State of Minnesota, Respondent, vs. Kor Vang, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-02-1671

 

State of Minnesota,
Respondent,
 
vs.
 
Kor Vang,
Appellant.

 

Filed November 9, 2004

Affirmed

Stoneburner, Judge

 

Ramsey County District Court

File No. K1013953

 

Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, Suite 315, Ramsey County Government Center West, 50 West Kellogg Boulevard,        St. Paul, MN 55102 (for respondent)

 

John M. Stuart, Minnesota Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414; and

 

Michael C. Davis, Special Assistant Public Defender, Suite 1042, Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge; Toussaint, Chief Judge; and Minge, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            On remand from the supreme court for reconsideration of Kor Vang's appeal from convictions of two counts of second-degree murder and one count of second-degree attempted murder, in light of State v. Bailey, 677 N.W.2d 380 (2004), Kor Vang asserts that both Bailey and the subsequent opinion in Missouri v. Seibert, 124 S. Ct. 2601 (2004), require suppression of post-Miranda-warning statements obtained after he made unwarned inculpatory statements.  Because the facts surrounding Kor Vang's statements are distinguishable from the circumstances that rendered Bailey's and Seibert's statements inadmissible, we conclude that the district court did not abuse its discretion by admitting Kor Vang's post-Miranda-warning statements.  Kor Vang also challenged sufficiency of the evidence.  Because the evidence was sufficient to support the convictions, we affirm.

FACTS

 

            After a fatal shooting in an alleyway in St. Paul, eyewitnesses gave police the license number of a car registered to appellant, Kor Vang, and identified Jerry Vang, a passenger in the car, as the shooter.  Police located the car parked at the home of Chee Thao, who was identified by a witness as the driver of the car when the shooting occurred.  Police entered the home, arrested Jerry Vang and Chee Thao, and later found Kor Vang hiding in a closet in the basement.

            When police asked Kor Vang why he was hiding, he said he was hiding because he had an outstanding arrest warrant for underage drinking and driving.  The police, at Kor Vang's request, assisted him in getting out of the closet, then placed him face down on the floor, handcuffed him, placed him in the back seat of a squad car, took him to the police station, and placed him in a holding cell.  Sergeant Muñoz, the investigator in the shooting case, who was interviewing all of the witnesses to the incident at the police station, wanted to speak with everyone who had been in Chee Thao's house.  Kor Vang was taken to Sgt. Muñoz, his handcuffs were removed, and Sgt. Muñoz took him to an interview room.  After Kor Vang was turned over to Sgt. Muñoz, the transporting officer verified that Kor Vang had an outstanding arrest warrant issued by Hennepin County for underage drinking and driving.

            Sgt. Muñoz testified that he began to interview Kor Vang about an hour after Kor Vang was brought to the interview room, believing that Kor Vang was another witness to circumstances that happened after the suspects in the shooting fled from the scene of the shooting.  Sgt. Muñoz asked Kor Vang why he had been hiding and Kor Vang explained that he was hiding because of the warrant.  Sgt. Muñoz explained to Kor Vang that he "wasn't under arrest for the shooting.  And I didn't know anything about the warrant and I wasn't there to talk to him about his warrant."  Sgt. Muñoz told Kor Vang that he only wanted to ask him "the whereabouts of his car [that day] and who[m] he had given it to."  Kor Vang described his activities during the day, stating that he had parked his car in back of the house where he was discovered, did not leave that house all day, and did not know anything about the shooting.  Sgt. Muñoz testified that Kor Vang "did at one point admit to me that he had given the keys to Jerry Vang because Jerry had to go out to the car for something.  But that's about all he said."

            Sgt. Muñoz testified that at this point he stepped out of the interview room to see what was going on with the search warrant.  He was told that the suspected murder weapon had been found on the front seat of Kor Vang's car.  Sgt. Muñoz testified that he then "suspected that [Kor Vang] may have been involved after the fact in some contact with Jerry Vang or Chee Thao."  Sgt. Muñoz reentered the interview room, confronted Kor Vang with the discovery of the gun, and told Kor Vang that he was going to arrest him and book him for murder.  Kor Vang then said he now wanted to tell the truth and admitted that he had been driving the car, that Jerry Vang had done the shooting, and that he was afraid to testify against Jerry Vang.  Sgt. Muñoz testified that "just about immediately" after Kor Vang started making these statements, he "pretty much stopped him right there and . . . we set up the recording equipment and then I started over with taping the interview," beginning with a Miranda warning given orally and in writing.    Sgt. Muñoz testified that he had interviewed Kor Vang for twenty minutes to a half-hour before giving the Miranda warning.  Kor Vang waived his Miranda rights and gave a detailed statement of the events including his admission that he had been driving the car at the time of the shooting.

            Kor Vang was charged with two counts of second-degree murder and one count of attempted second-degree murder.  The district court denied Kor Vang's motion to suppress his post-Miranda-warning statements.  Kor Vang appealed the denial of his suppression motion and also challenged sufficiency of the evidence.  This court affirmed Kor Vang's convictions in an unpublished decision.  The supreme court vacated this court's opinion and remanded for consideration of the admissibility of Kor Vang's post-Miranda-warning statements in light of State v. Bailey, 677 N.W.2d 380 (Minn. 2004).  On remand, Kor Vang also argues that the subsequently issued United States Supreme Court opinion in Missouri v. Seibert, 124 S. Ct. 2601 (2004), requires suppression of the post-warning statements.

D E C I S I O N

 

I.

            This court's prior opinion, State v. Vang, 2003 WL21385146, *3 (Minn. App. Jun. 17, 2003), holding that the district court did not abuse its discretion in ruling that Kor Vang's post-Miranda-warning statements were admissible, applied the United States Supreme Court's holding in Oregon v. Elstad, 470 U.S. 298, 309, 105 S. Ct. 1285, 1293 (1985) that a post-Miranda-warning incriminating statement is not necessarily a "fruit" of an earlier pre-Miranda-warning statement.  In Bailey, the Minnesota Supreme Court determined that it would "continue to follow the Elstad rule in comparable circumstances."  State v. Bailey, 677 N.W.2d 380, 389 (Minn. 2004).  But the supreme court limited the application of Elstad in Minnesota to cases in which "the unwarned statement was ‘clearly voluntary' because of the absence of any coercive circumstances."  Id. at 391 (quoting Elstad, 470 U.S. at 310-11, 105 S. Ct. 1293-94).  The court concluded that there was actual coercion in Bailey's case and held that

where a suspect is apprehended under coercive circumstances, is subjected to lengthy custodial interrogation before being given a Miranda warning, does not have the benefit of a significant pause in the interrogation after the Miranda warning is given, and essentially repeats the same inculpatory statements after the Miranda warning as before, the statements made after the Miranda warning are inadmissible.

 

Id. at 392.

            Police arrested Bailey at gunpoint as a suspect in a murder investigation, handcuffed and pat-searched him and placed him in the back seat of a squad car, circumstances that the court held showed "actual coercion."  Id. at 391.  Police interrogated Bailey in the squad car without giving him a Miranda warning and took him to the police station where they continued to question him without giving a Miranda warning.  Id. at 386.  After about ten minutes of interrogation, Bailey was given a Miranda warning, and the interrogation immediately resumed.  Id. at 392, n. 8.  "Bailey made substantially the same inculpatory statements before the warning as after."  Id. at 392. 

            Some of the facts surrounding Kor Vang's arrest and questioning are similar to the facts in Bailey.  But there are several important circumstances that differ from the facts in Bailey.  Kor Vang was not arrested for the crime that was being investigated.  Although coercive, the arrest, use of handcuffs, and placement in a holding cell were responses to the existence of an outstanding arrest warrant that he sought to avoid by hiding.  When the witness interview finally began, Kor Vang was told by Sgt. Muñoz that he was not under arrest for the shooting and that Sgt. Muñoz only wanted information about his car and who had permission to use it.  Sgt. Muñoz quickly terminated the witness interview when Kor Vang began to make inculpatory statements.  The subsequent interview of Kor Vang as a suspect was recorded and began with a Miranda warning.  And Kor Vang's post-Miranda-warning statement was not merely repetitious of his pre-Miranda-warning statement.  Post-Miranda warning, Kor Vang gave a detailed description of the shooting incident, including who had the gun, what people had said to each other and what positions they were in. 

            Because of the distinguishing factors in this case, we disagree with Kor Vang's assertion that Bailey compels suppression of his post-Miranda-warning statements.  As in Elstad, there was no actual coercion or other circumstance surrounding the questioning of Kor Vang that was calculated to undermine Kor Vang's ability to exercise his free will such that his waiver of his Miranda rights was ineffective.  We conclude that the district court did not abuse its discretion by admitting Kor Vang's post-Miranda-warning statements.

            Kor Vang also argues that the statements should have been suppressed under the United States Supreme Court's recent holding in Missouri v. Seibert, 124 S. Ct. 2601 (2004).  But Seibert involved the "question-first strategy," an intentional police tactic, popular in some states, of delaying a Miranda warning until after a suspect confesses.  Id. at 2608-09.  The plurality opinion in Seibert rejects a rule that post-Miranda-warning statements taken in those circumstances are per se inadmissible, and looks to "whether Miranda warnings delivered midstream could be effective enough to accomplish their object. . . ."  Id. at 2612.  There is no evidence in this case that Sgt. Muñoz was pursuing a "question-first strategy" or deliberately delaying a Miranda warning until after Kor Vang confessed.  Sgt. Muñoz began his interview with Kor Vang believing he was only a witness.  The record indicates that it was the discovery of the gun in the front seat of Kor Vang's car that changed Sgt. Muñoz's view of Kor Vang from witness to suspect.  At that point, Sgt. Muñoz confronted Kor Vang with the new information but did not question him about it.  Although Sgt. Muñoz wanted to see Kor Vang's reaction and may have engaged in the functional equivalent of interrogation, he did not pose questions before giving the Miranda warning.  The delay in giving Kor Vang the Miranda warning in this case is not comparable to the "question-first strategy" at issue in Siebert, and we find Kor Vang's argument based on Siebert without merit.

II.

            Kor Vang asserts that because witnesses to the shooting did not consistently or clearly identify the driver of the vehicle, the evidence is insufficient to support his conviction.  We disagree.  When considering a claim of insufficient evidence, this court's review is limited to a careful analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume "the jury believed the state's witnesses and disbelieved any evidence to the contrary."  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court "will not disturb the verdict if the jury, acting with due regard for the presumption of innocence" and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Kor Vang's confession is corroborated by evidence that the police found the gun used in the shooting in his car; Kor Vang and his car were at the residence where police found and arrested the shooter; witnesses testified that they saw Kor Vang driving his car, saw passenger Jerry Vang, who they thought might have a gun, and heard shots just minutes later.  And, a witness at the scene of the shooting identified Kor Vang as the driver after admitting that she had initially misidentified Chee Thao as the driver.  The evidence is sufficient to support Kor Vang's convictions.

            Affirmed.