This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,


Kor Vang,


Filed June 17, 2003


Stoneburner, Judge


Ramsey County District Court

File No. K1013953


Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and


Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, Ramsey County Government Center West, Suite 315, 50 West Kellogg Boulevard,        St. Paul, MN 55102 (for respondent)


John M. Stuart, Minnesota Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414; and


Michael C. Davis, Special Assistant Public Defender, Suite 1042, Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellant)


            Considered and decided by Stoneburner, Presiding Judge, Toussaint, Chief Judge, and Minge, Judge.


U N P U B L I S H E D  O P I N I O N



            Appellant Kor Vang challenges his conviction of two counts of second-degree murder and one count of second-degree attempted murder, arguing that the district court abused its discretion by not suppressing incriminating statements he made after receiving a Miranda warning because he had also made incriminating statements before the warning was issued.  Appellant also argues that there is insufficient evidence to support the convictions.  Because the district court did not abuse its discretion by admitting appellant’s post-Miranda statements and because sufficient evidence supports the convictions, we affirm.



            Kao Vang was fatally shot and his brother Kou was injured in August 2001.  The brothers had been “hanging out” in an alley with a group of people.  Witnesses from the group, gave police the license number of a white car and said that after that car drove past the group Jerry Vang got out of the passenger seat of the car, pulled out a gun and shot at the brothers.  The witnesses described the driver of the car as a young man with his hair in a ponytail.  The car was registered to appellant Kor Vang, but from their initial investigation, police thought that the driver of the car was Chee Thao.

            The police located the described vehicle parked behind Chee Thao’s home.  Chee Thao and Jerry Vang were arrested in the home.  Appellant was later found hiding in the basement of Chee Thao’s home.  Appellant was handcuffed and taken to the police station.

            Sgt. Munoz began interviewing appellant at about 7:00 p.m., without advising him of his Miranda rights and without recording the interview.  During the interview, another officer called Munoz out of the interview room and told him that the gun used in the shooting had been found in the front seat of appellant’s car.  Munoz told appellant that the gun had been found in his car, whereupon appellant indicated that he now wanted to tell the truth and stated that he had been driving the car.

            At that point (approximately 7:45 p.m.), Munoz began videotaping the interview and gave appellant an oral and written Mirandawarning.  Appellant initialed and signed the warning as requested by Munoz and agreed to waive his rights and to continue to respond to Munoz’s questions.  Appellant made incriminating statements about his involvement in the shooting.          

            Appellant was charged with two counts of second-degree murder and one count of attempted second-degree murder.  Appellant moved to suppress all of the statements that he had made.  The district court suppressed all of appellant’s statements except those made during the videotaped interview following the Miranda warning. 

            At trial, numerous witnesses testified about the day of the offense.  Veva Lee testified that appellant was the driver of the vehicle from which Jerry Vang shot at the Vang brothers.  Jerry Vang’s sisters, Peng and Pa, testified that Jerry Vang and appellant were together on the day of the shooting, that they saw the two drive off together in appellant’s white Acura, and that they heard gunshots not more than five minutes later.  Appellant was found guilty on all counts.  This appeal followed.





            In reviewing a district court’s factual findings surrounding a suspect’s statements to the police, including whether the statement was voluntarily made, the district court’s findings will be upheld unless clearly erroneous.  State v. Williams, 535 N.W.2d 277, 286 (Minn. 1995).

On appeal, the district court’s conclusion that a waiver was knowing, voluntary, and intelligent will normally not be reversed unless that finding is clearly erroneous.  When an appellant contends that credible evidence supports a contrary finding, however, an appellate court will make a subjective factual inquiry to determine whether under the totality of the circumstances the waiver was valid.  Despite this inquiry, the standard of review remains whether the district court’s finding is clearly erroneous.


State v. Camacho, 561 N.W.2d 160,168-69 (Minn. 1997) (citations omitted).  The prosecution has the burden to prove that the defendant knowingly, intelligently, and voluntarily waived his Miranda rights and that the defendant gave his statement voluntarily.  State v. Dominguez-Ramirez, 563 N.W.2d 245, 252 (Minn. 1997).  The state is deemed to have met the burden of proving that the Miranda waiver was knowing, intelligent, and voluntary if it proves that the warning was given and that the defendant indicated he understood his rights and then gave a statement.  Id.  If the police give a Miranda warning, continue interrogating the accused without an attorney and the interrogation results in a statement, “a heavy burden” rests on the prosecution to prove that the accused “knowingly and intelligently waived” the privilege against self-incrimination and the right to counsel.  Miranda v. Arizona, 384 U.S. 436, 475, 86 S. Ct. 1602, 1628 (1966).  The requirement that a waiver be knowing and intelligent ensures that a defendant is aware of his rights.  Dominguez-Ramirez, 563 N.W.2d at 252.  The requirement that a waiver be voluntary protects the trustworthiness of the statement by ensuring that the defendant was not coerced into confessing falsely.  Id. 

            Appellant argues that his post-warning statements were not voluntary because once he made incriminating statements, it was unlikely that he would feel free to retract those statements or refuse to speak further to the person to whom he had just confessed after being issued the Miranda warning.  See U.S. v. Bayer, 331 U.S. 532, 540, 67 S. Ct. 1394, 1398 (1947) (stating that after an accused has let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of psychological and practical disadvantages of having confessed).

            But failure to administer a Miranda warning before a suspect makes a voluntary custodial statement does not make a subsequent statement made by the suspect after receiving the warning inadmissible.  Oregon v. Elstad, 470 U.S. 298, 309, 105 S. Ct. 1285, 1293 (1985) (declining to extend the Fourth Amendment ‘fruits of the poisonous tree’ doctrine to the self-incrimination clause of the Fifth Amendment solely because police obtained an earlier voluntary but unwarned inculpatory statement from the defendant).  Minnesota follows the rule in ElstadState v. Champion, 533 N.W.2d 40, 44 (Minn. 1995); State v. Moorman, 505 N.W.2d 593 (Minn. 1993).  And appellant’s argument for exclusion based on the ‘cat out of the bag analysis’ is without merit because the Court, in both Bayer and Elstad, held that an incriminating statement obtained by inappropriate means does not make every subsequent statement inadmissible.  Elstad 470 U.S. at 311-312, 105 S. Ct. 1294; Bayer, 331 U.S. at 540-41, 67 S. Ct. 1398.

            When the admissibility of an incriminating statement is raised, the district court should conduct a “subjective factual inquiry” to determine whether “under the totality of the circumstances, the waiver was knowing, voluntary, and intelligent.”  Camacho, 561 N.W.2d at 168; see Champion, 533 N.W.2d at 44 (applying a totality-of-the circumstances inquiry into the voluntariness of a post-warning statement made after a pre-warning incriminating statement).  Under the totality-of-the-circumstances test, the court considers factors such as age, maturity, intelligence, education, experience, ability to comprehend, the adequacy of the Miranda warning, the length and legality of the detention, the nature of the interrogation, any physical deprivations, limits on access to counsel or friends, familiarity with the criminal justice system, physical and mental condition, and language barriers.  Camacho, 561 N.W.2d at 168. 

            Here, the district court made explicit findings that appellant (1) is an adult; (2) graduated from high school; (3) reads and speaks English; (4) received a complete recitation of his Mirandarights before making additional incriminating statements; and (5) stated that he understood his rights and wished to continue speaking to Sgt. Munoz.  The district court also found that there is no evidence of coercion in the record.  The district court properly considered the totality of the circumstances surrounding appellant’s confession. 

            Appellant also argues that because the Supreme Court, in U.S. v. Dickerson, stated that the failure to give a Miranda warning is a constitutional violation, the ‘fruit of the poisonous tree’ doctrine should apply to any post-Miranda incriminating statements that he made.  U.S. v. Dickerson, 530 U.S. 428, 120 S. Ct. 2326 (2000).  But Minnesota has adopted the rule articulated in Elstad, 470 U.S. at 309, 105 S. Ct. at 1293, which held that a failure to give the required Miranda warning does not automatically render involuntary every subsequent incriminating statement made after the defendant received the Miranda warning.  See Champion, 533 N.W.2d at 44; see also Moorman, 505 N.W.2d at 599-600.  And Dickerson acknowledged, without limiting, the holding in ElstadDickerson, 530 U.S. at 441, 120 S. Ct. at 2335.  Appellant has not cited any authority holding that because Miranda warnings are constitutionally required, every post-Miranda statement that is preceded by an unwarned incriminating statement must be suppressed.  The only case cited by appellant in which a conviction was reversed based on admission of such a statement is inapposite.  See State v. Fakes, 51 S.W.3d 24, (Mo. Ct. App. 2001).  In Fakes, the Missouri Court of Appeals specifically distinguished the facts before it from Elstad and noted that Dickerson had not overturned Elstad.  Id. at 35.  The district court did not abuse its discretion by admitting appellant’s post-Miranda statements.


            Appellant argues that because witnesses did not consistently or clearly identify the driver, the evidence is insufficient to support his conviction.  We disagree.  When considering a claim of insufficient evidence, this court’s review is limited to a careful analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).   The reviewing court must assume “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.”  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). 

            Appellant’s confession is corroborated by evidence that the police found the gun used in the shooting in appellant’s car; appellant’s car and appellant were at the residence where police found and arrested the shooter; witnesses testified that they saw appellant driving Jerry Vang, who they thought might have a gun, in his vehicle and heard shooting just minutes later.  And, a witness at the scene of the shooting identified appellant as the driver after admitting she had initially misidentified Chee Thao as the driver. 

            There is sufficient evidence in the record to support appellant’s convictions of second-degree murder and attempted second-degree murder.