author: MEYER, Justice. GILDEA, Justice

text:
    STATE of Minnesota, Respondent, v. Daniel James VALTIERRA, Appellant.
    No. A05-919.
    Supreme Court of Minnesota.
    July 27, 2006.

      Bradford Colbert, Legal Assistance to Minnesota Prisoners, St. Paul, MN, for appellant.

      Michael Hatch, Attorney General, Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Asst. Ramsey County Attorney, St. Paul, MN, for respondent.
   OPINION

MEYER, Justice.

Following a jury trial in January 2005, appellant Daniel James Valtierra was convicted of two counts of first-degree felony murder and one count of attempted first-degree felony murder for the shooting deaths of Ron Glasgow and Wayne Costil-la, and for the shooting of Andria Crosby. In this direct appeal, Valtierra argues that the district court’s jury instructions were improper both because the jury was instructed that guilt could be inferred from the fact that Valtierra fled the state and because the jury instruction on accomplice liability described an improper objective standard. Valtierra contends that these improper instructions deprived him of his right to a fair trial. Valtierra also argues that the district court made evidentiary errors by allowing the state to introduce expert police testimony regarding “triangulation,” and by allowing the state to inquire into the underlying facts regarding Valtierra’s prior conviction. Finally, Valti-erra argues that there was insufficient evidence to prove that the shootings of Glasgow, Costilla, and Crosby were reasonably foreseeable as a probable consequence of committing aggravated robbery. While we agree that the district court committed certain errors, we conclude that these errors did not deprive Valtierra of a fair trial, and that there was sufficient evidence to support Valtierra’s conviction. We therefore affirm.

Early in the morning on January 12, 2004, Wayne Costilla, Ron Glasgow, and Andria Crosby were all shot during a drug robbery in Costilla’s apartment in Saint Paul. Glasgow was shot in the head and chest and died at the scene. Costilla was shot in the head and neck, and died later at the hospital. But Crosby, shot in her torso and through her left leg, survived. All three were shot by Michael Medal-Mendoza, who was accompanied during the shooting by James Green and appellant Daniel Valtierra. At trial, Crosby and Valtierra were the only witnesses of the shooting who testified.

Crosby testified that on the night of the shooting, she was with her boyfriend Glasgow in a room at an extended-stay hotel, along with their friend Costilla. The three were playing video games and dominoes, and using drugs. Crosby smoked methamphetamine and marijuana, and also took some Valium. Glasgow and Costilla both used methamphetamine. That evening, Costilla received a telephone call from a caller looking to buy some methamphetamine for some people who were visiting from out of town. Crosby and Glasgow, who were in the business of selling methamphetamine, agreed to sell an ounce to Costilla for $1,600. Costilla in turn told the caller he would sell the ounce for $1,800 or $1,900. The transaction was originally to have taken place at an Amoco gas station, but the group was concerned about arousing suspicion, so they changed the location to Costilla’s apartment.

At about 1:30 a.m., the caller, who Crosby later learned was James Green, arrived at Costilla’s apartment. Green was friendly, and after discussing the transaction and conversing for 15 to 20 minutes, Green left the apartment with a sample bag of methamphetamine. When Green came back, Medal-Mendoza and Valtierra were with him. According to Crosby, the group was there for about 15 minutes discussing the transaction, during which time Valtierra sat silently on the couch, “way too close” to Glasgow. Green, Valtierra, and Medal-Mendoza then left, saying that they needed to meet the people from out of town at the Amoco station to give them the sample bag and get money.

Crosby testified that about 30 minutes after Green, Valtierra, and Medal-Mendoza had left, the three men came back into Costilla’s apartment. Medal-Mendoza came in first, brandishing a “big, silver gun.” Green and Valtierra came in together after Medal-Mendoza, making a V formation behind him. Crosby testified that she was sure that both Green and Valtierra also had guns. Medal-Mendoza pointed his gun at Glasgow and said:

Medal-Mendoza: “I am robbing you, * :|: ⅜ »
Glasgow: “You ain’t robbing me, * *
Medal-Mendoza: “I will shoot you.”
Glasgow: “Well, you are going to have to shoot me then because you sure the hell ain’t going to rob me.”

Medal-Mendoza then shot Glasgow in the head. Crosby was “in shock” and began pleading, “No, * * * not my baby.” She did not know who was shot next, but Medal-Mendoza kept shooting. Crosby felt a gunshot in her left thigh and dropped to the floor. After several gunshots were fired, Green, Valtierra, and Medal-Mendoza left. Crosby stayed on the floor, and about 5 minutes later one of the men came back and nudged her with his foot to make sure she was dead. She laid still, and the man grabbed her purse and again left. Once Crosby was sure the three men were gone for good, she began screaming and called 911.

At trial Valtierra testified in his own defense and presented a different account of the shooting. Valtierra testified that early on the morning of January 12, Green and Medal-Mendoza went out to buy methamphetamine, and he went with them to buy cigarettes. Before getting the methamphetamine or cigarettes, the group stopped at a Perkins restaurant. Valtierra did not want to eat, so he left the other two at Perkins, got cigarettes, and began walking back to his sister’s apartment, where he had been staying. As he walked back, Green and Medal-Mendoza pulled up alongside him in a car. Valtierra testified that Green insisted that Valtierra join them in the car instead of walking back in the cold, and after Valtierra obliged, Green explained that they were just going to make a brief 5- or 10-minute stop to get Medal-Mendoza some methamphetamine.

When the group arrived at Costilla’s apartment, Green went in alone, and then all three went into the apartment after Green came back to the car with a sample bag of methamphetamine. Valtierra testified that after the three left the apartment and returned to the car, Medal-Mendoza complained that the asking price for the methamphetamine was too high and suggested that they return to the apartment to attempt to negotiate a lower price. Val-tierra testified that he did not think that Green and Medal-Mendoza intended for him to go with them, but since he had come into the apartment the previous time, Valtierra decided to join them again.

Though Crosby testified that Valtierra and Green came in right after Medal-Mendoza, Valtierra testified that Green and Medal-Mendoza got a head start and that he entered the apartment several seconds after they did, just in time to hear someone say “shoot me” and to see Medal-Mendoza pointing a gun at Glasgow. Val-tierra then saw Medal-Mendoza fire one shot into Glasgow’s chest, and another into his forehead. Though Crosby claimed that all three men had guns, Valtierra testified that he did not have a gun himself, and that he did not know that Medal-Mendoza had been carrying a gun, or that he was going to shoot anyone. Valtierra testified that he remembered Crosby getting shot and Green running out of the apartment. While Medal-Mendoza fired more shots, Valtierra followed Green out of the apartment.

After fleeing Costilla’s apartment, Valti-erra ran to the home of Green and Green’s girlfriend, Alison, and there rejoined Green. Valtierra decided to attempt to use a previously purchased plane ticket for a flight back to his home in Seattle, which was scheduled to depart later that morning. But Valtierra encountered a problem with his ticket at the airport, and instead decided to drive with Medal-Mendoza and Green to New York, where they could stay with Medal-Mendoza’s family.

At about 11:45 a.m. on the day of the shooting, Green, Valtierra, and Medal-Mendoza left Saint Paul, and drove Medal-Mendoza’s car as far as Chicago, where they stopped at a motel. Valtierra testified that he decided that night that he should not be “running for something [he] didn’t do.” In the morning, Valtierra told the other two he wanted to return to Saint Paul. Green agreed and made a phone call to a person he knew on the gang task force of the Saint Paul police.

Valtierra, Green, and Medal-Mendoza then began driving back to Saint Paul at about 8:45 a.m. on January 13, the day after the shooting. While driving through Wisconsin Medal-Mendoza’s car struck the rear corner of a minivan. Medal-Mendoza’s car spun out of control and ended up in the ditch.

Valtierra, Green, and Medal-Mendoza left the scene of the accident and went to a nearby road where Medal-Mendoza flagged down the driver of a pickup truck. The pickup driver agreed to give Medal-Mendoza a ride, but was then surprised to see Valtierra and Green come out of the ditch and lay down in his pickup bed. The pickup driver looked around and, seeing people at the scene of the accident looking over, decided not to give the group a ride. Instead, he flagged down a passing police car.

Medal-Mendoza told the police officer his real name, admitted he had been driving, and was taken into custody for driving under the influence. Green at first claimed to be “Bobby Green,” and Valtier-ra claimed to be “Jason Andrew Castillo.” Both were treated at the hospital and then released from police custody.

Back in Saint Paul, police were talking to Crosby, who had recognized Green from high school and identified him from a picture in a high school yearbook. By the afternoon of January 13 (when the traffic accident occurred in Wisconsin), Saint Paul police had connected Green, Valtierra, and Medal-Mendoza to the shooting, and Crosby had picked all three men out of photo lineups. After learning that warrants had been issued for the arrest of the three men, Wisconsin police informed Saint Paul officers that they had Medal-Mendoza in custody, but that they had already released Green and Valtierra.

Valtierra testified that he returned to St. Paul to turn himself in, but police instead arrested Valtierra about 2-1/2 hours after his return to Saint Paul. In an interview with an investigator immediately following his arrest, Valtierra indicated that he had probably had only 12 hours of sleep over the preceding 15 to 20 days because he had been doing “s* * * ” constantly. Valtierra told the investigator that he was surprised that Crosby had been able to identify him, since he had been wearing a baseball cap at the time of the murders. Valtierra also told the investigator that he was angry that Green and Medal-Mendoza had talked about the murder to other people, because “if someone does a murder, you are never supposed to tell nobody.”

Crosby gave police statements in the period following the shooting that were largely consistent with her subsequent recounting of events at trial. These statements to police were related to the jury by Sergeant Janet Dunnom, who testified that Crosby told her that Valtierra and Green came into Costilla’s apartment after Medal-Mendoza and that all three men were wielding guns. On cross-examination Crosby was asked questions related to her ability to perceive and remember the events surrounding the shooting. She testified that the methamphetamine she had taken had made her awake more than it had made her high.

The jury found Valtierra guilty on all charged counts, and the judge convicted and sentenced him on two counts of first-degree felony murder and one count of attempted first-degree felony murder, leading to this appeal.

I.

Valtierra argues that two of the district court’s jury instructions were improper. First, Valtierra argues that the district court erred by instructing the jury that evidence showing that Valtierra fled after the shooting could be used to infer that Valtierra possessed a guilty mind. In a 1957 decision, this court cautiously permitted a similar jury instruction. State v. McLaughlin, 250 Minn. 309, 317-19, 84 N.W.2d 664, 671-72 (1957). But in two more recent cases, we have instructed that district courts should avoid “jury instructions advising that a particular fact may be inferred from other particular facts, if proved.” State v. Litzau, 650 N.W.2d 177, 186-87 (Minn.2002) (holding that the trial court erred by giving an instruction that the jury could infer that the driver of a vehicle possessed a drug found in his vehicle, and holding that the “cumulative effect” of this error and others merited reversal); see also State v. Olson, 482 N.W.2d 212, 215-16 (Minn.1992) (holding that the trial court erred in instructing the jury that possession could be inferred from close proximity to illegal drugs, and that this error merited reversal). Litzau, which echoed the reasoning articulated in Olson, laid out several reasons for disfavoring permissive-inference instructions generally:

Such instructions are undesirable in that they tend to inject argument into the judge’s charge and lengthen it unnecessarily. Such instructions also improperly influence the jury not only by isolating particular facts but also by giving a particular step of logic the official legal imprimatur of the state.
Permissive inferences * * * permit juries to avoid assessing the myriad facts which make specific cases unique.

Litzau, 650 N.W.2d at 186 (second alteration in original) (internal citations and quotations omitted). Litzau also noted that permissive-inference instructions are also unnecessary in that if the rational connection between facts presented and facts inferred is derived from common sense and experience, the matter can normally be left to the jury’s judgment upon general instructions.

Id. at 186 n. 7 (internal citation and quotation omitted).

Litzau and Olson both dealt with inferences relating to drug possession, but the state presents no compelling reason to treat a flight instruction any differently. Flight instructions are a species of permissive-inference instruction, and the factors leading us to reject such instructions in Litzau and Olson apply with equal force to flight instructions. Of Litzau, 650 N.W.2d at 186 & n. 7, 187; Olson, 482 N.W.2d at 215-16; see also State v. Oates, 611 N.W.2d 580, 584 (Minn.App.2000) (“There is no need to instruct the jury that a [suspect] fleeing the scene is displaying a ‘consciousness of guilt.’ ”). Therefore, we hold that the district court erred by instructing the jury on the permissive inference that may be drawn from evidence of flight.

Erroneous jury instructions merit a new trial “if it cannot be said beyond a reasonable doubt that the error had no significant impact on the verdict.” Olson, 482 N.W.2d at 216. In Olson, we held that an improper jury instruction may have had a significant impact on the verdict, and therefore reversal was warranted when the jury was instructed that “knowing possession” of drugs could be inferred from the defendant’s proximity to drugs when the drugs were found. Id. In Olson, knowing possession was the critical element of the offense, and the defendant’s proximity to the drugs was not just the critical piece of evidence of knowing possession, it was the only evidence of knowing possession. See Olson, 482 N.W.2d at 213-14. Thus, the permissive inference instruction in Olson was central to the jury’s deliberations, and therefore it could not be said beyond a reasonable doubt that the instruction did not have a significant impact on the verdict. See Olson, 482 N.W.2d at 215-16.

Unlike in Olson, the erroneous flight instruction in this case was neither the only evidence of Valtierra’s guilt nor the most compelling, and we conclude that the instruction did not have a significant impact on the verdict. By far the most powerful evidence of Valtierra’s guilt was Crosby’s testimony that Valtierra came into Costilla’s apartment wielding a gun, and the supportive testimony by Sergeant Dunnom that Crosby told the sergeant the same thing immediately following the shooting. Moreover, the fact that Valtier-ra reversed his flight by returning to Saint Paul supports his argument, mitigating any harm that may have resulted from unduly focusing the jury on flight. Finally, we note that the flight instruction in this case neither misstated substantive law nor improperly suggested that the jury was compelled to make the inference in question; instead, the fault of this instruction was merely to place undue emphasis on one among several permissible inferences. Such undue emphasis may require reversal in some cases, but here Valtierra’s guilt was independently supported by strong evidence and the evidence of flight was partly supportive of Valtierra’s defense. We conclude that, beyond a reasonable doubt, the jury instruction on flight did not have a significant impact on the verdict.

Valtierra also argues that the district court erred by giving the standard jury instruction on accomplice liability, which states that the underlying crime must have been “reasonably foreseeable,” not “reasonably foreseeable by the per son,” which is the language of the accomplice liability statute. Minn.Stat. § 609.05, subd. 2 (2004); 10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 4.01 (4th ed.1999) (amended in 2006 supplement to read “reasonably foreseeable to the defendant”). This same claim of error was dealt with recently in State v. Earl, 702 N.W.2d 711 (Minn.2005). We held in Earl that giving the standard jury instruction on accomplice liability was not error. Id. at 722. But we also said, “to avoid the necessity of dealing with this issue in the future, we suggest that all future instructions on accomplice liability use the entire statutory phrase ‘reasonably foreseeable to the person.’ ” Id. Earl’s suggestion to use the entire statutory phrase does not apply to this case since Valtierra’s trial was conducted before our decision in Earl, and was not, therefore, a “future instruction! ] on accomplice liability.” Id. (emphasis added). The result here is identical to the result in Earl, which held that giving the standard instruction was not error. See Earl, 702 N.W.2d at 722; see also State v. White, 684 N.W.2d 500, 509 (Minn.2004) (holding that jury instructions virtually identical to the ones used in this case, when read as a whole, did not confuse or mislead the jury or materially misstate the law); State v. Peirce, 364 N.W.2d 801, 809-10 (Minn.1985) (holding that the “reasonable foreseeability” test for accomplice liability did not allow jurors to return a verdict on something less than proof beyond a reasonable doubt).

II.

We turn to Valtierra’s two claims of evidentiary error. First, Valtierra argues that the district court erred by allowing, over defense counsel’s objections, Sergeant Dunnom to testify that Valtierra, Green, and Medal-Mendoza used “triangulation.” Dunnom, who testified primarily about her conversations with Crosby after the shooting, also gave some expert testimony regarding the generally dangerous nature of drug dealing and in particular about triangulation. Dunnom explained:

When taking narcotics class to prepare to be an undercover agent, you are taught that * * * the most dangerous time of a drug deal is when the money and the drugs come together. If you are buying or selling, it doesn’t matter; but as an undercover police officer, the term triangulation referred to multiple sellers or buyers that — and the triangulation just simply means shape of a triangle. That means they split so that your attention can’t be on just one person, that they split and they are out of your line of sight.

Dunnom said that when there is triangulation, “at best, [the triangulators] are there to rob you,” and “[a]t worst, they are there to kill you and take the drugs and money.” Dunnom then testified that in her opinion triangulation was a part of Valtierra’s case. Valtierra argues that Dunnom’s testimony amounted to impermissible expert testimony on the ultimate issue of guilt since Dunnom testified (1) that triangulation occurred, and (2) that triangulation means that the triangulators are either going to rob or kill someone.

Evidentiary rulings “ ‘rest within the sound discretion of the trial court, and we will not reverse such evidentiary rulings absent a clear abuse of discretion.’ ” State v. Morton, 701 N.W.2d 225, 234 (Minn.2005) (quoting State v. SanchezDiaz, 683 N.W.2d 824, 835 (Minn.2004)). Generally, testimony that is “otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Minn. R. Evid. 704. But “opinions involving a legal analysis or mixed questions of law and fact * * * are not deemed to be of any use to the trier of fact.” Minn. R. Evid. 704 comm. emt.— 1977. Therefore, regardless of whether expert testimony embraces an ultimate issue, “[t]he ‘ultimate question of admissibility’ for expert testimony is whether the expert’s testimony will help the trier of fact in evaluating evidence or resolving factual issues.” State v. DeShay, 669 N.W.2d 878, 884 (Minn.2003) (quoting State v. Koskela, 536 N.W.2d 625, 629 (Minn.1995)).

The evidence of triangulation in this case was clearly not helpful to the jury. As the state admits on appeal, triangulation did not, in fact, occur in the sense Dunnom described. Although Crosby testified that Valtierra, Green, and Medal-Mendoza were in a triangle-shaped formation, they were grouped together, not spread out so as to divert the attention of Glasgow, Costilla, and Crosby. Further, even if triangulation as defined by Dun-nom had occurred, it is doubtful that expert testimony on this “tactic” would have been helpful to the jury. Questions regarding the intent of assailants who surround and divert the attention of their intended victims “can be resolved by applying principles of general or common knowledge,” and it was therefore not helpful to the jury to have expert testimony on the topic. Id. at 885 (quotation marks omitted). For these reasons, the district court abused its discretion by permitting Dunnom to testify about triangulation.

Evidentiary errors, such as errors in admitting expert testimony, warrant a new trial “ ‘only when the error substantially influences the jury’s decision.’ ” DeShay, 669 N.W.2d at 888 (quoting State v. Chomnarith, 654 N.W.2d 660, 665 (Minn.2003)). Though the expert testimony on triangulation was erroneous and unnecessary, it appears that the jury was well-positioned to judge it for its minimal worth. The jury heard that the officer’s experience with the case was»based on her conversations with Crosby, and heard that the basis of the officer’s experience was her police training. Therefore, unlike in many expert witness situations, the reasoning behind Dunnom’s expert testimony was not mysterious to the jury. Further, as noted above, because this case hinged on Crosby’s testimony that Valtierra had wielded a gun at Costilla’s apartment, the triangulation testimony was unlikely to substantially influence the jury’s decision. We conclude that Dunnom’s erroneously admitted testimony about triangulation was harmless error.

Valtierra also argues that the district court erred by allowing the state to ask him on cross-examination about the specific facts underlying his prior conviction for aggravated robbery. At trial, evidence of Valtierra’s prior conviction was introduced, without objection, as impeachment evidence under Minn. R. Evid. 609(a). Valtierra then objected to inquiry into the underlying facts of this prior crime, but the district court ruled that Valtierra’s own testimony had essentially “opened the door” to underlying-facts evidence.

A witness may be impeached with evidence of a prior conviction only if the conviction was a felony or if the conviction involved dishonesty. Minn. R. Evid. 609(a). But normally, even if a prior conviction is properly introduced as impeachment under Rule 609, “the prosecutor may not elicit evidence concerning the facts underlying [the] prior conviction[ ].” State v. Edwards, 348 N.W.2d 269, 273 (Minn.1984); State v. Norgaard, 272 Minn. 48, 51, 136 N.W.2d 628, 631 (1965). Examination regarding prior convictions “should be limited to the fact of the conviction, the nature of the offense, and the identity of the defendant.” Norgaard, 272 Minn, at 51, 136 N.W.2d at 631.

But the underlying-facts exclusion is not an iron-clad rule, and we have held that “ ‘the scope of * * * cross-examination [regarding prior convictions] must be left largely to the discretion of the [trial] court depending upon the circumstances.’ ” State v. Griese, 565 N.W.2d 419, 426 (Minn.1997) (second alteration in original) (quoting Norgaard, 272 Minn, at 51, 136 N.W.2d at 631) (the district court was within its discretion allowing underlying-facts evidence against defense’s expert psychiatrist when the “prior convictions relate[d] directly to the substance of the witness’s testimony”). In particular, district courts may permit inquiring into underlying facts when the defendant “opens the door.” “Opening the door” occurs when “one party by introducing certain material * * * creates in the opponent a right to respond with material that would otherwise have been inadmissible.” 8 Henry W. McCarr <& Jack S. Nordby, Minnesota Practice — Criminal Law and Procedure § 32.54 (3d ed.2001). The opening-the-door doctrine “is essentially one of fairness and common sense, based on the proposition that one party should not have an unfair advantage * * * and that the factfinder should not be presented with a misleading or distorted representation of reality.” Id. The doctrine must be applied cautiously, however, especially when it is being used to impeach a criminal defendant. See id. If underlying-facts evidence is introduced against an accused, “there is a unique possibility of prejudice: to allow broad inquiry into the facts underlying a prior conviction might confuse the issues before the jury or have a chilling effect on the accused’s right to testify in his own defense.” Griese, 565 N.W.2d at 426.

In support of the district court’s ruling that Valtierra opened the door to cross-examination on a prior aggravated robbery conviction, the state points to two instances of trial testimony in which Valti-erra “tak[es] full responsibility” for his prior crimes. First, Valtierra was asked on direct examination about his prior encounters with the law. He admitted to having committed aggravated robbery, third-degree burglary, and providing a false name to the police in 2000. Valtier-ra’s counsel then asked him, “You understand you are responsible for what you did, even though you took drugs [in 2000]?” Valtierra responded: “Yes. I am taking full responsibility for what I did.” Second, after testifying about his fear of retaliation for talking to the police, Valti-erra’s counsel asked him, “[D]o you believe it was stupid [to not go] directly to the police [after the shooting]?” Valtierra answered, in part:

I believe it was very stupid, you know. I regret a lot of my decisions. I take full responsibility for everything I did, though, and I know that even though I didn’t know [Medal-Mendoza] had a gun, even though I didn’t know he was going to shoot no one * * * but I have to admit I made a conscious decision to get in the car that night * * * to go make this run for this guy to get him this methamphetamine[.]

According to the state’s argument and the district court’s ruling, this testimony opened the door for the state to pursue the following line of questioning on cross-examination:

Q [The state]:
When you were convicted of first degree aggravated robbery in the year 2000, that was for robbing a Holiday gas station, right?
A [Valtierra]:
Yes. It was.
Q: What “aggravated” means is that you were armed with a dangerous weapon, right?
A: Yes. I take full responsibility for that.
Q: In this case, it was a gun that you were armed with?
[Valtierra’s counsel]: I am going to object on the grounds — I want to make a continuing objection.
The court: Overruled.
Q: What you were convicted of is robbing a Holiday store with a gun, correct?
A: All I can say is the jury found me guilty and I respect their decision.
Q: But you maintained that you were at the Holiday station. You committed the robbery but didn’t have a gun, right?
A: I was convicted. I mean, I did my time and I put it behind me.
Q: That is not my question. What I am asking is if you have admitted to doing the robbery but not having a gun.
A: Yes. I did.
Q: Yes, you did have a gun?
A: No. I never had a gun I just — I am under oath. The only thing I can say is — I took some money out of the store but I never was armed.
Q: But you were convicted of being armed?
A: Yes. I was.

The state argues that this exchange was proper because Valtierra’s claim that he took responsibility for his past actions opened the door to it. We disagree. First, it is not clear from the testimony cited by the state that Valtierra did, in fact, take foil responsibility for the prior crimes for which he was convicted. But assuming he did, it is not clear how taking responsibility for past actions would give Valtierra an “unfair advantage” or allow him to present “a misleading or distorted representation of reality” so as to overwhelm the baseline rule that underlying facts are prohibited. McCarr & Nord-by, swpra, § 32.54. This is particularly true because the ■ admission of underlying-crimes evidence against an accused presents a unique opportunity for prejudice. See Griese, 565 N.W.2d at 426. We also believe that permitting the underlying-facts inquiry at issue here — which creates a presumption that a defendant who asserts his innocence and subsequently is convicted is impeachable for being untruthful — would present the sort of “chilling effect on the accused’s right to testify in his own defense” that this court cautioned against in Griese. Id. For these reasons we hold that the district court erred by permitting inquiry into the underlying facts of Yaltierra’s prior conviction.

As an evidentiary error not affecting constitutional rights, improperly admitted underlying-facts evidence will not require reversal unless “ ‘the error substantially influences the jury’s decision.’ ” Chomnarith, 654 N.W.2d at 665 (quoting State v. Nunn, 561 N.W.2d 902, 907 (Minn.1997)); see also Norgaard, 272 Minn, at 52, 136 N.W.2d at 631 (determining that it was error to inquire into the age of a rape victim after the fact of the rape conviction was properly admitted as impeachment, but that the error was not prejudicial enough to merit reversal). In this case, it is doubtful that any improper influence on the jury from the underlying-facts admission would have gone far beyond the prejudice resulting from the undisputedly proper admission of Valtierra’s aggravated robbery conviction. Further, as discussed above, the most powerful evidence of Valti-erra’s guilt in this case consists of Crosby’s statements at trial and just after the shooting that Valtierra had been wielding a gun during the shooting. This evidence is affected little, if at all, by the underlying-facts inquiry at issue here. Therefore, we hold that the underlying-facts inquiry here did not substantially influence the jury’s decision.

We have established that in cases where the cumulative effect of various errors operate to produce a biased jury, errors may require a new trial even though “ ‘none of [the errors] alone might have been enough to tip the scales.’ ” State v. Johnson, 441 N.W.2d 460, 466 (Minn.1989) (quoting United States v. Samango, 607 F.2d 877, 884 (9th Cir.1979)). This is not such a case. Here, all the errors are harmless in the aggregate for the same reasons they are harmless individually. Principally, this is because the errors did not significantly impact the jury’s evaluation of Crosby’s critical testimony that Valtierra wielded a gun along with Medal-Mendoza and Green when the shootings occurred.

III.

Finally, Valtierra argues that even if evidence established that he was armed with a gun and intended to commit robbery, there was not sufficient evidence to show that it was “reasonably foreseeable” to him that murder would be a “probable consequence” of that robbery, as required by the accomplice liability statute. Minn. Stat. § 609.05, subd. 2 (2004). But this court has held that “[w]hether the defendant could reasonably foresee that the victim would be murdered is a question of fact for the jury.” State v. Pierson, 530 N.W.2d 784, 789 (Minn.1995). And this court has rejected the contention that murder may not be a probable consequence of aggravated robbery. See State v. Atkins, 543 N.W.2d 642, 647 (Minn.1996) (“Viewing the * * * evidence in the light most favorable to the jury’s verdict, the jury had more than sufficient evidence to conclude that [the victim’s] murder was a reasonably foreseeable consequence of * * * aggravated robbery * * *.”). Therefore we hold that the evidence that Valtierra intended to commit an aggravated drug robbery was sufficient to permit a jury to find that it was reasonably foreseeable to Valti-erra that murder would be a probable consequence of that robbery.

Affirmed.

GILDEA, Justice

(concurring).

I concur in the majority’s conclusion to affirm the conviction. I write separately to express my view on two issues. The first issue relates to the flight instruction. I agree that the district court erred in giving the flight instruction as worded in this case. But in my view our opinion should not be read as prohibiting a properly worded flight instruction in every case. See State v. McLaughlin, 250 Minn. 309, 319, 84 N.W.2d 664, 671-72 (1957) (“When the proof is sufficient the trial court may instruct the jury that inference of guilt from the evidence of flight, in connection with other proof, may form the basis from which guilt may be inferred, but this should be qualified by a general statement of the countervailing conditions incidental to a comprehensive view of the question.”); see also United States v. Clark, 45 F.3d 1247, 1250-51 (8th Cir.1995); United States v. Roy, 843 F.2d 305, 310-11 (8th Cir.1988).

The second issue relates to the majority’s conclusion that the district court erred in allowing the state to inquire on cross-examination about circumstances of Valti-erra’s conviction in 2000 for aggravated robbery. I disagree with the conclusion that the district court erred. In my view, the district court did not abuse its discretion in finding that Valtierra “opened the door” to the state’s cross-examination as quoted in the majority opinion.

On direct examination, defense counsel established that Valtierra had been convicted of several prior felonies, one of which was an aggravated robbery conviction in 2000. The majority opinion discusses Valtierra’s statement that he was “taking full responsibility for what [he] did” in 2000. Also important to my view of this issue is what happened later in the direct examination. Specifically, when discussing the night of the murder, defense counsel asked Valtierra: “But you agree, though, that you put yourself in that situation so you had to accept — is that right?” Valtierra responded:

I guess when I look back at everything that happened, I am still in disbelief. I still can’t believe that I am on the stand or I am even in a trial for a murder case, you know. I know I would never, never murder nobody. I know I would never shoot nobody. 1 know I love life. I know if [the murder victims] were here, they would tell you guys that I didn’t have no gun. I know they would.

(Emphasis added.) At the conclusion of the direct testimony, defense counsel moved to preclude the prosecution from inquiring further into the facts of the prior aggravated robbery conviction. The district court denied the motion concluding that Valtierra had opened the door to the state asking questions regarding the 2000 offense. On this record, I would not conclude that the district court abused its broad discretion in allowing the limited cross-examination.

      . At trial Valtierra denied that he had used drugs prior to the shooting.

      . The trial judge instructed the jury:
      It is for you alone to decide whether or not the defendant fled after the alleged crimes. If you determine that he did flee, then you may take such flight into consideration as an inference of guilty intention at the time of the incident giving rise to these charges.
      Flight in itself is not conclusive evidence of a guilty intent; but if you find such flight existed, then you may consider it along with all of the other pertinent evidence in this case in determining whether or not the State has established that the defendant possessed the requisite intent at the time and place of the alleged crime.

      . Valtierra also argues that the foundation for Dunnom’s expert status — which consisted of her testimony that she had done undercover narcotics work and had been taught about triangulation during her police training — was insufficient. Because we hold that Dunnom's testimony on triangulation was otherwise improper, we do not reach the issue of whether the testimony was supported by sufficient foundation.

      . For constitutional error, "the inquiry is whether the guilty verdict actually rendered was surely unattributable to the error." Chomnarith, 654 N.W.2d at 665. Here, Valti-erra does not argue that the error affected his constitutional rights, so we inquire only whether the verdict was substantially influenced by the error. See DeShay, 669 N.W.2d at 888.

      . See State v. Thunberg, 492 N.W.2d 534, 538 (Minn.1992) (defendant testified on direct that he did not remember stabbing the victim because he had blacked out, and that although he had blacked out on many occasions previously, he had never "been in this kind of situation”; this testimony opened the door for the state to elicit testimony on cross-examination that the defendant also said that he had blacked out in connection with an earlier conviction for aggravated robbery); Edwards, 343 N.W.2d at 273 (defendant opened the door to questions about stabbing an off-duty police officer when defendant, during direct examination by his own counsel, testified about having been stabbed and how he therefore was particularly fearful of being stabbed again); State v. Gardner, 328 N.W.2d 159, 161 (Minn.1983) (defendant's counsel, by asking a witness on cross-examination about an instance in which the witness attacked the defendant, opened the door for the state to elicit, during its case-in-chief, the underlying facts of a prior conviction which helped explain why the witness had attacked the defendant).

      . The state also argues that the underlying-facts inquiry was permissible because the two crimes were so similar. But evidence introduced for the purpose of showing the similarity of prior crimes is inadmissible outside of a Spreigl context. See Minn. R. Evid. 404(b) (evidence of other crimes or wrongs is generally not admissible to prove action in conformity therewith).


source: Caselaw Access Project

author: ANDERSON, RUSSELL A., Chief Justice. PAGE, Justice

license: Public Domain

text:
    Roger Lindbo SCHLEICHER, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    Nos. A04-1892, A05-1348.
    Supreme Court of Minnesota.
    July 27, 2006.

      Deborah K. Ellis, St. Paul, MN, for Appellant.
    Roger L. Schleicher, Bayport, MN, Appellant Pro Se.
    Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, St. Paul, MN; and Douglas L. Ruth, Steele County Attorney, Owatonna, MN, for Respondent.
   OPINION

ANDERSON, RUSSELL A., Chief Justice.

Roger Lindbo Schleicher appeals the postconvietion court’s denials of his first and second petitions for postconvietion relief from his conviction for first-degree premeditated murder. Because we conclude that all of the claims raised by Schleicher in his postconvietion petitions are either procedurally barred by the Knaffla rule or fail on the merits, we affirm.

Schleicher was indicted in Steele County District Court for first-degree premeditated murder for the shooting death of his friend, Jack Johannsen. State v. Schleicher, 672 N.W.2d 550, 550, 551 (Minn.2003). Schleicher pleaded not guilty and not guilty by reason of mental illness under Minn.Stat. § 611.026 (2004). Schleicher, 672 N.W.2d at 550. Our opinion in response to Schleicher’s direct appeal provides a comprehensive statement of the facts of the underlying offense. See id. at 550-53.

Schleicher waived his right to a jury trial, and the district court conducted a bifurcated trial. Id. at 550 n. 3, 551. The court rejected Schleicher’s defense of not guilty by reason of mental illness, found him guilty of first-degree premeditated murder, and sentenced him to life imprisonment. Id. at 551.

Schleicher appealed, raising a single claim — that the language of Minn.Stat. § 611.026 is unconstitutionally vague. Schleicher, 672 N.W.2d at 555. We affirmed, concluding that we were procedurally barred from considering Schleicher’s claim because he had not challenged the constitutionality of the statute at the district court. Id.

After his direct appeal, Schleicher, with the assistance of counsel, filed a petition for postconvietion relief. In the petition and attached memorandum of law, Schleicher claimed that: (1) he was denied effective assistance of trial counsel because trial counsel failed to challenge the constitutionality of Minn.Stat. § 611.026 and failed to elicit expert testimony showing that Schleicher, at the time of the murder, did not know his actions were wrong; and (2) he was denied effective assistance of appellate counsel because appellate counsel failed to request a stay of the direct appeal to pursue postconvietion relief based on ineffective assistance of trial counsel. Schleicher requested a hearing to present evidence showing that his “mental illness affected his ability to process the perceptions that he had of the victim due to his personality disorder and the mental illness affected his ability to respond to those perceptions,” evidence that Schleicher claims trial counsel was ineffective for failing to submit at trial.

The postconviction court held an evidentiary hearing that focused on examining the expert testimony relating to “the interplay between [Schleicher’s] personality disorder and [his] mental illness.” The two expert witnesses who testified at the mental illness phase of the trial again testified at the hearing. At the end of the hearing, the court denied relief, concluding on the record that the testimony presented did not alter the court’s conclusion that Schleicher had not met his burden of proving by a preponderance of the evidence that he did not know at the time of the murder that his actions were wrong.

Schleicher appealed from the posteonviction court’s decision and, while his appeal was pending, moved to stay the appeal to permit him to file a second postconviction petition. We stayed the appeal, and Schleicher filed a pro se petition, claiming that: (1) he was denied his right to testify; (2) he was denied a mental illness evaluation by Dr. Carl Malmquist; (3) he was denied the right to self-representation; (4) he was denied substitute private counsel; (5) he was denied the right to a jury trial; (6) he was not competent to proceed with trial; (7) trial counsel was ineffective; and (8) appellate counsel was ineffective. The postconviction court denied the petition without a hearing, concluding that Schleicher failed to allege facts that would entitle him to relief and that the Knaffla rule procedurally barred his claims. Schleicher appealed, and we consolidated his appeals.

A defendant may seek postconviction relief “to vacate and set aside the judgment * * * or grant a new trial * * * or make other disposition as may be appropriate.” MinmStat. § 590.01, subd. 1 (2004) (amended 2005). Allegations in a postconviction petition must be “ ‘more than argumentative assertions without factual support.’ ” Hodgson v. State, 540 N.W.2d 515, 517 (Minn.1995) (quoting Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971)). A petitioner seeking postconvietion relief has the burden of establishing by “a fair preponderance of the evidence” the facts alleged in the petition. Minn.Stat. § 590.04, subd. 3 (2004).

In reviewing a postconviction proceeding, we determine “ ‘whether there is sufficient evidence to sustain the post-conviction court’s findings, and a postcon-viction court’s decision will not be disturbed absent an abuse of discretion.’ ” Zenanko v. State, 688 N.W.2d 861, 864 (Minn.2004) (quoting Sanders v. State, 628 N.W.2d 597, 600 (Minn.2001)). We “review a postconviction court’s determinations of legal issues de novo.” Pederson v. State, 692 N.W.2d 452, 459 (Minn.2005).

I.

In his briefs to this court, Schleicher presents several claims that he did not raise in his postconviction petitions, including sufficiency of the evidence, double jeopardy, admission of statements obtained in violation of his Miranda rights, denial of his right to participate in his defense, ineffective assistance of appellate counsel for raising only a single issue on appeal, several ineffective assistance of trial counsel claims, and unconstitutionality of the mental illness defense statute. The state contends that Schleicher waived these claims for purposes of appeal by failing to assert them in his petitions. Schleicher does not address the state’s waiver argument.

“ ‘It is well settled that a party may not raise issues for the first time on appeal’ from denial of postconviction relief.” Azure v. State, 700 N.W.2d 443, 447 (Minn.2005) (quoting Robinson v. State, 567 N.W.2d 491, 494 n. 2 (Minn.1997)). “This procedural bar applies even in post-conviction proceedings raising constitutional issues of criminal procedure.” Ferguson v. State, 645 N.W.2d 437, 448 (Minn. 2002). Accordingly, we hold that claims raised by Schleicher for the first time on appeal are forfeited for purposes of the appeal. See Azu/re, 700 N.W.2d at 447.

However, one of the claims raised by Schleicher for the first time on appeal — ineffective assistance of postconviction counsel — is not deemed forfeited because Schleicher could not have asserted this claim in his first petition. Thus, this claim is properly raised on appeal from the denial of his first petition.

Schleicher argues that postconviction counsel was ineffective for failing to pursue the ineffective assistance of trial counsel claims at the evidentiary hearing, failing to properly prepare for the hearing, and failing to adequately communicate with Schleicher. The United States Supreme Court has held that a criminal defendant has “no constitutional right to an attorney in state post-conviction proceedings.” Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Because the constitutional right to counsel provides the basis for the right to effective assistance of counsel, the Court has stated that “a petitioner [in a state postconviction proceeding] cannot claim constitutionally ineffective assistance of counsel in such proceedings.” Id. Consequently, Schleicher’s claims of ineffective assistance of postconviction counsel fail.

The fact that we have interpreted the Minnesota Constitution as providing a right to counsel beyond that guaranteed by the United States Constitution does not alter this conclusion. In Deegan v. State, we held that the Minnesota Constitution guarantees the right to counsel for a first postconviction petition if the defendant did not pursue a direct appeal. 711 N.W.2d 89, 98 (Minn.2006). However, because Schleicher had a counseled direct appeal, he does not benefit from the right announced in Deegan.

Schleicher also contends that his post-conviction counsel should have requested substitute counsel because she was the same attorney who pursued Schleicher’s direct appeal, and raising a claim of ineffective assistance of appellate counsel thus required her to argue that her own performance on direct appeal was ineffective. Schleicher couches this claim in terms of a due process violation. However, Schleicher cites no authority for the proposition that an attorney’s representation of a defendant both on direct appeal and in postconviction proceedings violates the defendant’s due process rights when the postconviction petition claims ineffective assistance of appellate counsel, nor have we found any such authority.

In addition, Schleicher has not demonstrated that he was denied a fair postcon-viction proceeding due to his counsel’s alleged conflict. The alleged conflict does not appear to have affected postconviction counsel’s performance. Postconviction counsel actively raised the ineffective assistance of appellate counsel claim in Schleicher’s first petition, and, while that claim was not specifically addressed at the evidentiary hearing, postconviction counsel vigorously explored the issues underlying that claim at the hearing. Moreover, the petition focused primarily on the performance of trial counsel, rather than on appellate counsel’s performance, minimizing the risk of prejudice to Schleicher.

II.

We now turn to the postconviction court’s denial of Schleicher’s first postcon-viction petition. In his first petition, Schleicher claimed that (1) trial counsel was ineffective for failing to elicit testimony regarding Schleicher’s ability to know that his actions at the time of the murder were wrong and for failing to challenge the constitutionality of the mental illness defense statute; and (2) appellate counsel was ineffective for failing to move to stay the direct appeal and seek postconviction relief based on ineffective assistance of trial counsel. After a hearing on the underlying issue of the expert testimony regarding the effect of Schleicher’s personality disorder and mental illness on his ability to know the wrongfulness of his actions, the postconviction court denied the petition.

Once a direct appeal has been taken “all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.” State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976) (“Knaffla rule”). The Knaffla rule bars “all claims that the appellant should have known of at the time of direct appeal.” Koskela v. State, 690 N.W.2d 133, 134 (Minn.2004). “There are two exceptions to the Knaffla rule: (1) if a novel legal issue is presented, or (2) if the interests of justice require review.” Taylor v. State, 691 N.W.2d 78, 79 (Minn.2005). “The second exception may be applied if fairness requires it and the petitioner did not ‘deliberately and inexcusably’ fail to raise the issue on direct appeal.” Id. (quoting Fox v. State, 474 N.W.2d 821, 825 (Minn.1991)). “Under the second exception, we have held that a claim of ineffective assistance of trial counsel is not barred by Knaffla if it cannot be determined from the district court record and requires additional evidence, such as that involving attorney-client communications.” Torres v. State, 688 N.W.2d 569, 572 (Minn.2004), cert. denied, 544 U.S. 1054, 125 S.Ct. 2309, 161 L.Ed.2d 1098 (2005). Thus, while the Knaffla rule generally bars an ineffective assistance of counsel claim raised in a postconviction petition, “an exception exists when the court needs to conduct additional fact-finding to consider the claim on its merits.” Zenanko, 688 N.W.2d at 864.

“An ineffective assistance of counsel claim is an [allegation of] a violation of the right to reasonably effective assistance of counsel guaranteed by the Sixth Amendment of the United States Constitution.” State v. Rhodes, 657 N.W.2d 823, 842 (Minn.2003). In order to demonstrate ineffective assistance of counsel, a petitioner must show that the representation “ ‘fell below an objective standard of reasonableness’ ” (performance prong) and that “ ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different’ ” (prejudice prong). State v. Martin, 695 N.W.2d 578, 587 (Minn.2005) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). A court may address the two prongs of the test in any order and may dispose of the claim on one prong without analyzing the other. See Rhodes, 657 N.W.2d at 842.

The reasonableness of counsel’s performance is judged by an objective standard of “representation by an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances.” Opsahl v. State, 677 N.W.2d 414, 421 (Minn.2004) (internal quotation marks omitted). “There is a strong presumption that counsel’s performance was reasonable.” Martin, 695 N.W.2d at 587. Analysis of the performance prong generally “does not include reviewing attacks on counsel’s trial strategy,” State v. Blanche, 696 N.W.2d 351, 376 (Minn.2005), because trial strategy lies within the discretion of trial counsel. State v. Jones, 392 N.W.2d 224, 236 (Minn.1986).

In his first petition, Schleicher contends that trial counsel was ineffective for failing to elicit expert testimony showing that Schleicher did not know his actions were wrong and for failing to challenge the constitutionality of the mental illness defense statute. At the time of his direct appeal, Schleicher was aware of the strategy pursued by defense counsel at trial, including the extent of the expert testimony presented and the absence of a challenge to the constitutionality of the mental illness defense statute. Thus, Schleicher knew or should have known of these claims at the time of his direct appeal, and they are procedurally barred unless an exception to the Knaffla rule applies.

Neither exception to the Knaffla rule applies. An ineffective assistance of counsel claim is not a novel legal claim, nor does Schleicher present a colorable explanation of why he failed to raise these claims on direct appeal. Schleicher asserts that Knaffla should not bar his post-conviction claims because he lacked access to a law library during trial and on direct appeal. However, Schleicher was represented by counsel at trial and on direct appeal and thus presumably had access to legal information through his attorneys. Schleicher also argues that Knaffla should not bar substantive review of his claims because he has not had the “one right of review” to which a defendant is entitled. But Schleicher has had review by this court in the form of a direct appeal, precisely the situation in which Knaffla applies.

In addition, Schleicher’s ineffective assistance of trial counsel claims can be decided on the basis of the trial record without additional fact finding and thus should have been brought on direct appeal. No exploration of attorney-client conversations is required to decide these claims. See Robledo-Kinney v. State, 637 N.W.2d 581, 585 (Minn.2002). Instead, it is evident from the trial record that these claims fail because they focus on matters of trial strategy — what testimony to elicit from witnesses and what defenses to present — which we generally do not review for competence. Opsahl, 677 N.W.2d at 421; State v. Voorhees, 596 N.W.2d 241, 255 (Minn.1999). Schleicher thus has not demonstrated that fairness requires that we address the merits of his ineffective assistance of trial counsel claims, and the claims are procedurally barred by Knaffla.

Even if these claims were not Knaffla-harred, they would fail on the merits. Schleicher challenges trial counsel’s strategy, which we generally will not review. Opsahl, 677 N.W.2d at 421. Moreover, nothing in the record suggests that trial counsel’s strategy was unreasonable. The record shows that defense counsel presented extensive testimony from a favorable expert witness on the issue of Schleicher’s mental illness defense and thoroughly cross-examined the state’s expert witness. In examining the expert witnesses, defense counsel demonstrated familiarity with Schleicher’s medical history and a competent understanding of the techniques used by psychiatrists to diagnose patients. In addition, because defense counsel’s strategy was to attempt to fit Schleicher’s conduct within the parameters of the mental illness defense statute, counsel’s failure to challenge the statute’s constitutionality was reasonable. Further, given that we have repeatedly upheld the constitutionality of the statute, failure to challenge it was not deficient performance. See State v. Rawland, 294 Minn. 17, 38-39, 199 N.W.2d 774, 786 (1972); see also Clark v. Arizona, — U.S. —, 126 S.Ct. 2709, 2719-24, 165 L.Ed.2d 842 (2006) (upholding Arizona’s M’Naghten-type insanity defense statute, similar to Minnesota’s insanity defense statute, against a due process challenge). Thus, Schleicher has not shown that trial counsel’s performance fell below an objective standard of reasonableness.

In his first petition, Schleicher also contends that appellate counsel was ineffective for failing to seek a stay of the direct appeal to pursue postconviction relief based on ineffective assistance of trial counsel. Schleicher’s ineffective assistance of appellate counsel claim is not Knaffla-barred because Schleicher could not have raised it on direct appeal. The two-pronged performance/prejudice test for ineffective assistance of counsel again applies. See Martin, 695 N.W.2d at 587.

To show that appellate counsel’s performance was deficient, Schleicher must first prove ineffective assistance of trial counsel. See Sullivan v. State, 585 N.W.2d 782, 784 (Minn.1998). As discussed above, Schleicher cannot do so. Because appellate counsel’s failure to raise meritless claims does not constitute deficient performance, Schleicher’s claim of ineffective assistance of appellate counsel fails on the performance prong. See Hummel v. State, 617 N.W.2d 561, 566 (Minn.2000). Accordingly, we hold that the postconviction court did not abuse its discretion in denying Schleicher’s first petition because Schleicher’s ineffective assistance of trial counsel claims are procedurally barred by Knaffla and his ineffective assistance of appellate counsel claim fails on the merits.

III.

In his second postconviction petition, Schleicher claims that (1) he was denied his right to testify; (2) he was denied a mental illness evaluation by Dr. Carl Malmquist; (3) he was denied the right to self-representation; (4) he was denied substitute private counsel; (5) he was denied the right to a jury trial; (6) he was not competent to proceed with trial; (7) trial counsel was ineffective for inadequately examining the expert witnesses, failing “to inform himself as to the contents of the psychiatric manual DSM-IV,” failing to challenge the constitutionality of the mental illness defense statute, and performing an inadequate pretrial investigation; and (8) appellate counsel was ineffective for failing to seek a stay of the direct appeal to pursue postconviction relief.

The postconviction court denied the petition without a hearing.

All of the claims raised in Schleicher’s second petition are procedurally barred by the Knaffla rule. We have said that claims asserted in a second or subsequent postconviction petition are procedurally barred if they could have been raised on direct appeal or in the first postconviction petition. See Jones v. State, 671 N.W.2d 743, 746 (Minn.2003); Boitnott v. State, 631 N.W.2d 362, 369 (Minn.2001). Each of Schleicher’s claims, except his claim of ineffective assistance of appellate counsel, could have been raised on direct appeal. The factual basis for each of these claims is readily apparent from the district court record, and Schleicher thus knew or should have known of these claims at the time of his direct appeal and when he filed his first postconviction petition. See Koskela, 690 N.W.2d at 134.

Schleicher’s claim of ineffective assistance of appellate counsel is also procedurally barred because he could have raised it in his first postconviction petition. See Jones, 671 N.W.2d at 746. Moreover, this claim was properly denied because it was previously raised in Schleicher’s first petition. A postconviction court “may summarily deny a second or successive petition for similar relief on behalf of the same petitioner.” Minn.Stat. § 590.04, subd. 3. This summary denial provision also applies to the claims of ineffective assistance of trial counsel raised in Schleicher’s second petition that were previously raised in his first petition.

None of these claims falls within either exception to the Knaffla rule. None of the claims is so novel that the legal basis for it was not available at the time of direct appeal, nor do the interests of justice require our consideration of any of the claims raised in Schleicher’s second petition. Schleicher again argues that we should review his claims in the interests of justice because he was unable to raise these claims on direct appeal, as he lacked access to a law library. However, Schleicher was represented by counsel both on direct appeal and for his first postconviction petition and thus had access to legal information through his attorneys. Schleicher also contends that we should reach the merits of his claims because it is unfair to Knaffla-bwc them because he has not had “one right of review.” But Schleicher’s conviction was reviewed by us on direct appeal.

Schleicher’s claims of ineffective assistance of trial counsel do not fall within the interests of justice exception to the Knaff-la rule because they can be decided on the basis of the trial record and the briefs. See Azure, 700 N.W.2d at 448-49; Carney v. State, 692 N.W.2d 888, 891 (Minn.2005). Schleicher contends that his trial counsel was ineffective for failing to adequately examine the expert witnesses, failing to conduct an adequate pretrial investigation, failing “to inform himself as to the contents of the psychiatric manual DSM-IV,” and failing to challenge the constitutionality of the mental illness defense statute. Consideration of these claims does not necessitate an inquiry into attorney-client communications or otherwise require additional fact finding. Instead, these claims challenge counsel’s trial strategy, which we generally will not review for competence. See Opsahl, 677 N.W.2d at 421; State v. Vick, 632 N.W.2d 676, 689 (Minn.2001). Schleicher’s ineffective assistance of trial counsel claims, like the other claims raised in his second petition, are thus procedurally barred by Knaffla. Accordingly, we hold that the postconviction court did not abuse its discretion in denying Schleicher’s second petition because all of the claims raised in it are barred by the Knaffla rule.

Finally, we consider whether the postconviction erred in denying Schleicher an evidentiary hearing on his second petition. A postconviction court must hold an evidentiary hearing unless the petition, files, and record conclusively show that the petitioner is not entitled to relief. Minn. Stat. § 590.04, subd. 1 (2004). Because the Knaffla rule barred all of Schleicher’s claims, and because his ineffective assistance of appellate and trial counsel claims were subject to summary denial under Minn.Stat. § 590.04, subd. 3, an evidentia-ry hearing was not required. The files and record conclusively show that Schleicher is not entitled to relief on his second petition.

Affirmed.

PAGE, Justice

(dissenting).

I would reach the merits of Schleicher’s claims in the interests of justice. Taylor v. State, 691 N.W.2d 78, 79 (Minn.2005). Minnesota Statutes § 611.026 (2004) provides:

No person shall be tried, sentenced, or punished for any crime while mentally ill or mentally deficient so as to be incapable of understanding the proceedings or making a defense; but the person shall not be excused from criminal liability except upon proof that at the time of committing the alleged criminal act the person was laboring under such a defect of reason, from one of these causes, as not to know the nature of the act, or that it was wrong.

We have said on a number of occasions that the test for right and wrong does not focus on whether the individual knew his actions were legally wrong, but encompasses the individual’s ability to know that the action was morally wrong. State v. Ulm, 326 N.W.2d 159, 161 (Minn.1982); State v. Bott, 310 Minn. 331, 336, 246 N.W.2d 48, 52 (1976). The model jury instruction, titled “Defense of Mental Illness or Mental Deficiency,” states:

[E]ven if the defendant knew the nature of the act, the defendant did not understand that the act was wrong. * * * The word “wrong” is used in the moral sense and does not simply refer to a violation of a statute. Stated another way, even if the defendant realized that the act violated the law, the defendant is not criminally liable if, because of a defect of reason, the defendant did not. understand that the act was morally wrong.

10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Quides, Criminal, CRIMJIG 6.02 (4th ed.1999).

Here, Schleicher has an extensive medical history of mental illness. He suffered from severe psychosis, as manifested by, among other things, his delusion that Jo-hannsen was working as an agent of the Chinese government. The trial court concluded that, but for his mental illness, Schleicher would not have killed Johann-sen. The trial court’s words are particularly telling:

The evidence appears overwhelming that the murder of Mr. Johannsen was a direct result of the active delusions that were a major part of Defendant’s mental illness. He would not have killed Mr. Johannsen if he had not been suffering from an active psychotic mental illness. In summary, Defendant’s delusions caused him to increasingly fear and dislike Mr. Johannsen and the delusions led him to kill Mr. Johannsen in a brutal murder.

(Emphasis added.)

Given that the test for knowing right from wrong under section 611.026 encompasses the individual’s ability to know that his actions were morally wrong and given the trial court’s finding that Schleicher’s murder of Johannsen “was a direct result of the active delusions that were a major part of [Schleicher’s] mental illness,” it is not clear to me how Schleicher failed to meet his burden of showing that he did not know that the act of killing Johannsen was wrong.

Therefore, I respectfully dissent.

ANDERSON, PAUL H., Justice (dissenting).

I join in the dissent of Justice Page.

      . Minnesota Statutes § 611.026 provides:
      A person shall not be excused from criminal liability except upon proof that at the time of committing the alleged criminal act the person was laboring under such a defect of reason, from one of these causes, as not to know the nature of the act, or that it was wrong.

      . Though the postconviction petition and attached memorandum indicate that the grounds for the relief sought are claims of ineffective assistance of trial counsel and a related claim of ineffective assistance of appellate counsel, the hearing did not focus on those claims. Instead, the hearing centered on the expert testimony on which the ineffective assistance claims were based — testimony regarding the effect of Schleicher's personality disorder and mental illness on his ability to understand the wrongfulness of his actions at the time of the murder.

      . The postconviction court did not issue findings of fact or conclusions of law in connection with its order denying Schleicher's petition. Though neither party complains about the absence of findings of fact and conclusions of law, we have said that postconviction courts generally should follow an evidentiary hearing with the issuance of findings of fact and conclusions of law. Scruggs v. State, 484 N.W.2d 21, 25 (Minn.1992). But "if the record is clear and yields an obvious answer to the relevant questions raised on appeal [from a denial of a postconviction petition], the reviewing court may disregard the absence of findings of fact or conclusions of law." Id. at 25 (internal quotation marks omitted).

      . Instead, Schleicher asserts that his claims regarding the sufficiency of the evidence and the constitutionality of Minn.Stat. § 611.026 are "ripe for review" because the postconviction court touched on these two issues in denying Schleicher's petitions. However, the postconviction court appeared to address the constitutionality of the mental illness defense statute only in the context of Schleicher's claim that trial counsel was ineffective for failing to challenge the statute's constitutionality, a claim that was raised in both petitions. Similarly, the postconviction court reviewed the sufficiency of the expert testimony relating to Schleicher's mental illness defense in the context of its consideration of Schleicher's contention that trial counsel was ineffective for failing to elicit testimony supporting the mental illness defense, a claim that was raised in Schleicher's first petition.

      . In addition, liberally construing Schleicher's postconviction petitions, this claim arguably was raised in his second petition because in that petition Schleicher contends that his "appellate attorney’’ did not properly examine the expert witnesses, presumably a reference to his attorney at the postconviction hearing.

      . In addition, Schleicher's first and second petitions both include a catchall claim asserting all conceivable grounds for postconviction relief. We do not consider this catchall claim "because a petitioner's allegations must be 'more than argumentative assertions without factual support.' " Zenanko, 688 N.W.2d at 864 n. 2 (quoting Hodgson, 540 N.W.2d at 517).

      . We have also noted that changes in the mental illness defense standard should come from the legislature, not from this court. See State v. Rawland, 294 Minn. 17, 33, 199 N.W.2d 774, 783 (1972).

      . In the second petition Schleicher also contends that trial counsel failed "to provide notice [sic] expert witnesses during trial.” Without a more specific allegation, the basis for this claim cannot be discerned. Because allegations in postconviction petitions must be more than mere argumentative assertions without factual support, we do not address this claim. See Azure, 700 N.W.2d at 448 n. 1.


author: ANDERSON, G. BARRY, Justice.

text:
    Stephen DANFORTH, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A04-1993.
    Supreme Court of Minnesota.
    July 27, 2006.

      John Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuehar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

ANDERSON, G. BARRY, Justice.

Stephen Danforth was convicted of first-degree criminal sexual conduct, Minn.Stat. § 609.342, subd. 1(a) (2004), on March 6, 1996. This conviction arose out of the sexual abuse of J.S., a 6-year-old boy. J.S. was found incompetent to testify at trial, but a videotaped interview of J.S. conducted at a non-profit center was admitted into evidence. On appeal, the court of appeals affirmed Danforth’s conviction but remanded for resentencing. State v. Danforth, 573 N.W.2d 369, 371 (Minn.App.1997) (Danforth I), rev. denied (Minn. Feb. 19, 1998). On remand, Danforth was sentenced to imprisonment for 316 months. The court of appeals affirmed this sentence on appeal. State v. Danforth, No. C5-98-2054, 1999 WL 262143, at *1 (Minn.App. May 4, 1999) (Danforth II), rev. denied (Minn. July 28, 1999). Alleging various trial errors, Danforth filed a petition for postconviction relief. The postconviction court denied the petition and the court of appeals affirmed. Danforth v. State, No. C6-00-699, 2000 WL 1780244, at *1 (Minn.App. Dec.5, 2000) (Danforth III), rev. denied (Minn. Feb. 13, 2001).

After the Supreme Court’s decisions in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), Dan-forth filed a second petition for postconviction relief alleging he was entitled to relief based on the rules established by those cases. The postconviction court denied Danforth relief, finding that neither Crawford nor Blakely applied retroactively to Danforth’s case; the court of appeals affirmed. Danforth v. State, 700 N.W.2d 530, 532 (Minn.App.2005) (Danforth IV). We granted review of the Crawford issue only and requested that the Office of the State Public Defender represent Danforth on this appeal.

Danforth argues that this court is free to apply a broader retroactivity standard than that of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060,103 L.Ed.2d 334 (1989), and that he is entitled to the benefit of Crawford under state retroactivity principles. He also argues that, even using the framework of Teague, Crawford should be retroactively applied to his case. We reaffirm our holding in State v. Houston, 702 N.W.2d 268, 270 (Minn.2005), that we are required to apply Teague’s principles when analyzing the retroactivity of a rule of federal constitutional criminal procedure. Because we conclude that, under Teague, Crawford does not apply retroactively to Danforth’s case, we affirm.

I.

We recently held that the retro-activity principles of Teague control when determining the retroactive effect of a federal constitutional rule of criminal procedure. Houston, 702 N.W.2d at 270. Under Teague, a new rule is usually not retroactively applicable to a defendant’s case once the defendant’s case has become final. Teague, 489 U.S. at 310, 109 S.Ct. 1060 (plurality opinion). It is undisputed that Danforth’s case was final before Crawford was decided.

For the first time in his brief to this court, Danforth argues that this court is free to apply a broader retroactivity standard than that in Teague and that he is entitled to the benefit of Crawford under state retroactivity principles. We choose to address this issue in the interests of justice.

We have stated that, when dealing with a new rule of federal constitutional criminal procedure, we are “compelled to follow the lead of the Supreme Court in determining when a decision is to be afforded retroactive treatment.” O’Meara v. State, 679 N.W.2d 334, 339 (Minn.2004). This conclusion is based on American Trucking Associations, Inc. v. Smith, in which a plurality of the Supreme Court stated that the retroactive effect of its federal constitutional decisions is a question of federal law and that the Court has “consistently required that state courts adhere to [the Court’s] retroactivity decisions.” 496 U.S. 167, 177-78, 110 S.Ct. 2323, 110 L.Ed.2d 148 (1990) (plurality opinion); see also Ashland Oil, Inc. v. Caryl, 497 U.S. 916, 918, 110 S.Ct. 3202, 111 L.Ed.2d 734 (1990). In Houston, we applied O’Meara’s principles to hold that we must follow the Teague framework when determining whether a postconviction petitioner is entitled to have a new rule of federal constitutional criminal procedure applied retroactively to his or her case. Houston, 702 N.W.2d at 270. Minnesota is not the only state to have determined that a Teague analysis is required when determining whether a new rule of federal constitutional criminal procedure can be applied retroactively to cases on state postconviction review. See Page v. Palmateer, 336 Or. 379, 84 P.3d 133,134-38 (2004).

Danforth argues that Teague dictates the limits of retroactive application of new rules only in federal habeas corpus proceedings and does not limit the retroactive application of new rules in state postcon-viction proceedings. Danforth is incorrect when he asserts that state courts are free to give a Supreme Court decision of federal constitutional criminal procedure broader retroactive application than that given by the Supreme Court. In American Trucking Associations, the plurality rested its retroactivity analysis in part on Michigan v. Payne, 412 U.S. 47, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973). Am. Trucking Ass’ns, Inc., 496 U.S. at 178, 110 S.Ct. 2323. In Payne, the Court reversed the decision of the Michigan Supreme Court, which had applied North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), retroactively to Payne’s case, and held that Pearce would not apply to errors occurring before Pearce was decided. Payne, 412 U.S. at 49, 57, 93 S.Ct. 1966.

In light of Payne and American Trucking Associations, we cannot apply state retroactivity principles when determining the retroactivity of a new rule of federal constitutional criminal procedure if the Supreme Court has already provided relevant federal principles. While the Supreme Court has not explicitly addressed retroactivity principles in state postconviction proceedings, the Court has drawn a line between cases that are “pending on direct review,” and cases that are “final.” See Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (“When a decision of this Court results in a ‘new rule,’ that rule applies to all criminal cases still pending on direct review. As to convictions that are already final, however, the rule applies only in limited circumstances.” (citation omitted) (emphasis added)). Once a case is “final,” a new rule of federal constitutional criminal procedure can be retroactively applied to the case only if retroactive application is warranted under the Teague framework. Schriro, 542 U.S. at 351-52, 124 S.Ct. 2519. The Court, therefore, has created a retroactivity framework with only two procedural categories of cases: (1) those on direct review and (2) those that are final. Since we have already concluded that a petition for postconvietion relief does not constitute “direct review,” see Houston, 702 N.W.2d at 270, and it is undisputed that Danforth’s case was final at the time of the Crawford decision, we must apply Teague when determining whether Crawford can be retroactively applied to Danforth’s case.

We are aware that other states have declined to apply Teague or have emphasized that they apply Teague as a matter of choice when determining the retroactivity of new rales of federal constitutional criminal procedure in state postconviction proceedings. See Daniels v. State, 561 N.E.2d 487, 489 (Ind.1990); State ex rel. Taylor v. Whitley, 606 So.2d 1292, 1296-97 (La.1992); State v. Whitfield, 107 S.W.3d 253, 266-68 (Mo.2003); Colwell v. State, 118 Nev. 807, 59 P.3d 463, 470-71 (2002); Cowell v. Leapley, 458 N.W.2d 514, 517-18 (S.D.1990). The principal rationales given in these decisions are: (1) a state may give a new rule of federal constitutional criminal procedure greater retroactive effect than that given by the Supreme Court and (2) state postconviction proceedings involve different interests than federal habeas proceedings. See Whitfield, 107 S.W.3d at 267-68; Colwell, 59 P.3d at 470-71; Co-ivell, 458 N.W.2d at 517-18. Teague’s framework is based, in part, on concerns unique to federal habeas corpus decisions. See Teague, 489 U.S. at 308, 109 S.Ct. 1060 (“[W]e have recognized that interests of comity and finality must also be considered in determining the proper scope of habeas review.” (emphasis added)). Notwithstanding these different policy concerns, in light of Payne, American Trucking Associations, and the dichotomy drawn by Teague between cases on “direct review” and “final” cases, we reaffirm our decision in Houston and conclude that we are not free to fashion our own standard of retroactivity for Crawford. Therefore, the retroactivity of Crawford to Danforth’s case must be analyzed under Teague.

II.

Danforth argues that, even using a Teague analysis, Craioford applies retroactively to his case because: (1) Crawford did not announce a “new” rale and, alternatively, (2) Crawford established a “watershed rule” of criminal procedure and therefore is fully retroactive under an exception to Teague’s general rule. Whether Crawford applies retroactively to cases final at the time Crawford was decided is a purely legal issue reviewed de novo. See Houston, 702 N.W.2d at 270. We address each of Danforth’s arguments in turn.

A.

Under Teague, we inquire “whether the rule of federal constitutional criminal procedure is new, or whether it is merely a predictable extension of a preexisting doctrine.” Houston, 702 N.W.2d at 270. If the rule is “new,” it generally will not be applicable to cases that became final before the rale was announced. Teague, 489 U.S. at 310, 109 S.Ct. 1060. Danforth argues that Crawford did not announce a new rule of constitutional procedure but that Crawford’s decision was “dictated by precedent dating back to the 1800s.” The state, citing the decisions of several federal circuit courts on this issue, argues that holding that Crawford established a new rule is the better-reasoned position.

Crawford’s “holding constitutes a ‘new rule’ within the meaning of Teague if it ‘breaks new ground,’ ‘imposes a new obligation on the States or the Federal Government,’ or was not ‘dictated by precedent existing at the time the defendant’s conviction became final.’ ” See Graham v. Collins, 506 U.S. 461, 467, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993) quoting Teague, 489 U.S. at 301, 109 S.Ct. 1060. Teague’s limit on the retroactivity of new rules of constitutional procedure “validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.” Butler v. McKellar, 494 U.S. 407, 414, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990). As we have stated, the test to determine whether a rule of procedure is “new” for Teague purposes is not whether the rule “is logically an extension of some precedent,” but rather “whether ‘reasonable jurists hearing petitioner’s claim at the time his conviction became final would have felt compelled by existing precedent to rule in his favor.’ ” Houston, 702 N.W.2d at 271 (quoting Graham, 506 U.S. at 467, 113 S.Ct. 892 (emphasis added) (internal quotation omitted)). This test is meant “to ensure that gradual developments in the law over which reasonable jurists may disagree are not later used to upset the finality of state convictions valid when entered.” Sawyer v. Smith, 497 U.S. 227, 234, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990).

Applying these principles to this case, we examine the change Crawford worked on the legal landscape. As we have stated, prior to Crawford, the admissibility of an out-of-court statement under the Confrontation Clause was guided by Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), abrogated by Crawford, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. See State v. Bobadilla, 709 N.W.2d 243, 248 (Minn.2006). Under Roberts, a hearsay statement could be admitted without violating a defendant’s rights under the Confrontation Clause if: (1) the declarant was unavailable at trial and (2) the statement bore “adequate ‘indicia of reliability.’ ” 448 U.S. at 66, 100 S.Ct. 2531. Sufficient reliability was inferred when the evidence fell “within a firmly rooted hearsay exception.” Id. If the evidence did not fall within such an exception, it was only admissible upon “a showing of particularized guarantees of trustworthiness.” Id.

Crawford “significantly altered the rules governing the admissibility of testimonial out-of-court statements against criminal defendants at trial.” Wright, 701 N.W.2d at 808. Stating that the Roberts test had a “demonstrated capacity” to admit statements in contravention of the Confrontation Clause, the Supreme Court held that “testimonial” evidence is inadmissible unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. See Crawford, 541 U.S. at 53-54, 63, 68, 124 S.Ct. 1354. The Court declined to provide a complete definition of “testimonial,” but stated that the term covered, “at a minimum, * * * prior testimony at a preliminary hearing, before a grand jury, or at a former trial[,] and * * * police interrogations.” Id. at 68, 124 S.Ct. 1354.

The rule in Crawford, therefore, was not compelled by Roberts — Crawford replaced the more flexible reliability inquiry of Roberts with a bright-line rule for a certain class of hearsay statements. Nonetheless, Danforth argues that Crawford did not announce a new rule because “the Supreme Court has always held that testimonial statements made without cross-examination were inadmissible under the Confrontation Clause.” This argument rests on the fact that Crawford based its rule on the “Framers’ understanding” of the Confrontation Clause, see 541 U.S. at 59, 68, 124 S.Ct. 1354, and the Court’s statement that “the results of our [prior] decisions have generally been faithful to the original meaning of the Confrontation Clause,” id. at 60, 124 S.Ct. 1354.

Danforth’s argument is flawed because it misconstrues the test governing whether a rule is new for Teague purposes. We do not ask whether Crawford’s, rule is faithful to the original meaning of the Confrontation Clause or whether the results of relevant Supreme Court precedent are consistent with the rule in Crawford. Instead, we ask “whether ‘reasonable jurists hearing petitioner’s claim at

the time his conviction became final would have felt compelled by existing precedent to rule in his favor.’ ” Houston, 702 N.W.2d at 271 (quoting Graham, 506 U.S. at 467, 113 S.Ct. 892 (emphasis added) (internal quotation omitted)). As noted earlier, prior to Crawford, Roberts guided a court’s inquiry concerning whether the admission of an out-of-court statement violated the Confrontation Clause. Bobadilla, 709 N.W.2d at 248; see also State v. King, 622 N.W.2d 800, 807 (Minn.2001). Put another way, Danforth’s argument requires “reasonable jurists” to have foreseen Craioford’s significant modification— if not outright overruling — of Roberts. When conducting an analysis under Teag-ue, the Supreme Court has never required such prescience of lower courts. Furthermore, such a requirement would not “validate[ ] reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.” Butler, 494 U.S. at 414, 110 S.Ct. 1212. Consequently, Crawford established a new rule of federal constitutional criminal procedure for the purposes of Teague.

B.

There are two exceptions to Teague’s general rule that new rules of federal constitutional criminal procedure are not retroactively applicable to cases that were final when that new rule was announced. Teague, 489 U.S. at 311, 109 S.Ct. 1060. The first exception establishes that Teague’s “bar does not apply to rules forbidding punishment ‘of certain primary conduct [or to] rules prohibiting a certain category of punishment for a class of defendants because of their status or offense.’ ” Beard v. Banks, 542 U.S. 406, 416, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004) (quoting Penry v. Lynaugh, 492 U.S. 302, 330, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989)). The second exception, which is “known as the ‘watershed rule’ exception, applies when the new rule ‘requires the observance of those procedures that * * * are implicit in the concept of ordered liberty’ or ‘alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of any particular conviction.’ ” Houston, 702 N.W.2d at 270-71 (quoting Teague, 489 U.S. at 311, 109 S.Ct. 1060). Danforth argues that, if Crawford established a new rule for Teag-ue purposes, the rule is a “watershed rule” within Teague’s second exception. The state argues, and the court of appeals held, that the rule established by Crawford does not fall within this narrow exception. Danforbh IV, 700 N.W.2d at 531-32.

Since the Supreme Court adopted the Teague framework, it has yet to find a new rule of federal constitutional criminal procedure that qualifies as a “watershed rule.” Such a rule “must be one without which ‘the likelihood of an accurate conviction is seriously diminished.’ ” Houston, 702 N.W.2d at 273 (quoting Teague, 489 U.S. at 313, 109 S.Ct. 1060). A watershed rule must do more than simply improve the accuracy of a proceeding; it must be “essential to fundamental fairness of a proceeding.” Id. The only rule that the Supreme Court has stated would fall within this exception is the right to trial counsel established by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Beard, 542 U.S. at 417, 124 S.Ct. 2504. These rules are extremely rare, and the Supreme Court recently stated that it is unlikely any watershed rules have yet to be announced. Schriro, 542 U.S. at 352, 124 S.Ct. 2519.

The rule announced in Crawford cannot meet the stringent requirements of this exception. First, Crawford imposed a bright line rule of exclusion for a certain class of hearsay statements based on the original intent of the Confrontation Clause. See 541 U.S. at 59, 68, 124 S.Ct. 1354. Even when dealing with a fundamental right, the appropriate inquiry under Teag-ue is not whether the new rule reflects the framers’ intent, but whether jurisprudence under the “old rule” seriously diminished the accuracy of a criminal proceeding. See Schriro, 542 U.S. at 355-56,124 S.Ct. 2519. Given that, prior to Crawford, Confrontation Clause jurisprudence focused on the reliability' of out-of-court statements, see Roberts, 448 U.S. at 66, 100 S.Ct. 2531, the likelihood of obtaining an accurate conviction is not seriously diminished in the absence of the rule established by Crawford. Indeed, the Supreme Court has indicated that some new rules of criminal procedure, though constitutionally based, may actually decrease the likelihood of an accurate determination of guilt or innocence. See Butler, 494 U.S. at 411, 416, 110 S.Ct. 1212 (stating that a violation of the procedural rule in Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), may increase the likelihood of an accurate determination of guilt or innocence). The same argument could be made here, for while in some cases a Crawford violation would decrease the likelihood of an accurate determination of guilt or innocence (i.e., admitting an unreliable statement), in other cases statements admissible under the Roberts test but excluded under the Crawford test would be highly reliable and helpful to the jury’s determination. While the additional protections of Crawford effectuate the original meaning of the Sixth Amendment, the absence of Crawford’s, bright line rule would not “seriously diminish the likelihood of obtaining an accurate determination” of innocence or guilt. See Butler, 494 U.S. at 416, 110 S.Ct. 1212.

Similarly, the Supreme Court has also looked at pre-existing protections for defendants when examining whether a new procedural rule is an “ ‘absolute prerequisite to fundamental fairness’ ” as required by Teague’s second exception. See Sawyer, 497 U.S. at 243-44, 110 S.Ct. 2822 (quoting Teague, 489 U.S. at 314, 109 S.Ct. 1060). Given the pre-existing Confrontation Clause protections for defendants under Roberts, Crawford’s rule is not “essential to the fundamental fairness of a proceeding.” Houston, 702 N.W.2d at 273.

For all of the above reasons, the rule established by Crawford does not qualify as a “watershed rule” for the purposes of Teague’s second exception. Therefore, Crawford established a new rule of federal constitutional criminal procedure that is not within one of Teague’s exceptions and, given that Danforth’s case was final at the time of the Crawford decision, Danforth cannot receive the retroactive application of Cratvford to his case.

Affirmed.

      . Danforth I provides a full statement of the facts of this case. See 573 N.W.2d at 371-72.

      . The parties do not dispute that the rule in Crawford is one of federal constitutional procedure, and Crawford states as much. See 541 U.S. at 67, 124 S.Ct. 1354 ("The Constitution prescribes a procedure for determining the reliability of testimony in criminal trials, and we, no less than the state courts, lack authority to replace it with one of our own devising.”).

      . While Teagues retroactivity analysis originally received only a plurality, it soon became the majority approach and continues to be cited by the Supreme Court. See Penry v. Lynaugh, 492 U.S. 302, 313, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (adopting Teague analysis as majority approach), overruled on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); see also Beard v. Banks, 542 U.S. 406, 408, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004) (applying Teague).

      ."A case is final when a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari [has] elapsed or a petition for certiorari [has been filed and] finally denied.’ ” O'Meara v. State, 679 N.W.2d 334, 339 (Minn.2004) (alterations in the original) (quoting Griffith v. Kentucky, 479 U.S. 314, 321 n. 6, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)).

      . Danforth does not provide any examples of such "reasonable jurists.” Crawford cited numerous lower court decisions (including the decisions of four federal circuits) which had recently applied Roberts to admit "plainly testimonial statements despite the absence of any opportunity to cross-examine.” See Crawford, 541 U.S. at 64-65, 124 S.Ct. 1354.

      . As noted by the state and court of appeals, this conclusion is in accordance with that of most federal circuits that have addressed this issue. Of the six circuits that have clearly addressed this issue, five have unquestionably held that Crawford established a new rule. See Espy v. Massac, 443 F.3d 1362, 1366 (11th Cir.2006); Lave v. Dretke, 444 F.3d 333, 335 (5th Cir.2006), petition for cert, filed, U.S.L.W. (U.S. June 13, 2005) (No. 05-11552); Bintz v. Bertrand, 403 F.3d 859, 865-67 (7th Cir.2005), cert. denied, —U.S. —, 126 S.Ct. 174, 163 L.Ed.2d 200 (2005); Dorchy v. Jones, 398 F.3d 783, 788 (6th Cir.2005); Brown v. Uphoff, 381 F.3d 1219, 1226 (10th Cir.2004), cert. denied, 543 U.S. 1079, 125 S.Ct. 940, 160 L.Ed.2d 822 (2005). Even the Ninth Circuit, the only circuit thus far to hold that Crawford applies retroactively under Teague, held Crawford to be retroactive on the basis of one of the exceptions to Teague's general rule. See Bockting v. Bayer, 399 F.3d 1010, 1016, 1021 (9th Cir.2005), opinion amended on denial of panel reh’g, 408 F.3d 1127 (9th Cir.2005), cert. granted sub nom. Whorton v. Bockting,—U.S. —, 126 S.Ct. 2017, 164 L.Ed.2d 778 (2006).

      . Again, this is in accordance with the conclusion reached by most federal circuits that have addressed this issue. See Espy, 443 F.3d at 1367; Lave, 444 F.3d at 336; Bintz, 403 F.3d at 867; Dorchy, 398 F.3d at 788; Mungo v. Duncan, 393 F.3d 327, 335-36 (2d Cir.2004), cert. denied, 544 U.S. 1002, 125 S.Ct. 1936, 161 L.Ed.2d 778 (2005); Brown, 381 F.3d at 1226-27. Only one circuit has held otherwise. See Bockting, 399 F.3d at 1021.