State v. Fardan, A08-0364 (Minn. App. 6/30/2009)
| Decision Date | 30 June 2009 |
| Docket Number | A08-0364. |
| Parties | State of Minnesota, Respondent, v. Amani Fardan, Appellant. |
| Court | Minnesota Court of Appeals |
Appeal from the District Court Hennepin County, File No. 27-CR-06-005997.
Lori Swanson, Attorney General, St. Paul, MN and Michael O. Freeman, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN (for respondent).
Lawrence Hammerling, Chief Appellate Public Defender, Bradford S. Delapena, Special Assistant Public Defender, St. Paul, MN (for appellant).
Considered and decided by Shumaker, Presiding Judge; Halbrooks, Judge; and Crippen, Judge.*
UNPUBLISHED OPINION
Appellant appeals from his convictions of first-degree aggravated robbery, second-degree assault, kidnapping, first-degree burglary, first-degree criminal sexual conduct, and false imprisonment. He argues that the district court erroneously (1) admitted his confession because his Miranda waiver was not knowing, intelligent, and voluntary; (2) excluded evidence that an accomplice-witness, R.G., testified for the state as a result of prosecution threats and that appellant was particularly suggestible due to fetal-alcohol effect (FAE); (3) convicted him of multiple offenses against the same victims; (4) sentenced him on the second-degree assault convictions that were part of the same behavioral incident; and (5) imposed an aggregate sentence that unfairly exaggerates the criminality of his conduct. Because we conclude the district court improperly convicted appellant of three duplicative offenses against the same victims, we reverse and remand in part. But we otherwise affirm the district court.
In the early morning hours of October 10, 2005, appellant Amani Fardan was with R.G., M.B., and Wandlee Jourdain. They were 15,1 16, 16, and 22, respectively. At about 2:00 a.m., the foursome was in the parking lot of a south Minneapolis grocery store and observed C.D. (a female) and A.K. (a male) emerge, carrying groceries.
Appellant and his accomplices decided to rob the couple, so they followed them. When C.D. and A.K. parked near their apartment, the foursome proceeded to rob them. Appellant brandished a gun during the robbery. He and his accomplices took C.D.'s and A.K.'s wallets and keys and ordered the couple to get in the trunk of the car that the foursome was driving. They drove around, looking for an ATM, and took money out of C.D.'s bank account, using her debit card and the PIN they had obtained from her.
The foursome then decided to rob C.D. and A.K.'s apartment. Appellant and his accomplices learned from their two captives that there was a third roommate, S.D. (a female), who would be sleeping in the living room. S.D. awoke to find the foursome in the apartment. They bound S.D.'s hands, covered her head with a blanket, and told her that they had shot her roommates. Appellant's three companions left the apartment carrying stolen items. Appellant proceeded to fondle S.D., digitally penetrate her, penetrate her with a sex toy that he found in a bedroom, and have intercourse with her twice.
After stealing items from the apartment, appellant and his accomplices removed C.D. and A.K. from the trunk, ordered them to remove their clothing, and then forced them back into the trunk. Appellant fired three shots through the trunk lid; one bullet grazed C.D.'s arm and another struck her in the right thigh and lodged in her leg. The foursome subsequently left C.D. and A.K., who were still naked, on the shoulder of I-35W and went to R.G.'s house to unload the stolen items. C.D. and A.K. were able to flag down a passing motorist and subsequently called the police.
The police quickly focused their investigation on appellant and his cohorts. Appellant was arrested at a friend's home during the early morning hours of October 15. The officers who arrested appellant were in plain clothes. They handcuffed appellant and placed him in the back of an unmarked vehicle. Appellant testified that he asked the arresting officers, as they took him into Minneapolis City Hall, if "my dad could be present, like, he can be with me, and they said he will." Appellant also saw his father present inside City Hall as the officers walked him through the lobby.
Appellant was interrogated by two Minneapolis police officers who were not present at appellant's arrest or when he was brought into City Hall. The interrogation was video recorded, and a partially redacted version of the interrogation was played for the jury at appellant's trial.
At the beginning of the interrogation, the officers told appellant that they had a search warrant for his DNA, and they took two cheek-swab samples from him. The officers also verified appellant's family and living situation, including that he lived with his father. Appellant did not, at the mention of his father, request his father's presence. The officers then informed appellant why he was being interrogated and obtained a purported Miranda waiver:
Q. Do you know why you`re down here, Amani?
A. You tell me.
Q. Huh?
A. You tell me.
Q. Well, I`m telling you that, because you`re down here because you were involved in some incidences that occurred late Sunday night, early Monday morning. We`ve been talking to a lot of people today. We`ve been up since, almost twenty-four hours doing this talking to people and we`ve talked to just about everybody. They gave us their stories of what happened, what they recall and they all went ahead and spoke for themselves and here's your opportunity. I`m sure you have questions for us and want to ask us and we might want to ask you some questions and clear things up. Those guys want, you don`t want those guys speaking for Amani. Only Amani speaks for Amani, right? You want them guys to determine what's going to happen to your future? Here's the deal. Because you were brought down here and you are not free to leave right now, I`m going to read you your rights. Have you been read your rights before, Amani? You have the right to remain silent. Anything you say can and will be used against you in court. You have the right to an attorney. You can have an attorney present now or any time during questioning. If you cannot afford an attorney, one will be provided for you without cost. Do you understand what that all means?
A. Yes.
Q. You have the right to remain silent. What does that mean to you? Amani?
A. I ain`t got to talk to you without a lawyer.
Q. Okay. You don`t have to talk to us without a lawyer. That's right.
And if you cannot afford a lawyer, one will be provided for you. Do you know what that means?
A. Yeah.
Q. Okay. Having all those rights in mind, we want to talk to you and ask you some questions about what happened, what these people are saying. What we hear from other people that are involved.
A. What people?
Q. Well, let me get by this before I can talk to you. I got to ask you, do you want to talk to us about this? Can we ask you some questions?
A. Yeah.
Q. The incident they say you were involved in, we`ve talked to everybody involved. You guys were involved in an incident down south Minneapolis that occurred, like I said, early on Monday morning. And we know all about it. We know who all the players are. And we know what happened. We want your side of the story.
A. All right. All right, can I get a cigarette from anybody?
During the course of the interrogation, appellant confessed to the rape of S.D., kidnapping C.D. and A.K., taking money from an ATM using C.D.'s debit card, and shooting into the occupied trunk. At various points, he also tried to place blame on others for either committing the acts or forcing him to commit them. At the end of the interrogation, when the officers were preparing to transport him to the juvenile detention center, appellant asked about his father: "Can I see my dad real quick? . . . Can I go see my dad?"
A grand jury returned an indictment on 15 relevant counts:2
1. First-degree aggravated robbery (C.D.)
2. First-degree aggravated robbery (A.K.)
3. Second-degree assault (C.D.)
4. Second-degree assault (A.K.)
5. Kidnapping, to facilitate the commission of a felony (C.D.)
6. Kidnapping, to facilitate the commission of a felony (A.K.)
7. Kidnapping, to terrorize the victim or another (C.D.)
8. Kidnapping, to terrorize the victim or another (A.K.)
9. Kidnapping, to facilitate the commission of a felony (S.D.)
10. First-degree burglary, with a dangerous weapon
11. First-degree burglary, involving an assault
12. First-degree criminal sexual conduct, with a dangerous weapon (S.D.)
13. First-degree criminal sexual conduct, with fear of great bodily harm (S.D.)
14. First-degree criminal sexual conduct, with force or coercion (S.D.)
15. Kidnapping, to terrorize the victim or another (S.D.) The district court certified appellant to stand trial as an adult. The certification was appealed to this court, and we affirmed. In re Welfare of A.J.F., No. A06-303, 2007 WL 92843 (Minn. App. Jan. 16, 2007). The district court denied appellant's motions to suppress his statement to the police and to allow him to present evidence of FAE for the purposes of showing that he committed his acts under duress and that his statement to the police was not voluntary.
A jury rendered guilty verdicts on all counts, except first-degree criminal sexual conduct with a dangerous weapon (count 12); first-degree criminal sexual conduct with fear of great bodily harm (count 13); and kidnapping S.D. to terrorize her or another (count 15). The jury also returned a guilty verdict on false imprisonment of S.D., which was a lesser-included charge of kidnapping S.D. to terrorize her.
The district court imposed an aggregate sentence of 486 months with 777 days` credit, a ten-year conditional-release term, and restitution. This appeal follows.
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