2009-M-126             State of Minnesota, Respondent, vs. Amani Jamalludin Fardan, Appellant.

MAJORITY:  Following a jury trial in Hennepin County District Court, appellant was convicted of first-degree felony murder, second-degree felony murder, and first-degree aggravated robbery in connection with the death of Bernard Brown.  Fardan was sentenced to life in prison. 

Fardan filed a direct appeal to this court, arguing that the district court erred by (1) admitting a statement made by Fardan in violation of his Miranda rights; (2) admitting Spreigl evidence; and (3) sentencing Fardan to a consecutive life sentence rather than a concurrent sentence.  Fardan also argues that there was insufficient evidence to support his first-degree felony murder conviction.

Lastly, Fardan asks that if we affirm his first-degree murder conviction, we vacate his other convictions. 

We affirm Fardan’s first-degree felony murder conviction and modify his convictions by vacating the second-degree murder and first-degree aggravated robbery convictions involving Brown.

First, the  district court did not err in admitting appellant’s statement where the preponderance of the evidence showed appellant made a valid waiver of his Miranda rights.

Second, the district court did not abuse its discretion in admitting evidence of appellant’s later participation in robbery, burglary, kidnapping and shootings into a trunk as probative of appellant’s intent or lack of accident.  The district court did abuse its discretion in admitting evidence of appellant’s later criminal sexual conduct, but the erroneous admission was not reversible error.

Third, the  evidence of intent was sufficient to support appellant’s conviction for first-degree felony murder.

Fourth, the district court did not abuse its discretion in sentencing appellant to serve a life sentence consecutive to another prison sentence.

Fifth, the  district court violated Minn. Stat. § 609.04 (2008) by entering convictions on the included offenses of second-degree murder and first-degree aggravated robbery.  We modify his convictions by vacating the second-degree murder and first-degree aggravated robbery convictions involving Brown.

CONCUR:  Justices Page and Paul Anderson opined:  “I concur in the result.  I disagree, however, with the court’s analysis of law enforcement’s failure to allow Fardan to have access to his father before his first interrogation.

Ordinarily, the State will be deemed to have met its burden of proving a knowing, voluntary, and intelligent waiver of Miranda rights if it shows that a Miranda warning was given and that before talking with the police the individual indicated that he understood his Miranda rights.

However, if there is evidence indicating that the waiver was not knowing, voluntary, and intelligent, the district court must make a subjective factual inquiry to determine whether, under the totality of the circumstances, the waiver was knowing, voluntary, and intelligent.  When making its inquiry, the court is to consider such factors as age, maturity, intelligence, education, experience, and ability to comprehend; the lack or adequacy of warnings; the length and legality of the detention; the nature of the interrogation; physical deprivations; and limits on the individual’s access to counsel, friends, and others.

I conclude that Fardan’s waiver of his Miranda rights was ineffective because of the lack of his father’s presence.  Therefore, I also conclude that Fardan’s statement was admitted in error.  Nevertheless, I would affirm Fardan’s convictions because the error in admitting the statement was harmless beyond a

reasonable doubt in that Fardan’s convictions were “surely unattributable” to that error.  Burrell, 697 N.W.2d at 597 (error is harmless beyond a reasonable doubt “if the verdict is “surely unattributable‟ to the error”) (internal citations omitted).

DISSENT:  Justice Meyer opined:  “I respectfully dissent.  I would hold that the district court erred in admitting the other crimes evidence.  The crimes were not probative of an intent to kill or necessary to

rebut a claim of accident.  Appellant neither asserted nor put on a defense of accident.  The State created the claim from an otherwise inadmissible answer appellant gave to the police in the confession that appellant sought to suppress.  And the deplorable nature of the crimes posed such serious risks for unfair prejudice as to warrant exclusion.  I would also hold that the other crimes evidence deprived appellant of his right to a fair trial.

               Gildea (Magnuson, Barry Anderson, and Dietzen)

               Concur:  Page and Paul Anderson

               Dissent:  Meyer

[MURDER]