This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Jeremy David Gilmer,
Filed February 24, 2004
Hennepin County District Court
File No. 02047854
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Anderson, Presiding Judge; Klaphake, Judge; and Willis, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his conviction of possession of a firearm by an ineligible person, contending that the district court erred by denying his motion to suppress his statement. Because we conclude that, by asking if he could leave, appellant did not invoke his right to remain silent, we affirm.
On June 16, 2002, Sergeant Robert Jensen was conducting surveillance at the intersection of 36th Street and Aldrich Avenue North in Minneapolis. As three vehicles drove through the intersection, Sergeant Jensen heard five or six shots fired in rapid succession. Sergeant Jensen, who was in an unmarked vehicle, then observed appellant Jeremy David Gilmer, who had been standing near the intersection, run from the area and toward the direction of Jensen’s vehicle; as he ran, Gilmer used his left hand to cover his right hand with his shirt. Gilmer slowed down to a walk near Jensen’s vehicle.
Sergeant Jensen got out of his vehicle, approached Gilmer, and ordered him to get down on the ground. Gilmer began walking backwards, and Sergeant Jensen testified that he saw that Gilmer’s right hand was holding the butt of a gun that was tucked into his pants. Gilmer began to run and was pursued by Sergeant Jensen into an alley. Sergeant Jensen testified that, during the chase, Gilmer “swung the gun back towards [Jensen’s] direction.” Believing that Gilmer was going to shoot at him, Sergeant Jensen fired a single shot at Gilmer and missed. Soon after firing the shot, Sergeant Jensen lost sight of Gilmer; other officers, however, found and arrested him. Although Gilmer was not carrying a gun when he was arrested, officers discovered a loaded handgun in the backyard of a home along the route of the chase. Gilmer told a transporting officer that Sergeant Jensen was “lucky, real lucky.”
At the Hennepin County jail, after being advised of his rights, Gilmer agreed to speak with Sergeant Michael Carlson. Gilmer stated that (1) a passing car fired several shots at him; (2) as he ran from the car, he encountered a man with a gun, who chased him on foot; (3) he did not realize that the man was a police officer; and (4) he did not have a gun that night. Near the end of the interview, Gilmer asked three times in close succession if he could leave. Sergeant Carlson replied, “Sure you can” and then stated that he had one more question for Gilmer. He then asked Gilmer why he had stated that the pursuing officer was “lucky.” Gilmer replied that he made the statement because during the chase he did not know that Sergeant Jensen was a police officer and that “if I had a gun, he’d been shot.”
Gilmer was charged with first-degree attempted murder, in violation of Minn. Stat. § 609.185(4) (2000) and Minn. Stat. § 609.17 (2000); first-degree assault, in violation of Minn. Stat. § 609.221, subd. 2(a) (2000); and possession of a firearm by an ineligible person, in violation of Minn. Stat. § 624.713, subd. 1(b) (2000). The charge of first-degree attempted murder was later dismissed by the district court for lack of probable cause.
Gilmer moved to suppress the statement that he gave to Sergeant Carlson, arguing that it violated Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), because it was obtained after he asserted his right to remain silent during a custodial interrogation. The district court denied Gilmer’s motion.
At trial, Sergeant Carlson testified regarding the interrogation, including Gilmer’s statement that Sergeant Jensen was lucky that Gilmer did not have a gun because if he had had one, he would have shot Jensen. The jury acquitted Gilmer of first-degree assault and a lesser-included charge of second-degree assault and found him guilty of possession of a firearm by an ineligible person. This appeal follows.
D E C I S I O N
The district court denied Gilmer’s motion to suppress, concluding that Gilmer’s invocation of the right to remain silent had not been sufficiently clear. The district court “makes a factual finding of whether in fact the right to silence was invoked”; the reviewing court “examines the whole record to make sure the finding was not erroneous.” State v. Johnson, 463 N.W.2d 527, 532 (Minn. 1990).
Gilmer asserts that the following portion of the interrogation shows that he unambiguously and unequivocally invoked his right to remain silent:
Carlson: So, so Jeremy, Jeremy, just the officer saw you with a gun. We know you had the gun, okay. So don’t make this out to be anything bigger than what you think it is, all right. Nobody’s dead here, okay. Nobody’s dead. This isn’t a homicide. Okay. So when you came back through this, when you started running past, from the officer . . .
Gilmer: Hey, can I go?
Carlson: Did you come through the alley here?
Gilmer: Can I go?
Gilmer: Can I go?
Carlson: Sure you can. Cause—I have one more question I wanted to ask you. About do you remember making a comment how lucky that cop was?
Gilmer continued to answer questions and eventually told Sergeant Carlson that he had said that Sergeant Jensen was lucky because he would have shot him if he had had a gun. Gilmer again asked if he could leave, and the interrogation ended.
Once a Miranda warning has been given to a custodial suspect and that suspect asserts the right to remain silent, the interrogation must cease. State v. Thieman, 439 N.W.2d 1, 5 (Minn. 1989). Investigators fail to honor a suspect’s right to silence, “either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind.” Michigan v. Mosley, 423 U.S. 96, 105-06, 96 S. Ct. 321, 327 (1975). But the Minnesota Supreme Court has stated that “nothing short of an unambiguous or unequivocal invocation of the right to remain silent will be sufficient to implicate Miranda’s protections.” State v. Williams, 535 N.W.2d 277, 285 (Minn. 1995). For example, in Williams, the Minnesota Supreme Court held that the defendant did not adequately invoke the right to silence by stating, “I don’t have to take any more of your bullsh-t” in response to a question and walking out of the interview room. Id. at 281. After a cooling-off period, the interviewing officers resumed the interrogation. Id. Because Williams did not specifically state that he wanted to stop answering questions and did not demonstrate a general refusal to answer questions, the supreme court concluded that “any desire by Williams to invoke his right to remain silent was ambiguous or equivocal at best.” Id. at 284.
As the Minnesota Supreme Court noted in State v. Day, the relevant inquiry regarding whether the right to silence has been adequately invoked is whether the suspect articulated his desire sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be an invocation of the right to remain silent. 619 N.W.2d 745, 749 (Minn. 2000) (citing Williams, 535 N.W.2d at 283 (stating that to invoke right, suspect must use language that “sufficiently articulate[s] the desire to remain silent.”)). In Day, the Minnesota Supreme Court determined that the defendant sufficiently invoked his right to silence when, following a Miranda warning, he told Bureau of Criminal Apprehension officers, “[I] [s]aid I don’t want to tell you guys anything to say about me in court.” Id. at 750. Because the defendant’s statement came almost immediately after he was read the Miranda warning and mimicked the warning itself, the court concluded that it clearly indicated the defendant’s refusal to answer questions. Id.
Gilmer did not tell Sergeant Carlson that he did not want to talk to him or that he wanted to remain silent. Instead, he asked Sergeant Carlson, “Can I go?” According to Williams, however, “the language used by the suspect must sufficiently articulate the desire to remain silent.” 535 N.W.2d at 283. Unlike the Day defendant’s statement that “[I] [s]aid I don’t want to tell you guys anything to say about me in court,” Gilmer’s requests to leave are not an unambiguous and unequivocal invocation of the right to silence. 619 N.W.2d at 750. Furthermore, because Gilmer continued to answer questions after asking whether he could leave, he did not demonstrate a “general refusal to answer any of the questions the detectives want[ed] to ask.” See 535 N.W.2dat 284. Thus, the district court did not err by determining that Gilmer did not unequivocally and unambiguously invoke his right to silence.
Moreover, even if the admission of Gilmer’s statement were error, it was harmless. “If the verdict rendered is ‘surely unattributable’ to the error, the error is harmless beyond a reasonable doubt and the conviction stands.” Day, 619 N.W.2d at 750. In applying harmless-error analysis, the court examines the record as a whole. Id.
Gilmer asserts that the admission of his statement that Sergeant Jensen was “lucky” that Gilmer did not have a gun was “very prejudicial” because the jury “likely wanted to convict him of something, in part, based on his brash assertion that he would have fired a gun at the officer who was pursuing him.” But the following evidence supports the jury’s conclusion that Gilmer possessed a gun: (1) Sergeant Jensen saw Gilmer holding a gun; (2) a gun was found in a backyard where a woman living there heard a metallic “rustling” and then saw a man matching Gilmer’s description emerge from her backyard; (3) officers saw Gilmer emerge from the yard where the gun was discovered; and (4) the gun found matched Sergeant Jensen’s description of the weapon that he saw Gilmer holding. Therefore, we conclude that even if the admission of Gilmer’s statement were error, it was harmless because the verdict was surely unattributable to the error.