This opinion will be unpublished and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

A05-555

 

 

State of Minnesota,

Respondent,

 

vs.

 

Johnathan Glenn Newman,

Respondent.

 

 

Filed June 13, 2006

Affirmed
Crippen, Judge*

 

St. Louis County District Court

File No. K6-04-300048

 

Mike Hatch, Attorney General, Thomas R. Ragatz, James Patrick Barone, Assistant Attorneys General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, Duluth, MN 55802 (for respondent);

 

Suzanne M. Senecal-Hill, Assistant State Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Shumaker, Presiding Judge, Wright, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

Appellant Johnathan Newman challenges his convictions of and sentences for first-degree burglary; solicitation of juveniles to commit first-degree burglary; theft of firearms; felon in possession of a firearm; and fifth-degree possession of a controlled substance.  He argues that the district court abused its discretion by (1) admitting a statement that appellant made to police following his arrest; (2) denying his motion to sever the fifth-degree controlled-substance charge; and (3) sentencing him separately for the fifth-degree controlled-substance offense and making that sentence consecutive to the others.  We affirm. 

FACTS

            On January 5, 2004, C.G., then age 15, was staying with his friend D.J., then age 13, in the Hibbing home of D.J.’s mother.  Appellant, D.J.’s father, then age 42, was also living in or around Hibbing. 

            On the morning of January 5 appellant drove C.G. to C.G.’s grandparents’ home so that C.G. could retrieve some personal belongings.  C.G. and appellant subsequently formulated a plan to steal and sell several guns that C.G. knew were in his grandparents’ home.  That afternoon, appellant and C.G. picked up D.J. after school and drove to the home.  While appellant waited in the van, C.G. and D.J. broke into the residence and stole cash and three rifles.  When they returned to the van, appellant told them that he had broken into a neighboring cabin in their absence.

On January 6, police took appellant into custody and impounded his van.  The next day, the police executed a warrant to search the van and discovered the stolen rifles, as well as drug paraphernalia; the Bureau of Criminal Apprehension laboratory personnel subsequently found methamphetamine.  The police also discovered the personal items that C.G. had retrieved from his grandparents’ home on the morning of January 5. 

The same day, two St. Louis County Sheriff’s Office investigators interviewed appellant in the Itasca County Jail.  After appellant twice stated that he wanted an “attorney present” during the questioning, one of the investigators produced the list of property discovered in the van search, and the following exchange took place:

Q:        Okay. Okay.  Ah . . . you want to tell um what, what we found that . . .

Q:        Well, we got the van, it, you know, over in the impound right now, we executed a search warrant on it this morning.  You know what I meant to do, too, is . . . when I did . . . I was gonna make you a copy ah . . . I’ll have ta’ get a . . . what I can do, is I can give you a copy of the return, I . . . I don’t have a copy of the search warrant to give you but . . . this is a list of property that as . . . removed from the van and obviously the search warrant’s just gonna tell you that um . . . what we were looking for and . . . and, . . . you know, it lists the van, that’s all the search warrant’s gonna have but anyways, but . . .

A:        Now this box of toys now (inaudible).

Q:        Mh hm (yes).

A:        And all this stuff is supposed to be [C.G.]’s property.

Q:        All right.

A:        I brought, I drove into his grandmother’s house, his grandmother had him by the door, his grandmother watched him walk out of the house with it.

Q:        With the box of toys . . .

A:        And the bow.

Q:        And the bow.

Q:        Well, and that’s the kind of questions we had for you, too, so we’d like to ask you (many voices – inaudible).

A:        I, that’s the reason (inaudible) going out there was to getting [sic] the property, his property.

Q:        And that’s what we want to talk to you, but if you don’t want to talk . . .

A:        I’m not gonna sit here and . . . and . . . and, I mean, I want you to know what I’m gonna be, you know, I’m being charged with burglary or something is what the story came out in the papers saying.

Q:        Which paper?

A:        (inaudible) suspected suspect in a burglary.

Q:        Well, that’s the kind of stuff we want to clear up, that’s why we wanted to ask you some questions.

A:        Well, I’ll answer your questions but, the only thing I can tell you, is I drove the boy out there to his grandmother’s house, to get his stuff (inaudible)

Q:        Well, let’s . . . let’s clarify that.  I’m gonna read you your Miranda warning but I don’t want to waste a bunch of time here, are you  . . . you willing to answer some questions about your (inaudible)

A:        Yah.

Q:        Yah, and understand, I mean, if you decide that you don’t want to answer a specific question or anything, you can decide that at any time . . . um, you know that’s gonna be part of your Miranda, but . . . but you’ve indicated to us at point that you wanted to have an attorney.  So you have to specify to us that you’re willing to talk to us without your attorney present, that’s . . . that’s you know, you[r] right so . . .

Q:        [Reads Miranda warning.]  Do you understand these rights?

A:        Yah.

Q:        Having these rights in mind, do you wish to talk to us at this time?

A:        Yes.

Q:        Okay.  You willing to answer a few questions then?

A:        Yes. 

 

Appellant then acknowledged that he had taken C.G. to C.G.’s grandparents’ home on the morning of January 5 and returned that afternoon with C.G. and D.J., but he denied that he had known about or participated in the burglary.  He also admitted that he used and sold methamphetamine and was “high” the night of the burglary; that C.G. had asked him to sell the items retrieved on the morning of January 5, as well as the guns; and that he had attempted to sell the guns. 

The state charged appellant with first-degree burglary, Minn. Stat. § 609.582, subd. 1(b) (2002);[1] second-degree burglary, Minn. Stat. § 609.582, subd. 2(a) (2002); theft of firearms, Minn. Stat. § 609.52, subd. 2(1) (2002); theft, Minn. Stat. § 609.52, subd. 2(1) (2002); possession of a firearm by a felon, Minn. Stat. § 624.713, subd. 1(b) (2002); and fifth-degree possession of methamphetamine, Minn. Stat. § 152.025, subd. 2(1) (2002). 

At the omnibus hearing, appellant moved to suppress his statement to police as taken in violation of his Sixth Amendment right to counsel and to sever the controlled-substance charge from the complaint.  The district court denied both motions.  The state subsequently amended the complaint to include solicitation of juveniles to commit first-degree burglary, Minn. Stat. § 609.494, subd. 1 (2002), and solicitation of juveniles to commit second-degree burglary, Minn. Stat. § 609.494, subd. 1.

            At trial, C.G. and D.J. both testified about their participation in the burglary with appellant and about appellant’s intent to sell the guns.  D.J. also testified that he knew that his father took methamphetamine by injection and that he had seen needle marks on his father’s arms.  The jury listened to the tape recording of appellant’s statement to the police.  A police officer who investigated the crime testified that the guns found in the van driven by appellant were the guns that had been stolen and that the drug paraphernalia discovered in the van contained methamphetamine. 

            The jury found appellant guilty of first-degree burglary, theft of firearms, possession of a firearm by a felon, fifth-degree possession of methamphetamine, and solicitation of juveniles to commit first-degree burglary.  The district court imposed the presumptive sentence for each conviction and ordered that appellant serve the sentences for possession of methamphetamine (12 months) and solicitation of juveniles (24 months) consecutively to the sentence for first-degree burglary (78 months).  Appellant’s total sentence was, therefore, 114 months.

D E C I S I O N

1.

Appellant argues that his statement to the police was taken in violation of his constitutional rights.  Under the Fifth Amendment to the United States Constitution, an accused must be informed of his right to counsel prior to custodial police interrogation.  Miranda v. Arizona, 384 U.S. 436, 471, 86 S. Ct. 1602, 1626 (1966); State v. Robinson, 427 N.W.2d 217, 222 (Minn. 1988). 

Custodial interrogation that persists after the invocation of the right to counsel “violates an accused’s fifth amendment right, and any statement or confession ensuing as the result of that interrogation may not be introduced in evidence at the trial of the accused.”  Robinson, 427 N.W.2d at 222.  To invoke his right to counsel, a suspect “must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer, in the circumstances, would understand the statement to be a request for an attorney.”  State v. Munson, 594 N.W.2d 128, 139 (Minn. 1999) (quoting Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 2355 (1994)). 

“Once a suspect unequivocally invokes his right to counsel, courts may admit responses to further questioning only on finding that [the suspect] (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right invoked.”  State v. Hannon, 636 N.W.2d 796, 805 (Minn. 2001) (alteration in original) (quotations omitted).  “These inquiries are separate; even if a suspect initiates further conversation, the burden remains upon the prosecution to show that subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation.” Id. (quotation omitted); see also Munson, 594 N.W.2d at 141 (holding “that the state has the burden of proving that after invoking his right to counsel, [the suspect] initiated further discussions with the police”).  “[I]f the police initiate interrogation after a defendant’s assertion . . . of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.”  Munson, 594 N.W.2d at 140 (alteration in original) (quoting Michigan v. Jackson, 475 U.S. 625, 636, 106 S. Ct. 1404, 1411 (1986)). 

“[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.”  Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689-90 (1980).  “While subtle compulsion may still be permissible even after an accused has invoked his Miranda rights, express questioning or its functional equivalent is prohibited.”  Munson, 594 N.W.2d at 141 (quotation omitted).  We review the district court’s “findings of fact as to the circumstances surrounding a suspect’s statements for clear error.”  Hannon, 636 N.W.2d at 806. 

It is undisputed that appellant twice requested an attorney as soon as the interview began.  He maintains that the investigators’ intent when then presenting appellant with the list of property removed from the van was to elicit an incriminating response from him and that producing the list, therefore, constituted an impermissible attempt to initiate interrogation after appellant twice requested counsel.  This contention has merit.  

Appellant specifically relies on Munson to argue that presenting the property list and comments on it were “in the nature of a warning and an inducement to talk.”  594 N.W.2d at 140.  In that case, the police told Munson, who was in custody, that if he “wanted to help himself by talking to the police, he had only a ‘small window of opportunity’ in which to do so.”  Id. at 140.  When Munson then invoked his right to counsel, a police officer said, “Remember what I said, though [about the window of opportunity].”  Id.  The supreme court held this statement was an impermissible “warning and an inducement to talk” when considered in the context of further references to the “window of opportunity” and subsequent police statements to Munson that he “was to receive only attorney phone calls, that the drugs would be examined for fingerprints, that [his] ‘buddies’ would be brought in for questioning, and that the case would be sent to the U.S. Attorney.”  Id. 

Review of the transcript of the January 7 interview demonstrates that by producing the inventory list immediately after appellant twice requested counsel and then proceeding to discuss the inventory, the investigator either intended to initiate conversation or should have known that producing the list was reasonably likely to elicit an incriminating response.  See Innis, 446 U.S. at 301, 100 S. Ct. at 1689-90.  The list contained a combination of items that appellant presumably knew were stolen on the evening of January 5, items that he believed had been legally removed from the home by C.G. on the morning of January 5, and the drug paraphernalia.  Appellant’s immediate response to the list was an attempt to exculpate him by explaining recovery of C.G.’s personal possessions.  The investigator continued, “And that’s what we want to talk to you [about].”  When appellant then expressed his concern that he would be charged with burglary, the investigator said, “And that’s [why] we want to talk with you.”  Also, the record demonstrates that appellant was given an inducement to discuss the matter, hope to believe that he could avoid the ongoing public perception of his guilt, as well as criminal charges.  See Munson, 594 N.W.2d at 141 (observing that “[i]n determining whether the police tactics were reasonably likely to elicit a response from the suspect, we must focus primarily upon the perceptions of the suspect, rather than the intent of the police” (quotation omitted)).  

The state did not meet its burden to show that, after invoking his right to counsel, appellant initiated further discussions with the police.  Appellant’s subsequent waiver of his right to counsel, although technically complete, is therefore invalid, and the district court erred in admitting the statement.

But despite this error, appellant’s conviction must stand if the admission of the statements was harmless beyond a reasonable doubt.  Id. at 143.  An error is harmless beyond a reasonable doubt only if the verdict was “surely unattributable” to the error. State v. McDonough, 631 N.W.2d 373, 384 (Minn. 2001).  “In other words, the weight of the evidence must be so overwhelming that a reasonable jury would have arrived at the verdict without the prejudicial evidence.”  Hannon, 636 N.W.2d at 807. 

It is evident that the jury would have reached its verdict without the contested statement.  In the statement, appellant admitted using drugs and having arranged an attempted sale of the stolen guns, but denied any participation in the January 5 burglary, insisting that he had innocently driven the boys to the burglary site to retrieve items belonging to C.G.  The transcript indicates that there was eyewitness and physical evidence of appellant’s guilt, primarily consisting of the drugs and guns discovered in his van and testimony given by C.G. and D.J. about the burglary and subsequent events.  Appellant did not attempt to rebut any of the evidence against him.  Moreover, this is not a case in which the defendant’s statement to police “constituted significant admissions almost amounting to a full confession” such that the erroneous admission of the statement constituted prejudicial error.  Hannon, 636 N.W.2d at 807.  The district court’s erroneous admission of the statements was harmless beyond a reasonable doubt.

2.

Appellant challenges the denial of his pretrial motion to sever the controlled-substance charge from the other charges.  We review the ultimate decision on denial of a motion to sever under an abuse-of-discretion standard.  State v. Dick, 638 N.W.2d 486, 490 (Minn. App. 2002), review denied (Minn. Apr. 16, 2002).  A district court must, on motion of either party, sever charges or offenses if “the offenses or charges are not related.”  Minn. R. Crim. P. 17.03, subd. 3(1)(a).  For purposes of rule 17.03, subdivision 3(1)(a), charges are related if they form part of “a single behavioral incident or course of conduct.”  State v. Profit, 591 N.W.2d 451, 458 (Minn. 1999).

The determination of whether offenses arose from a single behavioral incident that would permit their joinder for trial depends on the facts and circumstances of the case.  State v. Jackson, 615 N.W.2d 391, 394 (Minn. App. 2000), review denied (Minn. Oct. 17, 2000).  In determining whether multiple crimes are part of a single behavioral incident, we typically focus on whether the crimes were related in time and place, also considering “whether the segments of conduct involved were motivated by an effort to obtain a single criminal objective.”  State v. Banks, 331 N.W.2d 491, 493 (Minn. 1983). 

As a threshold matter, the state argues that appellant has waived this issue on appeal because he never moved the district court to sever the drug charge on the ground that it was not part of the same behavioral incident as the other charges.  But at the omnibus hearing, appellant requested that the drug charge “be severed from the complaint.”  The record reflects that both the state and the district court clearly understood the motion’s basis to be appellant’s contention that the drug charge was part of a separate behavioral incident.  And because appellant properly made the motion, it was not necessary for him to make a plain-error argument in his appellate brief, as the state contends.  He did not waive this issue on appeal.

            Appellant correctly asserts that the charges arising from the January 5 Hibbing burglary are not related in time or place to the drug charge, which arose from the January 6 seizure of his van outside of Hibbing.  And although there is merit in the state’s argument that the drug charge is related in time and place to the felon-in-possession charge—because they both arose at the time of the van seizure—the three charges do not share a common criminal objective that would justify their joinder.  The district court’s denial of appellant’s motion therefore constituted an abuse of discretion.  

But even where a district court improperly joins charges, “remand is not required if the district court’s denial of the motion to sever was not prejudicially erroneous.”  Profit, 591 N.W.2d at 460.  The ultimate question when offenses are improperly joined is whether the defendant was unfairly prejudiced.  Id.  The Minnesota Supreme Court has determined that the Spreigl analysis for admitting other-crimes evidence is a useful framework for evaluating whether the district court’s failure to sever is so prejudicial that reversal is required.  Id.at 461.

Spreigl evidence shall not be admitted in a criminal prosecution unless the court determines “(1) that the evidence is clear and convincing that the defendant participated in the other offense; (2) that the Spreigl evidence is relevant and material to the state’s case; and (3) that the probative value of the Spreigl evidence is not outweighed by its potential for unfair prejudice.”  State v. Shannon, 583 N.W.2d 579, 583 (Minn. 1998).  Spreigl evidence may be admitted to establish motive.  Id. (citing Minn. R. Evid. 404(b)).If evidence relating to each charged offense would have been admissible as Spreigl evidence in separate trials, joinder of the charges is not prejudicially erroneous.  See State v. Conaway, 319 N.W.2d 35, 42 (Minn. 1982) (holding although joinder was technically improper, it was not prejudicial because evidence of each offense would have been admissible as Spreigl evidence in trial of other). 

Here, the district court observed that

when you look at what [appellant] is charged with here and the context of these charges, the inference can be drawn that the overall motivation of [appellant] in allegedly committing the offenses he is charged with has to do with drug dealing, drug sales, drug possession, drug lifestyle, profile or any of these other things.

 

Thus, evidence of the drug charge would have been admissible, under Spreigl, to show motive in a separate trial on the burglary charges.  The drug charge was also probative to the extent that it “provide[d] context and meaning to the central events in issue.”  State v. Stephenson, 361 N.W.2d 844, 846 (Minn. 1985) (quotation omitted).  And appellant’s argument that the drug charge was inadmissible as prejudicial character evidence is undermined by his acquittal of three of the eight charges, suggesting that joinder did not prevent the jury from objectively considering the charges separately.  See State v. DeWald, 463 N.W.2d 741, 745 (Minn. 1990) (stating that an acquittal on one of the charges indicates that “the members of the jury were not unduly inflamed by the [alleged prejudicial admission]”).  Although the district court erred in joining the charges, appellant was not prejudiced as a consequence, and reversal is not required.

3.

Appellant argues that the district court abused its discretion by sentencing him separately for the fifth-degree controlled-substance offense and making that sentence consecutive to his sentence for first-degree burglary.  We will not reverse a district court’s decision to impose consecutive sentences absent a clear abuse of discretion.  Neal v. State, 658 N.W.2d 536, 548 (Minn. 2003). 

When a person’s conduct constitutes more than one criminal offense, he may be punished for only one of the offenses.  Minn. Stat. § 609.035, subd. 1 (2002).  The purpose of the statute is to limit punishment to a single sentence when a single behavioral incident results in the violation of multiple criminal statutes.  State v. Brown, 597 N.W.2d 299, 305 (Minn. App. 1999), review denied (Minn. Sept. 14, 1999).

But Minn. Stat. § 609.11, subd. 5 (2002), provides for a minimum three-year sentence when a defendant, at the time of offenses including burglary, possesses a firearm.[2]  Subdivision 5a states that in the event the offender also commits a violation of chapter 152 (drug offenses) that calls for a mandatory minimum sentence, the minimum sentence under section 609.11, subdivision 5, “shall be consecutive” to the chapter 152 sentence, “[n]otwithstanding section 609.35.”  

Appellant was charged with possession of methamphetamine under Minn. Stat. § 152.025, subd. 2(1) (2002), and was subject to a mandatory minimum sentence under that provision because of prior controlled-substance convictions.  The district court, therefore, properly imposed a separate sentence for the drug charge under Minn. Stat. § 609.11, subd. 5a, which creates a specific exception to the rule that the court may impose only a single sentence when a single behavioral incident results in multiple convictions. 

            Minn. Stat. § 609.11, subd. 5a, also requires that when a defendant is convicted of an offense under that statute, as appellant was here, that sentence “shall be consecutive to that imposed under chapter 152.”  The district court properly applied the statutory language in sentencing appellant. 

Affirmed.