State of Minnesota, Respondent, vs. Erwin Jerome Walker, Appellant.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480 A. 08, subd. 3 (1994) State of Minnesota in Court of Appeals C2-95-2465 State of Minnesota, Respondent, vs. Erwin Jerome Walker, Appellant. Filed October 15, 1996 Affirmed Willis, Judge Hennepin County District Court File No. 95010209 Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent) Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent) John M. Stuart, State Public Defender, Evan W. Jones, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant) Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Willis, Judge. Unpublished Opinion WILLIS, Judge (Hon. Lajune Lange, District Court Trial Judge) Erwin Jerome Walker appeals the district court's decision to admit Spreigl evidence and the imposition of consecutive sentences for his convictions of assault and attempted aggravated robbery. In addition, Walker challenges pro se the court's decision to admit statements made during a custodial interrogation. We affirm. Facts On December 22, 1995, five men wearing ski masks burst into the apartment of Louis and Patricia McGilberry on Stevens Avenue in Minneapolis where seven people were present. The intruders ordered the occupants to get on the floor and demanded money and drugs. In the course of the robbery, one intruder pointed a gun at Louis McGilberry's head, another frisked the McGilberrys' nephew, and two occupants were shot. When the police arrived, the McGilberrys' daughter, Shetira Reed, told them that she believed the robbery was a ``setup.'' Earlier that day, some of the intruders had been at the apartment, where Faheem Calvin and Julius Calvin, the two shooting victims, were selling drugs. Shortly before the robbery, approximately five men, including Walker and Ivan Diaz, the alleged shooter, went into the back bedroom for a brief period and then left the apartment. Reed and the Calvins identified Diaz and Walker as participants in the robbery. Walker was charged with one count of attempted first-degree murder, one count of first-degree assault, three counts of second-degree assault, and two counts of attempted aggravated robbery. At trial, the district court allowed the state to admit evidence of three prior robbery convictions on the grounds that (1) the offenses were similar to the one for which Walker was being tried and (2) there were weaknesses in the state's case resulting from witnesses' inconsistent recollections during testimony. The jury found Walker guilty of all charges except attempted murder. The district court sentenced Walker to prison terms of 146 months for the first-degree assault offense, 36 months for each of the three second-degree assault offenses (one consecutive, two concurrent), and 24 months for the two attempted aggravated robbery offenses (one consecutive, one merged as part of the same course of conduct). Decision I. Spreigl evidence. Minnesota law limits the use of evidence of prior ``bad acts'' because of the fact- finder's tendency to give excessive weight to the record of defendant's prior crimes. State v. Spreigl, 272 Minn. 488, 490, 139 N.W.2d 167, 169 (1965). Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In a criminal prosecution, such evidence shall not be admitted unless the other crime, wrong, or act and the participation in it by a relevant person are proven by clear and convincing evidence. Minn. R. Evid. 404(b). In addition, the state must meet procedural requirements governing the admission of other-crimes evidence, including consideration of the probative value of the evidence, the need for the evidence, and the danger that the evidence will create unfair prejudice. State v. Bolte, 530 N.W.2d 191, 196-97 (Minn. 1995). The decision to admit evidence of prior crimes lies in the sound discretion of the trial court, and the reviewing court will not reverse absent a clear abuse of discretion. State v. Moorman, 505 N.W.2d 593, 601 (Minn. 1993). Walker contends the district court improperly admitted evidence of his prior crimes because they were not sufficiently similar to the charged offenses. We disagree. Spreigl offenses should be similar to the charged offense either in location, time, or modus operandi. State v. DeWald, 464 N.W.2d 500, 503 (Minn. 1991). ``[T]he mere fact that the prior crime was of the same generic type as the charged offense (e.g., robbery and robbery) usually isn't sufficient.'' State v. Cogshell, 538 N.W.2d 120, 123 (Minn. 1995). But ``the similarity between the prior crime and the present one need not be great.'' State v. Buhl, 520 N.W.2d 177, 181 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994). The Spreigl stipulation here stated that in February 1990, Walker approached two strangers on Penn Avenue in Minneapolis. He grabbed one of the men, said that he had a gun, and demanded their money. A second incident occurred during the same month, also on Penn Avenue. Walker approached two strangers, told them that he had a gun, and demanded their money. In May 1992, Walker entered a restaurant on Lake Street in Minneapolis, told an employee that he had a gun in his pocket, and ordered an employee to open the cash drawer. An employee reported hearing Walker state, ``I've got a crack habit and I'm going to kill somebody.'' In each case, Walker did not show a gun and made no effort to disguise himself. All of the robberies occurred in Minneapolis. There was no significant gap in time between Walker's prior robberies and the instant offenses because from September 1992 until the commission of these offenses, Walker was either in jail or serving home probation. See State v. Crocker, 409 N.W.2d, 840, 843 (Minn. 1987) (holding that the mere passage of time is not significant if the defendant was incapacitated from committing crimes in the interval between the prior offense and the current offense). Walker cut off his home-monitoring bracelet on the morning of the day the offenses here were committed. Further, the state established sufficient similarity between the prior robberies and this offense because they were all part of a common scheme or plan to sustain Walker's crack addiction, they were all opportunistic, and in each case Walker claimed that he had a gun. Seeid. (finding sufficient similarity between prior rapes of a seven-year-old girl and a 15-year-old stepdaughter and the current offense of raping a college student because they were all opportunistic assaults on young women who were temporarily in a vulnerable position). Walker argues that the state merely described his prior offenses without proving that the admission of the Spreigl evidence was necessary to support its case. Spreigl evidence is ``admissible only if the trial court finds the direct or circumstantial evidence of defendant's identity is otherwise weak or inadequate, and that it is necessary to support the state's burden of proof.'' State v. Billstrom, 276 Minn. 174, 178- 79, 149 N.W.2d 281, 284 (1967). Three trial witnesses here recanted prior photo identifications of Walker as one of the robbers. The record therefore supports the district court's finding that there have been weaknesses in the State's case in terms of the testimony of the witnesses and the recollection of the witnesses that have been called that meet the threshold of the Spreigl requirement. Walker also contends the admission of evidence of his prior offenses was unduly prejudicial in both content and form. In weighing the probative value against the prejudicial effect, a district court must consider the extent to which the Spreigl evidence is crucial to the state's case. DeWald, 464 N.W.2d at 504. Any district court error in admitting other-crime evidence is harmless unless ``there is a reasonable probability that the verdict might have been more favorable to the defendant if the evidence had not been admitted.'' State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994). Walker cannot challenge the content or form of the Spreigl evidence. At trial, his counsel stated that ``defense is not going to object to the introduction of the Spreigl'' and he ``agree[d] to a stipulation'' read by the state. See Crocker, 409 N.W.2d at 844 (``particularly given the defendant's lack of objection, it was entirely proper for the trial court to allow the state to use certified court records to prove the [prior] offense''). Moreover, the court properly ruled on admission of the Spreigl evidence after the state presented all of its other evidence because ``[a]t that juncture, the trial court can fully assess whether or not the Spreigl evidence is crucial to the state's burden of proof.'' DeWald, 464 N.W.2d at 504. II. Sentencing. Walker contends the district court abused its discretion by imposing a 206- month sentence because it unfairly exaggerates the culpability of his conduct. In general, when an offender is convicted of multiple current offenses, the court must impose concurrent sentences. Minn. Sent. Guid. II.F. The court, however, may impose consecutive sentences where the offender is convicted of multiple current felonies for crimes against different persons. Minn. Sent. Guid. II.F.2. The district court maintains broad discretion in deciding whether to depart from the presumptive sentence under the Minnesota Sentencing Guidelines. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). In general, the reviewing court ``will not interfere with a sentence that falls within the presumptive sentence range even if there are grounds that would justify departure.'' State v. Back, 341 N.W.2d 273, 275 (Minn. 1983). Walker argues that consecutive sentencing unfairly exaggerates the criminality of his conduct. As mitigating factors, Walker alleges that (1) he was less involved in the crime than Diaz, who received a lighter sentence pursuant to a plea bargain, and (2) most of the robbery victims were never in real danger because they were acquaintances of one or more of the perpetrators. The factors cited do not mitigate Walker's culpability. ``Even if [Walker] did not inflict the injury on the victim, as a participant in the robbery he was legally responsible for the injury under Minn. Stat. 𨺹.05.'' State v. Jones, 328 N.W.2d 736, 738 (Minn. 1983) (providing that a person is liable for any reasonably foreseeable crime committed by another person in pursuance of the crime they conspired to commit); See also Minn. Stat. 𨺹.05, subd. 2 (1994). ``Whether or not the defendant played a passive role in the offense is the type of factual issue best decided at the trial court level in most cases.'' State v. Carson, 320 N.W.2d 432, 438 (Minn. 1982). Further, part of the difference between Walker's and Diaz's sentences reflects Walker's higher criminal history score. Walker's claim that there was no actual danger is belied by the fact that two of the robbery victims were shot. Further, there is no evidence that the remaining victims knew their safety was not at risk. III. Pro se claims. In Walker's pro se brief, he argues that the district court erred by admitting statements he made in the course of a recorded interrogation with Sergeant LaVine. The transcript reads in part: SGT. LAVINE: * * * Sgt. LaVine from Minneapolis Robbery and, ah, (inaudible) SGT. LAVINE: * * * asked to read you your rights. The Constitution requires I inform you that you have the right to remain silent. Anything you say can and will be used against you in court. You have the right to talk to a lawyer now and have him present (inaudible). If you cannot afford a lawyer one will be appointed to you without cost. Do you understand each of these rights as explained to you? WALKER: Hey, what's up man? SGT. LAVINE: Okay. Your full name is Erwin - WALKER: No. At the Rasmussen hearing, the district court admitted the unedited statement and informed the parties that they could submit their interpretations regarding the inaudible portions. Walker argues that the recorded statement should be suppressed because the state failed to maintain a record of the tape's chain of custody and the state does not have the ``best evidence'' original. The tape admitted at trial was a copy because the original was lost. A duplicate, however, is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. Minn. R. Evid. 1003. Moreover, an original recording is not necessary unless the proponent lost or destroyed the original in bad faith. Minn. R. Evid. 1004. LaVine testified that the duplicate tape represented an accurate recording of his conversation with Walker. Although Walker claims that LaVine displayed bad faith by failing to advise him that he was recording the conversation, any deceit in hiding the recorder is irrelevant to the issue of whether the tape was lost or destroyed in bad faith. Walker claims that his statement should be suppressed because the state failed to comply with the recording requirement for custodial interrogations: [A]ll 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. The parameters of the exclusionary rule applied to evidence of statements obtained in violation of these requirements must be decided on a case-by-case basis. State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994). Suppression is required only if the district court deems the violation ``substantial'' after considering all relevant circumstances. Id. Moreover, any error in failing to suppress statements may be found to be harmless. Id. at 593. There is no evidence that LaVine intentionally made portions of the tape inaudible, and the parties had the opportunity to interpret the gaps. Any Scales violation did not prejudice Walker's rights. Finally, Walker contends the recording should be suppressed because his statement, ``Hey, what's up man,'' was inadequate to constitute a valid waiver of his right to counsel. On appeal, this court makes an independent determination of ``whether the state has shown by a fair preponderance of the evidence that the waiver was knowing, intelligent, and voluntary.'' State v. Linder, 268 N.W.2d 734, 735 (Minn. 1978). In an ordinary case if the prosecutor shows that the warning was given and that defendant stated he understood his rights and then gave a statement, the state will be deemed to have met its burden of proof * * *. Id. A suspect's hostile behavior is ordinarily insufficient to invoke unambiguously the right to remain silent in the right to counsel context; the suspect must use language that ``sufficiently articulate[s] the desire to remain silent.'' State v. Williams, 535 N.W.2d 277, 283 (Minn. 1995). The record shows that Walker failed to articulate the desire to remain silent in the absence of counsel. Affirmed.