State of Minnesota, Respondent, vs. Terry L. Williams, 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This opinion will be unpublished and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

A03-929

 

State of Minnesota,

Respondent,

 

vs.

 

Terry L. Williams,

Appellant.

 

Filed July 27, 2004

Affirmed Willis, Judge

 

Hennepin County District Court

File No. 02098941

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Lansing, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant challenges his conviction of theft from a person, arguing that the district court abused its discretion by allowing into evidence statements appellant made before he was given a Miranda warning.  Appellant also argues that the prosecutor committed prejudicial misconduct and that the cumulative effect of errors denied him a fair trial.  Because we find that appellant was not in custody when he made the statements at issue,  there is no evidence of prosecutorial misconduct, and there is no cumulative error, we affirm.

FACTS

On the evening of December 11, 2002, Lynn Weir left work at Walker Methodist Health Center in south Minneapolis.  As she walked along the sidewalk near Walker, Weir saw a man walking toward her.  As the man passed Weir, he pulled her purse off  her shoulder and ran. 

Weir returned to Walker, reported the theft to a security guard, and called 911.  Officer Christopher Kelley of the Minneapolis Police Department arrived approximately five minutes later.  Weir gave Officer Kelley a description of the man who took her purse and told him that she had a $20 bill, a $5 bill, three to five $1 dollar bills, and about a dollar's worth of change in her purse when it was stolen.

Shortly thereafter, Officers Troy Lennander and Adam Chard arrived and began to search the area in their squad car for the suspect.  Approximately ten minutes later, the officers saw appellant Terry Williams cross the intersection of Bryant Avenue and 36th Street and enter a grocery store.  When Williams walked out of the store, Officer Lennander approached him, explained that he matched the description of someone who had just committed a theft in the area, and told him that the officers wanted to detain him for a show-up with the victim.  The officers pat-searched Williams and placed him in the back of their squad car. Williams was not handcuffed.

Williams then was asked where he had been before he entered the store.  Williams said that a man named Tony Banks had dropped him off, and he pointed to a car across the street that was occupied by a single male.  Officer Lennander approached the  car and asked the driver if he knew Williams.  The driver said that he did not and gave the officer identification showing that his name was not Tony Banks.   

Weir and another officer arrived at the scene in a squad car approximately ten minutes after Officers Lennander and Chard detained Williams.  Williams was taken out of the squad car and asked to stand on the sidewalk while a spotlight was shone on him.  Weir remained in the second squad car and identified Williams as the man who took her purse.

Williams was then handcuffed and told that he was under arrest.  The police searched Williams and found a package of ZigZag rolling papers and 22 cents.  During a search at the police station, the precinct investigator, Sergeant Christianson, found a $20 bill, a $5 bill, and three $1 bills in Williams's shoe.  Officer Lennander was present at the search, and Officer Chard arrived shortly after the money was discovered.  Sergeant Christianson testified that after the money was found, either Officer Lennander or Officer Chard said, "He's been caught in a lie" and that Williams smirked at the comment. 

Williams was charged with theft from a person, in violation of Minn. Stat. § 609.52, subds. 2(1), 3(3)(d)(i) (2000).  A jury found Williams guilty, and the district court sentenced him to 24 months in prison.  This appeal follows.     

D E C I S I O N

Williams argues first that, because he was in custody and had not been given a Miranda warning, the district court abused its discretion by admitting statements that Williams made while he was sitting in the squad car waiting for Weir to arrive.  "A Miranda warning is required when a police officer conducts a custodial interrogation of a suspect."  State v. Hince,540 N.W.2d 820, 823 (Minn. 1995) (citing Miranda v. Arizona,384 U.S. 436, 444 86 S. Ct. 1602, 1612 (1966)).  The issue of whether a defendant was in custody at the time a statement was made is a mixed question of law and fact.  State v. Wiernasz,584 N.W.2d 1, 3 (Minn. 1998).  A district court's findings of fact are reviewed under a clearly erroneous standard.  Id.  But a district court's determination regarding whether a defendant was in custody is subject to independent review.  Id.  The test is "whether a reasonable person under the circumstances would believe that he or she was in police custody of the degree associated with formal arrest."  State v. Champion,533 N.W.2d 40, 43 (Minn. 1995) (citations omitted).  This court must examine all surrounding facts when determining if a suspect was restrained to the degree associated with formal arrest.  State v. Rosse,478 N.W.2d 482, 484 (Minn. 1995). 

The state argues that the mere fact that a suspect is detained or held temporarily in a squad car is alone insufficient to turn a detention into an arrest requiring a Miranda warning.  See State v. Herem,384 N.W.2d 880, 883 (Minn. 1986) (holding that a traffic stop resulting in the brief detention and questioning of a driver in the back of a squad car is not custodial); State v. VanWagner,504 N.W.2d 746, 749 (Minn. 1993) (concluding that a traffic stop resulting in the detention of a suspect in the back of a locked squad car was non-custodial because suspect was not handcuffed, guns were not drawn, questioning took place in broad daylight, and only two officers were present).  

Williams was first approached by Officer Lennander, who told Williams that he matched the description of a man who had recently committed a theft in the area.  Officer Lennander then asked Williams to wait in the squad car with him and his partner Officer Chard until the victim arrived.  Neither officer drew his gun, and Williams was not handcuffed.   Williams was detained for a minimal length of time, between 10 and 15 minutes.  Based on the totality of the circumstances, we conclude that a reasonable person in Williams's position would not have believed that he was in police custody to the degree associated with formal arrest.  We find, therefore, that the district court did not err by admitting the statements that Williams made while he was detained in the squad car awaiting Weir's arrival.

Williams next argues that the comment by an officer that Williams had "been caught in a lie" was an attempt to elicit a response from Williams regarding the discovery of the $28 in his shoe and that the district court erred by admitting testimony concerning Williams's smirk in response to the comment.    

The Supreme Court has concluded that Miranda safeguards apply whenever a person in custody is subjected to express questioning by law-enforcement officers or its functional equivalent.  Miranda, therefore, will apply to "any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response."  Rhode Island v. Innis,446 U.S. 291, 307, 100 S. Ct. 1682, 1689 (1980) (holding that an exchange between two officers regarding the danger that a shotgun might present to handicapped children at a nearby school and the response from the suspect was not the functional equivalent of questioning and that Miranda,therefore, did not apply). 

Here, like the exchange at issue in Innis, the officer's statement that Williams had been "caught in a lie"  was merely a comment to another officer to which no response from Williams was invited.  See Innis,446 U.S. at 302, 100 S. Ct. at 1690.  And, as in Innis,we cannot say that the officer should have known that his comment "was reasonably likely to elicit an incriminating response from the [suspect]."  Id.  The admission of testimony that Williams smirked was not error.    

            Williams argues next that the prosecutor committed misconduct by telling the jury that Williams failed to submit evidence showing any "valid" reason for having money in his shoe and that there was "uncontroverted evidence" that Williams was guilty.  Williams argues that these statements imply that Williams failed to present evidence proving his innocence.

The Minnesota Supreme Court has held that a remark by a prosecutor on the lack of evidence regarding the defense's theory does not shift the burden of proof to the defense.  State v. Gassler,505 N.W.2d 62, 69 (Minn. 1993);  State v. Race,383 N.W.2d 656, 664 (Minn. 1986).  At trial, Williams's attorney argued that Weir incorrectly identified Williams as the man who stole her purse and that Williams might have had the money in his shoe "so he wouldn't have to give it up if he [were] robbed" or to keep it "secure."  But the prosecutor's remarks point out only that Williams submitted no evidence of a valid reason for having the money in his shoe.  The prosecutor's statements did not shift the burden of proof to the defense, and there is, therefore, no evidence of prosecutorial misconduct.

Williams argues last that the combination of errors at trial denied him his right to a fair trial.  Because we find no error, there is no cumulative effect of error. 

Affirmed.