author: PAUL H. ANDERSON, Justice. STRINGER, Justice PAGE, Justice GILBERT, Justice

text:
    STATE of Minnesota, Respondent, v. Corey Chauncey BRADFORD, Appellant.
    No. C3-99-1298.
    Supreme Court of Minnesota.
    Aug. 24, 2000.
    As Amended on Denial of Rehearing Oct. 25, 2000.

      John M. Stuart, Minnesota Public Defender, Steven P. Russett, Asst. State Public Defender, Minneapolis, for appellant.
    Corey Chauncey Bradford, Bayport, pro se.
    Michael A. Hatch, Minnesota Atty. Gen., St. Paul, Amy Klobuchar, Hennnepin County Atty., Beverly J. Benson, Asst. County Atty., Minneapolis, for respondent.
    Heard, considered, and decided by the court en banc.
   OPINION

PAUL H. ANDERSON, Justice.

A jury found appellant Corey Chauncey Bradford guilty of one count of first-degree murder while committing domestic abuse and one count of first-degree heat-of-passion manslaughter for the 1997 death of Rhonda Overall. The district court convicted Bradford of first-degree domestic abuse murder and sentenced him to life imprisonment.

On appeal from his judgment of conviction, Bradford argues that the district court erred by (1) allowing an expert to testify that Overall’s death was domestic abuse murder rather than suicide and that other nontestifying experts agreed with that opinion, (2) admitting evidence seized pursuant to an invalid search warrant, (3) admitting statements by Bradford obtained in violation of his Fifth Amendment rights, (4) violating Bradford’s rights under the Confrontation Clauses of the United States and Minnesota Constitutions by admitting hearsay statements made by Overall, (5) accepting inconsistent jury verdicts, and (6) sentencing Bradford for first-degree domestic abuse murder rather than first-degree heat-of-passion manslaughter. In addition, Bradford argues that he is entitled to a new trial because of prosecu-torial misconduct during closing argument. Finally, in his pro se brief, Bradford raises two additional issues involving judicial bias in assignment of judges and jury tampering. We affirm.

Shortly after 5 o’clock on the afternoon of September 6, 1997, Minneapolis police officers responded to a 911 call originating from a North Minneapolis duplex rented by Rhonda Overall. The caller stated that Overall had shot herself. Sergeant Gail Cronquist was the first officer to respond to the call. As Cronquist approached the duplex, appellant Corey Bradford came out the front door screaming that “she shot herself’ and that she was “in the basement.” Cronquist entered the duplex and saw a woman, later identified as the owner of the duplex, standing inside on the telephone with a 911 dispatcher. Cronquist asked the owner where the victim was, and the owner directed Cronquist to the top of the basement stairs located in the kitchen.

Once in the kitchen, Cronquist observed a gun on the top basement stair and, looking down, saw Overall lying face down and nude at the base of the stairs. After going down the stairs, Cronquist was able to ascertain that Overall still had a pulse and observed either extensive bruising or lividity on her body. Overall was then taken from her home and transported to a hospital by ambulance. Overall’s pulse stopped en route and she was declared dead at the hospital.

Meanwhile, other police officers arrived at the scene and walked through Overall’s home to make sure that it was safe. While doing so, they observed a pair of jeans and panties, a bra, and a pair of shoes strewn in the living room. Also in the living room was a set of keys, that included two keys to a gun case, which the officers subsequently observed on a bed upstairs. At this point, the police concluded that Bradford might have standing to object to a search so they decided to obtain a search warrant before seizing any items from the home.

While the other officers were in the home, Bradford told an officer who was outside the home that he was coming out of the bathroom when he heard a loud sound. Bradford stated that he found his girlfriend, Overall, in the basement, and when he tried to turn her over, he discovered that she had been shot. He then called 911. Bradford also told the officer that he had just discovered that Overall had been sleeping with his brother. Bradford then was placed in a police squad car to calm him and to secure him as a witness. While in the car, Bradford began having difficulty breathing. Several officers, concerned about Bradford’s welfare, removed him from the car onto the lawn, where he began “throwing himself around and moaning.” The officers then called an ambulance, and the paramedics who arrived stated that Bradford was hyperventilating. While Bradford was on the lawn, Cronquist directed other officers to collect Bradford’s clothes because she had observed blood on them. After Cronquist gave this direction, Bradford began throwing dirt and grass on his clothes.

Later that same evening, the police interviewed two witnesses who lived nearby. One witness told the police that he heard sirens and then saw a man running out of Overall’s home saying, “I shot her; I didn’t mean to.” The other witness stated that she heard a loud bang and then saw a man running out of Overall’s home saying, “I shot her; I shot her.” Both witnesses later testified at trial. In addition to conducting these interviews, the police reviewed the medical examiner’s preliminary determinations and learned that Overall had bruises and scrapes on her legs, back, and left eye. They also learned that Bradford had assaulted Overall on three prior occasions.

After gathering this additional information, two sergeants from the Homicide Unit began interviewing Bradford at the Homicide Office. The interview began at approximately 8:15 p.m. Following a short introductory exchange, the interview proceeded as follows:

Q. But, before we talk to you about this Cory, you have rights. You have the right to remain silent. Anything you say can be used in court, as evidence against you. You have the right to have an attorney present now or at any time during questioning. If you can’t afford an attorney, one will be provided for you without cost.
A. So how long will it take you to get somebody down here while I tell you what happened?
Q. Just a minute. Do you understand your rights as I’ve just given them to you?
A. Yes I do.
Q. Do you want to talk to us?
A. I wanna talk to you but, I wanna have somebody present.
Q. Ok.
A. Because if its ... if its ... you know what I’m sayin’ ... if it’s a criminal case against me already then ...
Q. Ok.
A. Fuck ... I didn’t do shit. I didn’t do shit, [the Sgts. get up to leave] So how long is it gonna take before somebody’l ...
Q. Ok. You’re under arrest for probable cause. Within 36 hours of your arrest ...
A. I’ll be either charged ...
Q ... or released. And your 36 hours starts Monday morning. Today doesn’t count and Sundays don’t count. So by Tuesday noon you’ll know what’s up, ok.
A. Ok. Will they ... If I talk to you now, will they send somebody to talk to me.
Q. Will who send somebody?
A. Ummm, you know, the system I guess.
Q. If you’re formally charged and you can’t afford to represent yourself
A. I can’t.
... Then they will appoint someone for you, if you’re formally charged.
A. So either way ... so either way it goes I’m gonna sit here until Wednesday?
Q. Tuesday at noon. You will know by Tuesday at noon whether or not you’re gonna be charged or released, Cory.
A. Ok, well, I’m gonna tell you what happened.
Q. So, you wanna tell your side of it
A. Yeah.
Q .... without an attorney here.
A. Yes.

During the interview, Bradford told the sergeants that earlier that day he had learned that Overall was sleeping with his brother. Bradford stated that he then confronted Overall and the two of them argued, but Bradford denied having hit her, but admits having pulled her hair. After the argument, Bradford stated that he told Overall that he was going to go to the bathroom and then leave with his son. While in the bathroom, he heard a shot, ran out, and found Overall in the basement. He said that he tried unsuccessfully to move her and then called 911. Following the interview, the police took Bradford into custody.

Based on the information they had gathered, one of the interviewing sergeants prepared a warrant application to search Overall’s home. The sergeant prepared an affidavit in support of the application. In the affidavit, the sergeant stated:

Your Affiant is a Sgt with the [Minneapolis] Police Dept assigned to the Homicide Unit. Your Affiant received a call to 2535 Polk Street NE, Mpls, on 090797 at approx 1700 hours.
A male caller later ID as Corey Bradford stated that his girlfriend had just shot herself. Squads responded and found the victim lying on the basement floor with a gunshot wound to her head. She later died at [Hennepin County Medical Center],
Based on the above info and the fact that the caller Bradford used to live at 2535 Polk Street NE your Affiant requests permission from the court to enter and search for items listed on one and four of this application to search. In an interview with Bradford he stated in post Miranda that the victim had on a blue [Georgetown] shirt, Girbauo [sic] jeans and panties and they were laying in the living room. He also stated he owned the Toyota parked in back and that his keys will have the gun case keys on the ring.

Using the affidavit, the police obtained a search warrant for Overall’s home at approximately 10:30 that evening.

That same evening, after the Minneapolis Bureau of Identification (BI) took initial crime scene photographs, a BI officer recommended requesting Bureau of Criminal Apprehension (BCA) assistance with blood evidence. The BI and the BCA examined the scene the following morning. Evidence gathered pursuant to the search warrant included clothing from the living room (two pairs of shoes, a pair of jeans, panties, socks, and a bra), letters from an upstairs bedroom and a hall closet, photographs from a hall closet and the bedroom, the set of keys, the gun, the gun case, one empty shell casing, five live rounds from the gun, a bullet removed from the basement stairway, a plastic bag of ammunition, a box of ammunition, and blood samples.

As part of their investigation, the police interviewed members of Bradford’s family. Bradford’s sister testified that Bradford was at her house on the afternoon of the shooting and that they had argued about money Overall owed to the sister. Bradford’s sister grew increasingly angry and told Bradford that Overall had been sleeping with his brother. Shortly thereafter, Bradford left.

The police also spoke with Bradford’s aunt, who testified that Bradford called her in St. Louis, Missouri on the afternoon of the shooting. The aunt stated that when Bradford called, he was angry and asked to speak with his brother, who was living with the aunt. When the aunt asked Bradford what was wrong, he said that his brother was sleeping with his “wife.” The aunt heard arguing on the telephone, and an angry female voice in the background. Bradford stated, “I’m going to kill her; I’m going to kill her,” and asked for his brother. The aunt listened to the ensuing conversation between Bradford and his brother. Bradford’s brother denied having slept with Overall, Bradford told his brother that he was going to “mess [him] up,” and the call ended.

The medical examiner who performed an autopsy on Overall’s body noted a single intraoral gunshot wound with an exit wound on the back of her neck. The examiner concluded that Overall died from the gunshot wound. He also observed numerous bruises on Overall’s scalp, left eye, ear, face, abdomen, hands, feet, arms, and legs and abrasions on her left eye, back, shoulders, buttocks, and knees. The examiner concluded that the injury to Overall’s left eye was consistent with her having been struck with a fist. At trial, the examiner testified that, in his opinion, Overall’s death was a homicide. He further testified that he had consulted with other experts, who agreed with his opinion.

The BCA conducted blood spatter analysis in Overall’s home. Based on this analysis, a BCA scientist concluded, and testified at trial, that Overall was shot while standing at approximately the top basement stair, and then she immediately fell down the stairs.

Numerous tests were performed on evidence from the scene. DNA tests revealed semen matching Bradford’s DNA on the vaginal and perineal swabs taken from Overall’s body and from the underwear found in the living room. DNA tests also revealed that blood from the basement area and on Bradford’s clothes was Overall’s. Swabs from the back of Overall’s hands contained gunshot residue, which was consistent with Overall having either fired a weapon or having been in close proximity to a discharging weapon. Finally, latent fingerprint testing revealed prints from Overall’s right index finger on the side of the gun and on the cylinder. No other prints were found on the gun.

On September 9, 1997, Bradford was charged with one count of first-degree intentional premeditated murder, Minn.Stat. §§ 609.185(1), 609.11 (1998), and one count of second-degree intentional murder without premeditation, Minn.Stat. §§ 609.19, subd. 1(1), 609.11 (1998). The Hennepin County Attorney’s Office then presented its evidence to the Hennepin County Grand Jury. On October 14, 1997, the Grand Jury indicted Bradford for one count of first-degree intentional premeditated murder, Minn.Stat. §§ 609.185(1), 609.11 (1998), one count of second-degree intentional murder without premeditation, Minn.Stat. §§ 609.19, subd. 1(1), 609.11, and one count of first-degree murder while committing domestic abuse, Minn.Stat. §§ 609.185(6), 609.11 (1998).

Following the indictment, the police interviewed an inmate who was in custody with Bradford in late September and early October 1997. The inmate testified that Bradford told him about Overall’s death. Bradford told the inmate that when Overall told him she was cheating on him with his brother, he punched and choked her, ran upstairs, got his gun, and shot her at the basement stairs. Bradford stated that he tried to make the shooting look like suicide by standing on Overall’s left side, because she was left-handed. He also stated that he tried to put her fingerprints on the gun, but was worried that his fingerprints might be on the gun and that the landlord and a child outside may have heard him screaming, “I shot her.”

Prior to trial, the state disclosed to Bradford its intent to offer extensive testimony to prove a pattern of past domestic abuse as an element of the third count— first-degree domestic abuse murder.

At a Rasmussen hearing, Bradford moved, in part, to (1) suppress evidence seized from Overall’s home on the grounds that the search warrant lacked probable cause and that evidence seized was outside the scope of the search warrant, (2) limit the introduction of allegations of prior domestic abuse because the evidence was highly prejudicial, much of the evidence was hearsay, and it raised a confrontation issue, (3) stipulate to a past pattern of domestic abuse as an element of the third count, and (4) suppress statements Bradford made during his interview at the Homicide Office because they were obtained in violation of his Fifth Amendment right against self-incrimination.

In a subsequent ruling, the district court addressed some, but not all, of Bradford’s motions. With regard to Bradford’s interrogation, the court found that the two sergeants terminated the interrogation after Bradford unambiguously requested an attorney, but that Bradford then reinitiated the conversation and waived his right to have an attorney present. With regard to the seized evidence, the court found that some of the evidence was admissible under the plain view exception because the police were lawfully on the premises because of tacit consent and exigent circumstances. The court, without deciding whether the affidavit established probable cause, con-eluded that the remainder of the evidence was admissible under the inevitable discovery exception to the warrant requirement. The court also found that Bradford could stipulate to a pattern of past abuse without the state’s permission. The state immediately appealed this determination.

On appeal, the Minnesota Court of Appeals reversed the district court, holding that “while respondent has a right to stipulate to an element of the charged offense, this stipulation does not limit the state’s ability to present otherwise admissible relationship evidence, including incidents of domestic abuse, for the purpose of proving the elements of first- and second-degree murder.” State v. Bradford, C5-98-790, 1998 WL 691033, at *2 (Minn.App. Oct.6, 1998). The court of appeals then remanded the case for trial.

On remand, Bradford’s case was assigned to a different judge, who considered the unresolved motions. With regard to the incidents of abuse that the state sought to admit, the court found that two incidents of abuse on July 6,1996 were admissible under the excited utterance hearsay exception. Further, the court found that Overall’s statements made to hospital staff and a social worker following these incidents were statements made for diagnosis and treatment, and therefore also were within a hearsay exception. Likewise, statements that Overall made to a Henne-pin County Medical Center neurologist were admissible as statements made for the purposes of diagnosis and treatment. The testimony offered, and eventually given, at trial included described incidents of abuse on the following dates:

September 29, 1995: A bystander saw Overall and Bradford arguing in downtown Minneapolis and called 911 when he saw Bradford restraining Overall. Two police officers responded to the 911 call and saw Bradford restraining Overall. They saw Overall break free and Bradford again grab her. When Bradford and Overall saw the officers, Bradford released Overall. The officers observed redness on Overall’s neck and arrested Bradford for domestic assault.

My 6, 1996 : Police were dispatched to Overall’s apartment for a domestic assault. Once there, an officer noted redness and swelling on Overall’s face. Overall told the officer that the father of her youngest child had repeatedly punched her face, kicked her head and torso, and threatened to kill her if she called the police. That evening the police were again dispatched to the apartment. Overall told the police that she had “kicked [Bradford] out” earlier that day, but he returned, punched her, shoved her head into the wall, and took their 5-week-old son. Overall was taken to the hospital by ambulance where a nurse and physician treated her bruises, sutured her lacerations, and photographed her injuries. Overall told a hospital social worker that Bradford had abused her and that he had done it before.

My 20, 1996: Overall resided at the Harriet Tubman Shelter for Battered Women from July 21, 1996 to August 5, 1996, as a result of an incident on July 20, 1996. While at the shelter, Overall petitioned for an order for protection. In her verified petition and affidavit, she recounted Bradford’s recent death threats and the incidents of July 6, 1996. She also stated that in the previous year, Bradford had punched her, broken her chest bone, ribs, and nose, sprained both of her wrists, caused her to have stitches, pulled her hair, kicked her, pushed her, shoved her, and choked her. At trial, the shelter coordinator testified about her conversation with Overall during the shelter intake process. On July 21, 1996, Overall told the coordinator that Bradford had threatened to kill her and had destroyed everything in her apartment the night before. The district court ordered a temporary order for protection, but vacated the order when neither party appeared for the scheduled hearing.

October 1, 1996 : A neurologist who examined Overall on this date testified that he saw Overall for neck and back pain and that she related to him that two weeks earlier the father of her children had struck her in the neck and back.

December 18, 1996: An emergency room physician testified that he saw Overall for left neck, shoulder, and back pain resulting from an assault two days earlier. During the examination, Overall stated that her boyfriend had pushed her into a wall.

March 26, 1997: A police officer testified that he was dispatched to Overall’s apartment for domestic assault and that upon arriving at the scene, Overall told him that Bradford had struck her in the mouth.

August 1997: One of Overall’s co-workers stated that she saw bruises on Overall’s left cheek and neck. When the coworker commented on the bruises, Overall told the co-worker that she “was having some trouble with her boyfriend.”

In addition to the above testimony, Overall’s brother stated that he regularly observed Bradford verbally abuse Overall. He also saw Bradford pull her by her hair between 20 and 30 times, hit her on the side or back of the head between 10 and 15 times, push her into a wall between 10 and 15 times, grab her by her arms between 20 and 30 times, and punch her on the back of the head, causing her to lose consciousness when her head hit the wall.

Following closing arguments, the district court instructed the jury on the elements of the three charged offenses and on first-degree heat-of-passion manslaughter as a lesser-included offense of first-degree murder. The jury found Bradford not guilty of premeditated first-degree murder and second-degree murder and guilty of first-degree heat-of-passion manslaughter and first-degree domestic abuse murder. The court then convicted Bradford of first-degree domestic abuse murder and sentenced him to life in prison. Bradford appeals his conviction, asserting numerous errors by the district court. He asks this court to order a new trial or, in the alternative, vacate his first-degree domestic abuse murder conviction and remand his case for resentencing on the first-degree heat-of-passion manslaughter conviction.

I.

Expert Testimony

Bradford argues that the district court committed reversible error by admitting improper expert testimony. More specifically, he asserts that the court improperly allowed the medical examiner to testify that the examiner believed Overall’s death to be a homicide. Bradford also argues that the district court erred by admitting hearsay when it allowed the examiner to testify that he had consulted with two other nontestifying experts, who agreed with his opinion.

A. Expert’s opinion regarding manner of death

“[T]he admission of an expert’s opinion generally rests within the discretion of the trial court” and will not be reversed absent an apparent error. State v. Myers, 359 N.W.2d 604, 609 (Minn.1984). With regard to expert testimony, the Minnesota Rules of Evidence provide that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Minn. R. Evid. 702. We have generally permitted expert testimony under this rule if it is helpful." See State v. Helterbridle, 301 N.W.2d 545, 547 (Minn.1980). An expert opinion is helpful if “the members of the jury, having the knowledge and general experience common to every member of the community, would be aided in the consideration of the issues by the offered testimony.” Clark v. Rental Equip. Co., Inc., 300 Minn. 420, 428, 220 N.W.2d 507, 512 (1974).

In State v. Chambers, we held that a pathologist properly testified to the number and nature of a domestic abuse murder victim’s stab wounds, but improperly offered an opinion regarding the defendant’s intent. 507 N.W.2d 237, 239 (Minn.1993). Bradford relies on Chambers to argue that the district court improperly allowed the medical examiner to testify that he believed Overall’s death was a homicide. Bradford’s argument is not persuasive. We stated in Chambers that “an opinion otherwise admissible ‘is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.’ ” Id. at 238 (quoting Minn. R. Evid. 704).

The expert in Chambers was permitted to testify regarding the cause of death — stabbing, but was not permitted to offer an opinion regarding intent. See id. at 239. Here, the medical examiner properly testified that he believed Overall’s manner of death was homicide — the killing of one person by another. The examiner’s testimony was helpful to the jury because a lay juror may not be able to differentiate between a self-inflicted intraoral gunshot wound and one inflicted by another. The examiner’s specialized knowledge assisted the jury — the trier of fact — to understand the evidence submitted with respect to the circumstances surrounding Overall’s death. Therefore, we hold that the district court did not commit error by allowing the examiner to testify regarding his opinion that Overall’s death was a homicide.

B. Statements by nontestifying experts

Bradford also argues that the district court erred by admitting hearsay evidence when it allowed the medical examiner to testify that two other nontestifying experts agreed with his opinion that Overall’s death was a homicide. Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn. R. Evid. 801. Such statements are generally inadmissible, but the state argues that the statements of the nontestifying experts are admissible because Minn. R. Evid. 703(a) permits testifying experts to base their opinion on reliable hearsay. However, the comments to Rule 703(a) state that “[although an expert may rely on inadmissible facts * * * in forming an opinion, the inadmissible foundation should not be admitted into evidence simply because it forms the basis for an expert opinion.”

We conclude that the district court erred by admitting the medical examiner’s testimony regarding statements by the two nontestifying experts. Here, the statements were hearsay that did not fall into any applicable exception to the hearsay rule. If the opinions of the nontestifying experts were to be admitted, the experts should have appeared and testified. We hold that the examiner’s testimony regarding the opinions of the nontestifying experts was inadmissible hearsay. See generally Minn. R. Evid. 802 (stating that hearsay is inadmissible absent an exception).

However, not every judicial error warrants reversal. An error is harmless “[i]f the verdict actually rendered was surely unattributable to the error, * * State v. Jones, 556 N.W.2d 903, 910 (Minn.1996). Here, the examiner’s testimony regarding the opinions of the nontestifying experts was insignificant and cumulative compared to the weight of the other evidence of Bradford’s guilt offered at trial. See, e.g., State v. Bauer, 598 N.W.2d 352, 367 (Minn.1999) (holding that when evidence was erroneously admitted, such error was harmless when the evidence was insignificant and cumulative). Therefore, we hold that the admission of the hearsay evidence from nontestifying experts was harmless beyond a reasonable doubt because there is no reasonable possibility that the wrongfully admitted evidence could have affected the jury’s verdict.

II.

Search Warrant

Bradford next argues that the district court erred in admitting evidence that was seized under an invalid search warrant. More specifically, Bradford argues that the factual allegations contained in the police affidavit supporting the warrant application were insufficient to support the issuing judge’s finding of probable cause and that the search warrant did not authorize seizure of several items taken by police.

Both the United States and Minnesota Constitutions protect individuals from unreasonable searches and seizures and provide that warrants must be supported by probable cause. See U.S. Const. amend. IV; Minn. Const. art. I, § 10. This court affords great deference to an issuing judge’s findings of fact, which we will reverse only if clearly erroneous. See State v. Lee, 585 N.W.2d 378, 382-83 (Minn.1998) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). But we review de novo the determination of probable cause. See id. On review, we determine whether there was a substantial basis to conclude that probable cause existed. See State v. Zanter, 535 N.W.2d 624, 633 (Minn.1995).

Although the police affidavit in this case was not a model of specificity, an issuing judge need only determine that, based on the totality of the circumstances, “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id., (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Here, the affiant stated that the deceased victim suffered a gunshot wound to the head while Bradford was in the home. The affiant also stated that Bradford had admitted “that his keys will have the gun case keys on the ring.” These facts present the possibility of a homicide. An issuing judge could find probable cause that evidence of a crime would be found in the home. Therefore, we hold that the search warrant was supported by probable cause.

In addition to being supported by probable cause, a search warrant must particularly describe items to be seized. See U.S. Const. amend. IV; Minn. Const. art. I, § 10. This requirement prohibits law enforcement from engaging in general or exploratory searches. See State v. Mathison, 263 N.W.2d 61, 63 (Minn.1978). The only items specifically listed on the warrant were firearms, firearms ammunition, blood-like substances, video of the scene, photographs of the scene, firearm cases, and mailings to establish residency. Bradford argues that certain items were improperly seized, including the spent bullet, Overall’s clothing, and the keys, because they were not specifically authorized by the warrant. We agree, in part, and conclude that the warrant was invalid to the extent that it did not describe with sufficient particularity all items seized. However, evidence seized without a valid search warrant is nevertheless admissible if it is “in plain view, there was a prior justification for an intrusion, the discovery was inadvertent, and there was probable cause to believe that the items seized were immediately apparent evidence of crime.” State v. Buschkopf 373 N.W.2d 756, 768-69 (Minn.1985).

The police officers were justified in entering Overall’s home in response to an emergency, and most of the evidence seized was in plain view of the officers who initially walked through the home. However, Bradford, citing Michigan v. Clifford, 464 U.S. 287, 296, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984), and Michigan v. Tyler, 436 U.S. 499, 506-12, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), argues that the plain view exception does not apply because the officers did not seize anything at the time of the justified initial entry. Instead, they waited to obtain a search warrant and returned later the same evening. They subsequently returned and collected evidence the following morning. Bradford’s argument is not persuasive. Both Clifford and Tyler are distinguishable because the officers in those cases did not re-enter the premises with a valid search warrant. Clifford, 464 U.S. at 296-98, 104 S.Ct. 641; Tyler, 436 U.S. at 511, 98 S.Ct. 1942. Because the officers in this case were lawfully on the premises pursuant to a search warrant that was supported by probable cause, the officers were authorized to seize evidence that was in plain view and that was immediately apparent evidence of crime.

The only evidence that was potentially not in plain view of the police officers who entered the home were the letters and photographs from an upstairs bedroom and hall closet. The district court may have erred by admitting this evidence. Nevertheless, this evidence is peripheral to the elements of the offenses of which Bradford was found guilty. Accordingly, we hold that admission of any evidence that was not in plain view of the officers was harmless error beyond a reasonable doubt.

III.

Fifth Amendment Right to Counsel

Under the Fifth Amendment, an accused must be informed of his right to counsel prior to custodial police interrogation. See Miranda v. Arizona, 384 U.S. 436, 471, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Once an accused asserts his right to counsel, interrogation must cease unless the accused initiates further communication. See Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). “[W]hen a suspect indicates by an equivocal or ambiguous statement, which is subject to a construction that the accused is requesting counsel, all further questioning must stop” except for narrow questions to clarify the accused’s true desires with respect to his right to counsel. State v. Robinson, 427 N.W.2d 217, 223 (Minn.1988). After invoking his right to counsel, an accused may waive that right by reinitiating conversation with the police. See State v. Howard, 324 N.W.2d 216, 222 (Minn.1982) (quoting Edwards, 451 U.S. at 484-85, 101 S.Ct. 1880). We defer to a district court’s factual determination of whether a defendant invoked the right to counsel during an interrogation unless that determination is clearly erroneous. See State v. Miller, 573 N.W.2d 661, 671 (Minn.1998).

Before the police interviewed Bradford, and after they explained to him that he had a right to counsel, the following exchange occurred:

Bradford: So how long will it take you to get somebody down here while I tell you what happened?
Police: Just a minute. Do you understand your rights as I’ve just given them to you?
Bradford: Yes I do.
Police: Do you want to talk to us?
Bradford: I wanna talk to you but, I wanna have somebody present.
Police: Ok.
Bradford: Because if its ... if its ... you know what I’m sayin’ ... if it’s a criminal case against me already then
Police- Ok
Bradford: Fuck ... I didn t do shit. I didn t do shit, [the Sgts. get up to leave] So how long is it gonna take before somebody 1 ...

The interview transcript and the videotape of the interview demonstrate that at this point the officers stood up and one officer moved toward the door. The interview then continued as follows:

Q: Ok. You’re under arrest for probable cause. Within 36 hours of your arrest ...
A. I’ll be either charged ...
Q. ... or released. And your 36 hours starts Monday morning. Today doesn’t count and Sundays don’t count. So by Tuesday noon you’ll know what’s up, ok.
A. Ok. Will they ... If I talk to you now, will they send somebody to talk to me.
Q. Will who send somebody?
A. Ummm, you know, the system I guess.
Q. If you’re formally charged and you can’t afford to represent yourself
A. I can’t.
... Then they will appoint someone for you, if you’re formally charged.
A. So either way ... so either way it goes I’m gonna sit here until Wednesday?
Q. Tuesday at noon. You will know by Tuesday at noon whether or not you’re gonna be charged or released, Cory.
A. Ok, well, I’m gonna tell you what happened.
Q. So, you wanna tell your side of it
A. Yeah.
Q .... without an attorney here.
A. Yes.

The district court found that the officers terminated the conversation after Bradforcl stated, “I wanna talk to you kut; j wanna have somebody present,” and that Bradford then reinitiated the conversation and waived his right to counsel. The record supports these findings; there-, fore, we hold that the court properly con-eluded that Bradford invoked his right to counsel, but then waived that right after reinitiating a conversation with the police.

IV.

Confrontation Clause

Bradford next argues that the district court violated his rights under the Confrontation Clauses of the United States and Minnesota Constitutions. See U.S. Const, amend. VI; Minn. Const, art. I, § 6. Specifically, Bradford argues that Overall’s verified petition and affidavit for order for protection and the shelter coordinator’s testimony regarding Overall’s statements during an intake interview were inadmissible hearsay and deprived him of this right to confront the witnesses against him. In response to this argument, the state asserts that admission of the challenged affidavit and testimony does not violate hearsay rules because they are sufficiently trustworthy.

In Idaho v. Wright, the Supreme Court held that out-of-court statements that are barred by the hearsay rule and the Confrontation Clause may be admissible if the declarant is unavailable and the statement bears adequate “indicia of reliability.” 497 U.S. 805, 814-15, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). Such indicia are present if the hearsay statement falls within a firmly rooted hearsay exception or is supported by particularized guarantees of trustworthiness. See id. at 815, 110 S.Ct. 3139. Particularized guarantees of trustworthiness exist “if the de-clarant’s truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility * * *.” Id. at 820, 110 S.Ct. 3139. A court determines whether these guarantees exist by examining the totality of the circumstances that surround the making of the statement without relying on whether other evidence at trial corroborates the statement. See id. at 819, 110 S.Ct. 3139.

Bradford argues that Overall’s statements in the verified affidavit for order for protection were inadmissible because they are not trustworthy. We recently addressed an issue similar to the one Bradford raises here. See State v. Grube, 531 N.W.2d 484 (Minn.1995). More specifically, in Grube we considered whether two protection order affidavits made by the victim and hearing transcripts were admissible in a domestic abuse murder case. See id. at 489-90. In addressing this issue, we recognized three relevant factors to consider in determining the trustworthiness of hearsay statements: “(1) whether the context of the statements and the persons to whom they were made suggest that they were reliable; (2) whether the declarant had a motive for lying or problems with memory; and (3) whether the declarant had personal knowledge of the identity and role of the participants in the crime.” Id. at 489.

Applying this test to the facts before us in Grube, we noted that the victim made the statements under oath, believed that she would be cross-examined later, and then testified under oath. See id. at 490 & n. 8. We further noted that the record did not suggest that the victim incompletely or inaccurately recalled any of the facts contained in her affidavits and that there was no suggestion that she suffered any mental disability at the time she made the affidavits. See id. She also made the affidavits and testified shortly after the recounted events had occurred. See id. Therefore, we concluded in Grube that there were sufficient guarantees of trustworthiness and held that the district court did not err by admitting the victim’s statements. See id.

The district court in this case relied on Grube to admit Overall’s statements in the verified affidavit, specifically noting that Overall signed the affidavit under oath. However, this case is distinguishable from Grube. The victim in Grube appeared and testified as to the contents of her affidavits. Here, Overall did not appear for the hearing at which she would be subject to cross-examination and possible questioning from the judge. Nor does the record provide us with any basis to sufficiently analyze the other factors that we listed as relevant in Grube. Without a record that enables us to evaluate the trustworthiness of the statements based on the totality of the circumstances surrounding the making of the statements, we are unable to determine whether such particularized guarantees of trustworthiness are present so as to render cross-examination a test of marginal utility. However, we do not need to substantively address this issue. Given the substantial amount of other admissible evidence at trial that demonstrated a pattern of domestic abuse, if the court erred by admitting the affidavit, we hold that such error is harmless beyond a reasonable doubt.

Bradford also argues that Overall’s oral statements to the shelter coordinator were inadmissible and violated his rights under the Confrontation Clause. The coordinator testified that, during an intake interview, Overall stated that Bradford had threatened to kill her and had destroyed everything in her apartment the night before. The district court found that these statements were sufficiently reliable, and therefore admissible, because they were supported by the verified petition and affidavit for order for protection. But, as we noted earlier, under Wright, the evaluation of whether a hearsay statement is sufficiently reliable cannot include consideration of whether other parts of the record corroborate the statement. 497 U.S. at 819, 110 S.Ct. 3139; see also State v. Lanam, 459 N.W.2d 656, 661 (Minn.1990) (“the focus is not on all the circumstances, including evidence at trial corroborating the * * * statements, but only on those circumstances actually surrounding the making of the statements.”). Therefore, in considering the admissibility of Overall’s statements to the coordinator, we conclude that the district court erred by using the affidavit to corroborate these oral statements.

The district court also found that the contested statements to the shelter coordinator fell within a firmly-rooted hearsay exception because they indicated Overall’s present fear and state of mind. As an exception to the general rule that hearsay is inadmissible, Minn. R. Evid. 803(3) provides that the following hearsay statements are admissible: “A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed * * See also Minn. R. Evid. 802. Overall’s statements to the coordinator do not fit within this hearsay exception because they went beyond describing her existing state of mind. Instead, she described specific conduct allegedly committed by Bradford and her statements were admitted for the truth of the matter asserted. As such, her statements do not fall within this hearsay exception. Therefore, we conclude that the district court erred in admitting the coordinator’s testimony relating her conversation with Overall. However, because we acknowledge that there was a substantial amount of admissible evidence demonstrating a past pattern of domestic abuse, we hold that this error was also harmless beyond a reasonable doubt.

V.

Prosecutorial Misconduct

A prosecutor may not seek a conviction at any price. See State v. Salitros, 499 N.W.2d 815, 817 (Minn.1993). “Rather, the prosecutor is a ‘minister of justice’ whose obligation is ‘to guard the rights of the accused as well as to enforce the rights of the public.’ ” Id. (citation omitted). However, prosecutorial misconduct during a trial does not require reversal and a new trial if the misconduct is harmless beyond a reasonable doubt. See State v. Ashby, 567 N.W.2d 21, 27-28 (Minn.1997).

Bradford asserts that there were five incidents of prosecutorial misconduct during closing arguments. First, the prosecutor showed the jury Overall’s high school graduation photograph and contrasted the photograph with her autopsy photograph and spoke about how Overall’s death would affect her children. Bradford argues that these actions were intended to improperly inflame the jury’s passions. We have held that the state may discuss the victim’s life if it does not attempt to influence the jury’s prejudice or passion. See State v. Hodgson, 512 N.W.2d 95, 97 (Minn.1994). Further, in State v. Buggs, we held that showing the jury the victim’s picture before and after death and portraying her as a mother was not prosecuto-rial misconduct. 581 N.W.2d 329, 342 (Minn.1998). Accordingly, we conclude that similar conduct in this case was not improper.

Second, the prosecutor also discussed the generally tragic nature of domestic abuse and urged the jury not to “look away” from the facts, but to “render a true and just verdict” by finding Bradford guilty. In State v. Porter, we held that the prosecutor may not appeal to the jury’s passion and then urge them to reach the right verdict. 526 N.W.2d 359, 365 (Minn.1995). However, there is a distinction between requesting the jury to reach the “right” verdict and asking the jury to find the defendant guilty. See id. We therefore conclude that this part of the prosecutor’s closing argument did not constitute misconduct.

Third, Bradford argues that the prosecutor improperly offered her personal opinion when she stated: “I submit to you [Overall] was killed by her partner * * A prosecutor may not offer a personal opinion as to the defendant’s guilt. See State v. Van Alstine, 305 Minn. 276, 287, 232 N.W.2d 899, 906 (1975). However, in this case the state was offering an interpretation of the evidence rather than a personal opinion as to guilt. Therefore, we conclude that this statement does not constitute prosecutorial misconduct.

Fourth, Bradford contests the following comments, arguing that the prosecutor speculated on events without factual basis in the record.

What happened in that apartment that day, that late, hot Saturday afternoon?
There is [sic] phone calls, phone calls? Let’s [sic] everybody in the world know what a slut you are. I am not satisfied with that, though, and things escalate and this time they escalate beyond fists and escalate beyond heat. And a gun is obtained. The assault continues. Imagine the rage and imagine the terror. What better place to terrorize than that basement, a place that she didn’t like to go, a place that had been painted shut. And there she is, at the top of the stairs, facing him, looking death in the face. * * * Once again she is hoping to survive another attack. Does she beg, does she plead with him? Does she try to push the gun away? Does she hope if she is quiet, if she submits that that wouldn’t happen, does she? Where are the children? Are they there? Are they seeing what’s going on? Where are they? They’re on the floor of the house somewhere. Are they watching? Is the defendant saying, suck on this, bitch? Does she say the wrong thing or does he look in her eyes and pull the trigger?

Arguments of counsel must not speculate about events occurring at the time of the killing absent a factual basis in the record. See State v. Thompson, 578 N.W.2d 734, 742 (Minn.1998). Further, “arguments that invite the jurors to put themselves in the shoes of the victim are considered improper.” State v. Johnson, 324 N.W.2d 199, 202 (Minn.1982). Here, the prosecutor committed misconduct by engaging in speculation about the events surrounding Overall’s death, even to the point of creating dialogue.

Finally, after questioning why someone would commit domestic abuse, the prosecutor stated: “The State is not required to explain this, I suggest to you, twisted thought process.” In Buggs, we concluded that the prosecutor’s references to the defendant as a “coward” with a “twisted thought process” were improper, but we held that the misconduct was harmless. 581 N.W.2d at 342. Here, we conclude that similar comments were improper for the same reasons as in Buggs —it was an improper character attack made by the prosecutor against the defendant during closing argument.

Having concluded that the prosecutor in this case improperly speculated about events occurring at the time of the killing and made an improper character attack during closing argument, we next address whether this misconduct constitutes harmless error or requires a new trial. We have stated that if a verdict is “surely unattributable to the error, the error is harmless beyond a reasonable doubt.” Ashby, 567 N.W.2d at 28. In light of the substantial evidence of Bradford’s guilt compared with the isolated nature of this conduct, we hold that this prosecutorial misconduct was harmless beyond a reasonable doubt.

VI.

Inconsistent Verdicts

The jury returned verdicts finding Bradford guilty of both first-degree heat-of-passion manslaughter and first-degree domestic abuse murder. A defendant is guilty of first-degree heat-of-passion manslaughter if he “intentionally causes the death of another person in the heat of passion provoked by such words or acts of another as would provoke a person of- ordinary self-control under like circumstances ⅜ ⅜ ⅞.” Minn.Stat. § 609.20(1) (1998). He is guilty of first-degree domestic abuse murder if he “causes the death of a human being while committing domestic abuse when [he] has engaged in a past pattern of domestic abuse upon the victim and the death occurs under circumstances manifesting an extreme indifference to human life.” Minn.Stat. § 609.185(6).

Bradford argues that these two verdicts are inconsistent because first-degree heat-of-passion manslaughter requires intent whereas first-degree domestic abuse murder requires extreme indifference. We disagree. While domestic abuse murder only requires extreme indifference, it does not preclude the possibility that a higher level of intent may be present. See, e.g., State v. Cole, 542 N.W.2d 43, 51 (Minn.1996) (holding that first- and second-degree intentional murder verdicts are consistent with a felony murder verdict because lack of intent is not an element of second-degree felony murder). We conclude that lack of intent is not an element of first-degree domestic abuse murder as the legislature has defined the offense. We therefore hold that the jury verdicts in this case are consistent.

VII.

Sentencing

Bradford next argues that the district court erred by sentencing him for first-degree domestic abuse murder when the sentence should have been reduced because of the first-degree manslaughter verdict. In order to address this argument, we must interpret the first-degree domestic abuse murder statute. The goal of statutory interpretation is to effectuate the intent of the legislature. See Minn. Stat. § 645.16 (1998). In ascertaining legislative intent, courts should presume that the legislature does not intend a result that is absurd, impossible, or unreasonable. See Minn.Stat. § 645.17(1) (1998).

First-degree premeditated murder may be mitigated to the lesser-included offense of first-degree manslaughter if the defendant acted in the heat of passion. See State v. Auchampach, 540 N.W.2d 808, 817 (Minn.1995) (citing Minn.Stat. § 609.20(1)). The heat-of-passion manslaughter statute “evince[s] a legislative intent to excuse or mitigate a homicide where a defendant behaves as would a reasonable person.” State v. Buchanan, 431 N.W.2d 542, 549 (Minn.1988). In contrast, the domestic abuse murder statute evinces a legislative intent to increase the penalty for a homicide that in some circumstances might be considered heat-of-passion manslaughter when the homicide occurs as part of a pattern of domestic abuse. By enacting the domestic abuse murder statute, the legislature has provided that, in the context of domestic abuse, heat of passion is not a mitigating circumstance because domestic abuse frequently occurs in the heat of passion. As noted above, we must not construe legislation in a way that will achieve an absurd result. If we construed the domestic abuse murder statute so that heat of passion mitigated the offense, the statute would be stripped of its purpose. Therefore, we hold that heat-of-passion manslaughter is not a lesser-included mitigating offense of first-degree domestic abuse murder.

VIII.

Pro Se Arguments

Bradford raises two pro se issues regarding judicial bias in assignment of judges and jury tampering. We have considered both of these arguments and find them lacking in merit.

Affirmed.

STRINGER, Justice

(concurring in part, dissenting in part).

I agree with the court’s ruling with respect to appellant’s various claims of error and its conclusion that the prosecution engaged in misconduct in closing argument. However, I disagree with the court’s conclusion to dismiss the misconduct with the facile conclusion that it was harmless error. I therefore respectfully dissent as to the court’s ruling in this respect.

Justice is not only an end result; it is also the process that leads to the result, and even though the result may be justified, we cannot say that justice is served when the process is flawed. That is what happened here. It is true, as the court concludes, that the evidence of appellant’s guilt of this heinous crime was substantial, and I do not challenge the court’s conclusion that the verdict was surely unattributable to the error injected by the prosecutor’s misconduct. What I do challenge is the court’s disposition of this issue.

A short time ago, in State v. Buggs, 581 N.W.2d 329 (Minn.1998), we reviewed a criminal conviction for the first-degree murder of a victim who had long been the subject of abuse by the appellant, not unlike the situation here. Id. at 332-33. In Buggs we engaged in an extensive review of numerous allegations of prosecutorial misconduct, among them, the prosecutor’s reference to appellant as a “coward” with a “twisted” thought process. Id. at 340-43. We concluded that the “references were prosecutorial misconduct but harmless under the circumstances.” See id. at 342. We also reviewed two other charges of misconduct that we considered “of far more serious nature.” Id. The first related to one prosecutor whispering to another, in a manner that could be heard by the jury, that a witness was lying. See id. We observed that extensive voir dire by the court and trial counsel to determine whether the jury was influenced by the remark may well have prevented a mistrial. See id. at 343. The second act of serious misconduct was called to the attention of the trial court by jurors who were alienated by the prosecutor’s offensive use of body language to display disgust with various aspects of the trial, including the court’s rulings. See id. Because of the jury’s adverse reaction to what we characterized as “amateur displays,” we concluded that the conduct did not prejudice the defendant, but we expressed concern that the prosecutor’s conduct demeaned the participants in the trial and the court. Id. Indeed, we were so concerned that we took the unusual step of calling the matter to the attention of the Lawyers Professional Responsibility Board because of the potential that the prosecutor’s misconduct would distract “the jury from its proper role, undermin[e] the integrity of the legal profession and offend[ ] the dignity of the court* * Id.

Less than a year passed from the filing of our opinion in Buggs to the commencement of trial in this case and the same prosecutor again represented the state. With this court’s admonition about her misconduct in Buggs so freshly in mind, it is difficult to comprehend why she would engage in precisely the same misconduct we identified in Buggs even to the point of again referring to the defendant as “twisted.” But with even greater recklessness and disregard for the time honored principle that prosecutorial advocacy must be limited to facts in evidence and not speculation, see, e.g., State v. Salitros, 499 N.W.2d 815, 817 (Minn.1993) (requiring that in closing argument a prosecutor refrain from misstating evidence, misleading the jury as to inferences that may be drawn from the evidence, and using argument calculated to inflame the passions of the jury), in her closing argument she engaged in a rampant dissertation of fantasy as to what might have been the events leading up to the shooting, escalating tension referring to rage and terror, where the children might have been in the victim’s final moments, whether the victim pleaded with defendant, and more — all with the obvious and deliberate intention of appealing to the passion of the jury, and all unquestionably serious and prejudicial misconduct.

The prosecutorial misconduct here clearly represents a flagrant disregard for the judicial process and the prosecutor’s obligation as an officer of the court to refrain from conduct that would deny a defendant a fair trial. See id. (noting that a prosecutor is obligated to “guard the rights of the accused as well as to enforce the rights of the public”). It is no less flagrant than her misconduct in Buggs, but here we have the added factor of this court’s admonition to her just a few months before the trial of this case. In my view, at the very least, the court should again refer the matter of her misconduct to the attention of the Lawyers Professional Responsibility Board in light of the repetition of her previous misconduct and ignoring her responsibilities as an officer of the court. But I would go further. I believe the prosecutor’s misconduct in her closing argument so seriously flawed the judicial process that sufficient doubt is raised as to whether appellant received a fair trial. See State v. Ashby, 567 N.W.2d 21, 27-28 (Minn.1997) (stating that a defendant is entitled to a new trial for prosecutorial misconduct unless it is harmless beyond a reasonable doubt); State v. Jones, 277 Minn. 174, 189, 152 N.W.2d 67, 78 (1967) (granting a defendant a new trial based on several instances of prosecutorial misconduct, including an improper closing argument). Therefore, I would reverse and remand for a new trial in the interest of justice.

PAGE, Justice

(concurring in part, dissenting in part).

I join in the concurrence and dissent of Justice Stringer.

GILBERT, Justice

(concurring in part, dissenting in part).

I join in the concurrence and dissent of Justice Stringer.

      . In order to be entitled to protection from an invalid search warrant, a party must first demonstrate that he has standing by showing that he has a legitimate expectation of privacy in the invaded place. See Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The record does not unequivocally demonstrate that Bradford had standing at the residence at issue in this search and seizure. However, the state waived this issue; therefore, we will not address standing.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Richard G. GOMSRUD, an Attorney at Law of the State of Minnesota.
    No. C2-99-742.
    Supreme Court of Minnesota.
    Nov. 16, 2000.
    Edward J. Cleary, Director, Patrick R. Burns, Senior Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, for petitioner.
    Richard G. Gomsrud, St. Paul, for respondent.
   OPINION

PER CURIAM.

Richard Gomsrud practiced law while suspended for failing to pay his attorney registration fees and while on restricted status for failing to comply with continuing legal education (CLE) requirements. While suspended, he practiced law by holding himself out as a licensed attorney and accepting a retainer from a client. Gomsrud failed to provide services or respond to his client’s telephone calls. He also failed to cooperate in the Office of Lawyers Professional Responsibility’s ensuing investigation. We hold that such misconduct, taken as a whole, warrants indefinite suspension of Gomsrud’s license to practice law.

Gomsrud was admitted to practice law in Minnesota in October 1972. In 1986, he was placed on restricted status for failing to meet CLE requirements and, in 1995, he was suspended for failing to pay attorney registration fees.

Following his suspension, Gomsrud held himself out as a licensed attorney to Donald W. Beaudry. Beaudry paid Gomsrud a $700 retainer in October 1997 to assist in reinstating Beaudry’s insurance license. Gomsrud failed to provide any services. He also failed to return numerous telephone calls from Beaudry. Beaudry reported Gomsrud to the Office of Lawyers Professional Responsibility.

Gomsrud did not cooperate with the Office of Lawyers Professional Responsibility’s ensuing investigation. The Director sent four written requests in one month requesting Gomsrud’s reply. Gomsrud did not respond. The Director prepared charges of unprofessional conduct, assigned them to a disciplinary panel and scheduled a prehearing meeting. Goms-rud received notice of the charges and of the prehearing meeting but failed to answer the charges or to attend the meeting.

The Director then applied to this court for an order suspending Gomsrud from the practice of law. This court suspended Gomsrud, giving him one year to move the court to vacate the order and for leave to answer the disciplinary petition. Gomsrud took no action.

The Director thep filed a petition to indefinitely suspend Gomsrud’s license for violating Minn.R.Prof.Conduct 1.3, 1.4, 5.5(a) and 8.1(a)(3) and Rule 25, Rules on Lawyers Professional Responsibility (RLPR). Gomsrud failed to file an answer. The allegations, therefore, .are deemed admitted under Rule 13(b), RLPR.

The primary purpose in disciplining an attorney is not to punish the attorney but to protect the courts, the administration of justice, the legal profession and the public. See In re Perry, 494 N.W.2d 290, 292 (Minn.1992). The sanctions imposed depend on the nature of the misconduct, the cumulative weight of the rule violations and the harm to the public and legal profession. See In re Sigler, 512 N.W.2d 899, 901 (Minn.1994); In re Isaacs, 406 N.W.2d 526, 529 (Minn.1987). We are guided by discipline imposed in similar cases. See Sigler, 512 N.W.2d at 901.

In In re Beman, we held that failing to comply with CLE requirements alone merited a 90 day suspension. 451 N.W.2d 647, 648 (Minn.1990). In In re Cartwright, we said that repeatedly refusing to participate in disciplinary investigations warranted a six-month suspension. 282 N.W.2d 548, 552 (Minn.1979). We noted in Cartwright, and repeat now, that it is incumbent upon attorneys to cooperate in any investigation involving complaints against them and that failure to cooperate is professional misconduct. Id. at 551-52.

When violations similar to the violations in this case cumulate, we have imposed indefinite suspension. See In re Lallier, 555 N.W.2d 903, 908 (Minn.1996) (imposing indefinite suspension for practicing law while on restricted status, failing to pay attorney registration fees and failing to cooperate in disciplinary proceedings); see also In re Merlin, 572 N.W.2d 737, 741 (Minn.1998) (ordering indefinite suspension of an attorney who practiced law while suspended for failing to pay attorney registration fees, neglected client matters and failed to cooperate in the disciplinary investigation); In re Jensen, 418 N.W.2d 721, 723 (Minn.1988); In the Matter of O’Brien, 362 N.W.2d 307, 308 (Minn.1985).

Gomsrud practiced law while suspended for failing to pay attorney registration fees and while on restricted status for failing to meet OLE requirements. He practiced law by holding himself out as a licensed attorney and accepting a retainer. He failed to provide any services and failed to cooperate in the ensuing disciplinary investigation. These violations undermine public trust in the legal profession and the integrity of the lawyer disciplinary system. Indefinite suspension is appropriate.

We order that Gomsrud be indefinitely suspended from the practice of law, effective immediately. Reinstatement is conditioned upon proof of fitness to practice law under „ Rule 18, RLPR, and compliance with Rule 26, RLPR. Costs in the amount of $900 are awarded to the Director. See Rule 24, RLPR.

      . "A lawyer shall act with reasonable diligence and promptness in representing a client.” Minn.R.Prof.Conducl 1.3.

      . "(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Id. at 1.4.

      . "A lawyer shall not: (a) practice law in a jurisdiction where to do so violates the regulation of the legal profession in that jurisdiction ⅞ ⅝ Id. at 5.5(a).

      . “[A] lawyer * ⅞ ⅜ in connection with a disciplinary matter, shall not: * * * (3) knowingly fail to respond to an admissions or discipline authority’s lawfully authorized demand for information by either providing the information sought or making a good faith challenge to the demand.” Id. at 8.1(a)(3).

      . "(a) It shall be the duty of any lawyer who is the subject of an investigation or proceeding under these Rules to cooperate with the * * * Director * * * by complying with reasonable requests * * *.

      (b) * * ⅜ Violation of this Rule is unprofessional conduct and shall constitute a ground for discipline * * Rule 25, RLPR.

      . “If the respondent fails to file an answer within the time provided * * *, the petition’s allegations shall be deemed admitted and this court may proceed under Rule 15.” Rule 13(b), RLPR.

      . Continued practice of law while suspended will subject respondent to possible disbarment. See In re Schmidt, 586 N.W.2d 774, 776 (Minn.1998); In re Hunter, 473 N.W.2d 866, 869 (Minn.1991).


author: THOMAS G. FORSBERG, Judge

text:
    STATE of Minnesota, Respondent, v. Garland Dean BARNES, Appellant.
    No. C3-99-2192.
    Court of Appeals of Minnesota.
    Nov. 7, 2000.

      John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant State Public Defender, Minneapolis, MN, (for appellant).
    Mike Hatch, Attorney General, Natalie E. Hudson, Assistant Attorney General, St. Paul, MN; and Alan L. Mitchell, St. Louis County Attorney, Duluth, MN, (for respondent).
    Considered and decided by WILLIS, Presiding Judge, CRIPPEN, Judge, and FORSBERG, Judge.
   OPINION

THOMAS G. FORSBERG, Judge

This appeal is from a judgment of conviction and sentence for second- and fifth-degree controlled substance crime and the gross misdemeanor offense of giving a false name to a police officer. We affirm in part and reverse in part, vacating the sentences for fifth-degree controlled substance crime and giving a false name to police.

FACTS

In July and August of 1998, police officers in Duluth were investigating a suspected drug selling operation. The investigation focused on two residences, including one at 1119 North Lake Avenue at which appellant Garland Barnes was a guest. The investigation centered on a number of people, including an individual known on the street as “Chill,” and later identified as Barnes.

On August 9,1998, Duluth police officers stopped three people, including a man who identified himself as Mahlon Barnes but carried documents with the name Garland Barnes. Based on suspicion that one of the three had discarded a bag of crack cocaine found near a van that was licensed in the name of Garland Barnes, police searched the van pursuant to a warrant and found crack cocaine and marijuana in the vehicle.

In the weeks following this incident, police obtained information from a number of confidential reliable informants (CRIs) reporting that Barnes and others were selling crack cocaine in Duluth. The reports identified two vehicles being used in the drug trafficking, and indicated that the drug sales were occurring at 119 East Fourth Street, but that the dealers were also using the residence at 1119 North Lake Avenue. One of the vehicles identified was listed to a Daphne Barnes, with a Minneapolis address identical to the address shown on Garland Barnes’s driver’s license. The search warrant affidavit alleged that CRI # 3 had seen the driver of this car and two companions in possession of crack cocaine.

Another CRI told police that, less than three days before the search warrant was obtained, he or she saw “Chill” deliver crack cocaine to customers. The same CRI told police that “Chill” was a member of the “Native Mob” gang. Finally, that CRI participated in a controlled buy of cocaine from Barnes within 72 hours of the search warrant application.

Police obtained a search warrant for the two vehicles, the person of Barnes, and the residence at 1119 North Lake Avenue. The search warrant was executed on August 26,1998. Police discovered quantities of crack cocaine and marijuana at the residence, much of it located in the bedroom where Barnes was found when police entered the house. Police also found a scale, cutting agents, and large amounts of cash.

At the omnibus hearing, Barnes’s attorney challenged the search warrant, primarily on the grounds that Officer Jenkins, the officer who applied for the warrant, did not personally meet with most of the CRIs cited in the application.

Officer Jenkins testified that he was assigned to the Gang Strike Force. He admitted that he had never met Barnes, and that several of the CRIs had talked to the Special Investigations Unit (SIU), not to him or to other officers of the Gang Strike Force.

Officer Jenkins testified that Duluth police had made a similar application for a warrant to search 1119 Lake Avenue North on August 25, the day before they obtained and executed the search warrant challenged by Barnes. Police, however, chose not to execute the August 25 warrant after they obtained additional information from the fifth CRI.

The trial court denied Barnes’s suppression motion. The court concluded that the search warrant was supported by probable cause and that there was no evidence of a material or intentional misrepresentation in the search warrant application. The court later granted Barnes’s request to dismiss his attorney and proceed pro se. After a mistrial was declared because of the state’s failure to disclose a police report, the jury in a second trial found Barnes guilty on all counts. The trial court sentenced Barnes to 111 months for the second-degree offense and a concurrent 24 months on the fifth-degree offense. The court imposed a concurrent one-year sentence on the gross misdemeanor offense of giving a false name to police.

ISSUES

1. Was the search warrant supported by probable cause?

2. Was there reasonable suspicion justifying a no-knock entry to execute the search warrant?

3. Is the evidence sufficient to prove that appellant constructively possessed the cocaine and marijuana?

4. Did the trial court err in sentencing appellant on possession of marijuana and providing a false name to police?

ANALYSIS

I.

Barnes argues that the warrant authorizing the search of 1119 North Lake Avenue was not supported by probable cause. He argues that the search warrant did not contain sufficient detail concerning the CRIs who provided information to police, particularly their “track records” for reliability and their basis of knowledge.

A reviewing court extends “great deference” to an issuing magistrate’s determination that a search warrant is supported by probable cause. State v. Souto, 578 N.W.2d 744, 747 (Minn.1998). Appellate review is limited to ensuring that the issuing magistrate had a “substantial basis” for concluding that probable cause existed. State v. Zanter, 535 N.W.2d 624, 633 (Minn.1995) (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)).

The search warrant application established that a number of CRIs reported that Barnes, known as “Chill,” was selling cocaine, had been seen driving between 119 East Fourth Street, where most of the sales occurred, and 1119 North Lake Avenue, that Barnes listed 1119 North Lake as his address on a temporary registration for a motor vehicle, that a controlled buy of cocaine had been made from Barnes, and that a car believed involved in the drug trafficking had been seen parked outside 1119 North Lake. This information provided more than a “substantial basis” for concluding that there was probable cause to search the residence at 1119 North Lake Avenue and the person of Barnes.

Barnes presents no support for his claim that police must have observed the suspect selling drugs. See State v. Richardson, 514 N.W.2d 573, 576, 580 (Minn.App.1994) (warrant supported by probable cause where police saw informant meet with suspected middleman, but not with appellant). Barnes’s assertion that the officer applying for the search warrant must have personally spoken with the informants cited in it is also without merit. Search warrant applications frequently rely on information gathered by different officers, even officers from different agencies. See State v. Kahn, 555 N.W.2d 15, 17 (Minn.App.1996) (search warrant application citing information acquired by other officer from different agency). So long as this sharing of information does not result in misrepresentations being stated in the application, it does not invalidate the warrant. Cf. State v. Causey, 257 N.W.2d 288, 294 (Minn.1977) (noting that police transmission of notes of conversations created risk of error).

Barnes asserts that the officer who applied for the search warrant admitted some of the CRIs did not exist. This assertion, however, misconstrues Officer Jenkins’s omnibus hearing testimony. The officer could not personally vouch for the existence of the informants he had not himself spoken to, but he cast no doubt on their existence.

Barnes argues that the warrant application was deficient because it failed to detail the accuracy rate of the informants. The application did state the number of arrests that information from two of the informants had led to. The supreme court has expressed a preference for providing “the past accuracy rate of the informant” in the warrant application. State v. Wiley, 366 N.W.2d 265, 269 n. 1 (Minn.1985). But in Wiley the search warrant application was based on information from a single CRI, supported by minimal corroboration obtained by police. See id. at 268. Here, the warrant application cited information from five informants, along with a controlled buy and police corroboration of key details. The failure to include the accuracy rates of the informants does not, under the “totality of the circumstances,” invalidate the warrant.

Finally, Barnes argues that he presented sufficient evidence to prompt disclosure of the identity of the informants, or at least an in camera inquiry. But the record does not show any defense request for disclosure of the identity of the informants.

II.

Barnes argues that the provision in the warrant allowing police to make an unannounced entry was not supported by a reasonable articulable suspicion that the occupants of the house might be armed or might dispose of evidence. Where the material facts are not in dispute, this court independently reviews whether a no-knock entry was justified. See State v. Wasson, 615 N.W.2d 316, 320 (Minn.2000).

As the state points out, Barnes did not challenge the no-knock provision in the warrant at the omnibus hearing. Barnes elicited no testimony about the no-knock entry at the omnibus hearing, and failed to brief the issue in his post-hearing memorandum. This court generally will not review an issue, even a constitutional claim, if it was not raised in the trial court. See State v. Sorenson, 441 N.W.2d 455, 457 (Minn.1989). But the interests of justice warrant addressing the issue. See id.

In support of the no-knock provision, the search warrant application stated:

Your affiant knows through training and experience that gang-members and drug dealers often carry, possess, own and store firearms to protect themselves from rival gangs, rival drug dealers and Police and further, that gang-members and their associates often use violence as a means of establishing territory, dominance and to evade Law Enforcement $ ⅜; ⅜ ⅜

The U.S. Supreme Court has rejected a blanket exception to the knock-and-announce rule instituted in Wisconsin for all felony drug cases. Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 1421, 137 L.Ed.2d 615 (1997). The Court stated:

Thus, the fact that felony drug investigations may frequently present circumstances warranting a no-knock entry cannot remove from the neutral scrutiny of a reviewing court the reasonableness of the police decision not to knock and announce in a particular case.

Id.

The state argues that, despite Richards, the “drug outlet” exception previously developed in Minnesota remains valid. See State v. Lien, 265 N.W.2d 833, 839 (Minn.1978) (holding no-knock entry authorized if application shows house is being used as a drug outlet). But our supreme court has followed Richards in rejecting a blanket exception for all felony drug cases. See Wasson, 615 N.W.2d at 320-21. The state presents no persuasive argument for permitting a blanket exception for “drug outlets” but not for residences otherwise involved in drug trafficking.

The search warrant application, however, established more than the fact that 1119 North Lake Avenue was a residence involved in suspected drug dealing. The warrant also established that Barnes, a known gang member with a record of incarceration, had been observed with other individuals in what appeared to be an extensive drug dealing operation involving large amounts of cocaine.

The showing required for a no-knock entry “is not high.” Richards, 520 U.S. at 394, 117 S.Ct. at 1422. Police need only reasonable suspicion, not probable cause, to believe that knocking and announcing would be dangerous or futile, in order to support a no-knock entry. Id. at 394, 117 S.Ct. at 1421. The Richards Court acknowledged that many, but not all, drug investigations “pose special risks to officer safety * * * .” Id. at 393, 117 S.Ct. at 1421. The drug investigation in this case, which had uncovered evidence of a group of men, including some with gang affiliations, involved in dealing large amounts of crack cocaine, appears to have been the type of drug investigation that would pose a special risk to officer safety. The no-knock provision in the warrant was not based solely on the fact that drugs were involved.

Barnes argues that the no-knock provision was invalid because the application presented no specific, objective information about weapons or drug amounts present at 1119 North Lake. Barnes notes that in Wasson, weapons had been seized before from the home to be searched, 615 N.W.2d at 320-21, and that in United States v. Tavarez, 995 F.Supp. 443, 447 (S.D.N.Y.1998), an informant had seen small, easily accessible and therefore readily disposable quantities of drugs inside the residence.

But Barnes’s proposed requirement of specific information about conditions inside the house would virtually impose a probable-cause standard on no-knock provisions. The standard, however, is only reasonable suspicion. Richards does not prevent police and judges from making reasonable inferences. It only insists on a case-by-case analysis. See Adina Schwartz, “Homes as Folding Umbrellas: Two Recent Supreme Court Decisions on ‘Knock and Announce’,” 25 Amer. J.Crim. Law 545, 589-90 (1998) (concluding that Richards reflects a disapproval of blanket exceptions, not an intent to discourage no-knock entries).

We need not decide whether a no-knock entry could be based solely on evidence of drug dealing and gang affiliation. The warrant application also showed that Barnes had a prior criminal record and that the level of drug trafficking was very high. Thus, the no-knock request in the application did not rely on the simple, generalization, rejected in Richards, that all drug dealing involves weapons. Instead it added details specific to this case, although not about actual conditions inside the house, that supported the inference that knocking and announcing might impose a danger to police officers. Although the search warrant application should have explicitly connected Barnes’s prior record and the level of drug trafficking to the no-knock request, those two facts, combined with the drug dealing itself and the gang affiliation, meet the reasonable suspicion standard.

Police should reassess the need for a no-knock entry at the scene, and may even execute a no-knock entry based on an assessment at the scene when a no-knock request has been rejected by a magistrate. Richards, 520 U.S. at 396 n. 7, 117 S.Ct. at 1422 n. 7; see Wasson, 615 N.W.2d at 322 (noting officers should reappraise the need for no-knock entry). Police here had already executed the search warrant at the 119 East Fourth address and had stopped the two cars identified in the warrant before they approached 1119 North Lake to execute the search warrant. At trial, Officer Jenkins testified that the officers were concerned that someone might have “tipped off’ the occupants of 1119 North Lake before they arrived. Therefore, an on-the-scene assessment would have provided additional support for the no-knock entry.

III.

Barnes argues that the evidence is insufficient to prove beyond a reasonable doubt that he was in constructive possession of the crack cocaine and marijuana found in the bedroom at 1119 North Lake. In reviewing the sufficiency of the evidence, this court must view the evidence in the light most favorable to the verdict, and assume the jury believed the state’s evidence and discredited evidence to the contrary. State v. Steinbuch, 514 N.W.2d 793, 799 (Minn.1994). The conviction will not be reversed if the jury, given the state’s burden of proof beyond a reasonable doubt, could reasonably have found the defendant guilty. State v. Moore, 481 N.W.2d 355, 360 (Minn.1992).

A person may constructively possess drugs jointly with another person. See Commissioner of Revenue v. Fort, 479 N.W.2d 43, 46 (Minn.1992); State v. Denison, 607 N.W.2d 796, 799 (Minn.App.2000), review denied (Minn. June 13, 2000). The totality of the circumstances must be assessed in determining whether the state has proved constructive possession. Denison, 607 N.W.2d at 800. Circumstantial evidence is entitled to as much weight as other evidence. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). A conviction based on circumstantial evidence merits stricter scrutiny, requiring that the circumstances proved must be inconsistent with a rational hypothesis of innocence. See State v. Walen, 563 N.W.2d 742, 750 (Minn.1997). But this court still must give deference to the jury’s ability to assess the circumstantial evidence. See State v. Bias, 419 N.W.2d 480, 484 (Minn.1988).

The cocaine and marijuana were found in the bedroom Barnes was occupying at the time of the search. Moreover, his personal effects, including his driver’s license and a windbreaker that was too large to belong to Mathison, were found in close proximity to the cocaine, and police found cocaine in the pocket of Barnes’s shorts. There was ample evidence, including a purchase agreement in Barnes’s name found in the bedroom and Barnes’s listing 1119 North Lake as his residence on another purchase agreement, to establish that Barnes was at least a guest there. There was also ample evidence that Barnes was exercising joint dominion and control over the second-floor bedroom. But the strongest evidence against Barnes was the cocaine found in his shorts. We conclude that there was sufficient circumstantial evidence for the jury to conclude beyond a reasonable doubt that Barnes constructively possessed the cocaine and marijuana.

IV.

Barnes argues that the marijuana and cocaine possession offenses, as well as the offense of giving a false name to police, were all part of a single behavioral incident, and, therefore, only one sentence should have been imposed. The state concedes that Count I (possession of cocaine with intent to sell) and Count III (possession of marijuana with intent to sell) were part of the same behavioral incident, and therefore the sentence on Count III should be vacated. The state, however, argues that giving a false name to police was separate from the drug possession conduct and therefore could be sentenced separately-

Minnesota’s statutory double jeopardy protection precludes multiple sentencing for conduct that is part of a single behavioral incident. Minn.Stat. § 609.035, subd. 1 (1998). Whether multiple offenses arose out of a single behavioral incident depends on the facts and circumstances of the particular case. State v. Bookwalter, 541 N.W.2d 290, 294 (Minn.1995). The analysis focuses on whether the conduct occurred at the same time and place and whether there was a single criminal objective. See id. The state has the burden of showing that the conduct is not part of a single behavioral incident. State v. Clark, 486 N.W.2d 166, 171 (Minn.App.1992).

Possession of two controlled substances at the same time and place, for personal use, constitutes a single behavioral incident. State v. Reese, 446 N.W.2d 173, 180 (Minn.App.1989), review denied (Minn. Nov. 15, 1989). Drug sales, even within a short period of time, may be considered separate behavioral incidents. See State v. Gould, 562 N.W.2d 518 (Minn.1997) (holding three sales of heroin on separate days within same week not single behavioral incident); State v. Soto, 562 N.W.2d 299, 304 (Minn.1997) (holding that multiple drug sales were not single behavioral incident). But Barnes was convicted for possession with intent to sell, not for selling. The marijuana and cocaine were both found in the bedroom, packaged for sale. The criminal objective in possessing them is the same, and there is no evidence indicating the marijuana was to be sold at different times or places than the cocaine. Therefore, Counts I and III were part of the same behavioral incident, and the sentence for Count III must be vacated.

The state argues that a separate sentence was properly imposed on Count V, giving a false name to police. The state concedes that criminal conduct committed to avoid apprehension for another offense is generally considered part of the same behavioral incident. See State v. Gibson, 478 N.W.2d 496, 497 (Minn.1991). The state argues, however, that Barnes, who gave his brother’s name after he had been handcuffed in the bedroom where the cocaine was found, at a time when he was already under arrest, was not avoiding apprehension by giving a false name. The state argues that the most Barnes could hope for from this deception was to avoid apprehension if he was released pending trial. See State v. Nordby, 448 N.W.2d 878, 880 (Minn.App.1989) (holding that giving false information to police that could only give defendant “the slim hope of not being found if he did not appear in court on the citation” was a separate behavioral incident).

The testimony at trial, however, was too vague to carry the state’s burden of proof on this issue. Officer Jenkins testified that Barnes was in handcuffs when he gave the false name. Barnes, however, could have been handcuffed merely to ensure that he would not interfere with the search, without being placed under formal arrest. Moreover, the search warrant authorized a search of the person of Garland Barnes. Barnes could have hoped to avoid a body search by means .of the false identification. The state has not shown that Barnes’s criminal objective was only to obtain some future advantage, as in Nord-by. Therefore, the sentence for Count V must be vacated.

y.

Barnes has filed a pro se supplemental brief raising a number of issues. His claims of ineffective assistance of counsel are presented without legal authority and need not be considered. See generally State v. Bowles, 530 N.W.2d 521, 525 n. 1 (Minn.1995) (holding that claim raised on appeal without supporting argument or legal authority will not be considered unless prejudicial error is obvious from the record). We note, however, that Barnes’s claim that police “planted” the drugs found at 1119 North Lake and the cocaine found in his shorts appears to be so lacking in factual support that a reasonable defense counsel would not have raised the defense of entrapment. As to the claim of ineffective self-representation, Barnes was informed when he chose to represent himself that he would have difficulty, as an incarcerated person, in preparing for trial. The court has no duty to remove all obstacles from the path of a party choosing to represent himself. State v. Richards, 495 N.W.2d 187 (Minn.1992).

Barnes argues that double jeopardy barred his second trial after a mistrial was declared in the first trial due to the prosecutor’s failure to disclose a police report. But if a mistrial is declared at a defendant’s request due to prosecutorial misconduct, a second trial is not barred unless the misconduct was committed with the intent to provoke a mistrial. State v. Fuller, 374 N.W.2d 722, 726 (Minn.1985). The trial court declared a mistrial because the state had failed to disclose some police reports to Barnes that the prosecutor only discovered in the middle of trial. There is no indication that the prosecutor’s apparently inadvertent pretrial discovery violation was intended to provoke a mistrial.

DECISION

The search warrant was supported by probable cause. The no-knock provision in the warrant was supported by articulable suspicion that an announced entry would be dangerous. The evidence is sufficient to prove constructive possession of the drugs. The trial court erred in sentencing Barnes on Counts III and V, and those sentences are vacated.

Affirmed in part and reversed in part.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.