State v. Vue, A10–453.

• Decision Date: 27 April 2011
• Docket Number: No. A10–453.,A10–453.
• Citation: 797 N.W.2d 5
• Parties: STATE of Minnesota, Respondent,v.Gary VUE, Appellant.
• Court: Minnesota Supreme Court

797 N.W.2d 5

STATE of Minnesota, Respondent,

v.Gary VUE, Appellant.

No. A10–453.

Supreme Court of Minnesota.

April 27, 2011.

Syllabus by the Court

1. Appellant was not in custody for purposes of Miranda when he made his statement to police.

2. The prosecutor did not commit plain error during closing argument.

3. The evidence was sufficient to support appellants conviction of crime committed for the benefit of a gang.

Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Minneapolis, Minnesota, for respondent.David W. Merchant, Chief Appellate Public Defender, Benjamin J. Butler, Assistant State Public Defender, St. Paul, Minnesota, for appellant.

OPINION

MEYER, Justice.

A Hennepin County grand jury indicted appellant Gary Vue with several felonies, including the offense of crime committed for the benefit of a gang (first-degree murder while committing drive-by shooting), Minn.Stat. §§ 609.185(a)(3), .229, subd. 2 (2010). A jury found Vue guilty. The district court convicted Vue and imposed a sentence of life in prison with the possibility of parole after 31 years. Vue directly appeals his conviction, claiming the district court erroneously admitted his statement to the police, the prosecutor committed plain error during closing argument, and the State presented insufficient evidence to support his conviction for crime committed for the benefit of a gang. We affirm.

I.

On July 10, 2001, Za Xiong was shot and killed in a drive-by shooting near Folwell Park in Minneapolis. The police interviewed witnesses who said they saw a red or maroon full-size pickup truck with Hmong men in the cab driving away from the scene of the murder. Shortly before the shooting, several Hmong teenagers saw a red or maroon full-size pickup truck near the park. Two Hmong men emerged from the truck, asked the teenagers what gang they “banged,” and then attacked the teenagers with an ice scraper and flashlight.

In December 2005, police obtained a lead in the case and began investigating appellant Gary Vue as well as his brother Chong Vue (Chong) and Fong Vang for the murder of Xiong. The police learned that Chong owned a pickup truck that matched the description of the truck driven by the suspects in the drive-by shooting that killed Xiong and the assault on the group of Hmong teenagers that occurred prior to Xiong's murder. The police also learned that Vue was living in Sacramento, California.

Sergeant Bruce Folkens of the homicide unit of the Minneapolis Police Department, along with Detective Christopher Tayson of the Ramsey County Sheriff's Department, traveled to Sacramento. Folkens asked the Sacramento Sheriff's Department to set up an interview with Vue, emphasizing that “this [was] merely a request of Gary Vue to come in and talk to him; that he didn't have to; that we just merely were asking his permission if he would come in and talk to us.” On March 14, 2006, Vue met with Folkens and Tayson at a Sacramento police station. When Folkens began to ask about the murder of Xiong, Vue terminated the interview and returned to his home.¹ Two days later, on March 16, 2006, Vue again met with Folkens and Tayson at the same Sacramento police station. Within eight minutes of beginning the second interview, Vue confessed that he “[p]ulled out the gun and shot” Xiong. The police did not arrest Vue at the conclusion of the second interview because they believed that California law prohibited the immediate arrest of a suspect who confesses in a noncustodial setting. Instead, the police drove Vue back to his home after the interview. Later that same day, March 16, 2006, Folkens obtained a warrant to arrest Vue. But when the police went to Vue's home to execute the arrest warrant, Vue was gone. A police investigation determined that Vue was a fugitive.

On July 27, 2006, a Hennepin County grand jury indicted Vue with several felonies, including the offense of crime committed for the benefit of a gang (first-degree murder while committing drive-by shooting). Nearly three years later, on March 2, 2009, the police apprehended Vue in St. Paul, Minnesota.

Vue pleaded not guilty and moved to suppress the statements he made during the March 16, 2006, police interview. Claiming the police subjected him to custodial interrogation during the March 16, 2006, interview, Vue argued the lack of a Miranda warning required suppression of his statements. At the suppression hearing, Folkens and Tayson testified about the circumstances surrounding the March 14 and March 16 police interviews. The district court denied Vue's motion to suppress, concluding that the “totality of the circumstances clearly demonstrate [Vue] was not in custody, and the police were therefore not required to advise him of his Miranda rights.”

At trial, the State presented evidence consistent with the facts outlined above. Without objection, the prosecutor told the jury during his closing argument that Vue “has now lost that presumption of innocence as a result of the evidence that you have heard in this case” and that Vue was asking them to “believe the impossible.” The prosecutor further stated without objection that defense counsel “was kind of channelling [Vue], kind of speaking for him. But I would remind you that the attorneys' words are not evidence. So unless it came from the witness stand, it is not something that you need to consider....” The jury found Vue guilty. The district court convicted Vue and imposed a sentence of life in prison with the possibility of parole after 31 years.

Vue now appeals his conviction on three grounds. First, Vue contends that the district court erred when it denied his pretrial suppression motion. Second, he claims the prosecutor committed plain error during closing argument. Third, Vue asserts that the State presented insufficient evidence to support his conviction for crime committed for the benefit of a gang (first-degree murder while committing drive-by shooting). We will consider each of Vue's claims in turn.

II.

We first consider whether the district court erred when it denied Vue's pretrial suppression motion. The parties do not dispute that the police failed to inform Vue of his Miranda rights when the police interviewed him on March 16, 2006. Vue also does not dispute on appeal that his statement was voluntary.² Therefore, the only issue before us is whether Vue was in custody when he gave his March 16 statement to the police.

Recognizing that both noncustodial and custodial interrogations can create a coercive environment, the United States Supreme Court has concluded that a Miranda warning is required as a procedural safeguard to protect a suspect's Fifth Amendment rights when the police subject a suspect to custodial interrogation. Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). “An interrogation is custodial if, based on all the surrounding circumstances, 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. Thompson, 788 N.W.2d 485, 491 (Minn.2010) (citation omitted) (internal quotation marks omitted); Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). In considering the totality of the circumstances, “no factor alone is determinative.” Thompson, 788 N.W.2d at 491.

Factors indicative of custody include (1) the police interviewing the suspect at the police station; (2) the suspect being told he or she is a prime suspect in a crime; (3) the police restraining the suspects freedom of movement; (4) the suspect making a significantly incriminating statement; (5) the presence of multiple officers; and (6) “a gun pointing at the suspect.” State v. Staats, 658 N.W.2d 207, 211 (Minn.2003). But the mere fact that an interrogation occurs at the police station does not by itself require a determination that the questioning was custodial in nature. State v. Wiernasz, 584 N.W.2d 1, 4 (Minn.1998) (citing Mathiason, 429 U.S. at 493–95, 97 S.Ct. 711). Similarly, a significantly incriminating statement does not automatically convert a noncustodial interrogation into a custodial interrogation. State v. Heden, 719 N.W.2d 689, 695 (Minn.2006).

Alternatively, factors that may indicate the suspect is not in custody include (1) questioning the suspect in his or her home; (2) law enforcement expressly informing the suspect that he or she is not under arrest; (3) the suspect's leaving the police station without hindrance; (4) the brevity of questioning; (5) the suspect's ability to leave at any time; (6) the existence of a nonthreatening environment; and (7) the suspect's ability to make phone calls. Thompson, 788 N.W.2d at 491–92. An officer's unarticulated decision not to let the suspect leave at the end of an interrogation, however, has no bearing on the question of whether a suspect was in custody. Berkemer, 468 U.S. at 442, 104 S.Ct. 3138.

The clearly erroneous standard controls our review of a district court's factual findings regarding the circumstances surrounding an interrogation. Thompson, 788 N.W.2d at 491. We independently review a district court's legal conclusions regarding custody and the need for a Miranda warning. Wiernasz, 584 N.W.2d at 3; see also State v. Chavarria–Cruz, 784 N.W.2d 355, 363 (Minn.2010) (explaining that the de novo standard controls our review of a district court's legal conclusions).

In denying Vue's motion to suppress, the district court made the following factual findings regarding the circumstances immediately preceding the March 16, 2006, interview. On the morning of March 16, 2006, eight armed Minneapolis and Sacramento police officers executed a search warrant on the Vue family home in Sacramento. Vue was the only individual at home when the police executed the search...