This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-96-443

State of Minnesota,

Respondent,

vs.

Fabian Clyde Jones,

Appellant.

Filed October 8, 1996

Affirmed

Peterson, Judge

Hennepin County District Court

File No. 95017723

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Respondent)

Michael O. Freeman, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, Kathleen Ghreichi, Special Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

On appeal from his convictions for attempted second-degree murder and first- and second-degree assault, Fabian Jones claims that an incriminating statement he made while in custody should have been suppressed because it was obtained in violation of his right against self-incrimination. We affirm.

FACTS

On February 28, 1995, police responded to a call at a Minneapolis bar. A customer who had just helped remove two intoxicated men from the bar had been hit by a tan Ford Escort.

About a half hour later, Minneapolis Police Officer Schram and his partner saw a tan Ford Escort, which had been reported stolen and involved in a hit-and-run accident, traveling in an erratic manner. They followed the car until it stopped, then ordered the driver, appellant Fabian Jones, and the passenger out of the car. The men were handcuffed and placed in the patrol car while the officers obtained basic information such as their names and addresses.

Minneapolis Police Sergeant Hoffman then arrived and spoke with appellant, who was still seated in the patrol car. Without reading a Miranda[1] warning to him, Hoffman asked appellant whether he had been driving the Escort earlier that day when the hit and run occurred, where he got the car, whether he had taken the car before or after he had started drinking, and whether he had stolen the Escort. Appellant answered the last question affirmatively. Hoffman then authorized appellant's arrest and instructed that he be taken to Hennepin County Medical Center (HCMC) for a blood sample.

Approximately 40 minutes after appellant was ordered out of the Escort, the officers read him the implied consent advisory. Appellant and the officers waited in an eight feet by eight feet holding room at the HCMC for 20 minutes before his blood was drawn. Appellant was upset about the procedure and asked to be taken to jail directly. When appellant asked what were the charges against him, Schram said, auto theft and hit and run. Appellant then asked, "What hit and run do you mean?" and stated "Oh, you mean that old dude behind the Fourth Street Saloon bar over north?" Schram nodded his head. Schram testified that appellant went on to state freely and voluntarily:

* * *

Me and my uncle, Dick, were drinking in the bar and we got thrown out. One dude punched me in my face and threw Dick out on his back. The dude was a punk and he couldn't take a head blow. I was mad, I wanted to kill him. They came at me with bottles and s--t and I know I'll do some time now but I'm a man and I'll face my s--t I got coming, 24 months or so, f--k probation. I saw the old dude in the alley go into his car and I stepped down flooring the mother-f--king car that I stole. I saw the dude got hit and flew up, then I heard his head crack as the skull hit the windshield and I laughed. What else was I supposed to do? I f--king laughed. I wanted that punk's head under my tires. I wanted to drag his ass. I tried to kill him. I wish I'd killed him.

Appellant was charged with second-degree attempted murder, first-degree assault, and second-degree assault. Following a Rasmussen[2] hearing, the district court ruled that appellant's inculpatory statements made at HCMC were voluntary and admissible. Based on stipulated facts, the court found appellant guilty on all counts.

D E C I S I O N

When reviewing a suppression ruling where the facts are not in dispute, the appellate court independently reviews the facts to determine, as a matter of law, whether the evidence should be suppressed. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

1. Fruit of the Poisonous Tree and Voluntariness of Statement

All parties acknowledge that the inculpatory statements appellant made while in the squad car are inadmissible because no Miranda warning was given. Appellant argues that the improper custodial interrogation in the squad car also makes the statements he made at HCMC inadmissible under the fruit of the poisonous tree doctrine. See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 417 (1963) (when police act illegally, evidence obtained by exploitation of the illegality must be suppressed). We disagree.

The Miranda exclusionary rule

sweeps more broadly than the Fifth Amendment itself. It may be triggered even in the absence of a Fifth Amendment violation.

Oregon v. Elstad, 470 U.S. 298, 306, 105 S. Ct. 1285, 1291-92 (1985). "The Fifth Amendment prohibits use by the prosecution in its case in chief only of compelled testimony." Id. at 306-7, 105 S. Ct. at 1292. If there is no actual compulsion, questioning a suspect without first providing a Miranda warning departs from the prophylactic standard laid down by the Supreme Court in Miranda, 384 U.S. at 478-79, 86 S. Ct. at 1630, to safeguard the privilege against compelled testimony, but it does not violate the suspect's constitutional rights. Elstad, 470 U.S. at 308, 105 S. Ct. at 1292. When there is no actual infringement of a suspect's constitutional rights, the fruit of the poisonous tree doctrine expressed in Wong Sun, 371 U.S. at 487-88, 83 S. Ct. at 417, does not control. Elstad, 470 U.S. at 308, 105 S. Ct. at 1242.

[T]here is no warrant for presuming coercive effect where the suspect's initial inculpatory statement, though technically in violation of Miranda, was voluntary.

Id. at 318, 105 S. Ct. at 1297-98. "For a confession to be deemed involuntary, there must be some element of coercive police conduct." State v. Hince, 540 N.W.2d 820, 824 (Minn. 1995). There is no evidence of coercive conduct leading to appellant's inculpatory statement in the squad car. Therefore, even though no Miranda warning was given, there was no constitutional violation and the fruit of the poisonous tree doctrine does not make appellant's later statement inadmissible.

2. Custodial Interrogation

Appellant argues that the statements he made at HCMC should have been suppressed because he was subjected to custodial interrogation at HCMC without receiving a Miranda warning. Specifically, appellant contends that "Officer Schram interrogated [him] by provoking and encouraging [his] inculpatory statements." We disagree.

The Supreme Court has defined interrogation as "words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response." Rhode Island v. Innis, 446 U.S. 291, 302, 100 S. Ct. 1682, 1690 (1980). Appellant claims that Schram should have known that four of his acts were reasonably likely to elicit an incriminating response: (a) reading the implied consent advisory when doing so was not required[3]; (b) asking appellant why he was refusing the blood test; (c) answering appellant's question about the charges against him; and (d) nodding his head in agreement as appellant talked about the hit and run incident. We find no merit in any of these claims.

a. No custodial interrogation occurs when an implied consent advisory is given. See South Dakota v. Neville, 459 U.S. 553, 564 n. 15, 103 S. Ct. 916, 923 n. 15 (1983) ("police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of Miranda."). Even though no implied consent advisory was required in this case, there is no reason to concude that the officers should have known that reading the implied consent advisory was reasonably likely to elicit the incriminating statements appellant made at HCMC. The advisory questions did not inquire about appellant's conduct before his arrest.

b.

Questions not attendant to the advisory and that are aimed at testing for intoxication by learning whether the contents of a driver's responses show lucid thinking, constitute interrogation to produce a testimonial response and must be preceded by advice on constitutional rights of silence and the assistance of counsel.

State v. Whitehead, 458 N.W.2d 145, 148 (Minn. App. 1990), review denied (Minn. Sept. 14, 1990) (emphasis added). There is no indication that the officers asked any questions not attendant to the advisory. The implied consent advisory form directs that, if a person refuses testing, the person should be asked what is the reason for refusing.

c. "It is not improper to inform a defendant of the possible charges * * * marshalled against [him]." State v. Pilcher, 472 N.W.2d 327, 334 (Minn. 1991). Therefore, Schram's response to appellant's question about the charges against him was not improper and was not "reasonably likely to elicit an incriminating response." Innis, 446 U.S. at 302, 100 S. Ct. at 1640.

d. Nodding while appellant voluntarily talked about the hit and run incident is not the type of nonverbal conduct that is deemed interrogation under Innis, 446 U.S. at 299-301, 100 S. Ct. at 1688-90. In Innis, a murder suspect riding in the back of a police cruiser overheard two police officers discussing the fact that if the murder weapon, a shotgun, was not located, a child from a nearby school might find it and "maybe kill herself." Id. at 3-95, 100 S. Ct. at 1686-87. The suspect then led the police to the gun and made incriminatory statements. Id. at 295, 100 S. Ct. at 1687. The Supreme Court held that this evocative conversation was not interrogation. Id. at 302-03, 100 S. Ct. at 1690-91. Schram's nodding as appellant spoke was not as evocative as the officers' conversation in Innis and did not rise to the level of interrogation.

Because appellant's statement was not made in response to interrogation, it is not barred by the Fifth Amendment and the district court did not err by admitting it. See United States v. Lawrence, 952 F.2d 1034, 1036 (8th Cir.) (voluntary statement not in response to interrogation admissible regardless of whether Miranda warning is given), cert. denied, 503 U.S. 1011 (1992).

3. Recording Requirement

Finally, appellant claims that his statement at HCMC should have been suppressed because the police failed to record it, which he claims is required by State v. Scales, 518 N.W.2d 587 (Minn. 1994). Scales requires 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. If law enforcement officers fail to comply with this recording requirement, any statements the suspect makes in response to the interrogation may be suppressed at trial.

Id. at 592 (emphasis added). The recording requirement does not apply here because there was no interrogation or questioning.

Affirmed.

[ ]1Miranda v. Arizona, 384 U.S. 436, 478-79, 86 St. Ct. 1602, 1630 (1966).

[ ]2State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 553-55, 141 N.W.2d 3, 13-14 (1965).

[ ]3In cases involving criminal vehicular operation, as this is, a blood sample may be drawn without the driver's consent. State v. Condon, 497 N.W.2d 272, 275 (Minn. App. 1993).