In abuse case, lawyer questions police methods

By Sarah Stultz | Albert Lea Tribune

Published Friday, May 29, 2009

Brianna Broitzman

Was it an interview or an interrogation? And when does it become necessary to issue a Miranda warning?

Those were the questions that surfaced Friday during the first day of testimony in the contested omnibus hearing for 19-year-old Brianna Broitzman, one of two young women charged as an adult in the case of alleged abuse at Good Samaritan Society of Albert Lea.

Broitzman, who faces 11 charges ranging from fifth-degree assault to criminal abuse by a caregiver and mandatory failure to report suspected abuse, appeared with her lawyer, Larry Maus, for what turned into four hours of testimony and questioning from two witnesses — the two law enforcement officers who investigated the case locally.

Throughout questioning, Maus questioned the constitutionality of his client’s statements to investigators.

He argued that Deb Flatness, a detective with the Albert Lea Police Department, and Bob Kindler, an investigator with the Freeborn County Sheriff’s Office, should have formally told Broitzman while a camera recorded that her questioning was voluntary and of her rights to an attorney. The interview was May 6, 2008.

Maus also questioned some of the statements made by Kindler to Broitzman, describing them as “threats, promises or coercion.”

He said if the court rules there was no necessity for a Miranda warning or cautionary warning, the defense will fight that Broitzman’s statements were involuntary, or the product of “coercion and manipulation.”

If Broitzman’s first statements are ruled as unconstitutionally obtained, then her second statements to Minnesota Department of Health investigators would also be tainted, he said.

The crux of his arguments centered around whether the questioning was done in an in-custody setting, he said, noting he thinks Broitzman was deprived of her protection under both the 5th and 6th amendments.

During the hearing Friday, a transcript and DVD recording of Broitzman’s interview with Flatness and Kindler was submitted as evidence.

Both Maus and Freeborn County Attorney Craig Nelson asked Flatness and Kindler about the events that led up to and surrounded the interview.

Charges in the case came in December after an investigation into allegations of abuse by the Police Department, the Sheriff’s Office and the Minnesota Department of Health.

Details of the allegations, however, surfaced last August after the release of the Department of Health’s report. It concluded four teenagers were involved in verbal, sexual and emotional abuse of 15 residents at the nursing home in Albert Lea. The residents suffered from mental degradation conditions such as Alzheimer’s disease and dementia.

Flatness’ testimony

Flatness — who has worked as a late-night patrol officer with the Police Department for 8 1/2 years and as a detective for 3 1/2 years — said she first got involved with the alleged abuse case on May 4, 2008, a Sunday, after she received a voicemail from Lt. J.D. Carlson with the department.

When she arrived at the Law Enforcement Center that evening, Carlson gave her a copy of the initial call for service and the initial report of the responding officer.

She said after reading through it, she grabbed a notebook and her recorder and proceeded to Good Sam to meet with members of the administration, including Mark Anderson, administrator, Renae Peterson, director of nursing, Denise Andersen, social worker, and Dawn Thompson, human resources director. That was at about 5:30 p.m.

Information had been received by their staff that several employees had sexually, emotionally and physically abused several residents, she said. She listened as the administrators shared how they received that information, and she asked whether the residents could be interviewed.

Flatness said the administrators stated they had attempted to interview the residents themselves but the residents could not provide any information.

They had done head-to-toe searches of the residents and found only a few minor bruises, she said.

“They could not say that was a direct cause of abuse,” she said.

The two people who came forward with information were nursing assistants Stephanie Sipple and Morgan Walton.

Sipple brought the alleged abuse forward after she was terminated from her employment after a loud verbal argument with Broitzman at the facility while Sipple was off-duty.

Walton indicated Alicia Heilmann, Kaylee Nash, Ashton Larson and Broitzman were allegedly involved with the abuse.

After gathering this information, Flatness said, interviews were set up at the Law Enforcement Center with the help of Mark Anderson, and for the next two days — May 5 and 6, 2008 — interviews were conducted.

She noted she specifically asked the administrator to let the young women know when he was setting up the interviews that the questioning was voluntary and that they didn’t have to speak with her if they didn’t want to. They were welcome to bring a parent.

Maus questioned Flatness utilizing the administrator to set up the interviews and said it could not be determined whether Maus passed along the detective’s remarks.

Flatness said five interviews were conducted May 5, and seven were conducted May 6. During the May 6 interviews, Kindler assisted, out of an initial attempt to get a search warrant for cell phones. Peterson sat in on the interviews in the media room at the Law Enforcement Center.

Flatness said she escorted the interviewees from the Law Enforcement lobby to the conference room when it was their turn for questioning. The room had a table and chairs in it, and a camera that recorded the interviews.

Co-defendant Ashton Larson was interviewed before Broitzman, and Sipple was interviewed afterward.

Flatness said when she escorted Broitzman back for her interview, she explained the questioning was voluntary, asked if a family member was going to come in with her and asked about her age.

Maus pointed out this information was recorded on tape for several of the other young women, but not for Broitzman. He argued this should have been recorded for her, too.

He also noted that Broitzman had never been in a police station before and that she had only one citation for minor consumption on her record. It must have been intimidating for her, he said.

Flatness testified that while being questioned by officers can be stressful for some, it is not stressful for others.

Maus consistently referred to the questioning as an interrogation, while Flatness referred to it as an interview.

Flatness testified that an interview is when police ask questions to gain information, and an interrogation is usually a second interview with a person when officers present facts and evidence and offer reasons for what was done.

Flatness said she nor Kindler made threats to Broitzman during the interview; they just asked her to honestly tell the truth of what had taken place.

“I remember one or the other of us said we would relay whether she was cooperative,” she said.

She noted Broitzman’s story changed intermittedly.

Kindler’s testimony

Kindler, who has worked at the Sheriff’s Office since 1987 and as an investigator since 1992, said he got involved with the case at the request of Flatness, regarding obtaining a search warrant for the cell phones of the young women allegedly involved in abuse.

Kindler said it had been reported to Flatness that there had been pictures or video taken of residents.

It turned out that a search warrant was never obtained. Four young women — Rachel Munson, Kaylee Nash, Ashton Larson and Brianna Broitzman — turned over their phones voluntarily, he said.

He took those phones to the Bureau of Criminal Apprehension, which was able to pull up the phones’ memories. The photos and videos on the phones were returned on a CD, he said.

Two photos were recovered that showed a bowel movement in a toilet, but otherwise no other pictures implying abuse were found. No incriminating pictures were found on Broitzman’s phone.

During the interviews, Flatness lead the questioning, while Kindler took mental and sometimes written notes throughout, he said. At the end, he asked additional questions about the training the young women received regarding vulnerable adults.

He said he did not make any threats or make any statements that were inappropriate to Broitzman.

Maus questioned Kindler’s remarks to Broitzman, which ended up being three pages transcribed, the lawyer noted.

Kindler said his comments that day were prompted by evasive answers from Broitzman and physiological changes in the young woman.

He said he has received training about physiological changes that could be indicative of someone who may be lying, but that are not fail-proof.

For Broitzman, these changes included an occasional cough and the reddening of the neck.

What’s next?

The hearing is expected to be continued when Jolene Bertelsen, investigator from the Minnesota Department of Health, is back from a leave of absence. She will be the third witness from the prosecution.

The date for that hearing has not set.

Maus said he is also considering putting Broitzman on the stand as a witness for the defense.

Wes Bledsoe, the founder and president of a nationally known watchdog group for nursing homes, sat with many of the alleged victims’ families during the proceedings.

He said he does not think the contested omnibus hearing will have an ultimate effect on the charges against Broitzman.

He said the issue of the contested omnibus hearing is basically the defense saying the questioning was an interrogation, versus the police saying it was an interview where they were just trying to get information. Broitzman was never arrested and could have left at any time.

“Obviously the judge is the one who will make the decision,” Bledsoe said.

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