author: ANDERSON, G. BARRY, Justice. PAGE, Justice ANDERSON, PAUL H., Justice

text:
    STATE of Minnesota, Respondent, v. Billy BAILEY, Appellant.
    No. A05-2515.
    Supreme Court of Minnesota.
    June 7, 2007.

      Bridget Kearns Sabo, Assistant State Public Defender, Minneapolis, MN, for Appellant.
    Lori Swanson, Minnesota Attorney General, St. Paul, MN, Amy Klobuchar, Hen-nepin County Attorney, Jean E. Burdorf, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

ANDERSON, G. BARRY, Justice.

Appellant Billy Bailey was convicted of first-degree murder while committing criminal sexual conduct in connection with the May 1984 death of a 69-year-old woman. On direct appeal to this court, Bailey makes four claims of error. We hold that the district court properly rejected Bailey’s Batson challenge. We also hold that the district court did not err in allowing testimony that certain DNA evidence did not exclude Bailey as the donor, in excluding expert testimony that the state should have conducted validation studies before using a Bunsen burner to remove a cover slip from the DNA sample, or in admitting Spreigl evidence that Bailey had confessed to three other burglaries.

A. Initial Investigation and Conviction

On May 20, 1984, Virginia Golden found her mother, Agnes Fafrowicz, dead in the living room of Fafrowicz’s apartment. Investigators determined that Fafrowicz had been robbed and sexually assaulted by an intruder and died from a resulting heart attack on May 16. Fluid samples were taken from Fafrowicz and sperm was detected.

On May 22, police learned that two checks had been drawn on Fafrowicz’s account. One check, dated May 17, was made out to “Bill Vollmar-Bailey” for $230 and had been cashed at a liquor store next to Bailey’s apartment building. Upon arrest and interrogation, Bailey explained that Fafrowicz wrote the check to him for work he did on her lawn and car. Detectives found Bailey’s story implausible for many reasons, chief among them Bailey’s claim that Fafrowicz gave him the check on May 18 when she almost certainly died on May 16.

Bailey was charged with first-degree murder while committing criminal sexual conduct and indicted on June 6, 1984. About six months later, the state dismissed the indictment due to its likely inability to prove the case beyond a reasonable doubt.

The state reopened the case in 2000 and obtained from the Medical Examiner’s Office two slides containing the samples taken from Fafrowicz’s body during the autopsy. Bureau of Criminal Apprehension (BCA) scientist Catherine Knutson used a Profiler Plus kit to test the samples against a blood sample taken from Bailey during the 1984 investigation. To remove the cover slips from the slides, Knutson heated the slides with a Bunsen burner until the mounting medium began to boil, loosening the slips. A vaginal sample yielded interpretable DNA results at six of the ten tested loci. The resulting profile matched the DNA from Bailey’s blood sample.

With this evidence, the state again charged Bailey with first-degree murder while committing criminal sexual conduct. He was indicted, tried, and found guilty in 2002.

Bailey appealed his conviction and we reversed and remanded for a new trial. State v. Bailey (Bailey I), 677 N.W.2d 380, 385 (Minn.2004). We held that certain statements Bailey made prior to his Miranda warning were admitted in error. We also held that the district court’s findings on the reliability of using a Bunsen burner on a DNA sample were insufficient to satisfy the second prong of the Frye-Mack standard and justify the admission of the DNA test.

B. Frye-Mack Hearing

Prior to the second trial, pursuant to our instructions, the district court held a Frye-Mack hearing. After that hearing, the court concluded that use of a Bunsen burner to remove cover slips and access DNA samples was compatible with DNA Advisory Board standards and thus was generally accepted in the relevant scientific community. Bailey does not challenge that conclusion in this appeal. The court also received as evidence two validation studies on the effect of heating a DNA sample with a Bunsen burner. Both studies concluded that heating a DNA sample on a slide over a Bunsen burner for thirty seconds, as Knutson did, would not degrade the sample. Based on these studies, the court concluded that the state had met its burden under Frye-Mack’s second prong of showing that the use of the Bunsen burner was not responsible for any degradation of the samples and that the results of Knutson’s test were admissible. Bailey does not challenge that conclusion in this appeal.

C. Sub-150 RFU Peaks

The district court also ruled as a result of the Frye-Mack hearing that loci with peaks under 150 RFUs would not be admissible as part of the state’s case-in-chief because the BCA’s own internal protocols prohibited using such peaks for any purpose but exclusion (determining that a given individual could not have been the source of the DNA). The court ruled that the sub-150 RFU peaks were likely to be more prejudicial than probative, because “it is a very short step from the assertion that the evidence does not exclude the defendant to the inference of therefore it must implicate the defendant.” The court noted, “[t]his is not to say that there is insufficient foundation to preclude the State from inquiring on redirect, should the issue be raised in cross-examination, whether there is anything in the sub-150 RFU peaks that excludes Defendant.”

During cross-examination, Bailey’s attorney asked this series of questions of Knutson:

Q: * * * And then you have basically up there [referring to a display] nine different locations that you look at in the gene?
A: That’s correct. They are nine different areas of DNA that we look at, yes.
Q: And they are called loci?
A: That is what they are referred to as, yes.
Q: But they are areas of DNA that you look at to see if a person might be excluded; is that correct?
A: They are areas of DNA that have been shown to differ between individuals.
Q: And you look at them to see if a person might be excluded?
A: We look at them to compare them to known samples to see whether either inclusion or exclusions can be made.
Q: Okay. And here, I believe you testified, you got results out of five of the nine in terms of doing the calculation that you did; is that correct?
A: Yes, we received, I obtained reportable results for five of the areas.
Q: Okay. Reportable results for five of the areas, is that right?
A: That’s correct.

Based on this exchange, the district court ruled that Bailey had opened the door to questioning by the state to establish that nothing in the four sub-150 loci excluded Bailey as the donor. Bailey contends that the district court erred in allowing this testimony.

D. Batson Challenge

During voir dire, the state exercised a peremptory strike against prospective juror 9, a Native American woman. Bailey raised a Batson challenge to the strike. In the course of considering the challenge, the district court ruled that Bailey made a prima facie case of racial discrimination, the state offered race-neutral bases for the strike, and Bailey failed to carry his burden of showing that the bases were pretex-tual and that the strike was actually based on race. Bailey contends that the district court erred because the state’s proffered reasons for the strike were pretextual and the strike was racially motivated.

E. Evidentiary Issues

At trial, Bailey informed the district court of his intention to elicit testimony from defense expert Williams Shields that Knutson should have performed a validation study before using a Bunsen burner to heat the DNA sample. The state objected that this testimony was irrelevant, and the district court agreed, ruling that the timing of the validation study had no bearing on its accuracy. Also during trial, the state introduced Spreigl evidence that Bailey pleaded guilty to three other burglaries that occurred in 1985, two of which involved elderly women alone in their homes. Bailey contends that the district court erred in both of these rulings.

Altogether, Bailey raises four issues in this direct appeal. He argues that the district court erred in ruling that the state had a race-neutral reason for striking prospective juror 9, that the district court erred in ruling that Bailey opened the door to testimony that the sub-150 RFU peaks did not exclude Bailey as the donor of the DNA, and that the district court erred in preventing Shields from testifying that Knutson should have performed a validation study before using a Bunsen burner on the DNA samples. Finally, Bailey argues in his pro se supplemental brief that the district court erred in allowing the state to introduce the Spriegl evidence.

I.

We will first consider Bailey’s Batson challenge. The use of peremptory challenges to exclude prospective jurors is subject to the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). A peremptory challenge against a prospective juror on account of her race denies equal protection both to the prospective juror, because it denies her the right to participate in jury service, and to the defendant, because it violates his right to be tried by a jury made up of members selected by nondiscriminatory criteria. State v. Reiners, 664 N.W.2d 826, 831 (Minn.2003).

The Supreme Court has established a three-step inquiry district courts are to use to determine whether a peremptory challenge is motivated by racial discrimination:

[O]nce the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful discrimination.

State v. Blanche, 696 N.W.2d 351, 364-65 (Minn.2005) (quoting Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)); see Minn. R.Crim. P. 26.02, subd. 6a(3). “[T]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Purkett, 514 U.S. at 768, 115 S.Ct. 1769.

In the second step of the Batson test, “neither a mere denial of improper motive nor an incredible explanation will suffice to rebut the prima facie showing of discriminatory purpose.” Purkett, 514 U.S. at 770, 115 S.Ct. 1769 (Stevens, J., dissenting). Rather, the prosecutor must “articulate a neutral explanation related to the particular case to be tried.” Batson, 476 U.S. at 98, 106 S.Ct. 1712. The proffered explanation need not be “persuasive, or even plausible.” Purkett, 514 U.S. at 767-68, 115 S.Ct. 1769.

Batson’s third step requires two showings of the party making the Batson challenge: (1) a demonstration that the proffered race-neutral reason is not the real reason for the strike and (2) a demonstration that the real reason was the race of the prospective juror. Angus v. State, 695 N.W.2d 109, 117 (Minn.2005). One way to show purposeful discrimination is to show that a prosecutor’s proffered reason for striking a prospective minority juror applies equally to a similar non-minority who is permitted to serve. Miller-El v. Dretke, 545 U.S. 231, 241, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). The appropriate remedy where a peremptory challenge is ultimately proved to be racially motivated is an automatic new trial. State v. Greenleaf, 591 N.W.2d 488, 500 (Minn.1999).

Findings related to pretext are fact determinations that should be given great deference on appeal. Reiners, 664 N.W.2d at 830. “[(Considerable deference must be given by a reviewing court to the trial court’s finding on the issue of intent because the finding typically will turn largely on an evaluation by the trial court of credibility.” State v. McRae, 494 N.W.2d 252, 254 (1992). “[I]f * * * the trial court believes the prosecutor’s nonracial justification, and that finding is not clearly erroneous, that is the end of the matter.” Hernandez v. New York, 500 U.S. 352, 375, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (O’Conner, J., concurring).

To determine whether the district court properly rejected Bailey’s Batson challenge, we must carefully review the record and the state’s proffered reasons for the peremptory strike. Prospective juror 9 had a brother-in-law who, before prospective juror 9 knew him, was convicted of domestic abuse. The court asked her about this experience:

Q: So this was something that you really have no personal knowledge of?
A: Right.
Q: Have you had any conversations with anyone about that experience of his?
A: I’ve never spoken with him about it or my sister about it. My twin sister about it [sic], but I’ve spoken with my other sister and husband about it just wondering if he was found guilty. But, you know, knowing him now, if he did it or not — .

Later, the following exchange occurred between prospective juror 9 and the prosecutor:

A: I don’t know whether I wonder it’s a fair verdict [sic]. Sometimes I wonder if he’d do it again, or if he would never do it.
Q: That’s not — correct me if I’m wrong, but I thought you had indicated that you had conversations with your husband, not with your sister, but with your other, I believe, sisters is what you said. And your husband. And you wondered whether or not he in fact did that crime?
A: I think I don’t know to what extent he did it. But I do believe he did it.

Also during voir dire, prospective juror 9 stated, in response to a question from defense counsel, “I guess I grew up as a minority and there are many people who would judge me right away when they first saw me. And it used to make me, and it still makes me, mad.” Defense counsel then informed the prospective juror that other veniremembers had commented on Bailey’s appearance in their jury questionnaires, and asked her what she thought about such comments. Prospective juror 9 responded, “Makes me mad.” She elaborated, “Like I’ve said I’ve went through it. People would see me and/or see me and my twin sister and, you know, either yell things or put us down without even knowing us. Just going by the color of our skin or that [sic] the fact that they knew that we were minorities.” Later, the prosecutor asked prospective juror 9, “you said that when asked for your reaction [to other veniremembers’ negative comments about Bailey’s appearance] you said it makes you mad?” Prospective juror 9 responded, “yes.” The prosecutor then exercised a peremptory strike.

Bailey made a Batson challenge, arguing that the strike was prima facie discriminatory for two reasons: (1) prospective juror 9 was the first “juror of color” to be interviewed, and (2) the questions asked of her right before the strike were related to her race. The court held that this constituted a prima facie case of discrimination. The state has not challenged this ruling and we will not consider whether or not it was correct. The court then moved to Bat-son’s second step by asking the state for a race-neutral explanation.

The prosecutor offered two race-neutral explanations for the strike. First, he expressed concern that prospective juror 9’s answers concerning her brother-in-law were inconsistent, indicating that she may have harbored doubts about the efficacy of the judicial system. Second, he expressed concern that defense counsel’s eliciting of the “makes me mad” remark may have had the effect of establishing a “kinship” between the prospective juror and Bailey. The district court ruled that both bases were race-neutral and moved to Batson’s third step by asking defense counsel why these reasons were pretextual.

Bailey asserted that the first basis was pretextual because prospective juror 9’s answers were not inconsistent but were simply attempts to give an honest answer. Bailey pointed out that despite professing concern about the prospective juror’s confidence in the justice system, the prosecutor did not ask about her views of the system. Bailey also noted that prospective juror 9 told the court that her experience with her brother-in-law would not affect her ability to act as a juror. Bailey asserted that the second basis was pretextual because prospective juror 1, a non-minority, was asked similar questions about judging people based on appearance and gave similar answers but was not struck. The court ruled that prospective juror 9 gave inconsistent answers about her brother-in-law, that the prosecutor could have reasonably believed that the questions about judging based on appearance created a kinship, and that these constituted non-pretextual, race neutral reasons for the strike.

The district court’s ruling was not clearly erroneous. Prospective juror 9’s statements about her brother-in-law’s experience with the criminal justice system were arguably inconsistent and could have led the prosecutor to doubt her confidence in that system. Prospective juror 9’s statement that the comments of other venire-members about Bailey’s appearance “makes [her] mad” could have caused the prosecutor to worry that she would unduly identify with Bailey. Prospective juror 1 was asked similar questions but gave a qualitatively different answer; when asked why it was important to resist the urge to assume things about another individual based on appearance, prospective juror 1 replied, “[o]h, because I think you have to get to know people. You can’t — first impressions aren’t always right, and I think once you get beneath the surface of a lot of people you find some with a lot of good things and some with a lot of bad.” Prospective juror 9, in contrast, said that it “made her mad” that people would comment on Bailey’s appearance. Prospective juror 1 offered an objective assessment of the dangers of judging people by appearance; Prospective juror 9 displayed an emotional reaction to others’ judgment of the defendant in this case.

A different prosecutor might have included prospective juror 9 on the jury without hesitation. But Batson does not require a prosecutor to show that a prospective juror is completely unfit for service; it only forbids a prosecutor from striking a juror based on her race. The burden was on Bailey, under Batson, to establish that the prosecutor’s explanations were pretextual and the strike was actually based on race. Bailey did not demonstrate that the proffered justifications were a sham, and offered no reason to think the strike was racially motivated. We note that there are no racial overtones in this case; the defendant and the victim are both Caucasian. The record does not reflect that the prosecutor stood to gain anything by striking a Native American juror.

Bailey also argues that the “kinship” basis is troubling “because it so clearly related to prospective [juror 9’s] status as, and feelings about, being a minority.” In Hernandez, the Supreme Court considered a prosecutor’s peremptory striking of two prospective Latino jurors because they would have difficulty accepting a translator’s rendition of Spanish-language testimony. 500 U.S. at 356, 361, 111 S.Ct. 1859. Hernandez objected to the strikes on the grounds that the prospective jurors’ Spanish-language ability bore a close relationship to ethnicity. Id. at 360, 111 S.Ct. 1859. Justice O’Connor, concurring with a four-Justice plurality and joined by Justice Scalia, wrote that “[n]o matter how closely tied or significantly correlated to race the explanation for a peremptory strike may be, the strike does not implicate the Equal Protection Clause unless it is based on race.” Id. at 375, 111 S.Ct. 1859 (O’Connor, J., concurring). Thus, while prospective juror 9’s “makes me mad” answer related to her experience as a racial minority, this does not render the strike race-based.

Bailey also argues that our decision in McRae compels us to sustain his Batson challenge. In McRae, we reversed the decision of the court of appeals that a prosecutor had stated a race-neutral basis for striking a prospective black juror. 494 N.W.2d at 253. The prosecutor struck a prospective black juror based on statements, elicited at length by the prosecutor, that “the system” had some flaws. Id. at 257. We noted that “[t]o allow the striking of this juror on the basis of those answers in effect would allow a prosecutor to strike any fair-minded, reasonable black person from the jury panel who expressed any doubt [that] ‘the system’ is perfect.” Id. We went on to hold that Batson had not been followed because the district court failed to test the validity of the prosecutor’s explanations and did not decide whether they were a facade for discrimination. Id. at 257-58.

Procedurally, this case differs from McRae in that here, the district court explicitly determined that the explanations were not pretextual and articulated its reasons. Substantively, this case is different because not all fair-minded prospective minority jurors would necessarily have an emotional reaction to remarks made by other veniremembers about a defendant. It seems that this situation must arise only rarely, but even in the unusual situation where veniremembers have had occasion to comment on the appearance of a particular defendant and another veniremember has been informed of that fact and asked for her reaction, not all fair-minded jurors, minority or otherwise, would immediately describe themselves as “mad.” Resistance to hasty, superficial judgments is always desirable in jurors. The prosecutor’s stated concern, however, was not that prospective juror 9 objected to bias against racial minorities, but that defense counsel asked a question that had the apparent effect of forming an emotional identification between prospective juror 9 and Bailey. See State v. McDonough, 631 N.W.2d 373, 385-86 (Minn.2001) (holding that the state’s basis for striking the sole prospective African-American juror was race-neutral because the state “asked the prospective African American juror virtually the same questions as other prospective jurors who did not answer the same questions in a way that exhibited a bias favorable to the defense”).

The threat of pretext is lower where, as here, the answer that formed the basis of the prosecutor’s peremptory strike was elicited by defense counsel. The threat is also lower where the prosecutor did not alter his usual pattern of questioning for a prospective minority juror, as the McRae prosecutor did. This situation is therefore unlike that in McRae, where the prosecutor led the prospective juror on a long, convoluted line of questioning until the prospective juror admitted there were “flaws in the system,” then mischaracter-ized the prospective juror as believing that “the system is unfair” and “the whole jury process is a fraud,” exaggerations we described as “troubling.” 494 N.W.2d at 254-57. We hold that the district court properly rejected Bailey’s Batson challenge.

II.

Bailey argues that the district court erred in ruling that the defense opened the door to testimony that the sub-150 RFU peaks did not exclude Bailey. Evidentiary rulings are subject to an abuse of discretion standard. State v. Robledo-Kinney, 615 N.W.2d 25, 29-30 (Minn.2000). 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.” State v. Valtierra, 718 N.W.2d 425, 436 (Minn. 2006) (quoting 8 Henry W. McCarr & Jack S. Nordby, Minnesota Practice—Criminal Law and Procedure § 32.54 (3d ed.2001)). The 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.” Valtierra, 718 N.W.2d at 436 (internal quotations omitted). Under the rule articulated in Valtierra, the issue is whether Bailey’s questioning gave him an “unfair advantage” or allowed him to present a “a misleading or distorted representation of reality” so as to overwhelm the baseline rule that testimony about the sub-150 RFU peaks was prohibited. See id. at 437-38.

Defense counsel asked whether peaks could be used to “exclude” a suspect. Knutson — presumably aware of her need to tread delicately in this area — avoided using the word “exclude”: “[t]hey are areas of DNA that have been shown to differ between individuals.” Counsel persisted: “[a]nd you look at them to see if a person might be excluded?” Knutson affirmed that it was. Immediately, defense counsel twice highlighted the fact that Knutson “got results” or “reportable results” at five of the nine peaks (excluding the ameloge-nin) in the sample. The obvious implication of the possibility of exclusion juxtaposed with the incomplete results was that the four missing peaks might have excluded Bailey, had Knutson obtained the results. The district court, therefore, correctly allowed the state to correct this misimpression with testimony that the peaks did not, in fact, exclude Bailey. We hold that the district court properly con-eluded that the door was opened to this testimony.

III.

The district court held, based on two validation studies conducted after Knutson’s DNA testing, that the results of her test were admissible. Bailey sought to introduce testimony from his expert William Shields that Knutson should have performed a validation study before using a Bunsen burner to remove the slip cover on the DNA sample. The district court rejected this proposed testimony, holding that the timing of the validation study was irrelevant.

Bailey now argues that the district court erred by treating its own findings of fact as conclusions of law. In other words, Bailey asserts that the district court excluded Shields’s opinion because the court had already decided the DNA results were admissible, thus erroneously keeping from the jury expert testimony that may have affected the weight to be given to that evidence. This is manifestly not what the court did. The court determined that the timing of the validation studies was irrelevant because it could not reasonably affect the weight to be given to the DNA test. Bailey did not explain to the district court — and does not explain to this court— how the fact that the validation studies were completed after, rather than before, the DNA testing affected the reliability of that testing.

Bailey also argues that the exclusion was error because the evidence may have led the jury to regard Knutson’s testimony more skeptically and wonder if she was really careful with the sample. Bailey did not make this argument to the district court. A reviewing court may generally consider “only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.” Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (quoting Thayer v. Am. Fin. Advisers, Inc., 322 N.W.2d 599, 604 (Minn.1982)). “Nor may a party obtain review by raising the same general issue litigated below but under a different theory.” Thiele, 425 N.W.2d at 582. We hold that the district court did not err in excluding Shields’s proposed testimony.

IV.

In his pro se supplemental brief and his pro se reply brief, Bailey argues that the district court erred by admitting Spreigl evidence that he pleaded guilty in 1985 to three burglaries involving home invasions near his residence, two involving female homeowners over age 60. Bailey argues that there is insufficient similarity between these three burglaries and the Fafrowicz burglary, and that the state did not need this evidence to prove its case against him.

The doctrine of law of the case “ordinarily applies where an appellate court has ruled on a legal issue and has remanded the case to the lower court for further proceedings.” Mattson v. Underwriters at Lloyds of London, 414 N.W.2d 717, 719-20 (Minn.1987). “Issues determined in a first appeal will not be reliti-gated in the trial court nor re-examined in a second appeal.” Id. at 720. The Bailey I court held that the district court did not abuse its discretion by admitting the Spreigl evidence, 677 N.W.2d at 402, and then remanded “for further proceedings consistent with this opinion,” id. at 404, thus indicating that the holding was to control on remand.

Even if the evidence were admitted in error, this court must determine “whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.” State v. Ness, 707 N.W.2d 676, 691 (Minn.2006). The evidence of Bailey’s guilty pleas likely had no impact on the verdict in this case. As Bailey points out, the district court found that the probability of the DNA profile randomly matching Bailey’s was one in 23,000,000, and the state offered expert testimony that the chances of the DNA at the scene belonging to someone else was one in 15,000,000. Bailey pointed out at trial: “That’s compellingly strong evidence of identity.” The Spreigl evidence could not reasonably have affected the jury’s verdict.

Affirmed.

PAGE, Justice

(dissenting).

I respectfully dissent. I do so because the court’s Batson analysis will again, as it has in the past, have a negative impact on the ability of people of color to vindicate their Fourteenth Amendment right to participate in jury service. See State v. Reiners, 664 N.W.2d 826, 831 (Minn.2003). In this case, the court allows a state to strike a prospective juror who, having personally been the victim of discrimination based on her appearance, expressed anger at the idea that her fellow prospective jurors would form negative opinions about the defendant based solely on his appearance — -a fact extraneous and irrelevant to the issues to be decided in the case.

During questioning by defense counsel, prospective juror 9 (Juror 9) indicated that because she was a minority people made judgments about her entirely based on her appearance and that those experiences made her mad and still make her mad. When defense counsel informed Juror 9 that other veniremembers had commented on Bailey’s appearance in their juror questionnaires and asked Juror 9 what she thought about such comments, Juror 9 responded that such comments also made her mad. In so responding, Juror 9 elaborated, “Like I’ve said I’ve went through it. People would see me and/or see me and my twin sister and, you know, either yell things or put us down without even knowing us. Just going by the color of our skin or that [sic] the fact that they knew that we were minorities.” When questioned by the state, Juror 9 affirmed her earlier statement that such comments made her mad. Because of Juror 9’s reaction to the other veniremembers’ discriminatory view of Bailey based solely on Bailey’s appearance, the state exercised a peremptory strike against Juror 9 asserting that she demonstrated a kinship with Bailey.

In my view, the reason the state gave for striking Juror 9 was neither legitimate nor race-neutral. In essence, the state struck Juror 9 because, having been discriminated against based solely on the col- or of her skin, that is, her appearance, she opposes discrimination against others, including discrimination against Bailey because of his appearance, which is a superficial and irrelevant criterion. But, “[a]n avowed justification that has a significant disproportionate impact will rarely qualify as a legitimate, race-neutral reason sufficient to rebut the prima facie case because disparate impact is itself evidence of discriminatory purpose.” Hernandez v. New York, 500 U.S. 352, 376-77, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (Stevens, J., dissenting) (citing Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265-66, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)). People who have been discriminated against have a heightened sense of and lower tolerance for discriminatory conduct. Thus, allowing the state to strike prospective jurors who have been victims of discrimination based solely on their appearances, and who oppose discrimination against others on that basis, will have a “significant disproportionate impact” on people of color.

I would also note that, just because Juror 9 is angered by and opposes unfair discrimination, it does not automatically follow that she developed a “kinship” with Bailey.

If we allow the state to strike prospective jurors simply because those jurors have been discriminated against based on their appearances and because they oppose such conduct on the part of others, we allow the state to further diminish the Fourteenth Amendment right people of color have to participate in jury service. Because I conclude that the state violated Juror 9’s Fourteenth Amendment right to participate in jury service, and because I conclude that the violation was structural error, I would reverse Bailey’s conviction and remand for a new trial.

ANDERSON, PAUL H., Justice

(dissenting).

I join in the dissent of Justice Page.

      . DNA testing produces a graph of peaks. The height of each peak must be at least 150 relative florescent units (“RFUs”) to be reportable (reliable enough to apply statistical data to determine the likelihood of an individual being a match for the DNA). The Profiler Plus kit tests ten areas (loci) of DNA, including the amelogenin (the area of a DNA strand that determines the sex of the source). Knut-son obtained reportable results at six loci, including the amelogenin.

      . The Frye-Mack test requires, first, that a novel scientific technique that produces evidence to be admitted at trial be shown to be generally accepted within the relevant scientific community, and second, that the particular evidence derived from the technique and used in an individual case have a foundation that is scientifically reliable. State v. Roman Nose, 649 N.W.2d 815, 818 (Minn.2002). "Put another way, the Frye-Mack standard asks first whether experts in the field widely share the view that the results of scientific testing are scientifically reliable, and second whether the laboratory conducting the tests in the individual case complied with appropriate standards and controls.” 649 N.W.2d at 819.

      . The record before us does not indicate what veniremembers found noteworthy about Bailey’s appearance.

      . Bailey strenuously protests that he "had no intention of opening the door to this type of testimony” and that the testimony was damaging to his defense. These protests are immaterial. Whether the door was opened depends on the effect of questioning on the jury, not the intentions of counsel. Nor must the state’s evidence be barred because it hurts the defendant's case.

      . See, e.g., State v. Reiners, 664 N.W.2d 826, 835-41 (Minn.2003) (Page, J., dissenting); State v. Taylor, 650 N.W.2d 190, 208-12 (Minn.2002) (Page, J., concurring in part, dissenting in part); State v. Gaitan, 536 N.W.2d 11, 18-20 (Minn.1995) (Page, J., dissenting).


source: Caselaw Access Project

author: ANDERSON, RUSSELL A., Chief Justice.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Jermaine Sean BROWN, Appellant.
    No. A05-1041.
    Supreme Court of Minnesota.
    June 7, 2007.

      John Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, Minneapolis, MN, for Appellant.
    Lori Swanson, Minnesota Attorney General, Thomas Rolf Ragatz, Assistant Attorney General, St. Paul, MN, Christopher James Rovney, Blue Earth County Attorney Office, Mankato, MN, for Respondent.
   OPINION

ANDERSON, RUSSELL A., Chief Justice.

A Blue Earth County jury found appellant Jermaine Brown guilty of aiding and abetting a conspiracy to commit controlled substance crime in the second degree in violation of Minn.Stat. §§ 152.022, subd. 1(1), 152.096, and 609.05 (2006). A divided court of appeals affirmed, rejecting Brown’s claims of erroneous evidentiary rulings, insufficient evidence to convict, and ineffective assistance of counsel for failure to challenge a biased juror. State v. Brown, No. A05-1041, 2006 WL 2052962 (Minn.App. July 25, 2006). We reverse, concluding that the evidence was insufficient for conviction.

The conviction arises out of three separate cocaine sales, the first occurring on August 27, 2004, and the second and third occurring on September 1, 2004.

First Sale

On August 27, 2004, a Confidential Reliable Informant (CRI) informed police that an individual, P.K., had offered to bring the CRI to P.K.’s source for crack cocaine. The police provided the CRI with an electronic monitoring device and $300 in recorded currency and directed the CRI to purchase an “eight ball” of crack cocaine. The CRI and P.K. drove to the apartment of Jerome Slack and asked to buy crack cocaine from Slack. Slack apparently called his source for the crack cocaine and informed the CRI that he needed to drive to his source to obtain the crack cocaine.

Slack, who was followed by police, drove alone to an apartment complex, entered, and shortly thereafter exited a building in the complex. As Slack was leaving the complex, a red Pontiac Grand Prix entered the lot, momentarily stopping by Slack’s car. Slack turned his car around, parked next to the red Pontiac and again entered the building he had just left. Police learned that the red Pontiac was registered to Maria Esquivel, Brown’s girlfriend, and that Esquivel and Brown lived in an apartment in the building that Slack had just entered. The police, who were unable to determine who was driving the red Pontiac, later saw Slack leave Brown and Esquivel’s apartment and drive off in his car. Slack returned to his apartment where the CRI and P.K. were waiting, and gave crack cocaine to the CRI. The CRI later gave police the crack cocaine and a small amount of the recorded currency not used in the purchase.

Second Sale

On September 1, 2004, the police instructed the CRI to purchase an additional $450 of crack cocaine from Slack. Police observed the CRI and Slack drive separately to a gas station, where the CRI waited. Slack drove on until he met Es-quivel’s red Pontiac, which was driven by Brown. There are three different accounts of what happened next from the three surveilling officers. One officer saw Brown reach out of the car window across to Slack’s vehicle but could not see if Slack reached out; another officer saw the vehicles pass one another without stopping; a third officer saw the two vehicles stop side by side for about 2 minutes, but saw neither driver reach out of the vehicles. After the two cars passed one another, Brown went to the gas station where the CRI was waiting but made no contact with the CRI. Slack drove on to the duplex residence of Brown and Esquivel. Apparently, Brown and Esquivel had moved from the apartment in which they were living on August 27. Police saw Slack enter the main door of the two-unit duplex, but did not see which unit he entered. Brown arrived and also entered the main door of the duplex. After a short while, Slack left the duplex and drove to the gas station where the CRI was waiting. Police and the CRI met later at a predetermined location and the CRI gave the police the crack cocaine he had purchased from Slack.

Third Sale

Later on September 1, the CRI made a second purchase of crack cocaine from Slack. Again under police surveillance and equipped with an electronic monitoring device, the CRI returned to the gas station and met Slack, who had an unidentified passenger with him. Slack drove to Brown and Esquivel’s duplex residence. Slack entered the main door of the duplex and, approximately 25 minutes later, left the duplex, returned to the gas station, and met the CRI. The CRI later gave police the crack cocaine purchased from Slack.

On September 3, 2004, in a search by warrant of Brown and Esquivel’s duplex residence, police seized from a kitchen cabinet plastic baggies, “corner cuts” of plastic baggies, commonly used to package powder or rock narcotics, and a digital scale with a small amount of residue on it, too little for testing. In a purse containing Esquivel’s state ID card, the police seized three recorded $100 bills used in the controlled purchases. Police found no cocaine in the home. The BCA later determined that the CRI had purchased from Slack a total of 3.2 grams of crack cocaine.

At trial, Slack testified that he was a drug user who did not remember much from the time period in question. When asked about arranging for a crack cocaine purchase for P.K. and about the other events of August 27 and September 1, 2004, Slack claimed he did not remember any of it. Slack denied ever purchasing drugs from Brown.

I.

When considering Brown’s claim that the evidence was insufficient for conviction, we make a painstaking review of the record to determine whether the evidence and reasonable inferences drawn therefrom, viewed in a light most favorable to the verdict, were sufficient to allow the jury to reach its verdict. State v. Pendleton, 706 N.W.2d 500, 511 (Minn.2005).

Brown was neither charged with nor convicted of selling contraband or aiding and abetting the sale of contraband. Instead, he was charged and convicted of aiding and abetting a conspiracy. Although Minnesota courts have never addressed the viability of an aiding and abetting a conspiracy charge, several federal courts have upheld this type of charge. See United States v. Galiffa, 734 F.2d 306, 310-11 (7th Cir.1984) (explaining that the Fifth and Ninth Circuits recognize the aiding and abetting a conspiracy charge). These federal courts have recognized that a defendant does not aid or abet a conspiracy merely by aiding and abetting the commission of the crime which is the object of the conspiracy, nor does a defendant aid and abet a conspiracy by mere association with members of a conspiracy. See, e.g., United States v. Miller, 552 F.Supp. 827, 830 (N.D.Ill.1982). But if it is shown that a defendant knew that a conspiracy existed, understood the essential nature of the conspiracy plan, and sought to make the plan succeed, the defendant would be guilty of aiding and abetting a conspiracy. Id.; see also Galiffa, 734 F.2d at 311 (emphasizing that a defendant must have knowledge of the conspiracy).

Brown argues that in Minnesota we should not recognize the offense of aiding and abetting a conspiracy because if a person aids a conspiracy, the person is necessarily part of the conspiracy and if a person aids a crime, without being aware of the conspiracy, the person has aided the crime and not the conspiracy. We need not, and do not, decide whether aiding and abetting a conspiracy is a viable charge in Minnesota because even if it were a viable charge, the state failed to present sufficient evidence to support Brown’s conviction. The state concedes that if we were to recognize the charge of aiding and abetting a conspiracy, the state would have to prove, as an element of the offense, that Brown knew of the conspiracy.

While we are not convinced that the state has proven the existence of a conspiracy, we turn first to the dispositive question of whether the state has proven that Brown knew of a conspiracy. A criminal conspiracy is (1) an agreement between two or more people to commit a crime, and (2) an overt act in furtherance of the conspiracy. State v. Stewart, 643 N.W.2d 281, 297 (Minn.2002). At trial, the state argued that Slack conspired with the CRI to buy drugs, and that Brown aided and abetted the conspiracy by selling drugs to Slack. The court of appeals concluded that there was sufficient evidence to find that Slack conspired with Esquivel and that Brown aided and abetted the conspiracy by allowing them to use his apartment to conduct the sales. Brown, 2006 WL 2052962, at *7-8. We find no direct or circumstantial evidence that Brown knew of a conspiracy under either theory. We find no evidence, direct or circumstantial, that Brown was aware of Slack and the CRI’s agreement to buy the drugs. The frequency of sales and total amount of cocaine, 3.2 grams, fail to establish that Slack had conspired with a third party to buy drugs. Since there is no evidence that Brown had knowledge of a conspiracy between Slack and the CRI, he cannot be guilty of aiding and abetting such a conspiracy.

Likewise, there is no evidence that Brown knew of a conspiracy between Slack and Esquivel to sell cocaine to a third party. Even if the state proved that Es-quivel was selling drugs to Slack and Brown knew it, such proof does not establish knowledge of a conspiracy between Esquivel and Slack because a simple agreement between a seller and a buyer of controlled substances cannot support a conspiracy charge. See State v. Pinkerton, 628 N.W.2d 159, 164 (Minn.App.2001). And there is no evidence that Slack and Esquivel agreed to the sale of cocaine to a third party, the CRI, much less evidence that Brown knew of such an agreement. On this record, we are simply left to speculate as to the nature of Slack’s conversations or understanding with either Brown or Esquivel. Since we find no evidence that Brown knew of a conspiracy, we con-elude that the evidence is insufficient to find Brown guilty of aiding and abetting a conspiracy. We reverse the court of appeals decision and vacate Brown’s conviction.

II.

Because we have vacated Brown’s conviction for insufficient evidence, we need not consider Brown’s additional claim that he is entitled to a new trial because a racially biased juror was allowed to sit on the jury. We are mindful, however, of our obligation to uphold the integrity of the judicial system and we are extremely troubled by the fact that a juror who was plainly biased against members of Brown’s race was allowed to sit on the jury that found Brown guilty. During voir dire, a juror admitted that he was racially biased, that he did not trust black people, and that his daughter was dating a black man and he would not allow the man in his home. The juror also stated that he thought he could be fair to the defendant even though the defendant is black. Brown’s attorney did not challenge the juror for cause, nor exercise a peremptory challenge against the juror, and the juror sat on the jury that found Brown guilty. The state concedes on appeal that the juror’s statements establish an actual and an implied bias.

The Sixth Amendment requires that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. U.S. Const, amend. VI; United States v. Wood, 299 U.S. 123, 133, 57 S.Ct. 177, 81 L.Ed. 78 (1936). The impartiality of the adjudicator goes to the very integrity of the legal system. Gray v. Mississippi, 481 U.S. 648, 668, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987). The bias of a single juror violates the defendant’s right to a fair trial. Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir.1998). We have held that the presence of a biased judge acting as fact finder constitutes structural error. State v. Dorsey, 701 N.W.2d 238, 252-53 (Minn.2005).

Structural errors require automatic reversal because such errors “call into question the very accuracy and reliability of the trial process.” State v. Osborne, 715 N.W.2d 436, 448 n. 8 (Minn.2006) (quoting McGurk v. Stenberg, 163 F.3d 470, 474 (8th Cir.1998)). Structural errors always invalidate a conviction whether or not a timely objection to the error was made. See Sullivan v. Louisiana, 508 U.S. 275, 276-82, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).

Since we have vacated Brown’s conviction, we do not address Brown’s claim that he is entitled to a new trial because a biased juror was allowed to sit on the jury.

Reversed.

      . The court of appeals concluded that the CRI could not be a party to the conspiracy because law enforcement acting in their official capacity cannot be a party to a conspiracy as they lack the requisite intent to commit the substantive crime. Brown, 2006 WL 2052962, at *7 (citing 2 Wayne R. LaFave, Substantive Criminal Law § 12.2(a), (2d ed.2003)). However, our decision in State v. St. Christopher indicates that under Minnesota's conspiracy statute, it is possible for an individual who lacks the intent to commit the substantive crime to be a party to the conspiracy. 305 Minn. 226, 228, 234-35, 232 N.W.2d 798, 799-800, 803 (1975). While we need not decide the issue here, we do note that this court has never extended the holding of St. Christopher to a situation such as this where law enforcement initiated the conspiracy-

      . An actual bias is a state of mind on the part of the juror, in reference to the case or to either party, which would prevent the juror from trying the issue impartially and without prejudice to the substantial rights of either party. See United States v. Torres, 128 F.3d 38, 43 (2d Cir.1997); United States v. Haynes, 398 F.2d 980, 984 (2d Cir.1968). A juror who has an actual bias is generally subject to rehabilitation, and may sit on the jury if he or she agrees to set aside any preconceived notions and make a decision based on the evidence and the court’s instructions. See People v. Lefebre, 5 P.3d 295, 301 (Colo.2000).
      An implied bias, on the other hand, is a bias that is conclusively presumed as a matter of law. United States v. Wood, 299 U.S. 123, 133, 57 S.Ct. 177, 81 L.Ed. 78 (1936). A juror who is found to have an implied bias is not susceptible to rehabilitation through further questioning. Lefebre, 5 P.3d at 300. "[C]ourts have been inclined to presume bias in 'extreme' situations where the prospective juror is connected to the litigation at issue in such a way that is highly unlikely that he or she could act impartially during deliberations.” Hunley v. Godinez, 975 F.2d 316, 319 (7th Cir.1992). Although racial bias generally falls within the category of actual bias and is generally subject to rehabilitation, see 5 Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure § 22.3(c), at 307-08 (2d ed.1999), there may be cases in which a juror's admitted racial bias is so strong that, like implied bias, it is not subject to rehabilitation. See Gamble v. Commonwealth, 68 S.W.3d 367, 373 (Ky.2002) (holding that juror could not be rehabilitated where he had stated that he was racially biased, that he had left his neighborhood because young black men were hanging around in the area, that when he walked into the courtroom he had assumed that the defendant was the accused based on the color of his skin, and that he was offended by interracial relationships).


author: SHUMAKER, Judge.

text:
    In re the Marriage of Catherine M. KAMPF, petitioner, Respondent, v. Mark N. KAMPF, Appellant.
    No. A06-799.
    Court of Appeals of Minnesota.
    June 12, 2007.

      Lisa Meier, Honsa & Michaels, P.A., Minneapolis, MN, for respondent.
    Christopher D. Johnson, Rebecca A. Chaffee, Best & Flanagan LLP, Minneapolis, MN, for appellant.
    Considered and decided by SHUMAKER, Presiding Judge, KALITOWSKI, Judge; and WILLIS, Judge.
   OPINION

SHUMAKER, Judge.

Appellant husband challenges the district court’s dissolution judgment and decree, arguing that the district court abused its discretion by awarding spousal maintenance in excess of respondent wife’s needs. On notice of review, respondent argues that the district court abused its discretion by not requiring appellant to maintain life insurance to secure the maintenance award. Because the district court did not abuse its discretion in determining the amount of spousal maintenance, but abused its discretion by not requiring life insurance to secure the award, we affirm in part, reverse in part, and remand.

FACTS

Appellant Mark N. Kampf and respondent Catherine M. Coryell (f/k/a Catherine M. Kampf) married in 1976. The parties have two children together, both of whom are now adults. Coryell did not work outside the home after 1983 and before that earned a modest salary working as a bank teller, secretary, and receptionist. Kampf was the primary wage earner during the marriage, working as a successful executive earning an average annual income of $656,207 from 2002 to 2004. The parties amassed substantial savings and retirement accounts during the marriage.

The parties separated in early 2004, and Coryell filed for dissolution in July 2004. After a five-day bench trial, the district court found that Coryell’s reasonable and necessary monthly expenses are $9,005. The calculation included $360 for Coryell’s savings and $333 for her retirement savings.

The district court ordered Kampf to pay Coryell $14,240 per month in temporary spousal maintenance through June 2008, and $13,000 in permanent spousal maintenance starting July 2008. Both parties moved the district court for amended findings or a new trial on various grounds. Kampf argued that Coryell’s reasonable and necessary monthly expenses are overstated by including savings and that her actual income would be higher if she itemized her tax deductions and claimed a head-of-household filing status. Coryell also requested a new trial on the ground that the district court improperly failed to require Kampf to maintain life insurance as security for her spousal maintenance.

The district court issued amended findings, but did not modify the spousal-maintenance award or require Kampf to maintain life insurance as security for the award. The district court explained that it found Coryell’s reasonable and necessary monthly expenses to be $9,005, excluding taxes, and that it “considered federal and state income tax withholding when determining the appropriate amount of spousal maintenance.” The district court denied Kampfs request to itemize Coryell’s deductions and to require a certain filing status because “[calculating ... net income assuming a head of household filing status, adult dependents and itemized deductions is speculative as these assumptions change from year to year.” The district court also concluded that Coryell did not show “exceptional circumstances to warrant the requirement that [Kampf] carry life insurance to cover his spousal maintenance obligation.” This appeal followed.

ISSUES

1. Did the district court abuse its discretion when calculating Coryell’s reasonable expenses by including amounts for savings and retirement in the spousal-maintenance award?

2. Did the district court abuse its discretion by awarding Coryell $14,240 in monthly temporary spousal maintenance and $13,000 in monthly permanent spousal maintenance and not requiring Coryell to itemize her tax deductions and file as a head-of-household?

3.Did the district court abuse its discretion by not requiring Kampf to maintain life insurance as security for the spousal-maintenance award because Cor-yell did not prove exceptional circumstances?

ANALYSIS

We review a district court’s spousal-maintenance award under an abuse-of-discretion standard. Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn.1997). A district court abuses its discretion regarding maintenance if its findings of fact are clearly erroneous. Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn.App.1992). Findings of fact are clearly erroneous when they are “manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.” Tonka Tours, Inc. v. Chadima, 372 N.W.2d 723, 726 (Minn.1985). This court reviews legal questions de novo. Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn.2003).

Spousal maintenance is awarded when a party shows sufficient, reasonable need. See Snyder v. Snyder, 298 Minn. 43, 53, 212 N.W.2d 869, 875 (1973) (stating that the purpose of spousal maintenance is to provide for a party’s needs, not to create a profit-sharing plan). Spousal maintenance is appropriate when the requesting spouse lacks sufficient property or is otherwise unable to provide adequate self-support for his or her reasonable needs in light of the standard of living established during the marriage. Minn.Stat. § 518.552, subd. 1 (2006). The district court considers a variety of factors when setting the duration and amount of an award of spousal maintenance, including (1) the petitioning spouse’s ability to meet his or her needs independently; (2) the time necessary for the party seeking maintenance to acquire sufficient training or education to enable the party to find appropriate employment; and (3) the duration of the marriage and the standard of living established during the marriage, among other factors. Id., subd. 2. No single factor is dispositive, and the district court must weigh the facts of each case to determine whether maintenance is appropriate. Weikle v. Weikle, 403 N.W.2d 682, 687 (Minn.App.1987), review denied (Minn. June 30, 1987).

1. Savings and Retirement Savings

Kampf argues that the district court abused its discretion by including savings as a part of Coryell’s spousal maintenance. Kampf contends that the monthly combined $693 in savings and retirement savings are not reasonable or necessary expenses and improperly provide Coryell with a share of his future earnings. We disagree.

Kampf cites three cases to support his argument, all of which are distinguishable from this case. First, he cites Rask v. Rask, 445 N.W.2d 849, 854 (Minn.App.1989), in which the court of appeals excluded a speculative mortgage payment from a maintenance award. But the obligee in Rask “merely ‘estimated’ that a $610 monthly payment would be required to purchase the type of home she wants.... ” Id. Thus, the disputed mortgage expense in Rask was not the product of the marital standard of living, unlike the savings at issue here. The same is true of Kemp v. Kemp, 608 N.W.2d 916, 922 (Minn.App.2000), in which the obligee’s margin account loan payment was “temporary and more in the nature of an investment.”

Finally, Kampfs reliance on Sefkow v. Sefkow, 427 N.W.2d 203, 216 (Minn.1988), is also misplaced. In Sefkow, the Minnesota Supreme Court reversed a maintenance award that included an amount for savings because the obligee failed to “show that her living expenses exceeded her spendable income.” Id. Kampf does not dispute that Coryell’s expenses exceed her spendable income, and therefore Sefkow does not apply.

Here, the record shows that the parties accumulated substantial savings, investment, and retirement accounts in excess of $340,000 throughout their 28-year marriage. On this record, we hold that the parties’ savings and retirement planning were an integral part of their standard of living during the marriage. Accordingly, the district court did not abuse its discretion by including savings expenses in Cor-yell’s reasonable monthly expenses. Further, because the record supports the amount of the savings expenses allowed by the district court, the figure of $693 per month is not clearly erroneous.

2. Tax Consequences

Kampf also argues that the district court overstated Coryell’s reasonable needs because it failed to require Coryell to itemize her tax deductions and claim a head-of-household filing status. Kampf contends that forcing Coryell to itemize her deductions and claim a head-of-household status would increase her cash flow, thereby decreasing her needs.

The district court, after considering the tax consequences of the award, determined that itemizing Coryell’s tax deductions with a certain filing status would be unreasonable as one’s tax liabilities and status can vary year-to-year. On this record, and given the arguments made in this appeal, the district court acted within its discretion when it considered the tax consequences of the maintenance award.

Although both parties presented evidence regarding the tax consequences if Coryell itemizes her deductions, there is also evidence of the marginal federal and state tax rates. The district court applied a tax rate of 36.7% to Coryell’s income, which is well within the limits of the marginal rates set forth in the record. The district court acted within its discretion by applying the marginal tax rates, and it had a “reasonable and supportable basis for making an informed judgment as to [the] probable liability.” Maurer v. Maurer, 623 N.W.2d 604, 608 (Minn.2001) (quotation omitted).

3. Life Insurance

On notice of review, Coryell challenges the district court’s finding that she failed to prove “exceptional circumstances” warranting Kampf to maintain life insurance as security for her spousal maintenance. She argues that the district court abused its discretion by applying the “exceptional case” standard, which she contends no longer applies since the 1985 amendments to the spousal-maintenance statutes. We agree.

The district court “has discretion to consider whether the circumstances justifying an award of maintenance also justify securing it with life insurance.” Laumann v. Laumann, 400 N.W.2d 355, 360 (Minn.App.1987), review denied (Minn. Nov. 24, 1987); see Head v. Metro. Life Ins. Co., 449 N.W.2d 449, 453 (Minn.App.1989) (stating “[t]he decision whether to require security and how much under the circumstances, lies within the broad discretion of the [district] court.”), review denied (Minn. Feb. 21, 1990). Factors justifying security for a spousal-maintenance award include the obligee’s age, education, vocational experience, and employment prospects. Maeder v. Maeder, 480 N.W.2d 677, 679-80 (Minn.App.1992), review denied (Minn. Mar. 19,1992).

The district court applied the exceptional-case standard to Coryell’s request, but that rule applied to requests for permanent maintenance before the 1985 statutory amendments, which eliminated the exceptional-case requirement for awarding permanent spousal maintenance. See Chamberlain v. Chamberlain, 615 N.W.2d 405, 411 (Minn.App.2000) (stating “[t]he purpose of the 1985 amendments was to eliminate the negative presumption against permanent maintenance.”), review denied (Minn. Oct. 25, 2000); compare Arundel v. Arundel, 281 N.W.2d 663, 667 (Minn.1979) (stating pre-1985, exceptional-case test for securing permanent spousal maintenance with life insurance), with Ratter v. Ratter, 457 N.W.2d 750, 754-55 (Minn.App.1990) (confirming that after 1985 the decision to secure a maintenance award with life insurance lies “almost wholly within the trial court’s discretion” (quotation omitted)). We hold that the 1985 statutory modification for awarding permanent maintenance also eliminated the parallel exceptional-case test for securing permanent maintenance awards with life insurance. Therefore, the district court abused its discretion by applying the exceptional-case test.

Additionally, the circumstances in this case compel us to conclude that the district court abused its discretion by refusing to require Kampf to carry life insurance as security. Coryell’s age, education, work experience, and employment prospects weigh heavily in favor of securing the maintenance award with life insurance. Maeder, 480 N.W.2d at 680. After a 28-year marriage, Coryell is now 52 years of age with a high-school equivalency degree, limited work experience, and an ability to earn $14,872 per year after training. Under these circumstances, the district court abused its discretion by denying Coryell’s request to require Kampf to maintain life insurance to secure the maintenance.

DECISION

The district court acted within its discretion by including amounts for savings and retirement in the spousal-maintenance award when the savings were an integral part of the marital standard of living and when the amounts included are not clearly erroneous on this record. Similarly, on this record, the district court did not abuse its discretion by applying the marginal tax rates when the tax figure is supported by the record. Finally, the district court abused its discretion by applying the exceptional-case test when deciding whether to secure the maintenance award with life insurance and by not requiring life insurance under the facts in this case.

Affirmed in part, reversed in part, and remanded.


author: HARTEN, Judge.

text:
    In Re the Matter of LeAnn VAN DEN BOSCH, petitioner, Respondent, v. Joseph Aaron WEINSTOCK, Appellant.
    No. A06-1171.
    Court of Appeals of Minnesota.
    June 12, 2007.

      Steven C. Youngquist, Rochester, MN, for respondent.
    Mark A. Olson, Burnsville, MN, for appellant.
    Considered and decided by PETERSON, Presiding Judge; ROSS, Judge; and HARTEN, Judge.
   OPINION

HARTEN, Judge.

Appellant moved to vacate a district court order, asserting that service of the notice of motion and motion giving rise to the order was improper. Because we see no impropriety in the service, we affirm.

FACTS

When the marriage of appellant Joseph Weinstock and respondent LeAnn Van Den Bosch was dissolved in 1995, respondent was awarded physical custody of their children. Appellant moved to the Philippines in the late 1990’s.

On 15 December 2004, counsel for respondent mailed appellant a notice of intent to hold a motion hearing in district court on 7 February 2005. On 19 January 2005, counsel for respondent mailed appellant a copy of the motion; it sought to modify appellant’s parenting time schedule, to condition his parenting time on the deposit of his passport, and to obtain attorney fees.

Appellant received the motion on 3 February 2005. He then wrote to the district court, arguing that service of the motion was ineffective. The hearing was held as scheduled on 7 February 2005. In its order granting respondent’s motion, the district court noted that she “appeared personally and with her attorneys” and that appellant “did not appear either personally or through an attorney nor has he responded to the Motion duly served upon him.”

Appellant then retained counsel whose office is in Quebec. On 8 March 2005, appellant’s counsel moved to vacate the district court’s order of 7 February 2005 because of respondent’s failure to provide proper notice of the motion. The motion was heard on 6 April 2005; both parties were represented by counsel. On 27 June 2005, the district court vacated the order of 7 February 2005 but reinstated the parenting plan set out in that order for 90 days, when it would expire unless respondent had brought a motion within that time to make it permanent. The memorandum attached to the order detailed the proper method of service on a resident of the Philippines. On 14 July 2005, counsel for appellant sent counsel for respondent a letter saying that he no longer represented appellant.

On 22 August 2005, counsel for respondent sent appellant a notice of motion and motion to be heard on 18 September 2005. On 6 September 2005, appellant sent the district court a “special appearance by affidavit.” After the hearing, the district court noted in its order that respondent appeared personally and with her attorney and that appellant filed an affidavit opposing respondent’s motion but he “did not appear nor was he represented by counsel,” and he “did not serve or file a Responsive Notice.” The district court’s order required appellant to pay respondent $2,875.02 in child-support arrears, modified his parenting time, and awarded respondent $500 in attorney fees.

Appellant then retained local counsel. On 2 November 2005, his counsel moved to vacate the 26 September 2005 order on the ground that respondent had not complied with the 27 June 2005 order when she served him with notice of the 13 September hearing. Appellant also moved for bad-faith attorney fees.

At the 21 March 2006 hearing, respondent appeared through counsel and appellant appeared through counsel by telephone. Counsel for respondent moved for $1,000 in attorney fees and informed the district court that appellant had not paid the $500 awarded on 26 September 2005.

By order dated 11 April 2006, the district court denied appellant’s motion to vacate, directed him to pay the $500 in attorney fees awarded on 26 September 2005, and denied both parties’ requests for additional attorney fees. Appellant challenges that order.

ISSUE

Did the district court err in finding that appellant was properly served by registered mail in August 2005?

ANALYSIS

“Determination of whether service of process was proper is a question of law reviewed de novo.” Turek v. A.S.P. of Moorhead, Inc., 618 N.W.2d 609, 611 (Minn.App.2000), review denied (Minn. 26 Jan. 2001).

Service on an individual outside the United States is governed by Minn. R. Civ. P. 4.04(c). In relevant part, it provides that service may be effected

(2) if there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided that service is reasonably calculated to give notice:
(A) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or
(B) as directed by the foreign authority in response to a letter rogatory or letter of request; or
(C) unless prohibited by the law of the foreign country, by
(i) delivery to the individual personally of a copy of the summons and the complaint; or
(ii) any form of mail requiring a signed receipt, to be addressed and dispatched by the court administrator to the party to be served; or
(3)by other means not prohibited by international agreement as may be directed by the court.

Minn. R. Civ. P. 4.04(c)(2)-(3).

In the memorandum accompanying its 27 June 2005 order to vacate, the district court noted in regard to subparagraph (A) of Minn. R. Civ. P. 4.04(c), that “[u]nder Filipino law, effective service of process through mail requires service by international registered mail, return receipt requested[ ]” and that “[Respondent] could have properly effected service of process by sending [her] Notice of Motion and Motion through registered mail with return receipt requested.”

The record indicates that respondent followed this procedure in August 2005, when she served her second notice of motion and motion. The affidavit of service says that service on appellant was effected “by mailing to him two copies thereof, one by registered international mail, return receipt requested, and one by international mail using international postage, enclosed in an envelope, postage prepaid .... ” The record also includes the receipts for registered mail issued to respondent’s counsel’s law office. Service of respondent’s second motion in August 2005 was thus in compliance with the district court’s June 2005 order.

Appellant argues that service was improper because no return receipt was provided to the court, but he cites no authority indicating that a return receipt is required as proof that service was effected. Appellant also argues that Minn. R. Civ. P. 4.04(c)(2)(C)(ii) requires that a court administrator send the papers. But respondent was proceeding, in accord with the district court’s order, under Minn. R. Civ. P. 4.04(c)(2)(A), which does not impose that requirement.

Finally, appellant argues that he did not receive the motion papers at least 14 days prior to the 13 September 2005 hearing, in violation of Minn. R. Gen. Pract. 303.03(a)(1) (providing that “[n]o motion shall be heard unless the initial moving party ... serves a copy of the ... documents on opposing counsel ... at least 14 days prior to the hearing”).

But respondent’s affidavit of service indicates that the notice of motion and motion were mailed to appellant on 22 August 2005, some 21 days before the 13 September 2005 hearing date. “Service by mail is complete upon mailing.” Minn. R. Civ. P. 5.02; see also Eischen Cabinet Co. v. Hildebrandt, 683 N.W.2d 813, 818 (Minn.2004) (holding that, when notice is allowed to be served by mail, it is effective when mailed). Even if appellant did not receive the papers within 14 days of the hearing date, service was effective because they were mailed 21 days in advance.

DECISION

Because respondent’s notice of motion and motion were properly served on appellant in August 2005, the district court did not err in denying appellant’s motion to vacate the resulting 6 September 2005 order on the ground of improper service.

Affirmed.

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

      . Appellant does not disclose when he did in fact receive the notice of motion and motion.


author: CROTHERS, Justice.

text:
    2007 ND 79
    Irene M. DVORAK, n/k/a Irene M. Howard, Plaintiff and Appellee v. Larry H. DVORAK, Defendant and Appellant and Russell D. Schank, CTFA, Garnishee and Harold Dahl, Intervenor.
    No. 20060050.
    Supreme Court of North Dakota.
    June 7, 2007.

      Lisa Maria Benson, Ward County Regional Child Support Enforcement Unit, Minot, N.D., for plaintiff and appellee.
    Larry H. Dvorak, pro se, Riverton, UT, defendant and appellant.
   CROTHERS, Justice.

[¶ 1] Larry H. Dvorak appealed from a January 25, 2006 order of the district court deciding the Minot Regional Child Support Enforcement Unit (“Unit”), on behalf of Irene M. Howard, was entitled to garnish Dvorak’s interest in the Henry S. & Dorothy F. Dvorak Irrevocable Living Trust (“Trust”), in partial satisfaction of Dvorak’s child support arrearages. A final order directing payment of $36,332.84 by the trustee was entered on May 4, 2006. We conclude Dvorak’s attempt to assign his interest in the Trust to other parties violated N.D.C.C. § 14-09-08.17, and we affirm the court’s order.

I

[¶ 2] Dvorak and Howard were legally separated on June 18, 1992, and the judgment of separation ordered Dvorak to pay child support of $400 per month for the parties’ minor children. On February 16, 1993, a judgment of divorce was filed, which continued Dvorak’s support obligation of $400 per month. On October 7, 2003, an amended judgment was entered decreasing Dvorak’s child support obligation to $17.00 per month for two of the children and $14.00 per month for one child. Thereafter, Dvorak, who was in arrears on child support, filed a motion to reduce his past due support. The district court dismissed the motion on September 3, 2004. Dvorak did not appeal.

[¶ 3] On March 8, 2005, the Unit commenced a garnishment proceeding against Dvorak’s interest in the Trust to partially satisfy his child support arrearages of $54,724.48. The Unit served a garnishee summons and complaint on the trustee, Russell D. Sehank, CTFA, trust officer with American Trust Center. On May 9, 2005, Sehank filed a garnishment disclosure, stating that Larry Dvorak had a direct interest in the Trust of approximately $36,000 and that Dvorak had made separate assignments of his interest in the Trust to Andrew Thompson on July 5, 2004 and to Harold Dahl on August 10, 2004. Sehank later deposited $36,332.84, with the clerk of the district court, representing Dvorak’s interest in the Trust.

[¶ 4] After a hearing, the district court concluded Dvorak’s attempted assignments of his interest in the Trust were void, constituting impermissible disclaimers under N.D.C.C. § 14-09-08.17. On January 25, 2006, the court directed preparation of an order for payment of Dvorak’s interest in the Trust to the Unit and Irene Howard in partial satisfaction of Dvorak’s child support arrearages. Before a final order was entered, Dvorak filed a notice of appeal on February 13, 2006.

[¶ 5] This Court remanded the case to the district court to resolve a motion for reconsideration made by Dvorak. After the district court denied the motion and transferred the case back to this Court, we again remanded to the district court for entry of a final order of payment. A final order directing the trustee to pay Dvorak’s interest to the Unit and Irene Howard was entered on May 4, 2006. Upon Dvorak’s request, this Court again remanded to the district court to allow Dvorak to file a motion to vacate judgment or order, motions for contempt, and motions for production of documents. The district court denied all of Dvorak’s post-judgment motions, and the action was again returned to this Court. Dvorak did not file a separate notice of appeal or amend his earlier notice of appeal to perfect an appeal from the post-judgment order denying his motions.

II

[¶ 6] We must first determine which issues Dvorak has preserved for appeal.

A

[¶ 7] When a party files a notice of appeal from an interlocutory order, we deem it to be an appeal from a subsequently entered consistent final order or judgment. See Zueger v. Carlson, 542 N.W.2d 92, 94 n. 2 (N.D.1996). Dvorak filed a notice of appeal from the January 25, 2006 interlocutory order, and the court’s final order of May 4, 2006 was consistent with the prior order from which Dvorak appealed. Consequently, Dvorak has preserved on appeal the issue decided by the court in those orders whether Dvorak’s attempted assignments of his interest in the Trust were valid.

B

[¶ 8] Dvorak’s primary assertion in his post-judgment motions was that the court should have modified his child support arrearages because the initial child support obligation imposed upon him did not fairly take into consideration his physical disability and its adverse effect on his income earning capacity. It is well-settled that a vested child support obligation cannot be retroactively modified. N.D.C.C. § 14-08.1-05(l)(e); Marchus v. Marchus, 2006 ND 81, ¶ 8, 712 N.W.2d 636. When Dvorak filed the post-judgment motions, the child support arrearages had been reduced to a money judgment, and the district court was powerless to amend them. The district court denied the post-judgment motions, and Dvorak did not file an amended notice of appeal from the denial of the motions.

[¶ 9] Under N.D.R.App.P. 4(a)(3)(B)(ii), a party challenging an order disposing of specified post-judgment motions, including a motion for relief under N.D.R.Civ.P. 60, must file a notice of appeal or an amended notice of appeal within 60 days after service of notice of entry of the order disposing of the last motion.

[¶ 10] Rule 4(a)(3), N.D.R.App.P., provides in relevant part:

(a) Appeal in Civil Case.
(3) Effect of Motion on Notice of Appeal.
(A) If a party timely files with the clerk of district court any of the following motions under the North Dakota Rules of Civil Procedure, the full time to file an appeal runs for all parties from service of notice of the entry of the order disposing of the last such remaining motion:
(i) for judgment under Rule 50(b);
(ii) to amend or make additional factual findings under Rule 52(b), whether or not granting the motion would alter the judgment;
(iii) for attorney’s fees under Rule 54;
(iv) to alter or amend the judgment under Rule 59;
(v) for a new trial under Rule 59; or
(vi) for relief under Rule 60 if the motion is served and filed no later than 15 days after notice of entry of judgment;
(B)(i) If a party files with the clerk of district court any motion listed in sub-paragraph (a)(3)(A) after a notice of appeal is filed, the party filing the motion must notify the supreme court clerk in writing, and the court may remand the case to the district court for disposition of the motion.
(ii) A party intending to challenge an order disposing of any motion listed in subparagraph (a)(3)(A), or a judgment altered or amended upon such a motion, must file a notice of appeal, or an amended notice of appeal, in compliance with Rule 3(c), within the time prescribed by this rule measured from the service of notice of the entry of the order disposing of the last such remaining motion.

Construing the identical federal rule, the Federal Circuit Court of Appeals in Texas Peanut Farmers v. United States, 409 F.3d 1370, 1375 (Fed.Cir.2005), concluded the party intending to challenge an order disposing of any motion listed in the rule must file a notice of appeal or an amended notice of appeal within the time prescribed in by rule and “[t]he courts have uniformly held that the taking of an appeal within the prescribed time is mandatory and jurisdictional.” See also Sorensen v. City of New York, 413 F.3d 292, 295-96 (2nd Cir.2005); Pierce v. Shorty Small’s of Branson, Inc., 137 F.3d 1190, 1192 (10th Cir.1998); Bann v. Ingram Micro, Inc., 108 F.3d 625, 626 (5th Cir.1997). Dvorak’s failure to file an amended notice of appeal, or a separate notice of appeal, from the court’s order denying his post-decisional motions precludes appellate review of the issues raised in those motions.

Ill

[¶ 11] Dvorak assigned his interest in the Trust to Andrew Thompson on July 5, 2004, and he made a separate assignment of his interest in the Trust to Harold Dahl on August 10, 2004. Dvorak contends these were valid assignments and the district court erred in ordering the trustee to pay Dvorak’s Trust interest to the Unit and Irene Howard in satisfaction of his child support arrearages.

[¶ 12] Relevant to this issue, N.D.C.C. § 14-09-08.17 provides:

An obligor whose child support obligation is delinquent may not renounce, waive, or disclaim any interest that obli-gor might otherwise claim in a decedent’s estate, a trust, or a similar device, to the extent necessary to satisfy the delinquency. Any attempt to renounce, waive, or disclaim such an interest is void if attempted after notice of the delinquency is furnished to the person administering the estate, trust, or similar device, and is otherwise voidable.

[¶ 13] The district court found the trust administrator had notice of Dvorak’s delinquency in child support payments prior to Dvorak’s attempted assignment of his interest in the Trust to Harold Dahl on August 10, 2004.

[¶ 14] Notice is ordinarily a question of fact. See, e.g., Erway v. Deck, 1999 ND 7, ¶ 11, 588 N.W.2d 862. Under N.D.R.Civ.P. 52(a), a trial court’s findings of fact will not be overturned on appeal unless they are clearly erroneous. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, although there is some evidence to support it, on the entire evidence the reviewing court is left with a definite and firm conviction a mistake has been made. Donlin v. Donlin, 2007 ND 5, ¶ 10, 725 N.W.2d 905.

[¶ 15] As appellant in this case, Dvorak was responsible for providing to this Court a transcript for a meaningful review on appeal. Because no transcript was provided, this Court’s ability to conduct full and meaningful review of this issue is limited. Nevertheless, there is undisputed record evidence that Gene Buresh, the attorney representing the trustee, received notice between July 7, 2004 and July 14, 2004 of Dvorak’s delinquency in making child support payments. In a July 15, 2004 letter to counsel for the Unit, Buresh stated, “Your letter of July 7, 2004 informs us that the child support unit is evidently making a claim against Larry Dvorak’s interest in his mother’s estate, if any.”

[¶ 16] Dvorak asserts that, even if Bu-resh had notice of the delinquent child support, the trustee, Russell Sehank, did not have notice until October 20, 2004, after Dvorak had already made the assignment of his interest in the Trust to Dahl.

[¶ 17] Section 3-03-05, N.D.C.C., provides:

As against a principal, both principal and agent are deemed to have notice of whatever either has notice and ought, in good faith and the exercise of ordinary care and diligence, to communicate to the other.

[¶ 18] Under long-standing agency principles, it is recognized a client is bound by the actions and inactions of that client’s attorney which occur within the scope of the attorney’s authority. See Carrier Creek Drainage Dist. v. Land One, L.L.C., 269 Mich.App. 324, 712 N.W.2d 168, 173 (2005). Furthermore, notice to an attorney, in respect to a matter in which the attorney is acting for a client, “is notice to the client.” Robinson v. State, 687 N.W.2d 591, 594 (Iowa 2004); see Larson v. Norkot Mfg., Inc., 2001 ND 103, ¶ 13 n. 3, 627 N.W.2d 386 (attorney’s knowledge imputed to the attorney’s client in determining statute of limitations issues).

[¶ 19] On this record, we conclude the trial court’s finding the trustee had notice of the delinquent child support prior to Dvorak’s assignment to Dahl is not clearly erroneous. Consequently, under N.D.C.C. § 14-09-08.17, Dvorak’s attempted assignment to Dahl was void.

[¶ 20] Regarding Dvorak’s assignment to Andrew Thompson, the district court stated, “even though it may be argued that this assignment was dated just shortly before the [Unit] gave written notice to the trustee of its intention to pursue a garnishment action, such assignment is still deemed voidable ... and ... the court finds such assignment by Dvorak to Thompson also constituted an unlawful disclaimer by Dvorak.” The court correctly applied N.D.C.C. § 14-09-08.17, deciding the assignment to Thompson was voidable because it was executed by Dvorak while he was delinquent in his child support obligation. Under the statute, irrespective of whether the trust administrator has notice of a child support delinquency, an attempt by the obligor to assign or otherwise disclaim his interest in the Trust is voidable by the court if the assignment or disclaimer is executed when the obligor is delinquent in his child support obligation. There is no dispute Dvorak was delinquent in his child support obligation when he made the assignment to Thompson on July 5, 2004. Furthermore, there is no evidence the trust administrator or any other person would be unfairly disadvantaged by the court declaring the assignment void, even if the trust administrator did not have notice of the child support delinquency when the assignment was executed. We, therefore, conclude the trial court did not err in voiding Dvorak’s assignment to Andrew Thompson.

IV

[¶ 21] The district court did not err in declaring Dvorak’s attempted assignments of his interest in the Trust void under the provisions of N.D.C.C. § 14-09-08.17. The district court did not, therefore, err in directing the trustee to pay Dvorak’s interest in the Trust to the Unit and Irene Howard in partial satisfaction of Dvorak’s child support arrearages. The order directing payment is affirmed.

[¶ 22] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER, and DALE V. SANDSTROM, JJ., concur.