This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Andre Thomas Johnson,


Filed May 5, 1998


Amundson, Judge

Ramsey County District Court

File No. K5-97-1

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Harten, Presiding Judge, Short, Judge, and Amundson, Judge.



Appellant challenges his conviction for first-degree assault because (1) he did not receive Miranda warnings prior to making statements to police; (2) the district court improperly admitted Spreigl evidence; and (3) the state was improperly allowed cross-examination regarding gang tattoos. He also argues that the district court's imposition of a double durational departure in sentencing was not justified. We affirm.


Just after midnight on January 1, 1997, appellant Andre Thomas Johnson shot his semi-automatic rifle from the window of the apartment of his girlfriend, Laveda Morris. Johnson contends that the shots were fired in celebration of the New Year. Three bullets hit victim Troy Kelsey, who was delivering pizzas to the apartment, one severing his spinal cord, paralyzing Kelsey below the navel.

As medics arrived to treat Kelsey, officers began to investigate. They questioned Morris and Johnson about the shooting, telling them that they could both go to jail for attempted murder. Johnson told the officers, "Okay. Okay. I shot the dude. I shot at him, but I wasn't trying to hit him. I put the gun downstairs in the laundry room behind the dryer." Johnson was arrested.

Johnson was ultimately charged with first-degree assault, attempted murder, and the illegal possession of a firearm. A jury convicted him of first-degree assault and the firearm possession charge, but he was acquitted of attempted murder. The district judge imposed twice the presumptive sentence. Johnson appealed his convictions as well as the upward departure in his sentencing.


I. Statements

The determination of whether a defendant is in custody requiring a Miranda warning is reviewed under a clearly erroneous standard. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). Johnson asserts that the number of officers in Morris's apartment and the accusatory nature of their questioning transformed their investigatory questioning into custodial interrogation. Therefore, he argues, he should have been given Miranda warnings; the statements made prior to the Miranda warnings should have been excluded from trial.

Statements made by a suspect during custodial interrogation are inadmissible unless the suspect is given a Miranda warning. See Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 1630 (1966) (prior to a custodial interrogation, defendant must be informed "that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires," and if not informed, evidence obtained cannot be used against him). It is well established constitutional law that

the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.

Id., 384 U.S. at 444, 86 S. Ct. 1602, 1612. Our supreme court has clarified the custody test, asking whether a reasonable person under the circumstances would believe that he or she was subjected to police restraints usually associated with formal arrest. State v. Rosse, 478 N.W.2d 482, 484 (Minn. 1991). In determining whether there were restraints comparable to formal arrest, the totality of circumstances must be considered. Id.

Johnson argues that the circumstances of the questioning took place with a degree of restraint comparable to formal arrest. These circumstances have four officers in Morris's apartment questioning Johnson. Further, Johnson asserts that the officers' distrust of him made the questioning more custodial in nature. (For example, when Johnson said that the window had been broken for a week, Officer Don Benner replied, "[C]ome on, I know better * * * .") Despite Johnson's claims that he knew nothing about the shooting, Officer Steve Anderson persisted in his questioning. Sergeant Frank Foster told Johnson and Morris they could be arrested for attempted murder. Based on the police officers' testimony, however, the district court found that at the time Johnson appeared only to be a valuable witness, not a suspect.

The questioning took place in the apartment of Johnson's girlfriend, and there was no physical restraint of Johnson by any officer. The officers' skilled questions were an investigation of a witness, not a custodial interrogation of a suspect. Police officers were hot on the scene investigating a recent shooting, naturally questioning those living in the building where the shooting occurred. A reasonable person, considering the totality of those circumstances, would not believe they were in police custody, under arrest. The district court did not err by determining that Johnson was not in police custody at the time he made statements to the police; therefore, the statements were properly admitted at trial.

II. Spreigl Evidence

Johnson also argues that the district court abused its discretion in allowing the prosecution to admit evidence of a juvenile robbery adjudication. Evidentiary rulings rest within the sound discretion of the district court. Caldwell v. State, 347 N.W.2d 824, 826 (Minn. App. 1984). Specifically, in the admission of evidence of prior convictions, the determination of whether the probative value of the convictions outweighs their prejudicial effect is within the discretion of the district court. State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985). Absent a clear abuse of discretion, the district court's decision will not be overturned. Id. at 209.

While evidence of other crimes is generally inadmissible to prove a defendant committed an offense, it may be admitted to establish motive, intent, absence of mistake or accident, identity, or common scheme or plan. State v. Spreigl, 272 Minn. 488, 491, 139 N.W.2d 167, 169 (1965); see also Minn. R. Evid. 404(b).

Johnson argues that the other-crime evidence presented at trial was not relevant to any of the issues, and therefore was unduly prejudicial. Because Spreigl evidence has a potentially devastatingly prejudicial effect on the defendant, the Minnesota Supreme Court has set out guidelines, saying:

In determining admissibility, the trial court should engage in a balancing of factors such as the relevance or probative value of the evidence, the need for the evidence, and the danger that the evidence will be used by the jury for an improper purpose, or that the evidence will create unfair prejudice pursuant to Minn. R. Evid. 403.

State v. Bolte, 530 N.W.2d 191, 197 (Minn. 1995) (footnotes omitted).

In deciding the relevance of other-crime evidence, the supreme court requires it be based on "the closeness of the relationship between the other crimes and the charged crimes in terms of time, place and modus operandi." State v. Frisinger, 484 N.W.2d 27, 31 (Minn. 1992). The state argued at the evidentiary hearing that the robbery was relevant because the prior assault and the instant incident involved assault against strangers, who had items of value that could be taken, that both victims were white males who were headed for their automobiles. Given that there is no evidence that there was any race-based prior victimization or because the victims' destination possession of anything of value, these similarities fail to establish the requisite propinquity the law requires for the admission of the robbery evidence. The district court abused its discretion in admitting the evidence, but we conclude that the error was harmless.

III. Gang Tattoos

Johnson also argues that the district court abused its discretion in allowing the prosecutor to cross-examine him regarding his gang tattoos. Johnson asserts that such evidence was prejudicial and not relevant. The state contends that questioning regarding Johnson's gang tattoos and possible gang affiliation was in response to Johnson's own attorney asking police if they observed evidence of gang activity at the scene. The state contends that Johnson "opened the door" regarding gang activity and affiliation, and the state was merely following up on the subject.

Bringing up Johnson's gang tattoos when there was no evidence revealing that this was a gang-related assault was irrelevant. It was an abuse of discretion for the district court to allow questioning regarding the gang tattoos. However, given the strength of the evidence against Johnson, we find this too was harmless error.

IV. Sentencing Departure

Johnson finally argues that the district court abused its discretion by doubling the presumptive sentence. We review a district court's departure from presumptive sentence looking for a clear abuse of discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981).

The district court may depart from the sentencing guidelines if it finds that there were substantial and compelling circumstances. Minn. Sent. Guidelines II.D.01. To determine whether such aggravating circumstances exist, the district court examines "whether the defendant's conduct was significantly more or less serious than typically involved in commission of the crime in question." State v. Bates, 507 N.W.2d 847, 853 (Minn. App. 1993), review denied (Minn. Dec. 27, 1993).

Because the jury could not reach a decision on the charge of attempted murder, Johnson was acquitted on that count. Johnson now asserts that the departure negates the jury's verdict. The district court, however, very clearly outlined its reasons for the departure: (1) the conduct was significantly more serious than that typically seen in a first-degree assault, due to the use of a firearm, the multiple shots fired, and Johnson's hidden position; (2) the random nature of the violence; (3) the particular cruelty exhibited toward the victim; and (4) Johnson's prevarication in trial testimony. Those reasons are supported by the record. Accordingly, the district court did not abuse its discretion by doubling the presumptive sentence.