author: PAUL H. ANDERSON, Justice.

text:
    Brad Alan VOORHEES, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C5-00-1892.
    Supreme Court of Minnesota.
    June 21, 2001.
    Rehearing denied July 20, 2001.

      Brad Alan Voorhees, Bayport, pro se.
    Mike Hatch, Atty. Gen., Robert A. Sta-nich, Asst. Atty. Gen., St. Paul, Alan L. Mitchell, St. Louis County Atty., Duluth, for respondent.
   OPINION

PAUL H. ANDERSON, Justice.

In 1998, a St. Louis County jury found appellant Brad Alan Voorhees guilty of first-degree premeditated murder and he was sentenced to a mandatory term of life in prison. We affirmed Voorhees’ conviction in State v. Voorhees, 596 N.W.2d 241 (Minn.1999). Voorhees then filed a pro se petition for postconviction relief alleging violations of due process at trial and on appeal, errors in jury instructions, newly-discovered evidence, misconduct on the part of the prosecutor, violation of his right to effective assistance of trial and appellate counsel, and insufficient evidence of premeditation. The postconviction court denied relief, concluding that Voo-rhees raised only claims that he had already raised or could have raised in his direct appeal and that the evidence did not support his ineffective assistance of counsel claim. On appeal, Voorhees argues that the postconviction court abused its discretion in denying his petition without conducting an evidentiary hearing or granting a new trial, that he was denied his constitutional right to appointment of effective counsel throughout his proceedings, and that the postconviction court abused its discretion in dismissing his petition without issuing findings of fact and conclusions of law. We affirm.

A detailed statement of facts can be found in State v. Voorhees, 596 N.W.2d 241 (Minn.1999); therefore, we will set out only the facts relevant to this appeal. At approximately 2:00 a.m. on August 6, 1996, Voorhees drove to his wife Carolyn’s place of employment and parked his car one street over from her workplace so that his wife would not see him. After parking his car, Voorhees took a rifle from the trunk, loaded the rifle, and walked through a wooded area to the house where his wife worked. When his wife came out of the house to have a cigarette, Voorhees shot her 11 times. Voorhees has never denied that he killed his wife.

Trial testimony and Voorhees’ statements to police recreate the troubled state of the Voorhees’ marriage and the events leading up to the homicide. Brad and Carolyn Voorhees were married in 1993. During the time they were married, several close relatives of the couple died. Voo-rhees was especially troubled by the death of his brother in May 1996, and this loss took a toll on the marriage. In July 1996, Carolyn Voorhees moved out of their home and subsequently served Voorhees with marital dissolution papers. During this time, Voorhees was taking a prescribed amount of the drug Prozac on a daily basis and was drinking alcohol regularly. Voo-rhees testified that he called his wife approximately one week before he killed her and told her that he was going to commit suicide by taking pills. She responded by telling him that he would “just end up brain dead” if he tried to kill himself that way.

On Friday, August 2, Voorhees purchased an “eight-ball” of crank, which is a form of methamphetamine. His Prozac had run out, but he did not immediately refill his prescription because he did not think he should be taking Prozac while ingesting methamphetamine. Voorhees testified that throughout the weekend he continued to ingest methamphetamine and drink alcohol and that he was unable to sleep.

Voorhees further testified that on Monday, August 5, he spent the day lying in bed, depressed and unable to sleep. At approximately 6:00 p.m., he left his home, finished the last of the methamphetamine, and then decided he needed to “snap out of this and * * * get straight.” After visiting a former employer, who told Voorhees he would be rehired when a job opened up, Voorhees proceeded to Wal Mart to get his Prozac prescription filled. Voorhees arrived at Wal Mart between 8:00 and 8:30 p.m., and noticed his wife’s car in the parking lot.

When Voorhees entered the store, he saw his wife and a female friend in the checkout line. Voorhees waited for them to finish checking'out, and noticed that one of the items his wife was purchasing was a douche. Voorhees asked to speak to his wife and she told him to sign the marital dissolution papers and leave her alone. The two women then left the store, and Voorhees accompanied them to the parking lot, continuing to speak to his wife for approximately 20 minutes regarding their impending marital dissolution and finances. When Voorhees asked his wife if she was seeing someone else, she did not respond.

After his wife left the parking lot, Voo-rhees drove to a bar, where he had a mixed drink. He testified that he felt that he had nothing to live for and thought about what his wife said would happen to him if he tried to commit suicide. Voo-rhees testified that it was at this point that the thought of “a gun popped into my mind, that I couldn’t fail with a gun.” At approximately 9:05 p.m., Voorhees drove back to Wal Mart, went to the gun department, filled out the required paperwork, and bought a .22 caliber semi-automatic Marlin rifle and a box of 50 rounds of ammunition. The clerk who sold Voorhees the rifle testified that it took approximately 20 minutes for Voorhees to complete the purchase of the rifle. The clerk further testified that Voorhees was coherent and in a good mood and did not appear to be under the influence of alcohol or drugs.

Voorhees then proceeded to a second bar, where he recalls drinking two or three mixed drinks and five to six beers. However, the bartender who served Voorhees testified that he served Voorhees one mixed drink and three or four beers between the hours of 9:00 p.m. and midnight. The bartender also testified that Voorhees did not appear to be drunk or on methamphetamine when he left the bar.

Voorhees testified that he returned to his home with the intent to shoot himself while in the home. He then let his dog out, brought the rifle inside, and changed into dark clothing. Voorhees left a message on his answering machine stating that it was the last message he would ever leave and that he was sorry. He read the owner’s manual for the rifle and walked around, looking at pictures and at the rings his wife had left behind. He also wrote a note to his mother that read: “MOM I LOVE You — SoRRY!! LOVE BRAD ALWAYS — 8-6-96 2 AM.” On the back of a church bulletin, he wrote: “To Who EVER REALY [sic] CAREs — I hope you hAVE A Good liFE! LET This BE A 1ESSON TO EVERYBoDy ABouT MARRIAGE.” Voorhees testified that at that point he decided to shoot himself in front of his wife and he “headed for where she works.”

Voorhees testified that as he approached his wife’s workplace through the woods and across a field, his wife came out of the house and lit a cigarette. When she turned around and saw him standing there, he testified that she yelled at him to go away and that there was someone else and she did not love him. Voorhees then shot her 11 times, pulling the trigger until the gun stopped going off. After shooting his wife, Voorhees ran up the path to his car, dropping the rifle along the way. Neighbors reported hearing screaming and several pounding or “popping” noises around the time of the homicide.

Voorhees drove to a store and called his sister-in-law. Voorhees then drove to the Spirit Mountain Motel, where he threw away the empty rifle box and the receipt from the purchase of the rifle. At 4:13 a.m., he called 911 from a rest area. During this call, Voorhees told the 911 operator that he had shot his wife 11 times and he explained where her body could be found and the location from which he was calling. The operator kept Voorhees on the phone until officers arrived to arrest him.

The arresting officers reported that Voorhees initially appeared calm and sober. After he was handcuffed and placed in the squad car, he broke down and began to cry. Beginning with his arrest, Voo-rhees made several taped statements to police during interviews in which he repeatedly confessed to killing his wife. In one of these interviews, Voorhees was asked whether he was thinking about killing her when he had purchased the rifle earlier in the evening and he replied “I don’t know, to tell you the truth. Why would you buy a gun? But I don’t know. I — X—-I—I was just ... I was in like a state of jealousy.” Voorhees repeatedly mentioned the marital dissolution and how, because of the douche his wife purchased, he thought she was sleeping with someone else. Voorhees did not mention any suicidal intentions in these initial interviews. It was not until an interview at 9:27 a.m. that Voorhees stated that he had planned to kill himself in front of his wife when he went to her workplace.

As part of the investigation, blood and urine testing was performed. At 4:53 a.m. on the day of the shooting, Voorhees’ blood alcohol level was .03. At trial, an expert extrapolated that, assuming Voorhees stopped drinking by 1:30 a.m., his blood alcohol level at the time of the killing would have been between .065 and .07. Blood and urine samples taken from Voo-rhees approximately 2 ⅜ hours later, at 7:25 a.m., revealed no methamphetamine in his blood, an undetermined amount of methamphetamine in his urine, and no alcohol in his blood. Appellant’s blood contained 154 nanograms/milliliter of Prozac. The therapeutic range for Prozac is 300-1150/milliliter.

At trial, Voorhees asserted the defense of involuntary intoxication. As a part of this defense, Voorhees submitted the report of a psychologist who had evaluated Voorhees on July 8, 1997, after jury selection had begun. The defense submitted the psychologist’s report as its offer of proof that, on the night of the murder, Voorhees had become involuntarily intoxicated through his ingestion of a combination of Prozac, methamphetamine, and alcohol. The district court allowed the psychologist to testify about the effects of combining the substances in general, but did not allow testimony as to whether this particular combination caused Voo-rhees to become involuntarily intoxicated that night.

At the end of the trial, the district court instructed the jury on the defense of involuntary intoxication by means of becoming unexpectedly intoxicated from a “medically prescribed drug,” but excluded instructions on three types of involuntary intoxication not at issue in the case. In addition, the court advised the jury to consider only the Prozac and not the effects of alcohol or methamphetamine when considering the defense of involuntary intoxication. The jury found Voorhees guilty of first-degree premeditated murder and he was sentenced to life in prison.

Voorhees appealed and argued through counsel that he was denied his constitutional right to present a defense, that the district court erred in the jury instruction on involuntary intoxication, and that the state presented insufficient evidence of premeditation and insufficient evidence that Voorhees did not act in the heat of passion. Voorhees also submitted a pro se brief arguing prosecutorial misconduct, ineffective assistance of trial counsel, and error by the court in failing to substitute his trial counsel. Voorhees, 596 N.W.2d at 249. We affirmed the conviction and subsequently denied Voorhees’ pro se petition for rehearing. Id. at 245.

Voorhees filed a pro se petition for post-conviction relief supported by a memorandum of law. In this petition, Voorhees raised the following arguments: (1) denial of due process of law in being convicted and sentenced without a Rule 20 Mental Competency Hearing; (2) denial of his right to a fair trial because the district court failed to sua sponte instruct the jury on voluntary intoxication; (3) denial of the right to a fair trial because the district court erred in jury instructions as a whole, including the omission of key wording in the heat of passion instruction; (4) denial of due process and the right to a fair trial because newly-discovered evidence shows that the state violated discovery rules in handling the blood evidence; (5) denial of due process and the right to a fair trial due to prosecutorial misconduct; (6) denial of due process and equal protection rights in this court’s treatment of the issues and the record in his direct appeal; (7) ineffective assistance of trial counsel; (8) ineffective assistance of appellate counsel; and (9) insufficient evidence to substantiate premeditation. The state submitted a responsive memorandum. After consideration of the parties’ memoranda and hearing oral argument, the postconviction court denied Voorhees’ petition, concluding that Voorhees raised only issues that had been raised or could have been raised on direct appeal and that the evidence did not support Voorhees’ ineffective assistance of counsel claim.

Voorhees’ appeal to this court raises three main arguments: abuse of discretion by the postconviction court in denying Voorhees’ petition without conducting an evidentiary hearing or granting a new trial; denial of his constitutional right to appointment of effective counsel; and abuse of discretion by the postconviction court in not making findings of fact and conclusions of law.

I.

As a petitioner for postconviction relief, Voorhees has the burden of establishing, by a fair preponderance of the evidence, the facts alleged in his postcon-viction petition. Minn.Stat. § 590.04, subd. 3 (2000). On appeal, a postconviction court’s decision will not be disturbed absent an abuse of discretion. Hodgson v. State, 540 N.W.2d 515, 517 (Minn.1995). We examine each of Voorhees’ claims of error by the postconviction court in light of this standard.

Voorhees asserts several different claims in support of the argument that the postconviction court abused its discretion in failing to conduct an evidentiary hearing or grant a new trial. Specifically, Voorhees makes three separate claims of ineffective assistance of counsel, a claim with respect to blood evidence, and a claim regarding jury instructions. A postconviction court is not required to conduct an evidential^ hearing when the petition for postconviction relief and the record “conclusively show that the petitioner is entitled to no relief.” Minn.Stat. § 590.04, subd. 1 (2000). However, an evidentiary healing is necessary “whenever material facts are in dispute that ⅜ ⅜ * must be resolved in order to determine the issues raised on the merits.” Hodgson, 540 N.W.2d at 517. Any doubts as to whether an evidentiary hearing should be conducted are to be resolved in favor of the party requesting the hearing. State ex rel. Roy v. Tahash, 277 Minn. 238, 244, 152 N.W.2d 301, 305 (1967).

A. Ineffective Assistance of Counsel

Voorhees argues that the post-conviction court erred in not conducting an evidentiary hearing on his ineffective assistance of trial and appellate counsel claims. In order to succeed on his ineffective assistance of counsel claims, Voorhees must demonstrate that his counsels’ performance “fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsels’] errors.” State v. Lahue, 585 N.W.2d 785, 789 (Minn.1998); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We consider an attorney’s actions to be “within the objective standard of reasonableness when [the attorney] provides [the] client with ‘the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances.’ ” State v. Doppler, 590 N.W.2d 627, 633 (Minn.1999) (citation omitted). There is a strong presumption that counsels’ performance was reasonable. State v. Jones, 392 N.W.2d 224, 236 (Minn.1986).

1. Failure to Request Stay and Remand

Voorhees first contends that appellate counsel should have moved to stay his direct appeal and remand the matter to a postconviction court. He asserts a remand is required to allow for an evidentiary hearing in order to further develop the record to determine whether his trial counsel’s assistance was deficient. As support, Voorhees relies on State v. Gustafson where we declined to decide the merits of an ineffective assistance of trial counsel claim on direct appeal, stating that such a claim should be raised in a petition for postconviction relief. 610 N.W,2d 314, 321 (Minn.2000).

In Gustafson, we did not mandate that all ineffective assistance of trial counsel claims be decided only in the context of postconviction relief. Rather, we will consider such a claim on direct appeal, without the benefit of a postconviction evidentiary hearing, when an appellant requests that we do so. Roby v. State, 531 N.W.2d 482, 484 n. 1 (Minn.1995). Furthermore, a postconviction hearing is necessary only when the record is not sufficient to allow proper review of the ineffective assistance of trial counsel claim. See Dukes v. State, 621 N.W.2d 246, 255 (Minn.2001) (concluding that ineffective assistance of counsel claims requiring evidence of attorney-client communications are properly raised in a postconviction petition). Here, the record on direct appeal was sufficient to determine the ineffective assistance of trial counsel claim without any additional fact finding. Thus, Voorhees’ appellate counsel did not act unreasonably in going forward with the direct appeal rather than seeking a stay to allow Voorhees’ pro se argument of ineffective assistance of trial counsel to be developed in a post-conviction proceeding.

2. Failure to File Petition for Rehearing

Voorhees also argues, as a basis for his ineffective assistance of appellate counsel claim, that his counsel failed to file a petition for rehearing following his direct appeal and he was forced to pursue the matter pro se. For purposes of this claim, we may first analyze whether Voo-rhees was prejudiced by any potential mistake of his appellate counsel so that, if no actual prejudice is found, we need not evaluate counsel’s performance. Strickland, 466 U.S. at 697, 104 S.Ct. 2052. Here, Voorhees makes no attempt to show prejudice and the record does not substantiate such a claim. Accordingly, this claim lacks merit.

3. Choice of Defense

Voorhees asserts that he was denied any real defense at trial and denied the opportunity to argue as much on direct appeal. This argument really intertwines two claims: that Voorhees was denied effective assistance of counsel because his trial counsel- erred in arguing the defense of involuntary intoxication, when the “only line of defense was towards intent through voluntary intoxication and mental illness”; and that he was denied effective assistance because his appellate counsel erred in failing to raise the issue of ineffective assistance of trial counsel on direct appeal.

The state argues that the underlying ineffective assistance of trial counsel claim is procedurally barred because it was raised on direct appeal. Once a direct appeal has been taken, we will not consider any issues raised in that appeal or any claims known at that time but not raised. Miller v. State, 531 N.W.2d 491, 493 (Minn.1995); State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). We will allow exceptions to this rule as fairness requires when a claim is so novel that the legal basis for the claim was not reasonably available on direct appeal and when the petitioner did not “deliberately and inexcusably” fail to raise the claim. Fox v. State, 474 N.W.2d 821, 824-25 (Minn.1991) (citation omitted).

Voorhees acknowledges that he briefed his ineffective assistance of trial counsel claim on direct appeal, but asserts that the claim is not barred because on direct appeal he did not specifically raise and this court did not specifically address the choice of defense issue. However, Voorhees knew of and even referred to the alternate defenses of voluntary intoxication and mental illness at the time of direct appeal. Because the choice of defense issue was known to Voorhees at the time of his direct appeal, he is barred from raising the claim here. Knaffla, 309 Minn. at 252, 243 N.W.2d at 741.

Nonetheless, because Voo-rhees’ ineffective assistance of appellate counsel claim is predicated on the underlying ineffective assistance of trial counsel claim, we examine the trial counsel claim under the two-prong Strickland test. If Voorhees cannot establish that he was denied effective assistance of trial counsel on the choice of defense issue, then his appellate counsel claim as to this point of error also fails. Sullivan v. State, 585 N.W.2d 782, 784 (Minn.1998). As we stated when we reviewed his counsel’s performance on direct appeal, matters of trial strategy, including which defenses to raise at trial, will not be reviewed later for competence. Voorhees, 596 N.W.2d at 255. Because we previously concluded that Voorhees’ trial counsel’s performance was not deficient, Voorhees’ claim that his appellate counsel erred in fading to challenge trial counsel’s tactical decisions on direct appeal is also without merit. Sullivan, 585 N.W.2d at 784. Accordingly, we conclude that the postconviction court did not abuse its discretion in denying Voorhees postconviction relief on this ineffective assistance of counsel claim or on his two other ineffective assistance of counsel claims.

B. Blood Evidence

Voorhees also argues that the postconviction court had a duty to conduct a full evidentiary hearing on newly-discovered evidence relating to the testing of his blood which, he asserts, establishes that the state suppressed evidence in violation of Minn.R.Crim.P. 9.01 and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Although he did not cite the proper authority, Voorhees made similar arguments regarding the state’s use of the blood evidence in his pro se brief on direct appeal, which we rejected. Voorhees, 596 N.W.2d at 255-56.

Notwithstanding his arguments on direct appeal, Voorhees attempts to insert a new twist into his blood evidence argument. Here, Voorhees argues that our decision on direct appeal was based on an incomplete record because the blood sample was not actually depleted during pretrial testing. His support for this contention is a letter received from the Duluth Police Department dated March 20, 2000, and the attached evidence reports for Voo-rhees’ blood and urine samples. However, Voorhees does not explain how these documents indicate that the blood sample was not depleted or how these documents in any way change the claim previously made on direct appeal. The documents merely refer to activity that occurred on August 6, 1996 and January 23, 1997 long before the trial and subsequent appeal. Thus, Voo-rhees has not established that his present argument presents a different question than that already raised on direct appeal. Because Voorhees raised the argument regarding the treatment of blood evidence on direct appeal, we conclude that this claim is procedurally barred. Knaffla, 309 Minn. at 252, 243 N.W.2d at 741.

C. Jury Instructions

Voorhees contends that he was denied a fair trial and thus deserves a new trial because the district court, in its jury instruction on involuntary intoxication, limited the jury to considering only the effect of Prozac and not the combined effects of alcohol and methamphetamine. He further argues that the court erred in failing to sua sponte instruct the jury as to the effects of voluntary intoxication on the elements of intent and premeditation. As a result, Voorhees claims that the jury was left with no instruction on how to consider evidence of his consumption of alcohol and methamphetamine.

Voorhees raised the issue of the district court’s modification and limitation of the involuntary intoxication jury instruction on direct appeal; therefore, we need not consider the issue here. Id. Furthermore, even though we did not specifically address the jury’s inability to consider the combined effect of the substances on Voo-rhees, we determined that Voorhees was not entitled to any instruction on the defense of involuntary intoxication and thus received even greater protection than the record warranted. Voorhees, 596 N.W.2d at 251.

In a closely-related argument, Voorhees argues that the district court should have sua sponte instructed the jury as to voluntary intoxication so that the jury could consider the effects of the alcohol and methamphetamine he had consumed on his ability to form the requisite intent for first-degree murder. The issue of whether the court should have instructed the jury as to the effects of alcohol and methamphetamine on intent and premeditation was known on direct appeal and argued by Voorhees in his supplemental brief. Despite Voorhees’ current attempt to argue the issue from a slightly different perspective, the underlying claim was known to Voorhees at the time of direct appeal. Therefore, we conclude that this claim is procedurally barred and that the postconviction court did not abuse its discretion in dismissing Voorhees’ claim that the district court should have sua sponte instructed the jury as to voluntary intoxication. Knaffla, 309 Minn. at 252, 243 N.W.2d at 741.

With respect to each of the grounds asserted as a basis for requiring an eviden-tiary hearing or a new trial, Voorhees either raised or could have raised the issue on direct appeal or Voorhees has failed to put forth sufficient evidence to warrant an evidentiary hearing. Thus we hold that the postconviction court did not abuse its discretion in dismissing Voorhees’ petition for postconviction hearing without conducting an evidentiary hearing or granting a new trial.

II.

Voorhees also briefly argues that he was denied effective assistance of counsel throughout his proceedings because the district court failed to substitute his trial counsel and did not grant Voo-rhees’ motion for appointment of counsel for postconviction proceedings. We considered and rejected Voorhees’ substitution of trial counsel argument on direct appeal. Because this argument was raised on direct appeal, we will not revisit the argument in this proceeding. Knaffla, 309 Minn. at 251, 243 N.W.2d at 741. Moreover, Voorhees is not entitled to court-appointed counsel on postconviction relief once he has exercised that right in a direct appeal. Minn.Stat. § 590.05 (2000) (stating that indigent persons may apply for representation by a state public defender to pursue postconviction relief “if the person has not already had a direct appeal”). Accordingly, we hold that the postconviction court did not abuse its discretion in denying Voorhees relief on this claim.

III.

Finally, Voorhees argues that the post-conviction court abused its discretion in summarily denying all relief without issuing findings of fact or conclusions of law. Citing Minn.Stat. § 590.04, subd. 1 (2000), and Scruggs v. State, 484 N.W.2d 21 (Minn.1992), Voorhees contends that the postconviction court was required to make findings of fact and conclusions of law following the hearing on his postconviction petition.

When the postconviction court determines that an evidentiary hearing on a postconviction petition is warranted, Minn. Stat. § 590.04, subd. 1, requires the court to “make findings of fact and conclusions of law” as to the issues. Cf. Scruggs, 484 N.W.2d at 25 (stating that if a court deems it necessary to conduct a hearing on post-conviction relief, “it should follow that hearing with findings of fact and conclu-

sions of law on each of the points raised on appeal”). Here, however, the postconviction court considered Voorhees’ petition and the memoranda submitted by both parties and, after oral argument, concluded that the record did not warrant an evidentiary hearing. This nonevidentiary hearing does not invoke the requirement that findings of fact and conclusions of law be issued. We hold that it was not an abuse of the postconviction court’s discretion to deny Voorhees’ petition for postcon-viction relief without findings of fact and conclusions of law when the record conclusively supports the denial of postconviction relief.

Affirmed.

      . It is not entirely clear whether Voorhees is arguing that he should have had a stand-alone mental illness defense under Minn.Stat. § 611.026 (2000) or is claiming that mental illness would have augmented a voluntary intoxication defense to intent. Regardless, the claim is barred. On direct appeal, we considered evidence of mental illness as an element of Voorhees’ defense of involuntary intoxication and concluded that Voorhees failed to make a prima facie showing of mental illness that would have entitled him to a bifurcated trial and further development of the issue. Voorhees, 596 N.W.2d at 251. If Voorhees’ argument is " that a mental illness defense should have been argued differently, he knew of and could have raised the issue on direcL appeal. Furthermore, voluntary intoxication does not include a mental illness component. See Minn.Stat. § 609.075 (2000).

      . Voorhees also argues that his ineffective assistance of trial counsel claim should not be procedurally barred because on direct appeal this court should have remanded his case to the postconviction court for a full evidentiary hearing, as in Gustafson. As previously noted, in Gustafson we did not mandate that all ineffective assistance of trial counsel claims be decided in the context of postconviction relief. 610 N.W.2d at 321. Voorhees raised the issue of ineffective trial counsel on direct appeal, knew of and alluded to the choice of defense argument at that time, and, unlike in Gustafson, we did not require further development of the record in order to decide the issue. See id. Accordingly, this argument does not prevent us from applying the Knaffla rule to bar consideration of Voorhees’ ineffective assistance of trial counsel claim.


source: Caselaw Access Project

author: CRIPPEN, Judge.

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. Willie Dee LOYD, Respondent.
    No. C3-00-1146.
    Court of Appeals of Minnesota.
    April 17, 2001.
    Mike Hatch, Attorney General, St. Paul; and Jay Heffern, Minneapolis City Attorney, Michael Hess, Assistant City Attorney, Minneapolis, for appellant.
    John M. Stuart, State Public Defender, Mark D. Nyvold, Special Assistant Public Defender, St. Paul, for respondent.
    Considered and decided by CRIPPEN, P.J., HARTEN and HANSON, JJ.
   OPINION

CRIPPEN, Judge.

The state challenges the trial court’s denial of its motion to reconsider the court’s order modifying an executed gross-misdemeanor sentence.

FACTS

In 1999, respondent Willie Loyd pleaded guilty and the court convicted him of gross misdemeanor refusal to submit to testing (“Refusal”) in violation of Minn.Stat. § 169.121, subds. la and 3(c)(2) (1998), and gross misdemeanor driving after cancellation (“DAC”) in violation of Minn.Stat. § 171.24, subd. 5 (1998). Respondent also admitted that the driving offenses violated the conditions of his probation for a 1997 driving-after-cancellation conviction for which he had received a 365-day sentence that was stayed for three years.

At the December 1999 sentencing hearing, the trial court revoked the stay and sentenced him to one year in the workhouse with the potential of Huber work-release privileges under Minn.Stat. § 631.425 (1998). The court also ordered respondent to serve one year on home-electronic monitoring for the current gross-misdemeanor DAC charge, to run consecutively to his workhouse term, and a one-year concurrent workhouse term for the refusal charge, conditionally stayed for three years.

Respondent was unsuccessful in obtaining employment to take advantage of work-release benefits. In March 2000, he scheduled a hearing date for a post-conviction motion seeking withdrawal of his 1999 guilty plea. The trial court, however, canceled the hearing, and respondent’s motion papers were never in fact filed.

Instead, the trial court reviewed respondent’s sentence sua sponte, based on information that the court evidently received regarding respondent’s unsuccessful employment efforts. The court modified the sentence and ordered that respondent be immediately “furloughed” from the jail sentence, but still subject to electronic-home monitoring. At the time, respondent had served more than 100 days of the 365-day sentence. The state sought reconsideration of the trial court’s order, arguing that postconviction relief was inappropriate without a hearing and asserting that any other authority of the court to alter the sentence was lost once the sentence was executed. The trial court denied the state’s motion, stating that its resentencing had been an exercise of powers independent of the Postconviction Remedy Act, Minn.Stat. ch. 590 (2000). This appeal followed, and we have examined, with the parties’ assistance at oral argument, whether the trial court’s May 2000 order is appealable.

ISSUE

Does the prosecution have the right to appeal a trial court’s order reviewing and modifying an executed non-felony sentence?

ANALYSIS

The state may appeal “from any sentence imposed or stayed by the district court according to the rules of criminal procedure.” Minn.Stat. § 244.11, subd. 1 (2000). Minnesota Rule of Criminal Procedure 28.04, subd. 1(2), 3 provides the state with the right to appeal “in felony cases from any sentence imposed or stayed by the trial court” or “in any case, from an order granting postconviction relief under MinmStat. ch. 590.”

The rule does not give the state the right to appeal from a trial court’s order involving a gross-misdemeanor sentence, and there is no judicial precedent that gives the state greater rights for appeal than those stated in the rule. Cf. State v. Whitledge, 500 N.W.2d 488, 489 (Minn.1993) (holding that rule stating defendant’s right to appeal felony sentence did not take away broader rights of review recognized by the supreme court before adoption of the rule).

Although the state does not dispute the impact of rule 28.04, it contends that the trial court’s sentencing alteration must be viewed as a determination of postcon-viction relief under Minn.Stat. ch. 590 (2000). See Minn. R.Crim. P. 28.04, subd. 1(3) (permitting the state to appeal from order granting postconviction relief). There is no merit to this argument. The trial court did not purport to act under chapter 590, and this chapter permits judicial action only insofar as it relates to determining the rights of a defendant asserted in a chapter 590 proceeding. See Minn.Stat. § 590.01, subd. 1 (2000).

Because there is no authority granting the state the right to appeal a non-felony sentencing determination, and absent a determination of rights in a postconviction proceeding, we are without authority to review the trial court’s order. As a result, we have no occasion to review the merits of the trial court’s claim of authority to modify respondent’s gross-misdemeanor sentence.

DECISION

Because the state has no right to appellate review of the trial court’s gross-misdemeanor sentence modification, its appeal is dismissed.

Appeal dismissed.

      . Repealed by 2000 Minn. Laws ch. 478 and recodified at Minn.Stat. ch. 169A (2000).

      . The trial court's order and the transcript of the December 1999 sentencing hearing suggest that the trial court ordered execution of a one-year jail sentence on the current gross-misdemeanor DAC charge and imposed a consecutive one-year term of electronic home monitoring for the 1997 gross-misdemeanor DAC convicLion. These sentences are inconsistent with the warrant of commitment dated February 8, 2000, in the trial court file. Whatever the view of the record, the execution of the sentence was for a gross-misdemeanor driving offense.


author: AMUNDSON, Judge

text:
    STATE of Minnesota, Plaintiff, v. Seth James VICTORSEN, Defendant.
    No. C7-00-1795.
    Court of Appeals of Minnesota.
    April 18, 2001.

      James M. Ventura, Lambert & Boeder, Wayzata, MN, (for appellant).
    David K. Ross, Carson, Clelland & Schreder, Minneapolis, MN, (for respondent).
    Considered and decided by KLAPHAKE, Presiding Judge, AMUNDSON, Judge, and HUSPENI, Judge.

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

   OPINION

AMUNDSON, Judge

The appellant, in a DWI prosecution, moved the court to apply collateral estop-pel because the court, in an earlier hearing on the related implied consent matter, found the stop not supported by articula-ble suspicion. The DWI court denied the motion, and ruled that the stop was proper and supported by articulable suspicion. The DWI court also ruled that the failure of police to videotape the stop did not require suppression but entitled the driver to an adverse-inference instruction. The DWI court certified questions to this court on the effect of the prior implied consent ruling, the legality of the stop, and the appropriateness of an adverse-inference instruction.

FACTS

At approximately 1:30 a.m. on August 22, 1999, Officer John Keding was dispatched to the site of a hit-and-run accident. The police dispatcher said a caller had complained that a red Jeep with a black top had driven across his lawn, struck a tree, and then struck a vehicle parked in his driveway. The dispatcher also received and relayed a second call about a “red/black vehicle speeding through the area.”

Officer Keding approached the scene soon after he received the dispatcher’s call. Keding saw a vehicle stopped, on the wrong side of the road, in front of the accident scene. Although he could not immediately identify the vehicle type, the vehicle passed him as he approached and he identified it as a blue truck. At the scene, Keding viewed the damage and tire tracks in the lawn. The dispatcher then radioed that a blue truck had been observed stopped in front of the accident scene. Keding then pursued the blue truck and stopped it approximately one block away from the accident scene. After Keding began to pursue the blue truck, the dispatcher informed him that the red Jeep had left its front bumper, including the license plate, at the accident scene.

Consequently, Seth Victorsen, the driver of the blue truck, had his license revoked pursuant to Minnesota’s implied consent law. Victorsen filed a petition for judicial review of the revocation, alleging that the stop was illegal. Shortly thereafter, the State of Minnesota issued a criminal complaint for DWI and other charges. At a pretrial conference on the criminal matter, the prosecutor was verbally advised that the implied consent hearing was to be held five days later.

At the implied consent hearing, which was not attended by the DWI prosecutor, the police reports and dispatch log were accepted into evidence. Keding’s report indicated that he made the stop because he “had received information as [he] arrived on the scene that the blue Ford pickup was stopped in front of the address where the damage occurred.” Keding testified that, while two blocks away, he observed the blue pickup stopped, on the wrong side of the road, at the accident scene. He also testified that, after learning that the bumper and license plate had been left behind, he thought the driver of the blue truck might have returned to the accident scene to retrieve the items left by the red truck.

Keding also testified that, after stopping the blue truck, he identified the driver as Victorsen, and observed several indicia of intoxication including bloodshot and watery eyes, loquaciousness, slurred speech, the strong smell of alcohol, and difficulties with manual dexterity. He testified that, when asked, Victorsen denied stopping in front of the accident scene, but admitted to drinking. Keding then testified that Vic-torsen failed a preliminary breath test and a Horizontal Gaze Nystagmus test, and was subsequently arrested. The district court hearing the implied consent matter ruled that Keding lacked the requisite ar-ticulable suspicion to stop Victorsen’s vehicle and rescinded the license revocation.

A hearing on pretrial motions in the DWI prosecution was held before a different district court judge almost three months after the implied consent hearing. Victorsen moved the court to apply collateral estoppel to exclude all evidence obtained as a result of the stop. The parties briefed both the issue of collateral estoppel and the issue of the legality of the stop. The DWI court denied the motion to apply estoppel, denied the motion to suppress evidence resulting from the stop, and, on the same record that was before the implied consent court, ruled that the stop was supported by an adequate articulable suspicion.

The district court then certified four questions to the court of appeals:

(1) What effect, if any, should a ruling in [the implied consent] hearing have in a later hearing [in the factually related DWI prosecution] on the same issue?
⅜ ⅝ ⅝ ⅜
(2) On the record of the present case, ⅜ ⅜ * was the stop of the defendant supported by an adequate articulable suspicion?
* * * ⅝
(3) Should evidence of the encounter between the officer and the defendant be suppressed where, as here, the officer was equipped to record the encounter, and strongly advised if not fully required to do so by the policies of his department as set forth in the department’s manual, but chose not to do so?
(4) Is the defendant entitled to a jury instruction that the officer’s failure to record the encounter [under these circumstances] weighs against the credibility of the officer’s testimony concerning the events that could have been but were not recorded?

ISSUES

I. Should a district court’s determination, in an implied consent hearing, that there was no legal basis for a police stop, estop a prosecutor from litigating the identical issue involving the same evidence in a criminal prosecution?

II. Does an officer have a sufficient articulable suspicion to support the stop of a vehicle the officer observes stopped on the wrong side of the road at a fresh hit- and-run accident scene, which the officer knows contains potentially incriminating evidence relevant to the hit-and-run accident?

III.When an initial, non-custodial, encounter between an officer and a driver is not recorded, is the driver entitled to suppression of evidence from that encounter or to an adverse-inference instruction if the recording is “strongly urged” by the officer’s police department?

ANALYSIS

I.

The DWI court ruled that the implied consent court’s determination regarding the legality of the stop had no collateral estoppel effect in the criminal proceedings because the parties were not the same or in privity with one another. This question is a pure question of law, which we review de novo. Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639 (Minn.1984).

Collateral estoppel is appropriate where: (1) the issue is identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the es-topped party was given a full and fair opportunity to be heard on the adjudicated issue. Willems v. Commissioner of Pub. Safety, 333 N.W.2d 619, 621 (Minn.1983). The only elements at issue here are whether the State of Minnesota is in privity with the Commissioner of Public Safety, and whether the State of Minnesota was given a full and fair opportunity to be heard in the implied consent proceeding.

Privity

Because there is no prevailing definition of privity that is applied automatically, the distinctive facts of each case must be carefully examined. Margo-Kraft Distribs., Inc. v. Minneapolis Gas Co., 294 Minn. 274, 278, 200 N.W.2d 45, 47 (1972). Non-parties may be deemed to be in privity if they are connected with the action to the extent that they are “affected by the judgment with reference to interests involved in the action as if they were parties.” Id. Parties in privity with those involved in the earlier action include those whose “interests are represented by a party to the action,” Denzer v. Frisch, 430 N.W.2d 471, 473 (Minn.App.1988) (citing Margo-Kraft, 294 Minn. at 278, 200 N.W.2d at 47-48), sufficiently enough so that “the application of collateral estoppel is not inequitable.” Reil v. Benjamin, 584 N.W.2d 442, 445 (Minn.App.1998), review denied (Minn. Nov. 17, 1998) (citing Brunsoman v. Seitz, 414 N.W.2d 547, 550 (Minn.App.1987), review denied (Minn. Jan. 15, 1988)).

In this case, a city attorney represented the State of Minnesota in the criminal DWI prosecution. In the implied consent hearing, the attorney general represented the Commissioner of Public Safety. Sixteen-years ago, in State v. Juarez, we determined, in a similar context, that the State of Minnesota was not in privity with the Commissioner of Public Safety. State v. Juarez, 345 N.W.2d 801, 803 (Minn.App.1984), review denied (Minn. July 16, 1984). Although Victorsen suggests that Juarez is fact-based and can be distinguished, the facts are not materially different. Accordingly, the continuing vitality of Juarez is placed squarely before this court.

Our courts have long held that the implied consent statute is not criminal in nature. State v. Nelson, 608 N.W.2d 913, 915 (Minn.App.2000), review denied (Minn. June 27, 2000). In Juarez, we extended that general principle in determining that the parties who prosecute DWIs (city and county attorneys) were not “in privity” with those who litigate implied consent matters (the attorney general’s office). 345 N.W.2d at 803 (quoting State, Dep’t of Pub. Safety v. Mulvihill, 303 Minn. 361, 368, 227 N.W.2d 813, 817-18 (1975)).

But the lack of privity is not established merely by demonstrating that implied consent proceedings are civil in nature. In the years since the decision in Juarez, the legal landscape from which we view the narrow question of privity between these parties has been transformed. Juarez, emphasizing the “essential differences” between the two proceedings, concluded that the parties were not in privity. 345 N.W.2d at 803 (quoting Mulvihill, 303 Minn. at 368, 227 N.W.2d at 817-818). But over time, these differences have blurred considerably in ways most closely bearing on the question of privity. Penalty enhancements are now available to criminal prosecutors by virtue of license revocations pursuant to the implied consent statute. See, e.g., Minn.Stat. §§ 169A.25, .26 (elevating severity of DWI offenses to a gross misdemeanor if the offender had a prior license revocation within the past ten years), .275 (increasing the mandatory penalties for each prior license revocation within a ten-year period), .28 (providing for mandatory consecutive sentences if the person has prior license revocations), 31 (2000) (elevating severity of alcohol-related bus driving offenses to a gross misdemeanor if the offender had a prior license revocation within the past ten years). Therefore, when defending a license revocation, the actions of the Commissioner of Public Safety now affect the potential criminal penalties available to the state. Similarly, prior impaired driving convictions serve the commissioner’s interests by lengthening the duration of administrative license revocations. See, e.g., Minn. Stat §§ 169A.52, subd. 4, .54, subd. 1 (2000) (increasing duration of administrative license revocations with prior license revocation). The relationship between these parties is symbiotic, and the differences in their interests, as articulated in Juarez, have become a fictional construct.

Moreover, the effect of Juarez has been the institutionalization of a process whereby duplicative proceedings are frequent with inconsistent outcomes a distinct possibility. Drivers may challenge the legality of traffic stops at both implied consent hearings and at pretrial hearings in criminal matters. These parallel proceedings involve the same substantive law, elements of proof, standard of proof, burden of proof, and, often, the same evidence as well. This unnecessary duplication of hearings is contrary to the rules of criminal procedure, which are intended to provide for the “just, speedy determination of criminal proceedings.” Minn. R.Crim. P. 1.02. Furthermore, does not justice presume the consistent application of the law? The potential for inconsistency, realized in this case, is among the most objectionable results of the present system. Multiple hearings on the same record and for the determination of the same question unnecessarily burden the parties and provide no justifiable benefit.

Considering both that these problems have emerged and that any differences in the interests of the government parties have been muted by subsequent legislative action, Juarez can no longer control analysis of the collateral estoppel effect of a prior determination of an issue in a subsequent criminal proceeding. Therefore, the Commissioner of Public Safety, in an implied consent proceeding, is a privy of the State of Minnesota in a factually related DWI prosecution. As such, this conclusion now requires consideration of whether the State of Minnesota was afforded a full and fair opportunity to be heard in the implied consent proceeding.

Full and Fair Opportunity to Be Heard

The fourth and final element of collateral estoppel is that the party to be estopped “was given a full and fair opportunity to be heard on the adjudicated issue.” Willems, 333 N.W.2d at 621. Here, the prosecutor was orally informed of the date and time of the upcoming implied consent hearing. Though the prosecutor was afforded an opportunity to attend the implied consent hearing, did this notice provide a full and fair opportunity for the prosecutor to be heard on the matter?

The rationale underlying this element is fairness to the party against which preclusion is to be asserted. In re Miller, 153 B.R. 269, 274 (Bankr.D.Minn. 1993). In this case, the application of collateral estoppel would be unfair. When the prosecutor was informed of the implied consent hearing, the law on this matter clearly indicated the state was not es-topped by adverse decisions in implied consent hearings. See Juarez, 345 N.W.2d at 801, 803 (holding that the State of Minnesota is not in privity with the Commissioner of Public Safety). The prosecutor had a right to rely on this rule of law. See Spanel v. Mounds View Sch. Dist. No. 621, 264 Minn. 279, 294, 118 N.W.2d 795, 804 (1962) (contemporaneous application of new rule of law “would work an even greater injustice” because defendants would be denied a defense “on which they have had a right to rely”). Accordingly, the mere invitation to attend the hearing did not provide the prosecutor a “full and fair opportunity to be heard” at the implied consent hearing, and therefore estop-pel cannot apply in this case.

This is not to say that this result will always follow. Because the Commissioner of Public Safety and the State of Minnesota are in privity, if a prosecutor is given notice and an opportunity to participate in a hearing, that prosecutor, at a later hearing, will be estopped from opposing the binding effect of an order resulting from the earlier hearing.

Having conditioned collateral estoppel upon notice and an opportunity to be heard, it is apparent that questions will arise how and when notice is to be given to the State of Minnesota, and by whom. We purposely do not mandate procedures. Though the efficient administration of scheduling matters will best be facilitated by the adoption of new procedures to notify the parties involved, specific direction to court administrators is unnecessary and improper. Cf. State v. Gilmartin, 535 N.W.2d 650, 653 (Minn.App.1995) (declining to exercise supervisory powers reserved to state supreme court). As exemplified by the present case, notice can be achieved by means other than the involvement of the court administrators. Notice may be given through procedures a court administrator chooses to create; notice may also be given by a driver when the implied consent hearing is scheduled. We do not intend to limit in this opinion the means by which proper notice and an opportunity to be heard may be given. We rule only that when proper notice and opportunity is given, the State of Minnesota shall be collaterally estopped from re-litigating the issues decided in the implied consent proceeding.

II.

Victorsen also challenges the legality of the stop. When reviewing a district court determination on the legality of a limited investigatory stop, findings of fact are reviewed for clear error after giving due weight to the inferences that the court drew from those facts, and questions of reasonable suspicion are reviewed de novo. State v. Britton, 604 N.W.2d 84, 87 (Minn.2000).

A stop is lawful if it is “based upon reasonable and articulable suspicion of ongoing criminal activity.” Id. at 89. Police are allowed to conduct limited stops to investigate suspected criminal activity if they can “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity, United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981), and the officer must be able to point to something objectively supporting that suspicion. Britton, 604 N.W.2d at 87. In making this determination, we review the events surrounding the stop and consider the totality of the circumstances in determining whether the police had a reasonable basis for the stop. Id.

Victorsen argues the stop was invalid because, citing Britton, he asserts that observation of activity that may be associated with criminal activity is an inadequate basis for a stop when that activity may also be associated with lawful activity. See id. at 88-89. But Victorsen overstates the holding of that case. In Britton, the supreme court held that a police officer’s observation of a car with a broken window did not support a stop because a broken window, by itself, does not indicate illegal activity. Id. at 88. Although the officer testified that breaking a window was a common means to steal vehicles, and that he had personally been involved in the recovery of 10 to 20 stolen cars with broken windows, id. at 86, the supreme court discounted this testimony, observing that, because “broken windows are a fact of urban life,” there were many possible explanations for a broken window, other than that the driver was a thief. Id. at 88. For that reason, the court concluded that a broken window could not be the sole basis for a stop. Id. Victorsen argues that the present case is similar in that an officer with Officer Keding’s suspicions would be allowed to stop any individual driving by an accident scene. This conclusion is in error.

The officer testified that he observed Victorsen’s vehicle on the wrong side of the road. That, in itself, constitutes a violation, Minn.Stat. § 169.18, subd. 1 (mandating that cars generally be driven on the right half of roadways), and may provide a basis for the stop. See State v. Fiebke, 554 N.W.2d 755, 756-57 (Minn.App.1996) (“As a general matter, the decision to stop an automobile is reasonable when the police observe a traffic violation.”).

Furthermore, Victorsen misstates or ignores several important facts that distinguish this case from Britton. Officers can properly act on suspicion that would elude an untrained eye and due deference is accorded their training and experience. Britton, 604 N.W.2d at 89 (citing State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 569-70 (Minn.1994)). Officer Keding received a call indicating that a blue truck was stopped in front of the accident scene, not merely driving by. Keding also knew that the crime scene was fresh. Finally, Keding was informed that the bumper and license plate of the red Jeep had been left at the crime scene. Given these facts, it was reasonable for the officer to conclude that the occupants of the blue truck may have returned to the crime scene to remove evidence that might reveal that they, or others associated with them, had been involved in the commission of a crime. Fundamentally, there is a substantial difference between the permissible inferences to be drawn from the facts here and those that flowed from the facts before the officer in Britton. The absurd conclusion of extending the rationale of the officer in Britton is that any car driving anyiohere could be stopped so long as it had a broken window. Officer Keding’s rationale poses no such danger as it subjects few cars to being stopped: those that stop, at 1:30 a.m., on the wrong side of the road at a fresh crime scene, where critical evidence reportedly remains.

III.

Victorsen argues that evidence of his encounter with Officer Keding should be suppressed because no video recording was made despite the fact that Keding’s vehicle was equipped to make such a recording and that his police department’s policy “strongly urged” such recordings in these situations. The supreme court has directed that all custodial interrogations shall be electronically recorded where feasible, and must be recorded when questioning occurs at a place of detention. State v. Scales, 518 N.W.2d 587, 592 (Minn.1994). The district court declined to suppress evidence of the encounter between the officer and Victorsen, but indicated that it would instruct the jury that the officer’s failure to record the encounter weighs against the credibility of his testimony.

Officer Keding did not record the traffic stop, his identification of Victorsen, his observations of Victorsen’ or the field sobriety test, despite having the ability to do so. But the Scales recording requirement does not apply to these events because these events were not custodial. See Umphlett v. Commissioner of Public Safety, 533 N.W.2d 636, 640 (Minn.App.1995) (holding that actions prior to the implied consent advisory are “non-custodial”), review denied (Minn. Aug. 30, 1995). The fact that the police department “strongly urged” the recording of these events has no bearing on whether or not they were custodial.

In its report of certified questions, the court cited State v. Logan, 535 N.W.2d 320 (Minn.1995), as supporting its decision to grant a remedial jury instruction. But Logan also involved the failure to record a custodial interrogation, and not the noncustodial activity present here. Id. at 325. Although trial courts are allowed “considerable latitude” in selecting jury instructions, the district court’s reliance on Logan was misplaced. See State v. Gray, 456 N.W.2d 251, 258 (Minn.1990) (noting the district court’s discretion in selecting jury instructions) (quoting Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn.1986)).

DECISION

The DWI court properly determined that the prosecutor was not collaterally estopped from arguing that the stop was supported by reasonable articulable suspicion, even though (a) this issue had been decided in the driver’s favor during an implied consent proceeding, and (b) privity exists between the prosecutor and the attorney general’s office, because the prosecutor did not have a fair and adequate opportunity to litigate the issue in the earlier proceeding. The district court also properly held that the stop was supported by reasonable articulable suspicion. While the district court did not err in declining to suppress evidence of defendant’s intoxication pursuant to State v. Scales, 518 N.W.2d 587 (Minn.1994), the court’s decision to grant a remedial instruction was not supported.

Certified questions answered.

      . We recognize that, under the current scheme, implied consent hearings and criminal pretrial hearings do not always involve the same evidence. For example, drivers in civil implied consent proceedings may assert the privilege against self-incrimination if it can be reasonably apprehended that the statements could be used against them in a criminal prosecution. Nordvick v. Commissioner of Pub. Safety, 610 N.W.2d 659, 662 (Minn.App. 2000) (citing Heddan v. Dirkswager, 336 N.W.2d 54, 63 (Minn.1983) (citation omitted)). But in a criminal pretrial hearing, this privilege is not available because the defendant does not waive the constitutional right against self-incrimination by testifying. Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 976, 19 L.Ed.2d 1247 (1968); State ex. rel. Rasmussen v. Tahash, 272 Minn. 539, 554, 141 N.W.2d 3, 14 (1965). Therefore, even if the estopped party, the facts and the issue remain the same, this difference in evi-dentiary rules might prevent a defendant from receiving a full and fair opportunity to be heard on the adjudicated issue. For that reason, we decline to determine today whether a criminal defendant may be collaterally es-topped from challenging the legality of a stop when, in a prior implied consent hearing, the court determined that it was legal.

      . Although this court, in 1989, re-affirmed that the state and the Commissioner of Public Safety were not in privity. See Kirsch v. Commissioner of Pub. Safety, 440 N.W.2d 147, 150 (Minn.App.1989), the confluence of these parties’ interests discussed herein has occurred since that decision. See, e.g., 1992 Minn. Laws ch. 570, art. 1, § 7 (including, for tire first time, implied consent license revocations within the definition of a "prior license revocation,” the existence of which elevates certain crimes to gross misdemeanor status). We recognize that our conclusion here is a departure from a settled legal principal. Although stare decisis dictates that we should not lightly overrule this court’s prior decisions, this rule is not inflexible. Johnson v. Chicago Burlington & Quincy R.R. Co., 243 Minn. 58, 68, 66 N.W.2d 763, 770 (1954). Where the reasons underlying a particular rule have ceased to exist or where the rule no longer conforms to the changed conditions of society, we do not "blindly adhere to former decisions even though legally sound when the case was decided.” Id. at 69, 66 N.W.2d at 771. In light of changes in the relevant statutes, we decline to exercise our discretion to apply stare decisis in the present case. See Naftalin v. King, 257 Minn. 498, 500, 102 N.W.2d 301, 302 (1960) ("Whether or not the rule of stare decisis should be followed is a question entirely within the discretion of the court which is again called upon to consider a question once decided.”).

      . Nor shall estoppel apply in criminal cases initiated prior to the date of this opinion. In deciding to apply this rule prospectively, we have considered its purpose, the extent of the reliance by law enforcement authorities on the old rule, and the effect of retroactive application on the administration of justice. See State v. Olsen, 258 N.W.2d 898, 907 n. 15 (Minn.1977) (articulating the balancing formula for prospective application of a new procedural rule).

      . As the question is not now before the court, we decline to address the question of whether collateral estoppel can be applied against the commissioner of public safety.