, told the district court that his statement to law
enforcement was made under duress. Later, Kirk, now represented by counsel, moved to
suppress the statement he had given to law enforcement, asserting that it was involuntary
because it had been obtained by coercion. The district court denied this motion. Before
trial, Kirk sought permission to call an expert witness to testify regarding false
confessions. The state moved to exclude such testimony, and the district court granted
the state’s motion.
5 The first trial ended in a mistrial. At the second trial, K.B. testified that Kirk had
showed her a video of women putting their mouths on a man’s penis and that Kirk had
put his penis in her “back butt.” At trial, the state played redacted versions of K.B.’s
interview with Guith and the interview of Kirk at the sheriff’s office.
Kirk testified on his own behalf and denied that he had ever sexually abused K.B.
Kirk stated that on the day of the alleged abuse, he was home with K.B. and T.B. and
allowed K.B. to watch him play a video game for a few hours. Kirk testified that he
confessed to law enforcement because he was afraid that child protection would take the
children away unless he confessed because child protection had previously removed the
children from the house. He also stated that he thought that a therapist would recognize
that he did not do the crime and that he did not have the type of personality to harm a
child. Kirk testified that he tried to say things during the interview so that the
investigators would think he was mentally ill, merely repeated details that they had told
him, and was sleep deprived at the time. Kirk said that he frequently helped K.B. in the
bathroom and that her statement regarding him putting his penis in her anus was probably
a description of him cleaning her after she had defecated in her pants.
The jury initially told the district court that it was deadlocked, but after receiving
further instructions, the jury again deliberated and found Kirk guilty. The district court
sentenced Kirk to 144 months in prison. This appeal followed.
DECISION
Kirk challenges the district court’s denial of his motion to suppress his confession
as an involuntary statement. An appellate court “review[s] the voluntariness of a
6 confession de novo as a question of law based on all factual findings that are not clearly
erroneous.” State v. Ritt, 599 N.W.2d 802, 808 (Minn. 1999) (quotation omitted). In a
pretrial hearing at which the defendant seeks to suppress a confession on the basis that it
was involuntary, the state bears the burden to prove that the confession was voluntary by
a “fair preponderance of the evidence.” State v. Thaggard, 527 N.W.2d 804, 807 (Minn.
1995).
“The Due Process Clause of the Fourteenth Amendment prohibits the admission
into evidence of a statement that was not voluntarily given.” State v. Zabawa, 787
N.W.2d 177, 182 (Minn. 2010). In determining voluntariness, the question is whether the
defendant’s will was overborne. Id.
A court considers the totality of the circumstances when determining whether a
statement was voluntary. State v. Farnsworth, 738 N.W.2d 364, 373 (Minn. 2007). The
court must examine whether the actions of the police, along with other circumstances,
were “so coercive, manipulative, and overpowering that the defendant was deprived of
his ability to make an independent decision to speak.” Zabawa, 787 N.W.2d at 182.
However, the fact that police questioning encouraged inculpatory statements does not by
itself render a confession involuntary. State v. Pilcher, 472 N.W.2d 327, 333 (Minn.
1991).
Relevant factors in determining whether a confession was voluntary include the
defendant’s intelligence, education, age, experience, maturity, and ability to comprehend.
Zabawa, 787 N.W.2d at 182; Ritt, 599 N.W.2d at 808. The court also considers the
nature and circumstances of the interview, including “its length, the lack of or adequacy
7 of warnings, whether the defendant’s physical needs were met or ignored, and whether
the defendant was denied access to friends.” Zabawa, 787 N.W.2d at 183. The court
must also consider the use of trickery and deception. Thaggard, 527 N.W.2d at 810. “If
police use deception in an interrogation and it is the kind that would make an innocent
person confess, the confession is involuntary and must be suppressed.” In re Welfare of
D.B.X., 638 N.W.2d 449, 455 (Minn. App. 2002) (quotation omitted). Courts must
consider whether promises were made and the substance of the promises in determining
whether a confession was voluntary. Id. But, “the police must also be allowed to
encourage suspects to talk.” Farnsworth, 738 N.W.2d at 374 (quotation omitted). The
Minnesota Supreme Court has upheld the use of empathetic techniques that encourage
suspects to cooperate with law enforcement. See id. at 375 (concluding that the
defendant’s statement was voluntary, even though police had told the defendant they
would try to get him “the best help” so he could retain custody of his children); Pilcher,
472 N.W.2d at 333–34 (“That the interrogating officers chose a sympathetic approach
does not, in itself, render [the defendant’s] statements involuntary.”).
The district court found that Kirk’s statement was voluntary. In reaching this
conclusion, the district court considered the circumstances of the interview, the age,
experience, and education of Kirk, and the tactics employed by law enforcement. Despite
its overall finding that Kirk’s statement to police was voluntary, the district court
expressed some concern with the interview, noting that “Luberts and Guith came close to
making promises to [Kirk] that they could not keep. Of particular concern is their
assertion that they have ‘enormous power’ with the county attorney’s office coupled with
8 their suggestion that a confession would lead to counseling and a reunification of [Kirk’s]
family.” The district court concluded, however, that the tactics employed by Luberts and
Guith were not so deceptive as to lead an innocent person to confess.
We agree. Kirk was advised of his rights and indicated that he understood them.
At the time of the interview, Kirk was 32 years old and was employed. The district court
noted that Kirk was “articulate and educated.” Kirk had no trouble answering any
questions and never indicated that he wanted to stop answering questions. Kirk,
however, had only “limited prior involvement with law enforcement” before his arrest.
Here, the police chose the place and time of the interview. See Ritt, 599 N.W.2d
at 809 (noting that the defendant had herself selected the time of the interview). Kirk was
interviewed in the interview room at the sheriff’s office, which is a small room with a
table and chairs. The interview took place in the early afternoon and lasted
approximately one hour. Kirk never asked for food, water, or an attorney. There was no
indication that Kirk was intoxicated. Kirk was not threatened with physical abuse or
promised that he would not be charged if he admitted to the crime. Instead, Kirk was
advised that “[t]his is something that you’re very, very, very likely gonna’ be charged
with and you’re gonna’ have to deal with.”
Kirk argues that the statements and questions from Luberts and Guith are “of the
character that would convince an innocent person to confess.” Specifically, Kirk
contends that the statements made by Luberts and Guith consisted of “threats of prison
versus family unification and counseling” which “cross[ed] the line into an impermissible
inducement to confess.”
9 The Minnesota Supreme Court has “held that offers of help do not make a
statement involuntary as long as the police have not implied that a confession may be
given in lieu of criminal prosecution.” Farnsworth, 738 N.W.2d at 374. In State v.
Slowinski, the supreme court concluded that the defendant’s confession was voluntary
even though the police improperly suggested that they had influence with the county
attorney because the officers did not promise that the defendant would receive psychiatric
help instead of being sent to prison. 450 N.W.2d 107, 111–12 (Minn. 1990). In
Farnsworth, the supreme court found the defendant’s confession to be voluntary even
though the officer said he was trying to get the defendant help so he could retain custody
of his children because the officer’s statements did not indicate that the defendant would
not be prosecuted if he confessed. 738 N.W.2d at 375.
As in those cases, Luberts and Guith did not indicate at any time that Kirk would
not be prosecuted if he confessed. Indeed, Kirk was informed that he was most likely
going to be charged with this crime. Furthermore, while this court looks “with disfavor
upon both implied and express promises made during an interrogation by police . . . such
promises do not automatically render a confession involuntary.” Ritt, 599 N.W.2d at 808.
The promises that the investigators made here are tempered by the fact that the
investigators were open about what they were investigating, gave Kirk adequate
warnings, and told him before he confessed that he was likely to be charged with the
offense. Additionally, Kirk was not intoxicated, was not deprived of any of his physical
needs, and was not questioned for an excessive length of time. Despite the promises of
10 law enforcement, the totality of the circumstances indicates that Kirk’s statement was
voluntary.
Guith’s claims that he had an “enormous amount of power” with the county
attorney’s office are troubling. But, Guith only told Kirk that the county attorney’s office
usually takes his recommendations into account. Though Guith may have improperly
suggested that he had influence with the county attorney, he only told Kirk that he would
make recommendations that the county attorney’s office may take into account. Such
statements are not the type of statements that would make an innocent person confess
given the totality of the circumstances here. See Slowinski, 450 N.W.2d at 112 (holding
that statements suggesting that the police had influence with the county attorney were
improper, but did not render the confession involuntary under the totality of the
circumstances). Furthermore, Kirk maintained his innocence after the investigators
suggested that they had influence with the county attorney’s office, and only confessed
after Guith encouraged him to make things right with R.B. and K.B. And, Guith’s use of
techniques that appealed to Kirk’s emotions and sympathies did not rise to the level of
being so coercive as to deprive him of his right to remain silent. See State v. Ganpat, 732
N.W.2d 232, 240, 242 (Minn. 2007) (holding that a defendant’s confession was voluntary
when an investigator commented that he guessed the defendant had decided to “do the
right thing for your family”). The district court correctly found that Kirk’s statement was
11 II.
Kirk challenges the district court’s exclusion of proffered expert testimony
regarding false confessions. “A criminal defendant has the right to a meaningful
opportunity to present a complete defense.” State v. Penkaty, 708 N.W.2d 185, 201
(Minn. 2006). “A criminal defendant has the constitutional due process right to call and
examine witnesses, including expert witnesses, subject to the limitations imposed by the
rules of evidence.” State v. Mosley, 853 N.W.2d 789, 798 (Minn. 2014). Rulings
concerning the admissibility of expert testimony “rest within the sound discretion of the
trial court and will not be reversed absent a clear abuse of discretion.” State v. Hanks,
817 N.W.2d 663, 667 (Minn. 2012) (quotation omitted).
A witness qualified as an expert may testify regarding scientific, technical, or
other specialized knowledge if such testimony will “assist the trier of fact to understand
the evidence or to determine a fact in issue.” Minn. R. Evid. 702. To be admissible,
expert testimony must be “helpful to the jury in fulfilling its responsibilities,” and its
relevance must outweigh “the danger of unfair prejudice, the potential for confusing the
issues or misleading the jury, or other concerns.” Ritt, 599 N.W.2d at 811 (citing Minn.
R. Evid. 403). “[E]xpert testimony is not helpful if the expert opinion is within the
knowledge and experience of a lay jury and the testimony of the expert will not add
precision or depth to the jury’s ability to reach conclusions.” State v. Sontoya, 788
N.W.2d 868, 872 (Minn. 2010) (quotation omitted). The standard for determining
whether expert testimony would be helpful is an objective standard. Mosley, 853 N.W.2d
at 800.
12 Here, Kirk sought permission to call Dr. Deborah Davis as an expert witness to
testify about false confessions. Kirk explained that Dr. Davis would testify regarding: (1)
the occurrence of false confessions; (2) the occurrence of false confessions among people
without mental illness or defect; (3) why false confessions occur and what factors might
promote them; (4) how an innocent suspect could provide details of a crime without
being present during the crime; and (5) how to tell the difference between true and false
confessions. Kirk specified that Dr. Davis would not testify as to her opinion of whether
Kirk was telling the truth. The district court excluded Dr. Davis’s testimony regarding
false confessions, stating that “the case law in this state strongly suggests that [Kirk’s]
proffered expert witness testimony is not admissible at trial.”
Kirk argues that “[t]he trial court deprived [Kirk] of his constitutional right to
present a complete defense when it excluded [Kirk’s] expert witness who would have
testified about the nature of false confessions.” Specifically, Kirk argues that the
proposed testimony is distinguishable from the testimony excluded in the cases cited by
the district court. Kirk alleges that testimony regarding false confessions is instead
analogous to expert testimony regarding battered woman syndrome or the effect of sexual
abuse on children. Furthermore, Kirk argues that knowledge about false confessions has
expanded significantly in recent years and that changes in such knowledge may require
the “reevaluation of caselaw on the admissibility of expert evidence.”
The district court cited two Minnesota Supreme Court cases in support of its
decision that Kirk’s proposed expert testimony would not be admissible at trial. In Bixler
v. State, the defendant sought to introduce expert testimony regarding characteristics of
13 the defendant that made him susceptible to coercion. 582 N.W.2d 252, 254 (Minn.
1998). The supreme court upheld the district court’s exclusion of the expert testimony,
reasoning that the jury, without the testimony of the expert, was capable of observing the
defendant’s characteristics and taking those into account in evaluating his confession. Id.
at 256. In Ritt, the defendant sought to admit testimony regarding a specialized technique
of interrogation used by law enforcement. 599 N.W.2d at 810. The defendant in Ritt
sought to have the expert witness take the jury through the tape of the defendant’s
interview to point out specific interview techniques. Id. The supreme court noted its
concern that allowing expert testimony on the credibility of a witness’s statement could
turn into a battle between the experts:
In most cases, even though an expert’s testimony [regarding witness credibility] may arguably provide the jury with potentially useful information, the possibility that the jury may be unduly influenced by an expert’s opinion mitigates against admission. Nor should the credibility of witnesses in criminal trials turn on the outcome of a battle among experts.
Id. at 811 (quotation omitted). The court affirmed the exclusion of the testimony, noting
that “the jury had ample opportunity to evaluate the veracity of Ritt’s statements to [the
officer] and . . . expert testimony was unlikely to add either precision or depth to their
evaluation.” Id. at 812.
Kirk argues that the proffered testimony is distinguishable from Bixler and Ritt
because it would be more general than the expert testimony in those cases. Kirk argues
that “the testimony here is more like the testimony routinely allowed in Minnesota courts
14 to help juries understand the behavior of victims of criminal acts or to explain
counterintuitive behavior of a defendant.”
We disagree. Dr. Davis’ testimony is comparable to the testimony that was
excluded in Bixler and Ritt. Like the expert testimony excluded in Ritt, Dr. Davis’
testimony was unnecessary for the jury to consider because the pressures of interrogation
techniques are within the understanding of a lay juror. “Assessment of credibility is
ordinarily within the understanding of a lay jury.” Id. at 811. Kirk’s entire interview was
recorded, and the jury had the opportunity to hear the questions that were asked and the
manner and tone of voice in which they were asked, giving the jury the ability to
determine whether the interrogation tactics elicited a false confession. Kirk himself
testified about why he allegedly gave a false confession. Kirk cross-examined both
Luberts and Guith regarding the interrogation techniques they employed when
interviewing Kirk. Where, as here, the jury has adequate information to consider the
circumstances of the defendant’s confession, expert testimony is unhelpful to the jury.
Kirk next argues that Dr. Davis’ testimony is comparable to expert testimony on
battered woman syndrome and on the effects of sexual abuse on child victims, which is
generally permitted in Minnesota courts. See, e.g., State v. Hennum, 441 N.W.2d 793,
798 (Minn. 1989) (permitting testimony regarding battered woman syndrome because it
would “help explain a phenomenon not within the understanding of an ordinary lay
person”); see also State v. Hall, 406 N.W.2d 503, 505 (Minn. 1987) (permitting
testimony regarding behavioral characteristics frequently seen in adolescent victims of
sexual abuse). Kirk alleges that Dr. Davis’ testimony would explain why an innocent
15 person would confess to a crime, which is “as counterintuitive to the average juror as the
common behavior of child abuse victims or domestic abuse victims.”
But, the supreme court in Ritt said that under the circumstances of that case, the
jury had sufficient evidence to determine whether the police interrogation techniques
were “coercive enough to make an ordinary innocent person confess.” 599 N.W.2d at
812. Ritt explicitly distinguished the testimony regarding interrogation techniques from
expert testimony regarding battered woman syndrome or the behavior of sexually abused
children. 599 N.W.2d at 811. The court noted that testimony regarding battered woman
syndrome or the behavior of sexually abused children, unlike testimony regarding
interrogation techniques, explained a “behavioral phenomenon not within the
understanding of an ordinary lay jury.” Id. As in Ritt, the expert testimony offered in
this case is within the understanding of a lay jury. The jury had ample evidence to
determine whether Kirk had been coerced into making a false confession, including a
recording of the interview, testimony regarding the interview techniques, and Kirk’s own
explanation of his allegedly false confession. Kirk’s argument is without merit.
Finally, Kirk contends that the American court system is more aware of false
confessions and that, therefore, the caselaw regarding the admissibility of expert evidence
should be reevaluated. In support of his contention, Kirk cites Corley v. United States,
556 U.S. 303, 320–21, 129 S. Ct. 1558, 1570 (2009), in which the United States Supreme
Court noted its concerns with the pressures of custodial interrogation inducing people to
confess to crimes that they never committed. But Corley did not address the issue of
16 whether expert testimony regarding false confessions was admissible and Kirk cites no
Minnesota case that holds that such testimony is admissible.
Based upon the circumstances in this case and our standard of review, we
conclude that the district court did not abuse its discretion in excluding the proposed
expert testimony regarding false confessions.
Affirmed.