This opinion will be unpublished and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

A05-1745

 

State of Minnesota,
Respondent,

vs.

Calvin Gill,
Appellant.

 

Filed December 5, 2006

Affirmed in part, reversed in part, and remanded

Minge, Judge

 

Stevens County District Court

File No. K7-04-256

 

 

Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Charles C. Glasrud, Stevens County Attorney, 109 East Sixth Street, P.O. Box 66, Morris, MN 56267 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Minge, Presiding Judge; Lansing, Judge; and Klaphake, Judge.

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

            Appellant claims his conviction for aggravated robbery should be reversed and remanded because of prosecutorial misconduct and because the district court erred in commenting on an excluded statement.  Appellant also claims that the restitution order contains a clerical error and is not supported by the evidence.  We conclude that the district court did not err and that any prosecutorial misconduct was not prejudicial; and, therefore, we affirm the conviction.  Because there is an error in the restitution order and part of the order is not supported by sufficient evidence, we reverse and remand portions of that order.

FACTS

 

            Appellant Calvin Gill and two companions burglarized the rural Morris, Minnesota home of Leroy and Julie Sperr, assaulted Mr. Sperr, tied up the Sperrs, and stole property including the Sperrs’ Blazer.  As appellant and his companions drove into Starbuck, police officer Bryan Klassen stopped the vehicle appellant was driving for speeding.  Klassen asked appellant for identification and proof of insurance.  Appellant did not have a driver’s license, gave Officer Klassen a false name, and told him that he was looking for a girlfriend’s house.  The officer saw a handgun in plain view in the rear of the car.  Officer Klassen then told appellant he was not under arrest but handcuffed appellant and had him sit in the rear seat of the squad car to secure the situation.  While they were in the squad car, Officer Klassen asked appellant about the gun.

            Subsequently, appellant’s companions, who were in Sperrs’ Blazer, were stopped by other law enforcement officers after a high-speed chase.  The officers learned of the theft of the Sperr vehicle and the theft at the Sperr residence.  The officers arrested appellant and his companions.  Stevens County Sheriff Randall Willis took appellant to the Stevens County Law Enforcement Center and questioned him.  Appellant did not receive a Miranda warning until later.

            At the pretrial omnibus hearing, appellant and respondent stipulated to the exclusion of a statement appellant made prior to receiving a Miranda warning.  Appellant filed a motion to exclude “all statements [appellant] made to law enforcement personnel.”  But during the hearing, the attorneys’ exchange referred to a singular statement made by appellant.  The hearing order does not clearly describe the breadth of the parties’ exclusionary stipulation. 

            At trial, the prosecutor asked Officer Klassen about the initial conversation he had with appellant about the guns in the back of the vehicle.  Appellant’s counsel objected, and the judge and attorneys discussed the evidentiary issue outside the presence of the jury.  The judge responded, “Well, it was a blanket motion to suppress all statements and it was – it was stipulated to that the statement to [Sheriff] Willis wasn’t coming in.  I don’t know that we addressed it one way or the other.”  During a subsequent recess the parties held an evidentiary conference, and the district court concluded that the prosecutor’s question was improper because appellant was not given due notice of the state’s intention to introduce his statement to Officer Klassen.  The prosecutor agreed not to pursue this line of questioning. 

            Appellant neither testified nor introduced any evidence at trial.  The jury found appellant guilty of all charges with the exception of the lesser-included offense of receiving stolen property.  Appellant was sentenced.  Subsequently, the district court held a restitution hearing and ordered total restitution in the amount of $12,659.26.  This appeal followed.

D E C I S I O N

I.

            The first issue is whether the prosecutor’s questions regarding appellant’s statements to Officer Klassen, made after appellant was stopped, were improper and if improper, denied appellant a fair trial. 

            This court will reverse a conviction for prosecutorial misconduct only if the misconduct, “when considered in light of the whole trial, impaired the defendant’s right to a fair trial.”  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).  With respect to objected-to prosecutorial misconduct, “the defendant will not be granted a new trial if the misconduct is harmless beyond a reasonable doubt.  We will find an error to be harmless beyond a reasonable doubt only if the verdict rendered was surely unattributable to the error.”  State v. Swanson, 707 N.W.2d 645, 658 (Minn. 2006) (quotations and citations omitted).[1]

            It is prosecutorial misconduct for a prosecutor to knowingly offer suppressed evidence in an attempt to bring the excluded evidence to the jury’s attention.  State v. Harris, 521 N.W.2d 348, 354 (Minn. 1994).  “However asking a question to which an objection is sustained is not by itself evidence of prosecutorial misconduct.”  State v. Steward, 645 N.W.2d 115, 122 (Minn. 2002).  Furthermore, while it is “misconduct for the prosecutor to persist in asking questions that the trial court has ruled improper or to elicit evidence ruled inadmissible,” such questioning is proper where the district court has not ruled that the questions were improper, or that the evidence was inadmissible.  State v. Lee, 645 N.W.2d 459, 469 (Minn. 2002).    

            Whether the prosecutor’s questions constitute misconduct depends, in part, on whether the questions were asked in good faith, or instead in an attempt to evade the evidentiary rules by bringing excluded evidence to the attention of the jury.  Compare State v. Flowers, 261 N.W.2d 88 (Minn. 1978) (finding that the prosecutor’s intentional violation of a pretrial exclusion order entitled appellant to a new trial), with State v. Shallock, 281 N.W.2d 186, 187 (Minn. 1979) (holding that a prosecutor’s unintentional violation of a pretrial suppression order, where appellant’s objection was sustained, was not grounds for reversal). 

            Here, the record does not indicate that the prosecutor knowingly attempted to bring suppressed evidence to the jury’s attention.  The pretrial hearing and final hearing order were ambiguous.  Officer Klassen’s inquiry about the gun preceded appellant’s formal arrest.  Although the district court was uncertain about the breadth of the parties’ stipulation, he ruled the statement inadmissible because of surprise.  The prosecutor did not dispute that decision.  The prosecutor did not ask questions “calculated to elicit or insinuate inadmissible . . . evidence . . . in the face of a clear trial court prohibition . . . .”  Harris, 521 N.W.2d at 354.

            Appellant argues that even if the order did not clearly prohibit the questions, the scope of the exclusionary stipulation was at a minimum ambiguous and the prosecutor had a duty to seek permission from the district court before questioning Officer Klassen about appellant’s statement at the traffic stop.  Appellant cites State v. McRae, 494 N.W.2d 252, 259 (Minn. 1992).  In McRae, the supreme court determined whether the prosecutor committed misconduct by asking a witness about the defendant’s prior statement, which had been suppressed on Miranda and relevancy grounds.  McRae, 494 N.W.2d at 259.  The state argued that the district court’s suppression order was erroneous, and that the ruling did not preclude use of the statement for impeachment purposes.  Id.  Responding to the state’s argument, the supreme court noted:

If the prosecutor believed that despite its earlier ruling, the trial court might allow him to use defendant’s statement to impeach defendant on cross-examination, the prosecutor first should have sought permission from the trial court to do so.  Any time a prosecutor desires to make an inquiry of doubtful propriety, the prosecutor should seek permission from the trial court in chambers before asking the question. 

 

Id. (emphasis added).  McRae’s rule that the prosecutor must seek the district court’s permission before asking a question of “doubtful propriety” requires that the prosecutor and district court identify what is “doubtful.”  But in McRae the suppression order was clear.  McRae does not require the prosecutor to seek permission from the judge every time he seeks to introduce evidence that may be objected to by defense counsel.  Id.

            Here, the prosecutor’s approach is different from the approach used in McRae.  The jury knew that there was a gun in the car that the officer had seen through the window.  The prosecutor’s question was relatively neutral and invited defense counsel to object.  The actual question was as follows: “All right.  And then giving counsel a chance to object, what did he say about the fact that you’d found a handgun in the car?”  Defense counsel objected to the question.  The prosecutor then actively sought to clarify the issue with the district court and defense counsel. 

            Because the district court never determined that the suppression order excluded appellant’s statements to Officer Klassen, and because the question was neutral, alerted defense counsel to the possibility of an objection, and did not telegraph to the jury the existence of specific, damaging evidence, we conclude that the prosecutor’s question did not constitute misconduct. 

II.

            The second issue is whether portions of the prosecutor’s opening statement constituted prejudicial error.  Specifically, appellant contends that the prosecutor did not have a good faith basis for referring to and assuming the admissibility of statements appellant made to Officer Klassen immediately after he was pulled over for speeding, and before he was restrained in the back of Klassen’s squad car.  Appellant presumes that the statements were inadmissible on Miranda grounds.  But general, non-incriminating, pre-arrest questions do not require a Miranda warning and Officer Klassen’s eventual testimony was properly admitted into evidence.  See State v. Herem, 384 N.W.2d 880, 883 (Minn. 1986) (holding that routine investigative questions at a traffic stop, asked and answered in the back of the officer’s police car, were not custodial interrogation and did not require a Miranda warning); see also In re Welfare of M.A., 310 N.W.2d 699 (Minn. 1981) (“Questioning during an investigatory stop generally does not require a Miranda warning because the questioning is not custodial in nature.”); State v. Clepper, 399 N.W.2d 574, 575 (Minn. App. 1987) (holding that a “brief detention” does not require a Miranda warning.”).  Because the evidence was admissible, we conclude that the prosecutor did not commit misconduct during his opening statement.

III.

            The third issue is whether the district court improperly alerted the jury to appellant’s suppressed statement and, if so, whether such misconduct requires a new trial.  Appellant argues that, during a bench conference, the district court improperly alerted the jury to the excluded statement appellant made to Sheriff Willis at the Stevens County Law Enforcement Center. 

            Appellant’s claim is not supported by the record.  Immediately prior to the district court’s challenged statement, the trial transcript reads, “(A bench conference was had out of the hearing of the jury as follows.)”  After the attorneys approached the bench and were outside of the jury’s hearing the trial judge said, “Well, so far the only statement that was suppressed is the statement [appellant] made to Willis.”  There is no support in the record that the district court’s statement was made within the hearing of the jury.  Appellant also provides no reason, beyond his mere assertion, to question the credibility of the record.  Accordingly, appellant’s claim is without merit.

IV.

            The fourth issue is whether the district court erred in ordering certain restitution.

            A.  American Family Insurance

            At the restitution hearing, the state requested $1,853.84 in restitution for repairs to the Sperrs’ damaged Blazer.  The Sperrs’ automobile insurer was American Family Insurance.  The district court found that the reasonable value of the repairs to the vehicle was $1,500.  However, in its order the district court directed $500 to be paid to appellant for the car insurance deductible plus $1,500 to be paid to American Family.  Thus, the district court awarded a total of $2,000 for damage to the vehicle.  Respondent does not object to a modification of the restitution order so that the Sperrs receive their $500 deductible and American Family receives $1,000.  Both parties attribute the discrepancy to a typographical error.      

            We conclude that the district court’s findings of fact are inconsistent with its final restitution order and remand for correction of the error. 

            B.  Ingenix Insurance

            Finally, appellant challenges the district court’s order of restitution to Ingenix Insurance Company in the amount of $3,858.01 on the ground that it is unsupported by any evidence.

            Minnesota law gives the victim of a crime the right to receive restitution for loss caused by a convicted criminal offender.  Minn. Stat. § 611A.04, subd. 1(a) (2004).  The district court has broad discretion in ordering restitution.  State v. Thole, 614 N.W.2d 231, 234 (Minn. App. 2000).  The restitution statute describes the initiation of the restitution process:

The court, or a person or agency designated by the court, shall request information from the victim to determine the amount of restitution owed.  The court or its designee shall obtain the information from the victim in affidavit form or by other competent evidence.  Information submitted relating to restitution must describe the items or elements of loss, itemize the total dollar amounts of restitution claimed, and specify the reasons justifying these amounts . . . .

 

Minn. Stat. § 611A.04, subd. 1(a).  The burden of proving the loss is on the prosecution.  Minn. Stat. § 611A.045, subd. 3(a).  The supreme court has reversed restitution orders that were not supported in the record by a descriptive itemization of the expenses.  State v. Keehn, 554 N.W.2d 405, 408 (Minn. App. 1996); see also State v. Ford, 539 N.W.2d 214, 231 (Minn. 1995); State v. Grayson, 546 N.W.2d 731, 739 (Minn. 1996).

            The restitution statute also requires that an offender satisfy a burden of specificity and provide “a detailed sworn” statement when challenging a restitution request.  Minn. Stat. § 611A.045, subd. 3(a).  In reviewing a district court’s application of this portion of the statute in the context of a motion to vacate a restitution order, this court has upheld a rejection of a challenge to restitution items because the challenge was not explicitly raised in the defendant’s affidavit and accompanying motion.  Thole, 614 N.W.2d at 235.  Respondent’s claim, that it is not obligated to put forth any evidence to support the restitution request until it is specifically challenged by the offender, yields illogical results.  It puts the offender in the difficult position of meeting his burden of pleading and production without evidence in the record.  It would require the offender to request and obtain, through discovery, restitution evidence that is completely in the victim’s possession.  Finally, respondent’s position would invite victims to submit baseless restitution requests in the hope that the offender fails to properly challenge those requests.   

            Here, as in Keehn and Grayson, respondent did not produce any evidence to document the costs incurred by Ingenix Insurance.  At the restitution hearing, respondent carefully detailed the victims’ out-of-pocket medical expenses, but did not substantiate the $3,858.01 Ingenix request in any form.  The transcript indicates that respondent attempted to call an Ingenix claims representative to testify by telephone, but the representative was never reached.  The record does not indicate how the district court arrived at its final figure, other than the state’s bare assertion in its request for restitution. 

            Here, appellant did not file a “detailed” affidavit describing his specific challenges to the restitution request.  Minn. Stat. § 611A.045, subd. 3(a).  All appellant submitted to the district court was a motion for a restitution hearing accompanied by a generalized affidavit challenging the state’s restitution request.  Like the generalized challenge this court found deficient in Thole, appellant’s affidavit challenges “any and all claims for restitution” because “the restitution claim does not describe or itemize the items or elements of loss claimed and does not specify the reasons justifying the amounts claimed.” 

            Because we conclude that the record fails to sufficiently document Ignenix’s economic loss and does not comply with the statute’s requirements, we remand so that the district court can reopen the proceeding to sufficiently document the Ingenix claim.  While we do not adopt respondent’s broad reading of the restitution statute, we agree that appellant must do more to meet his burden of pleading and production on remand. 

            Appellant does not challenge and we do not consider any other aspect of restitution.

            Affirmed in part, reversed in part, and remanded.