This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Welfare of:
Filed December 12, 2006
Hennepin County District Court
File No. J9-05-55495
Leonardo Castro, 4th District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant B.U.P.)
Mike Hatch, Attorney General, 1800
Considered and decided by Lansing, Presiding Judge; Kalitowski, Judge; and Dietzen, Judge.
In this extended jurisdiction juvenile (EJJ) proceeding, appellant challenges an adjudication of delinquency based on his conviction of aiding and abetting first-degree aggravated robbery, arguing that the district court erred (1) in denying his motion to suppress his statement to the police; (2) in giving an erroneous jury instruction; (3) by allowing prosecutorial misconduct during the closing argument; and (4) because the evidence was insufficient to support the conviction. We conclude that the district court properly applied the law and did not abuse its discretion and, therefore, we affirm.
In April 2005,
The police returned to the convenience store with T.M., R.P., and appellant B.U.P. At that time, R.D. spotted two other individuals, M.G. and N.H., whom he believed were also part of the robbery. Those individuals were also brought to the convenience store. The officers then went out into the neighborhood and returned some ten minutes later with six or seven young men and conducted an on-scene show up. R.D. identified appellant and three other individuals as those involved in the robbery.
of the original group of five juveniles were arrested and booked into the
juvenile detention center. Sgt. Calvin
Pulphus interviewed appellant, which was recorded on audiotape. Pulphus began the interview by asking
appellant some basic
background questions about himself, his family, and his school, but nothing relating to the incident. Pulphus then read appellant his Miranda rights and had appellant articulate to him the meaning of each clause of the Miranda warning. The interview lasted approximately 20 minutes.
Before trial, appellant moved to suppress the results of the interview on the basis that his waiver of his Miranda rights was not knowingly, voluntarily, and intelligently made. Following the hearing, the district court denied the motion to suppress.
At trial, R.D. testified that one of the juveniles rode by him on his bicycle and knocked his hat off. R.D. testified that the group, which included appellant, surrounded him. One of the other juveniles demanded R.D.’s necklace and brandished a small pocket knife. R.D. then gave the juvenile the necklace and walked away, but the group followed him down the street. The juvenile then demanded and took R.D.’s iPod music player and his money, which was about $3, but then returned the music player. R.D. testified that appellant did not do any of the talking during the robbery, but that appellant did not object to, discourage, or leave the scene of the robbery. R.D. testified that it appeared to him the four juveniles were acting in concert.
Sgt. Pulphus testified regarding R.D.’s identification of the four juveniles, which included appellant, and his interview of appellant. He also stated that appellant gave him three different versions of the events surrounding the alleged robbery and admitted to him that he did nothing to stop it.
Appellant testified that he was with two of his “adopted brothers” near the light-rail platform when they saw R.D. get off the train. He admitted that the original plan was to “mess with him,” “hassle him,” and take his hat, but denied knowing that one of the juveniles had a knife or intended to rob R.D. When the four juveniles saw police cars, he admitted that they split up and fled to avoid capture. Appellant stated that he fled because he knew they had done something wrong.
During closing argument, the prosecutor stated: “Consider what the defendant did, consider what he failed to do; he failed to leave; he failed to render any assistance or ask if the victim needed any assistance.” Defense counsel objected to this statement on the basis that appellant had no legal obligation to assist the victim, but the objection was overruled.
On the issue of accomplice liability, the district court gave a lengthy instruction to the jury which included the following:
Now, in order to aid and abet another to commit a crime, it is necessary that the defendant willfully participate in it as he would in something that he wishes to bring about. It is to say that he willfully seek by some act or omission of his to make the criminal venture succeed. While the defendant’s participation in the crime must be more than mere inaction or passive approval, it is proper for you to consider the defendant’s passive conduct in connection with other circumstances in determining whether the defendant by his presence intended to aid and abet another in committing the offense. Mere presence at the scene of a crime without the intent to promote or facilitate the commission of the crime is not in itself enough to make a person legally responsible for the conduct of another. However, a person’s mere presence can be sufficient to impose liability if it is intended to and somehow does aid the commission of the crime.
Following trial, appellant was
adjudicated delinquent on one count of aiding and abetting aggravated robbery
D E C I S I O N
argues that his custodial interrogation by Sgt. Pulphus violated his Miranda rights, that his waiver of those
rights was involuntary, and that the district court erred by denying his motion
to suppress the results of that interrogation. “In cases in which the claim is made that a
confession was involuntary or that the waiver of the Miranda rights was involuntary, the trial court must make a
subjective factual inquiry into all the circumstances surrounding the giving of
the statement.” State v. Hardimon, 310 N.W.2d 564, 567 (
that he waived his Miranda rights,
but argues that his waiver was involuntary because his parent was not present. The presence of a juvenile’s parent is one of
the circumstances that may affect the validity of a Miranda waiver. Burrell, 697 N.W.2d at 595-96. But there is no per se rule requiring a parent’s
presence before a juvenile waives his Miranda
The district court found that Sgt. Pulphus made efforts to facilitate contact with appellant’s mother, but appellant did not pursue the opportunity. The record supports the district court. Appellant did not give Sgt. Pulphus his mother’s cell phone number and did not request that his mother be contacted. And Sgt. Pulphus made no attempt to dissuade or discourage appellant from contacting his parents.
Appellant next argues that Sgt. Pulphus’s need to repeat the Miranda warning to appellant demonstrated appellant’s lack of understanding of its contents, rendering the waiver invalid. The district court found that Sgt. Pulphus’s explanation of appellant’s Miranda rights was “certainly adequate.” A review of the relevant portions of the interview transcript demonstrates that Sgt. Pulphus gave simple explanations and clarifications of Miranda, and appellant repeatedly assented without asking for clarifications. On this record, there is no evidence that appellant did not understand the principles of Miranda, or that his waiver was voluntary.
argues that Sgt. Pulphus failed to warn him that he may face prosecution as an
adult, rendering his Miranda waiver
involuntary. In Burrell, the Minnesota Supreme Court stated that there is
“heightened concern” that a defendant understands his Miranda rights when he may be tried as an adult for a crime. 697 N.W.2d at 591. But the Burrell
court noted that knowledge that one may be tried as an adult may be imputed to a
defendant based on the seriousness of the crime, as well other factors such as
the presence of numerous police squad cars and handcuffs.
Here, Sgt. Pulphus’s statement to appellant that he was investigating an aggravated robbery, and the district court’s finding that appellant was of “sound mind” and “seemed intelligent” is sufficient to impute knowledge of his potential to be tried as an adult. Appellant also argues that Sgt. Pulphus coerced him into making incriminating statements, because he implied that he would intervene on his behalf to the county attorney. But the transcript shows that any statements made by Sgt. Pulphus implying he would come to appellant’s assistance were made after the interrogation was completed.
argues that the district court erred by not requiring the state to introduce
the Scales transcript of the police
interview. See State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994) (holding that
“all custodial interrogation including any information about rights, any waiver
of those rights, and all questioning shall be electronically recorded where
feasible and must be recorded when questioning occurs at a place of detention”).
appellant failed to raise this issue before the district court and, therefore,
we do not need to consider it for the first time on appeal. Roby v.
State, 547 N.W.2d 354, 357 (
Even if we were to consider it, appellant’s argument lacks merit. Appellant complains Sgt. Pulphus’s testimony was inconsistent with the transcript of the interview. But appellant failed to either introduce the transcript or cross-examine Sgt. Pulphus regarding its contents. And the state is not required to introduce a tape or transcript of the interview. See State v. Bauer, 598 N.W.2d 352, 368 (Minn. 1999) (holding that the state is not required by operation of the best-evidence rule, Minn. R. Evid. 1002, to introduce any part of the recordings of a defendant’s statements heard by police when police testify as to the interviews).
argues that the district court misstated the law in its jury instructions on
accomplice liability as to the amount of presence and activity required by law
to convict under the aiding and abetting statute, Minn. Stat. § 609.05,
subd. 1 (2004). In general, district
courts are allowed “considerable latitude” in the selection of language for the
jury instructions. State v. Baird, 654 N.W.2d 105, 113 (
Stat. § 609.05, subd. 1 states that “[a] person is criminally liable for a
crime committed by another if the person intentionally aids, advises, hires,
counsels, or conspires with or otherwise procures the other to commit the
crime.” Inaction, mere knowledge, or
passive acquiescence does not satisfy the requirements for accomplice
liability. State v. Arrendondo, 531 N.W.2d 841, 845 (
Here, the jury instruction included the relevant statutory language, as well as an overview of the appropriate case law to supplement the jury’s understanding of what constitutes “aiding and abetting.” The jury instruction also followed the JIG and incorporated the necessary elements of the statutory language and the case law. While the jury instruction was lengthy, we conclude that there was no material misstatement of the law warranting reversal.
that the prosecutor en
Minnesota Supreme Court reviewed existing caselaw regarding prosecutorial
misconduct and concluded that “appellate courts should use the plain error
doctrine when examining unobjected-to prosecutorial misconduct.” State
v. Ramey, 721 N.W.2d 294, 299 (
In Ramey, the supreme court concluded “the
burden should be on the prosecution to show lack of prejudice before we will
affirm a conviction.”
In the case of
objected-to-misconduct, we review for an abuse of discretion. State
v. Ture, 353 N.W.2d 502, 516 (
argues that the prosecutor committed misconduct by stating: “Consider what the
defendant did, consider what he failed to do; he failed to leave, he failed to render
any assistance or ask if the victim needed any assistance.” Appellant objected,
arguing that appellant had no legal obligation to intervene on behalf of the
victim, but the district court overruled the objection. A jury may consider a
defendant’s inaction as a relevant circumstance from which criminal intent may
be inferred. Parker, 282
Appellant next raises
four other instances of alleged misconduct.
Because appellant did not object to any of these instances of alleged misconduct,
the Ramey plain-error analysis
applies. Appellant argues that the
prosecutor’s argument that “justice requires a guilty verdict” was
impermissible. But the prosecutor was
merely stating what he believed justice required. See
State v. Atkins, 543 N.W.2d 642, 648 (
Appellant argues that the prosecutor misstated the facts from appellant’s police interview with Sgt. Pulphus during his closing argument. But this argument relies on evidence outside of the trial court record. Thus, the prosecutor’s argument was not improper and not plain error.
argues that the prosecutor impermissibly elicited undue sympathy by stating:
“[victim] should have the right to walk down a street in
argues that the prosecutor impermissibly made a pact with the jury. A “pact” with the jury implying it has an
obligation to convict constitutes prosecutorial misconduct. State v.
that the evidence is not sufficient to support his conviction of aiding and
abetting aggravated robbery. When
reviewing a sufficiency of the evidence claim, this court reviews the record in
the light most favorable to the state and determines whether the facts and any
legitimate inferences from the evidence there from reasonably support the
jury’s verdict. State v. Race, 383 N.W.2d 656, 661 (
Under the aiding
and abetting statute, Minn. Stat. § 609.05, subd. 1, “[j]urors can infer
the necessary [criminal] intent from factors including: ‘defendant’s presence
at the scene of the crime, defendant’s close association with the principal
before and after the crime, defendant’s lack of objection or surprise under the
circumstances, and defendant’s flight from the scene of the crime with the
principal.’” State v. Swanson, 707 N.W.2d 645, 659 (
that his mere presence at the crime scene is not sufficient, and cites State v. Ulvinen in support of his
position. 313 N.W.2d 425 (
Here, like Swanson, the evidence considered in the
light most favorable to the verdict supports the conclusion that appellant (1)
intended to “mess with” and “hassle” the victim and take his hat; (2) helped
“surround” the victim; (3) did not object to the robbery, or try to thwart it
or leave the scene; (4) had a close personal relationship with the other
participants and rejoined them after the crime; and (5) when confronted, ran
from police. Swanson, 707 N.W.2d at 659. Thus,
the factual evidence presented in this
case is similar to the Pierson factors for criminal intent outlined by the supreme court in Swanson.
 Because R.D. was unable to identify one of the juveniles, N.H. was released.