may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Zamir Andre Riascos,
Ramsey County District Court
File No. K4014093
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Cathryn Y. Middlebrook, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge, Harten, Judge, and Poritsky, Judge.*
U N P U B L I S H E D O P I N I O N
In this appeal from convictions of making terroristic threats and second-degree assault with a firearm, appellant Zamir Andre Riascos seeks a new trial on the grounds that: (1) he was denied his right to confront the victim about her motive to fabricate her story; and (2) the firearm was improperly admitted at trial because it was obtained as a result of questioning after he requested an attorney and as a result of an involuntary consent to a search. We affirm.
Riascos is a citizen of Colombia who has legally resided in the United States for more than ten years. Riascos and the victim, M.C., had a child together in 2000, but they do not have an ongoing relationship. M.C. asked Riascos to watch the child on the evening of November 17, 2001, while she went out with some friends. She left the child with Riascos around 9:30 p.m. and called Riascos several times during the evening to check on the child. M.C.’s phone call to Riascos around midnight made her nervous because Riascos said that he had company and that she could pick up the child the next day rather than that evening as planned. M.C. decided that she would immediately go pick up the child.
At around 1:00 a.m., after M.C. buzzed Riascos’s apartment a few times, Riascos let M.C. and her friend, L.J., into the building. M.C. testified that she walked into the apartment and immediately saw a woman go into the bedroom where the child was. When M.C. tried to enter the bedroom, the woman stopped her and threatened to hit her with a beer bottle if she did not leave. M.C. got into a shoving match with the woman, and L.J. grabbed the child and took him out of the room. Riascos reached under the bed and pulled out a gun. He pointed the gun at M.C. and hit her with the gun on her left ear.
M.C. left the apartment and, while in the hallway, called the police on her cell phone. She waited outside the apartment for the police to arrive. The police arrived around 2:00 a.m., and M.C. told Officer Jennifer Meyer that Riascos pointed a gun at her and hit her with the gun. Meyer noticed some redness on M.C.’s face near her ear.
Riascos came down to the parking lot, and Meyer asked him what happened. Riascos said that he thought M.C. was not in a condition to take the child, and he was not going to let her do so. Meyer testified at trial that although she believed that M.C. had been drinking, M.C. did not appear to be intoxicated and was rational and able to drive her car. Meyer and another officer had been told that Riascos might have a videotape of the incident in his apartment. When Meyer asked Riascos if she could see the videotape, he handed her a business card and said, “This is my lawyer. You can call him.” Meyer then arrested Riascos for domestic assault and took him to jail. Meyer testified at the Rasmussen hearing that she arrested Riascos because she is required by law to make an arrest when a female says she was assaulted and was afraid of the person. When asked why she did not continue talking to Riascos, Meyer said, “He handed me a lawyer card.”
Riascos was kept in jail over night and was not read a Miranda warning. The next morning, Sergeant Steven Koll brought Riascos from the holding cell into an investigation room. Koll had not been briefed about whether Riascos requested counsel or was read the Miranda warning the previous evening. Before Koll read the Miranda warning, Riascos handed Koll his lawyer’s business card. Koll asked Riascos what it was and what he wanted him to do with the card. Koll testified that Riascos said something to the effect of, other than what we talk about here, if you have any other questions, you can call my attorney. Koll read Riascos the Miranda warning. Riascos said that he understood his rights and then told Koll what happened the previous evening. When Riascos told Koll about the gun, Koll asked Riascos whether he would sign a consent to search his apartment for the gun, and Riascos said that he would not allow a search unless he was at the apartment.
Koll then told Riascos that he would get a search warrant and offered to call from Riascos’s apartment for help in locating the gun. After some discussion, Riascos consented to the search, and Koll retrieved the gun from the apartment.
Riascos was charged with one count of making terroristic threats under Minn. Stat. § 609.713, subd. 1 (2000), and one count of second-degree assault with a firearm under Minn. Stat. § 609.222, subd. 1, and § 609.11, subd. 5 (2000). The jury found Riascos guilty on both counts.
1. Riascos argues that the district court denied him his constitutional right to confront an opposing witness when it prohibited him from asking M.C. whether she knew that Riascos would be deported if he was found guilty of a felony. Riascos claims that the purpose of the question was to show M.C.’s prototypical bias and motive to fabricate or exaggerate her testimony because she knew that her life would be easier if he were deported and was no longer involved in her and her child’s lives.
“In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him.” U.S. Const. Amend VI; see also Minn. Const. art. 1, § 6. Embodied in the Due Process Clause of the Fourteenth Amendment is the right to a fair trial and the right to present one’s defense. State v. Reardon, 245 Minn. 509, 513-14, 73 N.W.2d 192, 195 (1955) (noting that right to fair trial is based in Fourteenth Amendment Due Process Clause); State v. Carroll, 639 N.W.2d 623, 627 (Minn. App. 2002) (noting that Due Process and Confrontation Clauses of the federal and Minnesota Constitutions encompass the right to present one’s defense), review denied (Minn. May 15, 2002).
But even where a defendant asserts a violation of the Confrontation Clause,
[c]ourts may exclude evidence of extraneous matters based on concerns about such things as harassment, decision making on an improper basis, confusion of the issues, and cross-examination that is repetitive or only marginally relevant.
State v. Lanz-Terry, 535 N.W.2d 635, 641 (Minn. 1995) (citing Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435) (1986).
Whether the [district] court abused its discretion in restricting a defendant’s attempted cross-examination that is aimed at showing bias turns on whether the jury has sufficient other information to make a discriminating appraisal of the witness’s bias or motive to fabricate. Beyond that threshold, the extent to which extraneous matters are permitted into a criminal case, either to show the existence or nonexistence of a material fact or to affect the credibility of a witness as to such fact, rests largely in the discretion of the trial court.
Id. (citations and quotation omitted).
The district court sustained an objection that the line of questioning about deportation was irrelevant and instructed the jury to disregard the question. Riascos’s attorney later made an offer of proof in which he said that M.C. “knows Mr. Riascos is to be deported if he’s convicted of a serious felony.” The district court concluded that the line of questioning was inflammatory and would bring to the jury’s attention a collateral consequence of conviction that the jury should not consider in any way.
M.C.’s knowledge that Riascos could be deported if he was convicted was relevant to Riascos’s claim that M.C. was biased and had a motive to fabricate. But as the district court concluded, informing the jury that M.C. knew that deportation was a consequence of conviction would also inform the jury about a collateral consequence of conviction that the jury should not consider during its deliberations. Although the district court initially sustained the objection to the line of questioning about deportation on relevancy grounds, the court’s comments following the offer of proof demonstrate that the court’s ultimate conclusion was based on a concern that the jury might make its decision on an improper basis. This concern is a proper basis for excluding questions about deportation.
Also, the jury had other information that it could use to appraise M.C.’s bias or motive to fabricate. There were other witnesses to the events that prompted the charges against Riascos, such as L.J. and the woman in Riascos’s apartment, whose testimony could corroborate or contradict M.C.’s testimony. There is also a tape recording of the call M.C. made to the 911 operator, which Riascos contends demonstrates M.C.’s motive to fabricate testimony because it shows that although M.C. had her baby, she did not want to leave the parking lot at Riascos’s apartment building because, to protect her baby, she wanted to make sure that Riascos did not give the gun to someone else. Riascos contends that these statements only make sense if M.C. wanted to send Riascos away.
Although M.C.’s knowledge that Riascos would be deported might have strengthened Riascos’s claim that M.C. was biased and had a motive to fabricate, we conclude that the district court did not abuse it discretion by prohibiting questioning about deportation. Evidence that Riascos could be deported if convicted might have caused the jury to focus more on its potential role in causing the deportation than on whether Riascos committed an offense, and there was sufficient other information to permit the jury to appraise M.C.’s bias or motive to fabricate.
2. Riascos argues that because Koll questioned him after he asserted his right to counsel, his consent to search his apartment was involuntary, and the district court should have excluded the firearm from evidence.
[C]ustodial interrogation initiated by police after an accused has invoked his right to counsel violates an accused’s fifth amendment right, and any statement or confession ensuing as the result of that interrogation may not be introduced in evidence at the trial of the accused.
State v. Robinson, 427 N.W.2d 217, 222 (Minn. 1988).
[W]hen a suspect indicates by an equivocal or ambiguous statement, which is subject to a construction that the accused is requesting counsel, all further questioning must stop except that narrow questions designed to “clarify” the accused’s true desires respecting counsel may continue.
Id. at 223.
When Meyer asked Riascos whether she could search his apartment, he gave her his attorney’s business card and said, “This is my lawyer. You can call him.” Meyer did not attempt to clarify Riascos’s intent. Instead, she arrested him for domestic assault. She testified that she did not keep talking to him because “[h]e handed me a lawyer card.”
Later that morning, at the beginning of the interview with Koll, Riascos gave Koll his lawyer’s business card, and the following exchange occurred:
Koll: Is there anything I’m supposed to do with it?
Raiscos: Ah, naw, just any questions besides these conversations that relate to him.
Koll: Okay. You want me to hold on to that.
Riascos: Ah, just write down the information, in case you need it.
Koll: Okay. Okay. Now, you showed me the card. Are you willing to, to talk to me?
* * * *
[Questions about personal data. (i.e., address, phone number, employment, education, etc.)]
* * *
Koll: Okay, Zamir, you have the rights to protection against self-incrimination listed below. Please read along with the officer and initial each statement if you understand it. You have the right to remain silent and refuse at any time to answer any questions asked by a police officer. Do you understand that?
Koll: Okay. Initial there. Anything you do or say can be used against you. Do you understand that?
Koll: You have the right to talk to a lawyer and have a lawyer with you during any questioning. Do you understand that?
Koll: If you cannot afford a lawyer, one will, one will be appointed for you and you may remain silent until you’ve talked to a lawyer. Do you understand that?
Riascos signed the form, and he did not request a lawyer before he told Koll what happened the previous night or at any time during the rest of the interview.
Riascos argues that he unequivocally invoked his right to counsel when he handed Meyer his attorney’s card and that Meyer should have informed Koll that he had invoked his right to counsel. Therefore, Riascos contends, any statement that he made to Koll was involuntary, and the evidence recovered as a result of Koll’s interrogation and search was improperly admitted.
To unequivocally invoke his right to counsel, a suspect
must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer, in the circumstances, would understand the statement to be a request for an attorney.
State v. Munson, 594 N.W.2d 128, 139 (Minn. 1999) (citation omitted).
We do not agree that Riascos unequivocally invoked his right to counsel when, in response to a specific question, he handed Meyer his attorney’s card and said, “This is my lawyer. You can call him.” Riascos did not state that he wanted an attorney present, that he wanted to talk to a lawyer, or that he would not answer any questions without first talking to a lawyer. He directed Meyer to his attorney, and what his intent was when he did so is not clear. Meyer, however, did not attempt to clarify Riascos’s intent because she arrested him without asking any more questions. Consequently, there was no reason for Meyer to tell Koll that Riascos had invoked his right to counsel, and Koll’s interview of Riascos began where Meyer’s interview had ended, with Riascos handing an officer his attorney’s business card. But when Koll received the card, he asked questions to clarify Riascos’s true desires respecting counsel and learned that Riascos was not invoking his right to counsel and was willing to talk with Koll.
Riascos argues that even if he did not unequivocally invoke his right to counsel, the firearm was improperly admitted because his consent to the search of his apartment was not voluntary.
[I]nvoluntariness of a consent to a police request is not to be inferred simply because the circumstances of the encounter are uncomfortable for the person being questioned. Rather, it is at the point when an encounter becomes coercive, when the right to say no to a search is compromised by a show of official authority, that the Fourth Amendment intervenes. Consent must be received, not extracted.
State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994).
Whether consent to a search was voluntary is a question of fact to be determined from the totality of the circumstances. State v. Alayon, 459 N.W.2d 325, 330 (Minn. 1990). We review the trial court’s factual determination whether consent was voluntary to determine whether the trial court clearly erred. Id.
After Riascos told Koll about the gun, Koll asked Riascos if he would sign a consent form to search the apartment for the gun. Riascos replied, “Unless I’m there, there’s no way you guys going through my apartment.” Koll then told Riascos that because he was in custody, he could not go to the apartment. Koll also said that he could get a search warrant if Riascos did not want to cooperate by signing the consent form and gave Riascos his pager number in case Riascos changed his mind. Riascos then told Koll where he would find the gun and video equipment, and said that Koll might find some “paraphernalia.” Koll said that if he did the search warrant, “then, you know, I’m going to add that stuff on the search warrant. All right.” Then the following exchange occurred:
Koll: All right. You have my telephone number.
Riascos: Go up there.
Riascos: Go up there. I give you the permission.
Koll: For what?
Riascos: What have I done? Ah, to go search the apartment. That’s what you guys want.
Koll: Well, you know, I want to make sure that you’re * * * that you’re okay with it too.
Riascos: Well, what [inaudible]
Koll: It’s in the folder here.
Riascos: Well, can I sign it?
Koll: Do you want to sign it?
Koll: I mean, if you’re, you understand what this says, that this is a consent form. Okay. For you allowing me to search your apartment.
Riascos: [inaudible] Yes.
Koll: Okay. And you don’t have to do it.
Riascos: Yeah, but I’ll be sitting in here the rest of the day with…
Based on this exchange, the district court concluded:
My conclusion is that the totality of that conversation regarding the search warrant or permission, consent to search, was that the defendant was willing to have the apartment searched if he was going to be there, that the officer made it clear that that was not a possibility and that he was going to go and search with a search warrant. And he told the defendant that he would call him from the apartment while he was in there for the purpose of having the defendant tell him where to look for the certain items that the officer wanted to find.
I can speculate as to the purpose for both those conversations, and the most likely one in my view, given the circumstances and the tone of that conversation, is the officer was trying to find a way of not tearing the apartment apart and the defendant was trying to indicate that should—trying to prevent having his apartment torn apart by the police searching for the video and the gun.
That conversation continued in that context. I’ll call you from the apartment and you will tell me where I can find things, and yeah, and the defendant then volunteered where things could be found on the assumption the officer would be in the apartment on the telephone with the search warrant.
At the end of the conversation it’s clear to me the defendant just changed his mind and consented to the search after the conversation—having told the officer where everything was, he consented to it.
The district court’s conclusion that Riascos voluntarily consented to the search of his apartment is not clearly erroneous. Although Riascos was in custody and the circumstances under which Koll sought his consent were uncomfortable for Riascos, the transcript supports the district court’s conclusion that Riascos just changed his mind about consenting to the search. There is no indication that his change of mind occurred as a result of coercion.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.