                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-1119

                                    State of Minnesota,
                                        Respondent,

                                             vs.

                                 Malcolm Todey Cooper,
                                       Appellant.

                                    Filed July 11, 2016
                                         Affirmed
                                     Peterson, Judge

                               Stearns County District Court
                                 File No. 73-CR-14-8196

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Peterson, Presiding Judge; Bjorkman, Judge; and

Rodenberg, Judge.

                         UNPUBLISHED OPINION

PETERSON, Judge

       In this appeal from convictions of drive-by shooting, second-degree assault with a

dangerous weapon, and being a prohibited person in possession of a firearm, appellant

argues that the district court erred by admitting as evidence (1) a statement that he made to
a police officer before he was advised of his Miranda rights; and (2) testimony that, two

weeks before the drive-by-shooting incident, police stopped appellant and another person

in the same car that the two were stopped in following the drive-by-shooting incident. We

affirm.

                                           FACTS

          A.A. has known appellant Malcolm Todey Cooper since elementary school. While

outside in her yard with her baby daughter and some relatives and friends, A.A. saw

appellant drive by in a car with his girlfriend. Appellant “was just staring,” which caused

A.A. to wonder what he was looking at. Later, A.A. was at the end of her driveway talking

with D.J. and J.J. A.A. “heard and . . . felt gunshots.” She turned around and saw appellant

holding his hand out the window of a car and shooting a gun. Appellant was alone in the

car. Appellant was just a few feet away when A.A. saw him, and A.A. was certain that the

shooter was appellant.

          A.A. called 911 right away. She identified appellant as the shooter and described

the car to the 911 dispatcher as a blue Alero, although she had to ask others about the type

of car because she is not knowledgeable about car makes and models. St. Cloud police

officers were dispatched to the scene at 12:58 p.m. A.A. was lying in the grass and had

minor injuries on the backs of her calves when the police arrived. St. Cloud Police Officer

Tara Vargason described A.A. as “hysterical,” “speaking very fast,” and “saying over and

over and over what had happened.”

          At about 5:00 p.m., Sartell Police Sergeant Wayne Schreiner stopped a blue Alero

because he knew that the St. Cloud Police Department was attempting to locate it.


                                              2
Schreiner and his partner approached the car and ordered the driver, who was B.M., and

the passenger, who was appellant, to get out of the car, step back to the squad car, and get

on their knees. B.M. and appellant were handcuffed and placed in separate squad cars.

       When Schreiner went to his squad car to place his duty bag inside, appellant asked

him what was going on. Schreiner told appellant that he would be with him in a minute.

About three or four minutes later, Schreiner sat in the front seat of the squad car and

introduced himself to appellant. Schreiner explained that the St. Cloud police had been

looking for the vehicle, were on their way to the scene, and would update appellant about

what was going on when they arrived. Appellant said that he had been at his mom’s all

day and also said something about not understanding how a person and a vehicle could be

associated together.

       B.M. told police and testified at trial that she and appellant were at his parents’ house

all day. Appellant’s father testified that appellant and B.M. stopped by the house at about

9:00 a.m. He also testified that he and appellant’s mother left the house at about 9:30 or

10:00 a.m. and appellant and B.M. left in her car at about the same time. Finally, he

testified that he and appellant’s mother returned to the house at about 1:00 or 1:15 p.m. and

appellant and B.M. showed up a short time later.

       St. Cloud Police Officer Daniel McClure testified at trial that, about two weeks

before the drive-by shooting, he and another officer had stopped the same blue Alero that

was stopped after the shooting. When they made the stop two weeks earlier, appellant and

B.M. were in the Alero.




                                               3
       A jury found appellant guilty of three counts of drive-by shooting, three counts of

second-degree assault with a dangerous weapon, and one count of being a prohibited

person in possession of a firearm. This appeal followed sentencing.

                                     DECISION

                                             I.

       Appellant argues that, before he was advised of his Miranda rights, he “was

subjected to custodial interrogation when he was handcuffed, placed in the backseat of the

squad car, and the officer initiated contact with him.” Therefore, appellant contends, any

statements that he made should have been suppressed.

                      The Fifth Amendment to the United States Constitution
              provides that an accused has the right to be free from
              compelled self-incrimination. As a safeguard for this right, the
              United States Supreme Court has held that statements made by
              a suspect during a “custodial interrogation” are admissible only
              if the police provided a Miranda warning before the statements
              were made.

State v. Sterling, 834 N.W.2d 162, 168 (Minn. 2013); see U.S. Const. amend. V.; Miranda

v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 1612 (1966). “Thus, a Miranda warning

is required if a suspect is both in custody and subject to interrogation.” State v. Thompson,

788 N.W.2d 485, 491 (Minn. 2010).

       There is no dispute that appellant was in custody when he was handcuffed and

placed in the squad car; the issue is whether he was subjected to interrogation when he told

Schreiner that he was at his mom’s all day. Appellant argues that Schreiner’s conduct of

opening the squad-car door and beginning to talk to appellant about what was going to




                                             4
happen were actions that Schreiner should have known were reasonably likely to elicit an

incriminating response.

        Not all statements made by an arrestee while in custody are the product of

interrogation. Rhode Island v. Innis, 446 U.S. 291, 299-301, 100 S. Ct. 1682, 1689-90

(1980). “[S]pontaneous, volunteered statement[s] not made in response to interrogation”

will not be suppressed as a result of an arrestee not being given a Miranda warning. State

v. Hale, 453 N.W.2d 704, 707 (Minn. 1990) (quotation omitted). Interrogation is express

questioning or “any words or actions on the part of police (other than those normally

attendant to arrest and custody) that the police should know are reasonably likely to elicit

an incriminating response from the suspect.” State v. Edrozo, 578 N.W.2d 719, 724 (Minn.

1998) (quotation omitted). “We independently apply the totality-of-the-circumstances test

to the facts as found by the [district] court on the issue of the voluntariness of a defendant's

statements.” State v. Jackson, 351 N.W.2d 352, 355 (Minn. 1984).

        In Innis, two of three officers who were bringing the defendant to the police station

commented between themselves that they should continue to search for a weapon because

a school for special-needs children was located nearby and a lot of the children ran around

in the area. 446 U.S. at 294-95, 100 S. Ct. at 1686-87. The defendant interrupted the

officers’ conversation and stated “that the officers should turn the car around so he could

show them where the gun was located.” Id. at 295, 100 S. Ct. at 1687. The Supreme Court

held:

                      The case thus boils down to whether, in the context of a
               brief conversation, the officers should have known that the
               [defendant] would suddenly be moved to make a self-


                                               5
              incriminating response. Given the fact that the entire
              conversation appears to have consisted of no more than a few
              off hand remarks, we cannot say that the officers should have
              known that it was reasonably likely that [the defendant] would
              so respond. This is not a case where the police carried on a
              lengthy harangue in the presence of the suspect. Nor does the
              record support the [defendant’s] contention that, under the
              circumstances, the officers’ comments were particularly
              “evocative.” It is our view, therefore, that the [defendant] was
              not subjected by the police to words or actions that the police
              should have known were reasonably likely to elicit an
              incriminating response from him.

Id. at 303, 100 S. Ct. at 1691.         The Court explained that “‘[i]nterrogation,’ as

conceptualized in the Miranda opinion, must reflect a measure of compulsion above and

beyond that inherent in custody itself.” Id. at 300, 100 S. Ct. at 1689.

       Under Innis, when appellant asked what was going on, Schreiner’s answer that the

St. Cloud police had been looking for the vehicle, were on their way to the scene, and

would update appellant about what was going on when they arrived was not interrogation.

There was no reason why Schreiner should have known that his answer to appellant’s

question was reasonably likely to elicit an incriminating response from appellant. The

district court, therefore, did not err in admitting appellant’s statements into evidence.

                                             II.

       Appellant argues that the district court erred by admitting testimony that he and

B.M. were in the blue Alero when police stopped it two weeks before the drive-by shooting.

Appellant contends that the testimony served no legitimate purpose, was prejudicial, and

attacked his character.




                                              6
          McClure testified that, when he and his partner stopped the blue Alero two weeks

    earlier, B.M. and appellant were in the Alero. Appellant objected to the evidence on

    relevancy grounds. The district court found that the evidence was relevant, and the

    testimony was admitted.1

          On appeal, appellant objects to the evidence as inadmissible evidence of prior bad

    acts. “An objection must be specific as to the grounds for challenge.” State v. Rodriguez¸

    505 N.W.2d 373, 376 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993). A

    defendant does not preserve an objection for appeal if he objects at trial on grounds

    different from those argued on appeal. See id. In his reply brief, appellant argues that the

    objection was preserved by a motion in limine requesting that the court prohibit “any

    reference, testimony, or evidence about another crime, wrong, or bad act regarding

    [appellant],” and, even if this motion did not preserve the objection, this court should

    review for plain error.

          “Plain error affecting a substantial right can be considered . . . on appeal even if it

    was not brought to the trial court’s attention.” Minn. R. Crim. P. 31.02. To demonstrate

    plain error, appellant must show that 1) there was error, 2) that was plain, and 3) that


1
  We agree with the district court that the testimony was relevant to show a connection
between appellant and a blue Alero, which was the description of the car used in the drive-
by shooting that A.A. gave the 911 dispatcher. The testimony showed that appellant was
in a blue Alero before the shooting, and other testimony showed that he was in the same
blue Alero after the shooting. Together, the testimony supported a logical inference that
appellant had access to a blue Alero at the time of the shooting. See Minn. R. Evid. 401
(defining relevant evidence); see also State v. Schulz, 691 N.W.2d 474, 478 (Minn. 2005)
(stating that evidence is relevant “when taken alone or in connection of other facts, [it]
warrants a jury in drawing a logical inference assisting, even though remotely, the
determination of the issue in question”).

                                                 7
affected substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998); see also

State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006) (explaining burden of proof).

      McClure’s testimony did not indicate that appellant committed a crime, wrong, or

bad act. McClure testified only that, when the Alero was stopped two weeks earlier, it

was parked, appellant was sitting in it, and, based on the license plate, the blue Alero

stopped two weeks earlier was the same blue Alero that was stopped after the drive-by

shooting. McClure did not state why the Alero was stopped. Appellant has not met his

burden of showing that admitting McClure’s testimony was erroneous and affected

substantial rights.

      Affirmed.




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