author: GILDEA, Justice.

text:
    STATE of Minnesota, Respondent, v. Ronald E. CRAM, Appellant.
    Nos. CX-02-1178, A05-1379.
    Supreme Court of Minnesota.
    Aug. 3, 2006.

      Lisa Lodin Peralta, Minneapolis, MN, Deborah Ellis, St. Paul, MN, for Appellant.
    Mike Hatch, Attorney General, Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, St. Paul, MN, for Respondent.
   OPINION

GILDEA, Justice.

After a bench trial, Ronald Cram was found guilty of the first-degree murder of his wife, Colleen Cram, while committing domestic abuse. Cram was also found guilty of second-degree intentional murder, but not guilty of first-degree premeditated murder. The district court convicted Cram and sentenced him to life in prison. After Cram appealed his conviction to this court, we granted Cram’s motion to stay the appeal during the pendency of postcon-viction proceedings. On May 13, 2005, the district court denied Cram’s petition for postconviction relief. Cram then appealed the denial of postconviction relief to this court. We consolidated the direct appeal and the postconviction appeal. We now affirm Cram’s conviction and the denial of postconviction relief.

Early in the morning on December 5, 2001, St. Paul police and paramedics responded to Cram’s 911 call from his home, arriving within five minutes of the call. Cram told the 911 operator that he was arguing with his wife and then she stopped breathing. The paramedics found Colleen Cram on the floor unconscious, ashen, and with marks on her body. She was not breathing, had no heartbeat, and had multiple bruises from the tips of her fingers to her head, back, abdomen, legs, and feet. Cram, who was agitated, very wet with perspiration, and pacing, told a member of the Rescue Squad something like “I did it this time.” Asked by a paramedic how his wife got the marks on her body, Cram said, “I beat her up, I hit her.”

When the police arrived, Cram told Officer Matthew Arntzen, “She has been f* * *ing with my mind for years and now I have hurt her.” Cram told Arntzen that he had been married to the victim for 26 years. When Arntzen asked what happened, Cram said that “he had been arguing with his wife all night.” Cram asked Arntzen, “Be straight with me, Officer, I am going away for a long time, aren’t I?” Cram then said, “I really hurt her this time.”

Following Cram’s arrest, St. Paul Police Sergeant Investigator Bruce Wynkoop interviewed him at police headquarters. Audiotapes and a transcription of the interview were entered into evidence at trial. Wynkoop told Cram that Colleen Cram had died and showed Cram pictures of her taken at the hospital after her death. Cram told Wynkoop that they started fighting at about “6:00 o’clock last night.” Cram said that his wife had asked Cram to hit her and he said, “It took her twelve f* * *jn> hours jast night before I hit her.” Shortly afterward, Cram said, “it took her twelve hours to get me mad, damn mad.” Cram said that he did not hit his wife until about 5 a.m. that morning, when he took a stick and “hit her in the butt ten, fifteen times.” Cram said, “She told me to hit her with it and she’ll answer.” In Cram’s words, “Finally, I got to where I swatted the shit out of her with [the stick] a couple of times.” When asked why he hit his wife with the stick, Cram said, “Cause she demand I did it” and “She told me she’d answer me.”

When Wynkoop asked if he felt “bad about what happened,” Cram replied, “I’m not crazy.” Cram then said, “I do know it was a bad f* * *in’ thing when somebody dies” and “I’m not going to act like I’m nuts and not know the difference.” When asked, “Why do you say ‘most likely I did [hit her with my hands],’ ” Cram replied, “Cause I have before.” Upon being confronted with evidence, Cram also admitted that he hit his wife with an electrical cord on the morning of the murder. According to Cram, his wife

went and got [the cord] for me after the stick was broke. * * * Not only did I hit her with the damn electrical cord, * * * when she was telling me that she’s not right and, and falling down, I hit her with it again, telling her it’s bulls* *t, quit your f* * *in’ lying. * * * I hit her with the [doubled up] cord. Probably ten times telling her to get up.

Finally, Cram admitted that he hit his wife “[everywhere,” using an open hand and his fists, and that he had “hit her in the past.” Asked if he remembered hitting his wife with his hands more than ten times on the morning of the murder, Cram replied, “Yeah.” Wynkoop then asked Cram, “When you were hitting her in the front of the body, ah, that wasn’t cause she was demanding that you hit her or punish her, am I right there?” Cram replied, “No she wasn’t. No, that was, just, that was just being in my face over and over and over and over again.”

Cram was subsequently indicted, and he waived his right to a jury trial. The case was tried to the court.

At trial, the state called Dr. Michael McGee, the Ramsey County Medical Examiner, to testify regarding the cause of death of Colleen Cram. Dr. McGee testified that he performed the autopsy and that the victim had soft tissue injuries on virtually every part of her body. The injuries were too numerous to count. She had oval bruising on both shoulders and left arm, small focal bruises on the left breast, scattered bruises on the knees, shins and thighs, loop-shaped injuries (consistent with an electrical cord) on the lower abdomen and thigh, and several injuries consistent with being hit by a tire iron that was found under the cushions of a sofa at the scene. Internally, Colleen Cram had rib fractures, bruising on both lungs, deep soft tissue injury in her back and buttocks to the point of liquefying the fatty tissue, and severe internal trauma with extensive lacerations in the abdominal cavity. She had a fresh fracture to her left arm’s ulna that Dr. McGee attributed to a blow she received while attempting to defend herself from a tire iron, and another defensive injury in her palm consistent with a tire iron blow. Finally, the victim also had a healing fracture to the left leg below the knee from an injury that occurred weeks to months earlier.

Dr. McGee testified that the internal injuries suffered by Colleen Cram, deep within the body, are most commonly seen in motor vehicle accidents where the victim was not restrained. Dr. McGee testified that the internal injuries were also consistent with a significant force such as kicking or stomping. Dr. McGee’s opinion was that the cause of Colleen Cram’s death was “multiple traumatic injuries due to an assault” that led to her internally bleeding to death. Dr. McGee believed that “the injuries would take a substantial amount of time to deliver” and that it would have taken a minimum of one hour to inflict such injuries.

With regard to the past pattern of domestic abuse, an element of first-degree domestic abuse murder, the state called 16 witnesses. These witnesses testified that they had previously seen Colleen Cram, over a period spanning nearly her entire marriage, exhibit signs that she had been a victim of domestic abuse at the hands of Cram. The witnesses included Colleen’s mother, cousin, brother (T.C.), coworkers at four of her places of employment, an ophthalmologist, two neighbors, and two police officers. One of Colleen’s work managers, her mother, and her cousin, among others, testified that Colleen had told them that Cram hit her. An officer testified that in March 2001, after Colleen’s coworkers alerted police to potential abuse, Cram told police that he had hit his wife. Finally, a neighbor testified that less than a month before the murder, she heard Cram, as he came out of his house, “loudly and very angrily” say “ ‘This has been happening for over two years, I should just kill you and collect the insurance money.’ ”

Cram testified in his defense at trial. He stated that he and his wife had three arguments between 6 p.m. on December 4 and 6 a.m. on December 5, 2001. According to Cram, the first argument was verbal. During the second argument, his wife started “hollering” and hitting Cram, and Cram believed that he hit her back. Cram testified that during the third argument, his wife “would come and hit me with things that I would take away from her.” He said that his wife first hit him with a tire iron in the head, and he took it away from her and hit her “once or twice” on the bottom with it. He stated that he hit his wife with the tire iron because he “believed that would calm her down.” He testified that he “must have snapped” and “must have been in a rage,” and that this third argument was different because “it seemed like there was just no end to the aggravating things she would say to me.”

After five days of testimony, the trial concluded, and the court took the matter under advisement. The court subsequently issued written findings of fact. The court found Cram not guilty of premeditated first-degree murder, guilty of first-degree domestic abuse murder, and guilty of second-degree intentional murder. Cram was sentenced to life in prison. This consolidated appeal followed.

Cram raises three issues. First, Cram claims that he was denied his right to present a complete defense because of three separate erroneous evidentiary rulings. Second, Cram claims that his trial counsel was ineffective in failing to challenge the restitution award. Third, Cram argues that the postconviction court abused its discretion in denying, without an evidentiary hearing, his petition for postconviction relief on the basis of ineffective assistance of trial counsel. We turn to an analysis of these issues.

I.

Cram argues that his right to present a complete defense was violated when the district court restricted his cross-examination of two state witnesses, and when the court granted the state’s motion to preclude Cram from calling a priest, with whom Cram and his wife had met, to testify as a witness. We accord deference “to the trial court’s exercise of discretion in evidentiary matters and will not lightly overturn a trial court’s eviden-tiary ruling.” State v. Kelly, 435 N.W.2d 807, 813 (Minn.1989). Absent a clear abuse of discretion, an evidentiary ruling will not be reversed. State v. Grayson, 546 N.W.2d 731, 736 (Minn.1996). “If exclusion of the evidence did violate defendant’s constitutional right to present a defense, the decision will not be reversed if it is found to be harmless beyond a reasonable doubt.” Kelly, 435 N.W.2d at 813. Any error in the exclusion of evidence is harmless “ ‘if the verdict actually rendered was surely unattributable to the error.’ ” State v. Juarez, 572 N.W.2d 286, 292 (Minn.1997) (quoting State v. Jones, 556 N.W.2d 903, 910 (Minn.1996)).

Cross-Examination of Two State Witnesses. Cram claims the district court erred when it did not allow Cram to cross-examine Colleen Cram’s brother, T.C., about the brother’s alleged abuse of his sister. Cram also claims that the district court erred when it did not allow Cram to cross-examine his wife’s former coworker, K.W., about K.W.’s alleged sexual advances toward Cram and his wife. The state called T.C. and K.W., and both testified that Colleen Cram told them her husband had been abusing her. The state offered this evidence in connection with the element of domestic abuse murder requiring a past pattern of abuse. Cram argues that preventing the cross-examination of these witnesses violated his constitutional right to confront the witnesses to show bias and his right to present a full defense. Specifically, Cram argues that the evidence he sought to elicit on cross-examination would have “corroborate^ Mr. Cram’s defense theory that he acted in the heat of passion and was not acting with extreme indifference to human life.”

We turn first to Cram’s argument that the cross-examination was relevant to show bias. Regarding T.C., we conclude that the district court did not err in precluding the cross-examination of T.C. about his alleged abuse of the victim. Cram alleged that T.C. abused his sister approximately 35 years before the murder. The district court precluded the cross-examination of T.C. on the basis of spousal privilege. We conclude that the district court erred in precluding this examination on the basis of spousal privilege. But, the testimony Cram sought to elicit from T.C. was plainly not relevant to the issue of T.C.’s supposed bias. Whether the victim said that her brother touched her inappropriately 35 years before the murder has no bearing on T.C.’s credibility, and the evidence was therefore properly excluded as irrelevant. See State v. Lanz-Terry, 535 N.W.2d 635, 640 (Minn.1995) (“[N]ot everything tends to show bias, and courts may exclude evidence that is only marginally useful for this purpose.”).

Regarding K.W., Cram argues that K.W. was biased against him because he rebuffed her sexual proposition. Cram contends his and his wife’s rejection of K.W. gave K.W. a motive to fabricate her testimony about Cram’s past abuse of his wife, and that he should have been allowed to explore this bias on cross-examination. Even assuming arguendo that it was error to limit Cram’s cross-examination of K.W. as to bias, we hold that any error was harmless beyond a reasonable doubt.

Assuming Cram had established that KW.’s bias motivated her to fabricate her testimony about Cram’s prior abuse of Colleen Cram, K.W. was only one of sixteen witnesses who testified about Cram’s abuse. See Juarez, 572 N.W.2d at 291 (noting that “[t]he overwhelming evidence of guilt is a factor, often a very important one, in determining whether, beyond a reasonable doubt, the error has no impact on the verdict.”). Contrary to Cram’s assertion at oral argument, KW.’s testimony was not “critical” or “key” to the state’s proof of past pattern. Four other witnesses testified, including a coworker of both K.W. and Colleen Cram, that Colleen Cram had told them that Cram had previously abused her. Two additional witnesses testified to witnessing Cram commit domestic abuse on separate occasions. Nine other witnesses testified to incidents from which a fact finder could reasonably infer that Colleen Cram had been abused by Cram. Finally, Cram himself admitted to police that he beat his wife prior to the night of the murder. We conclude that the district court’s finding that Cram committed prior abuse was surely unattributable to KW.’s testimony. Accordingly, we hold that any error in not allowing Cram to cross-examine K.W. about her alleged bias was harmless beyond a reasonable doubt.

Cram’s alternative argument is that the evidence he sought to elicit on cross-examination of T.C. and K.W. was relevant to corroborate his heat of passion defense. Other than the bare assertion, Cram offers no explanation, and we cannot discern on this record, how testimony from T.C. about T.C.’s alleged abuse of Colleen Cram some 35 years earlier or K.W.’s testimony about a rejected proposition would have bolstered Cram’s argument that he acted in the heat of passion on the night he murdered his wife. We hold that the district court did not abuse its discretion in precluding this cross-examination.

Priest as Defense Witness. Cram next argues that the district court erred when it prevented Cram from calling as a defense witness a priest who had once met with Cram and his wife for counseling. Cram alleges that Colleen told the priest that a coworker of Colleen’s “had made a lesbian advance towards her.” The district court granted the state’s motion that the priest be precluded from testifying on the basis of the priest-penitent privilege under Minn.Stat. § 595.02, subd. 1(c) (2004). Cram argues that he “was prejudiced by not being able to present the testimony of [the priest] because [the priest] was an objective, credible witness that could lend credence to Mr. Cram’s later testimony of the emotional issues with which Mrs. Cram struggled, including on the night before she died.” Cram contends that the priest’s testimony would have undermined the state’s proof on the element of domestic abuse murder requiring that Cram acted with “extreme indifference to human life.” Minn.Stat. § 609.185(a)(6) (2004). We conclude that there was no error in excluding this testimony.

The priest-penitent privilege, by the terms of the statute, covers the conversation at issue, and Cram makes no claim to the contrary. Cram is correct to note that we have recognized that privileges “ ‘sometimes must give way to the defendant’s right to confront his accusers.’ ” State v. Reese, 692 N.W.2d 736, 742 (Minn.2005) (quoting State v. Kutchara, 350 N.W.2d 924, 926 (Minn.1984)). In this case, however, Cram provides no sound basis for this court to override the statutory privilege. Cram does not explain, and we cannot discern on this record, how the priest’s testimony about one conversation the priest had with the murder victim nine months before the murder would have been relevant to the domestic abuse murder charge. We hold that the district court did not err in precluding the priest’s testimony.

II.

In addition to the evidentiary errors discussed above, Cram also argues ineffective assistance of trial counsel in his direct appeal. Specifically, Cram argues that he received ineffective assistance when his trial counsel failed to challenge the restitution award against Cram. On September 23, 2002, the district court ordered that Cram pay restitution to T.C. in the amount of $21,031.29, to the victim’s mother in the amount of $548.00, and to the Minnesota Crime Victim’s Reparations Board, for funeral expenses, in the amount of $6,276.30. Cram argues that his trial counsel’s “complete failure to challenge the state’s request for restitution” amounts to “per se prejudice.”

Generally, to prove ineffective assistance of counsel, a defendant has the burden of proving both prongs of the two-prong test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Lahue, 585 N.W.2d 785, 789 (Minn.1998). Under the first prong, an appellant must show that “counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. Under the second prong, an appellant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. A reasonable probability is “ ⅛ probability sufficient to undermine confidence in the outcome.’ ” State v. Jones, 392 N.W.2d 224, 236 (Minn.1986) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Cram implicitly argues that he does not have to satisfy the second, “prejudice” prong of the Strickland test, citing United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). In Cronic, the Supreme Court noted that it had “uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.” 466 U.S. at 659 n. 25, 104 S.Ct. 2039.

The record indicates that a restitution hearing was held on July 30, 2002, in which Cram’s trial counsel persuaded the judge to hold the matter open. Additionally, the restitution order indicates that Cram had 30 days after August 6, 2002 to contest the claims for restitution. Because the record does not support Cram’s claim that his trial counsel was either totally absent or was prevented from assisting him in contesting restitution, we conclude that he must satisfy both prongs of the Strickland test in order to prove an ineffective assistance of counsel claim.

Our conclusion that Cram must meet the second, prejudice prong of Strickland disposes of Cram’s claim. There is nothing in the record to suggest that the restitution award was improper. See Minn.Stat. § 611A.04 (2004) (listing types of expenses that may be reimbursed by restitution). In order to dispute a restitution claim, Cram has to produce “a detailed sworn affidavit * * * setting forth all challenges to the restitution or items of restitution, and specifying all reasons justifying dollar amounts of restitution which differ from the amounts requested by the victim or victims.” Minn.Stat. § 611A.045 subd. 3(a) (2004). Cram presented no evidence or even any argument that he had a basis to challenge the award. Without any evidence to show that there is a basis to challenge the award, Cram has not shown that he was prejudiced by his trial counsel’s alleged ineffectiveness. See Lahue, 585 N.W.2d at 790. We hold that Cram’s claim of ineffective assistance of trial counsel in challenging the restitution award fails.

III.

Separate from the ineffective assistance of trial counsel claim made in his direct appeal as discussed supra, Cram argued in his petition for postconviction relief that his trial counsel was ineffective. The postconviction court (which was also the trier of fact) denied the petition and Cram’s request for an evidentiary hearing, concluding that based on the entire record, Cram had not alleged sufficient facts which, if proved, would entitle him to relief. Cram argues that the postconviction court erred in denying his petition without first holding a hearing. We will not reverse a postconviction court’s decision absent an abuse of discretion. Zenanko v. State, 688 N.W.2d 861, 864 (Minn.2004).

Cram’s postconviction claim is that his trial counsel was ineffective because his counsel conducted an “inadequate investigation [that] resulted in a failure to raise and present a viable mental illness defense and to present evidence in support of a [lesser included heat of passion] manslaughter conviction.” The test for ineffective assistance of counsel is an objective one, and Cram bears the burden of proof on his claim. Lahue, 585 N.W.2d at 789. As discussed supra, we follow the two-prong test announced in Strickland in assessing claims of ineffective assistance of counsel. 466 U.S. at 687, 104 S.Ct. 2052. We have also recognized that “[t]here is a strong presumption that a counsel’s performance falls within the wide range of ‘reasonable professional assistance.’ ” Jones, 392 N.W.2d at 236.

A petition for postconviction relief must contain “a statement of the facts and the grounds upon which the petition is based and the relief desired.” MinmStat. § 590.02, subd. 1(1) (2004). “A district court must grant an evidentiary hearing for any postconviction petition filed, unless the issues raised in the petition conclusively show that the petitioner is not entitled to relief.” Carney v. State, 692 N.W.2d 888, 891 (Minn.2005). The record conclusively shows that Cram is not entitled to relief on his claim for ineffective assistance of counsel. Accordingly, we conclude that the postconvietion court did not abuse its discretion in denying the petition without an evidentiary hearing.

In support of his claim of ineffective assistance of trial counsel, Cram provided three affidavits to the postconviction court. One affidavit was from trial counsel in which counsel reiterates his belief, as he previously told the district court, that his “heavy case load at the time” of Cram’s trial put him “in a compromised position.” The second affidavit, from attorney Joseph Friedberg, opined that trial counsel’s performance was objectively unreasonable. Relying on these two affidavits, Cram argues his counsel was ineffective for failing to retain an expert on Chronic Fatigue Syndrome (CFS). The record, however, establishes that trial counsel originally did pursue the use of expert witness testimony on the issue of CFS. Counsel ultimately did not further pursue expert testimony, but not because of a lack of effort on his part. Rather, counsel apparently ended his efforts to obtain a CFS expert because the district court ruled that Cram would not be permitted to offer expert testimony regarding CFS. The court did not “believe an expert could testify any more cogently than [Cram] could as to whether or not he does suffer from [CFS] and what those symptoms are.” Accordingly, even if Cram’s counsel had retained an expert on CFS, as Friedberg opines he should have, this expert’s testimony would not have been admissible under the district court’s ruling.

The third affidavit Cram offered was from Dr. Lawson Bernstein, opining that, “within a reasonable degree of medical certainty * * * Cram suffered from longstanding organic solvent neurotoxicity.” Dr. Bernstein also gave the opinion that Cram “suffered from an acute closed head injury” at the time of the murder, implying that it was caused by his wife striking Cram in the head with a tire iron. Dr. Bernstein then alleged that either neuro-toxicity or a closed head injury “can cause a person to lose the ability to appreciate the nature of an act.” Based on an examination of Cram conducted over 15 months after the murder, his review of Cram’s medical records, and his review of the record, Dr. Bernstein concluded that, at the time of his wife’s death, “Cram suffered a defect of reason * * ⅜ [and] was unable to understand what he was doing and what the consequences of his actions would be.”

The issue regarding Dr. Bernstein’s affidavit is.not whether Cram in fact suffered from what Dr. Bernstein terms “neurotoxicity,” or even whether “neurotoxicity” could be a mental illness under Minnesota law. The issue is whether Cram’s trial counsel was objectively ineffective for not pursuing a mental illness defense. This record conclusively establishes that he was not.

Counsel examined medical records for his client dating back approximately ten years before the murder. These records contained psychiatric evaluations which diagnosed Cram as having depression and suggested that he had CFS. Although the evaluations indicate that Cram reported having memory loss problems, neither of them give any indication that he did not know the nature of his actions.

Trial counsel also was faced with Cram’s incriminating, voluntary, statements to police on the morning of the murder. In these statements, Cram admitted to hitting his wife “everywhere” with a stick, his hands, his fists, a doubled up electrical cord, and a tire iron. Cram also told police, “I’m not crazy.” He then said, “I do know it was a bad f* * *in’ thing when somebody dies” and “I’m not going to act like I’m nuts and not know the difference.” A reasonable attorney would have considered this evidence very difficult, if not impossible, to overcome in attempting to establish a mental illness defense. As the postconviction court concluded, there was no “contemporaneous mental illness diagnosis or bizarre or psychotic behavior which could have been observed by [counsel] during his representation of [Cram.]” See Davis v. State, 595 N.W.2d 520, 527 (Minn.1999) (noting that “events surrounding the crime” are properly considered when making “determination about [the defendant’s] sanity”). On this record, we hold that trial counsel was not objectively unreasonable for failing to pursue a mental illness defense.

Finally, regarding Cram’s claim that his trial counsel was ineffective for failing to present evidence to support his heat of passion theory, we first note that Cram’s trial counsel did present evidence to support such a theory. Cram did not allege any facts to the postconviction court which, if true, would have supported his claim that counsel was objectively unreasonable for failing to present more evidence in support of his heat of passion manslaughter theory. His argumentative assertion to that effect is not enough to meet his burden of overcoming the “strong presumption that a counsel’s performance falls within the wide range of ‘reasonable professional assistance.’ ” Jones, 392 N.W.2d at 236; see also Sutherlin, 574 N.W.2d at 436 (holding that because petitioner only made “argumentative assertions without factual support,” he was not entitled to the requested relief and no hearing was required).

In sum, Cram did not raise facts in his petition for postconviction relief which, if true, would entitle him to relief. Accordingly, we hold that it was not an abuse of discretion for the postconviction court to deny his petition without a hearing.

. Affirmed.

      . We assume without deciding that Cram has alleged constitutional errors. Therefore, we apply the more stringent "surely unattributable" standard to the alleged errors. In contrast to this standard, for errors that do not rise to the constitutional level we examine whether "there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict." State v. Stewart, 643 N.W.2d 281, 298 (Minn.2002).

      . Cram alleged that his wife told him her brother had abused her. Because the foundation for the cross-examination of T.C. was based on a spousal communication, the district court ruled it inadmissible under spousal privilege. This ruling was erroneous because spousal privilege "does not apply * * * to a criminal action or proceeding for a crime committed by one against the other.” Minn. Stat. § 595.02, subd. 1(a) (2004).

      . Minnesota Statutes § 595.02, subd. 1(c) reads:
      A member of the clergy or other minister of any religion shall not, without the consent of the party making the confession, be allowed to disclose a confession made to the member of the clergy or other minister in a professional character, in the course of discipline enjoined by the rules or practice of the religious body to which the member of the clergy or other minister belongs; nor shall a member of the clergy or other minister of any religion be examined as to any communication made to the member of the clergy or other minister by any person seeking religious or spiritual advice, aid, or comfort or advice given thereon in the course of the member of the clergy's or other minister's professional character, without the consent of the person.

      . Nearly all of T.C.'s award was related to costs incurred by the victim's estate, including over $16,000 of incurred legal fees for probate, and for the victim’s medical treatment on the day of her death. The restitution was awarded to T.C. in his role as personal representative of the estate.

      . Cram's appellate counsel appealed his conviction on July 18, 2002. Although Cram's trial counsel did appear at the restitution hearing on July 30, 2002, neither the parties nor our review of the record indicate who was representing Cram after July 30, 2002.

      . Cram did not appeal this ruling.

      . The postconviction court concluded that "[t]here were no facts adduced at trial to support Dr. Bernstein's conclusion that [Cram] must have been hit in the head with a tire iron (the 'cause' of the [closed] head injury) before [Cram] killed his wife.”

      . In addition to his opinion that counsel was ineffective for failing to retain an expert on CFS, Friedberg also concludes that Cram’s trial counsel was ineffective based on Dr. Bernstein’s affidavit.

      .Cram is not arguing that Dr. Bernstein's affidavit satisfies the standard of newly discovered evidence warranting a new trial. It plainly does not. See Sutherlin v. State, 574 N.W.2d 428, 434 (Minn.1998) (discussing standard for evaluating newly discovered evidence within the context of postconviction relief). Dr. Bernstein's affidavit is apparently premised on one examination of Cram over a year after the murder and Cram's self-report-tag of exposure to chemicals during employment in the printing industry that occurred between 10 and 30 years before the murder. Assuming this speculative theory was even admissible, see Goeb v. Tharaldson, 615 N.W.2d 800, 814-816 (Minn.2000) (discussing standard for admission of expert testimony), at best, this evidence is "doubtful,” and as such, it would not warrant granting Cram relief under the newly discovered evidence standard. See Sutherlin, 574 N.W.2d at 434.

      . Cram relies on Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), to support his claim of ineffective assistance of counsel. Cram's reliance is misplaced because Rompilla is a death penalty case in which trial counsel failed to examine the prosecution’s "own readily available file on the prior conviction to learn what the Commonwealth knew about the crime, to discover any mitigating evidence the Commonwealth would downplay and to anticipate the details of the aggravating evidence the Commonwealth would emphasize.” Id. at —, 125 S.Ct. at 2465. There are no such failures alleged here. Additionally, there is a clear difference in the failure to discover mitigating circumstances in the penalty phase of a death penalty trial and the alleged failure to pursue a mental illness defense. Any readily available, mitigating fact discovered in Rompilla may have changed the outcome of that case, id. at —, 125 S.Ct. at 2468-69, but establishing that Cram had a viable mental illness defense is a much more difficult task. See State v. Wilson, 539 N.W.2d 241, 244 (Minn.1995) (requiring defendant to prove, by a preponderance of the evidence, "that he did not know the nature of his act or that it was wrong”).

      . Although "heat of passion is not a mitigating circumstance” to the crime of first-degree domestic abuse murder (the crime for which the district court sentenced Cram), State v. Bradford, 618 N.W.2d 782, 801 (Minn.2000), it is a lesser included offense to second degree intentional murder (the other crime the district court found that Cram committed). State v. Johnson, 719 N.W.2d 619 at 626, 2006 WL 1770530 at *5 (Minn. June 29, 2006).

      . Cram also fails to allege what additional evidence his counsel could have presented to support his heat of passion manslaughter theory.


source: Caselaw Access Project

author: MEYER, Justice.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Michael MEDAL-MENDOZA, Appellant.
    No. A05-1084.
    Supreme Court of Minnesota.
    Aug. 3, 2006.

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

MEYER, Justice.

On January 12, 2004, a shooting incident occurred in Saint Paul, during which Ronald Edward Glasgow and Wayne Louis Costilla were shot to death. A third victim, Andria Rai Crosby, was severely injured. In December 2004, a Ramsey County jury found appellant Michael Medal-Mendoza guilty of six felony counts related to the shootings. Medal-Mendoza was then convicted and sentenced to two consecutive terms of life in prison for two first-degree murder convictions and to a consecutive term of 180 months in prison for an attempted first-degree murder conviction.

On direct appeal to this court, Medal-Mendoza argues that the district court committed prejudicial error during his trial because (1) the court violated Medal-Mendoza’s right to present a defense by not allowing him to present evidence of his codefendants’ gang affiliation with each other and with a third person; (2) the court improperly allowed a police officer to testify as an expert regarding “triangulation” evidence; and (3) the court instructed the jury that it could consider Medal-Mendoza’s flight as proof of his guilty intent. In his pro se supplemental brief, Medal-Mendoza additionally claims that he was deprived of his right to confront his accusers because the state introduced evidence that was provided by a confidential informant. He also claims ineffective assistance of trial counsel. We affirm the district court.

Some time after 4:00 a.m. on January 12, 2004, the Saint Paul Police Department Communications Center received a 911 call from a woman at a St. Paul address who reported that she had been shot and needed medical help. Several officers responded to the call, entered the basement apartment and found Andria Rai Crosby lying on the kitchen floor with gunshot wounds to her leg and chest. Crosby informed the officers that “three dudes, two Mexicans and a mulatto” had shot her. The police officers found Ronald Edward Glasgow and Wayne Louis Costilla in the living room of the apartment. Glasgow was shot in the head and chest and appeared to be dead. Costilla, who received gunshot wounds in his head and neck, was breathing but unconscious. Later, Costilla died at the hospital.

Crosby testified at Medal-Mendoza’s trial. According to Crosby, on the evening of January 11, 2004, she was at a hotel room with her boyfriend, Glasgow, and her friend, Costilla. The three of them played video games and dominos. Crosby testified that they all used methamphetamine that evening, and that she also smoked some marijuana. At some point, Costilla received a telephone call from a person seeking to buy some methamphetamine. Crosby and Glasgow decided that they would sell one ounce of methamphetamine to Costilla for $1,500 to $1,600, and Costilla in turn told the caller that he had methamphetamine for sale.

Crosby, Glasgow, and Costilla went to Costilla’s apartment on Burns Avenue to wait for the caller, who was coming from a Perkins restaurant with some friends. At about 1:30 a.m. on January 12, 2004, the caller, who Crosby later learned was James Green, arrived at Costilla’s apartment. Crosby testified that she recognized Green as someone that she had known from high school. Green was friendly, and after about 15 or 20 minutes Costilla invited the two men that Green was with into the apartment. Crosby described the taller man as a “whitish Mexican,” who had “pitch black eyes” that were “stone cold,” and the shorter man as a “blackish Mexican,” who was “well dressed” and “more preppy.” Crosby testified that the three men stayed for about 15 minutes and discussed the transaction, during which period the shorter Mexican, whom Crosby identified in court as Michael Medal-Mendoza, made a telephone call to someone named “Lucky.” Costilla then gave Medal-Mendoza a sample bag of methamphetamine, and the three men left the apartment to meet some buyers at a gas station down the street.

Crosby testified that the three men came back to Costilla’s apartment after about 30 minutes. They kicked the apartment door open, and Medal-Mendoza came in first with a big, shiny, silver gun. Green and the other “whitish Mexican” came in together after Medal-Mendoza, also carrying guns. Medal-Mendoza pointed his gun at Glasgow, and the following exchange ensued:

Medal-Mendoza: I am robbing you, mother f* * * * *.
Glasgow: You ain’t robbing me, mother p ⅜ ‡ ‡ *
Medal-Mendoza: I will shoot you.
Glasgow: You are going to have to shoot me then because you sure as hell ain’t robbing me.

Medal-Mendoza then shot Glasgow in the head. Crosby started to scream, was shot, and dropped to the ground. After firing several gunshots, the three men ran out of the apartment. Crosby stayed on the floor, feeling a burning sensation in her chest and extreme warmth in her legs.

Crosby testified that one of the men returned to the apartment, kicked and nudged Crosby, grabbed her purse, and then left. Once Crosby was sure the three men had gone, she got up, started screaming, and called 911.

In the police investigation, Crosby identified Green from her high school yearbooks as the man who had come to Costil-la’s apartment to buy drugs. Crosby also identified Green from a six-person photographic lineup that the police had prepared. She subsequently identified Daniel Valtierra from a six-person photographic lineup as the taller Mexican who had participated in the robbery. Later, the police learned from an informant that the three people who had committed the crime were “J.G.” (Green), “Danny V.” (Valtierra), and “Brooklyn” (Medal-Mendoza).

The informant directed the police to a Maplewood apartment where the suspects were staying. The police obtained a search warrant and searched the Maple-wood apartment in the afternoon of January 12, 2004. None of the suspects were at the apartment, but the police officers were able to talk to Alison Kinsel, who was Green’s girlfriend, and Medal-Mendoza’s younger brother, who is known as “Lucky.” The officers then learned that Medal-Mendoza is known as “Brooklyn.”

After receiving this information, the police prepared a photographic lineup that contained a picture of Medal-Mendoza. When Crosby saw the lineup, she identified Medal-Mendoza as the shooter and started crying, saying “Oh, my god. I can hear his voice. It is his eyes. I recognize his eyes.” Based on Crosby’s recollection that the group who came to Costilla’s apartment had been at the Perkins restaurant on Robert Street, the police obtained security videotapes from the restaurant and found that one of the videotapes showed Medal-Mendoza, Green, and Valti-erra at the restaurant together on the evening of the shooting.

Kinsel testified at Medal-Mendoza’s trial. According to Kinsel, she woke up at about 6:00 a.m. on January 12, 2004, and Green and Valtierra were at her apartment. Later, Kinsel’s friend, Joe Seals, arrived at the apartment. Kinsel had loaned her car to Seals the day before the shooting incident, but Seals told Kinsel that her car had been stolen and arrived at the apartment in a different car. Kinsel and Seals took Valtierra to the airport so that Valtierra could leave for Seattle. Val-tierra could not get a flight, and the three of them returned to Kinsel’s apartment. Kinsel testified that at some point Medal-Mendoza also came to the apartment. Later, Valtierra and Green left the apartment together, and Medal-Mendoza left separately. During cross-examination, Kinsel testified that to her knowledge, Medal-Mendoza was not a gang member.

In the afternoon of January 13, 2004, the police learned that Medal-Mendoza had been arrested in Wisconsin for driving while intoxicated and causing an accident. Green and Valtierra were with Medal-Mendoza at the time of the accident, but were released from police custody. Green and Valtierra returned to Saint Paul and were arrested shortly thereafter.

LeRoy DeMeules testified for the state. DeMeules testified that he met Medal-Mendoza and Green when he was incarcerated at the Ramsey County jail. According to DeMeules, Green told him that if Medal-Mendoza did not “take the charge” for the murders, Green was going to make sure Medal-Mendoza’s life “wasn’t too healthy up in prison.” Green also wanted DeMeules to let Medal-Mendoza know that Medal-Mendoza would be rewarded if he agreed to “take the heat.” DeMeules relayed this information to Medal-Mendoza, and Medal-Mendoza asked De-Meules if DeMeules would tell Medal-Mendoza’s attorney what Green had said. Medal-Mendoza also told DeMeules, “Don’t tell my attorney about popping the other two.” Medal-Mendoza then added that he was just joking, but DeMeules thought Medal-Mendoza was being serious.

DeMeules testified that Medal-Mendoza said he and the other two men went to Costilla’s apartment to “hit [rob] them for drugs and money.” Medal-Mendoza also stated that the state would not be able to prove that he was at the murder scene because Rachel, a friend of his girlfriend, was going to testify that Medal-Mendoza was at her house taking a shower and in bed with her when the shootings occurred. Medal-Mendoza asked DeMeules to have his girlfriend call Rachel to confirm that Rachel would support his alibi, and De-Meules refused.

Medal-Mendoza’s theory at trial was that Crosby misidentified him as the shooter and that Joe Seals, who belonged to the same gang as Valtierra and Green, was the man who committed the murders. Medal-Mendoza did not testify but called his friend, Rachel Verdaja, to testify as an alibi witness.

Verdaja testified that she knew Medal-Mendoza through his girlfriend, Antoinette Molinar. Medal-Mendoza was staying in her apartment at the time because he and Molinar were fighting. According to Ver-daja, she was in her apartment sleeping in the early morning of January 12, 2004. She woke up and heard that someone was taking a shower. She went back to sleep, and after a while Medal-Mendoza came into the bedroom and got into her bed. Verdaja testified that she did not remember the exact time that this happened, but it was sometime between 4:00 and 5:00 a.m.

On December 16, 2004, a jury found Medal-Mendoza guilty of two counts of first-degree felony murder, one count of attempted first-degree felony murder, two counts of second-degree murder, and one count of attempted second-degree murder. On March 2, 2005, the district court convicted and then sentenced Medal-Mendoza to two consecutive terms of life in prison for the first-degree murder convictions and to a consecutive term of 180 months in prison for the attempted first-degree murder conviction. This appeal followed.

I.

Medal-Mendoza first argues that the district court deprived him of the right to present the defense that Crosby misidentified him as the shooter and that Seals, who belonged to the same gang as Valtierra and Green, was the man who committed the murders. According to Medal-Mendoza, the district court violated his right to present a defense by not allowing him to present evidence of his codefen-dants’ gang affiliation with each other and with Seals.

Evidentiary rulings generally rest within the district court’s discretion. State v. Palubicki, 700 N.W.2d 476, 485 (Minn.2005). As such, a reviewing court will not reverse a district court’s evidentia-ry ruling absent a clear abuse of that discretion. Id. A criminal defendant has the right to present a defense, which includes a right to present evidence tending to prove that another person committed the charged crime. See State v. Hawkins, 260 N.W.2d 150, 158 (Minn.1977). In Palubicki, we held that a criminal defendant may present alternative perpetrator evidence at trial in order to cast doubt on the defendant’s guilt. Palubicki, 700 N.W.2d at 485. However, the defendant must first lay an evidentiary foundation to establish that the alternative perpetrator evidence has “an inherent tendency to connect the alternative perpetrator to the actual commission of the charged crime.” Id. The alternative perpetrator evidence is inadmissible and a district court need not consider any of the alternative perpetrator evidence if the defendant fails to lay the proper foundation. Id.

Here, the record shows that Medal-Mendoza filed a pretrial motion seeking to present evidence that Green and Valtierra were both members of the Brown for Life gang. The district court did not rule on this motion, stating it would have to “see that in context” before deciding whether to admit the evidence. During cross-examination of Kinsel, Medal-Mendoza’s counsel attempted to question Kinsel about whether Green, Valtierra, and Seals belonged to the same gang. The state objected, arguing that the gang affiliation evidence was irrelevant. Medal-Mendoza’s counsel responded that the fact that Seals belonged to the same gang as Green and Valtierra and the fact that Seals was with Green and Valtierra before the shootings occurred indicates that Medal-Mendoza was misidentified by Crosby as the shooter.

The district court sustained the state’s objection, concluding that “at some point, the gang membership may become relevant. Right now it isn’t.” The court further explained:

[Counsel] thinks there is [relevance to the gang affiliation evidence.] She thinks there are gang experts who would come in here and testify that gang members don’t commit crimes with non-gang members. That is what she thinks. I haven’t heard it yet. It hasn’t been disclosed, etcetera. We will deal with that if she ever — if she gets to a point. What I am ruling now, it is not relevant because I don’t have any foundation for what you are talking about.

The trial then proceeded, and Medal-Mendoza did not introduce any further evidence on the subject.

We conclude that the district court correctly precluded Medal-Mendoza from introducing Green, Valtierra, and Seals’ gang affiliation evidence because this evidence did not have the inherent tendency to connect the alleged alternative perpetrator, Seals, to the commission of the murders. See Palubicki, 700 N.W.2d at 485. Specifically, the fact that Seals belonged to the same gang as Green and Valtierra and borrowed a car from Kinsel the day before the shooting does not, by itself, inherently connect Seals to the murders. At trial, Medal-Mendoza produced no evidence that gang members do not commit crimes with non-gang members or that Seals fit Crosby’s description of the shooter. As such, Medal-Mendoza failed to produce evidence that had an inherent tendency to connect Seals to the actual commission of the crimes. We therefore conclude that the district court did not err when it refused to admit the gang affiliation evidence.

II.

Medal-Mendoza next argues that the district court committed prejudicial error when it allowed Sergeant Dunnom of the Saint Paul Police Department to testify as an expert about the violent character of the “drug community” and the phenomenon of “triangulation.” Specifically, at Medal-Mendoza’s trial Dunnom testified over Medal-Mendoza’s relevancy objection that “triangulation” occurs when a drug buyer brings additional people, who “split and go into a formation where they have now — you can’t watch all of them, the exits or entrances are now covered and you have someone to your left, to the right and in front of you.” Dunnom further testified that triangulation “is a danger signal because that can mean either robbery, at best, or a murder, at worst.”

Evidentiary rulings “ ‘rest within the sound discretion of the [district] court, and we will not reverse such evidentiary rulings absent a clear abuse of discretion.’” State v. Morton, 701 N.W.2d 225, 234 (Minn.2005) (quoting State v. Sanchez-Diaz, 683 N.W.2d 824, 835 (Minn.2004)). We have previously stated that expert testimony is only admissible if the testimony will help the trier of fact in evaluating evidence or resolving factual issues. State v. DeShay, 669 N.W.2d 878, 884 (Minn.2003). When a district court errs in ad mitting expert testimony, a reviewing court will grant a new trial only when the error substantially influences the jury’s decision. State v. Valtierra, 718 N.W.2d 425, 435 (Minn.2006).

In Valtierra, we considered the same “triangulation” argument made by Medal-Mendoza’s codefendant, Valtierra, in Valti-erra’s direct appeal. Id. at 434. We concluded that because “triangulation” as described by Dunnom did not in fact occur, Dunnom’s “triangulation” testimony in Valtierra’s trial, which was substantially similar to, her testimony at Medal-Mendoza’s trial, did not help the jury in evaluating evidence or resolving factual issues. Id. at 435. Accordingly, we held that the district court abused its discretion by permitting Dunnom to testify about triangulation. However, we concluded that the error was harmless because Valti-erra’s convictions hinged on Crosby’s testimony that Valtierra had wielded a gun at Costilla’s apartment, and the triangulation testimony was unlikely to have substantially influenced the jury’s decision. Id.

Similar to Valtierra, the jury's verdict in the instant case was also based on Crosby’s identification of Medal-Mendoza as the shooter. Accordingly, Dunnom’s “triangulation” testimony at Medal-Mendoza’s trial did not substantially influence the jury’s decision. We therefore conclude that the district court’s error in admitting Dunnom’s “triangulation” testimony was harmless and does not warrant a new trial.

III.

Medal-Mendoza next argues that the district court committed reversible error when it instructed the jury that it could consider Medal-Mendoza’s flight as proof of Medal-Mendoza’s guilty intent. Specifically, Sergeant Jane Laurence of the Saint Paul Police Department testified at the trial that the police learned from “reliable informants” that Medal-Mendoza, Valtierra, and Green left Saint Paul after the shooting and drove to Chicago. The informants also told the police that Medal-Mendoza, Valtierra, and Green then “turned around” and were returning to Saint Paul. The police subsequently learned that the defendants were involved in an accident while driving back to Saint Paul and Medal-Mendoza was arrested in Wisconsin. Based on this information, the court gave the following flight jury instruction over Medal-Mendoza’s objection:

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

Generally, a district court has considerable latitude in choosing jury instructions. State v. Baird, 654 N.W.2d 105, 113 (Minn.2002). A reviewing court will not reverse a trial court’s decision on jury instructions unless the trial court abused its discretion. State v. Persitz, 518 N.W.2d 843, 848 (Minn.1994). Our court has previously permitted a flight jury instruction. See State v. McLaughlin, 250 Minn. 309, 319, 84 N.W.2d 664, 671-72 (1957). But, in more recent cases we have instructed the district courts to avoid “jury instructions advising that a particular fact may be inferred from other particular facts, if proved.” State v. Litzau, 650 N.W.2d 177, 185-86 (Minn.2002) (holding reversal warranted where a permissive inference instruction on possession of a controlled substance contributed to the cumulative prejudicial effect of the errors in defendant’s trial); see also State v. Olson, 482 N.W.2d 212, 215-16 (Minn.1992) (holding it was reversible error to give the jury a permissive inference instruction on possession of a controlled substance).

We note that the district court gave the same flight jury instruction in Valtierra’s trial, and Valtierra argued on appeal that the court erred in so instructing. In Valti-erra’s appeal, we concluded that giving the flight jury instruction was error because (1) it improperly focuses the jury on a particular fact; i.e., the fact of defendant’s flight, which gives the impression to the jury that the court believes that the subject of the instruction has elevated significance; (2) the relationship between a defendant’s flight and his guilty intent is a matter that should normally be left to the jury’s judgment; (3) it injects argument into and unnecessarily lengthens the judge’s charge; and (4) allows juries to avoid assessing the myriad facts that make specific cases unique. Valtierra, 718 N.W.2d at 432-33. Because our rationale for rejecting the flight jury instruction in Valtierra also applies to Medal-Mendoza’s trial, we conclude that the court erred in instructing the jury that it could consider Medal-Mendoza’s flight as proof of his guilty intent.

Erroneous jury instructions merit a new trial “if it cannot be said beyond a reasonable doubt that the error had no significant impact on the verdict.” Olson, 482 N.W.2d at 216. Here, the erroneous flight jury instruction did not have a significant impact on the jury’s verdict. First, the record indicates that the state’s case against Medal-Mendoza was very strong. As discussed above, the critical evidence in this case is Crosby’s testimony and her identification of Medal-Mendoza as the shooter, and not Medal-Mendoza’s flight after the crime. In addition, police officers testified that Medal-Mendoza was arrested while driving back to Saint Paul, and this testimony mitigated the harm that may have resulted from the impermissible flight instruction. We therefore conclude that the district court’s flight jury instruction at issue does not warrant a new trial.

IV.

In his pro se supplemental brief, Medal-Mendoza additionally claims that he was deprived of his right to confront his accusers because the state introduced evidence that was provided by a confidential informant. According to Medal-Mendoza, Sergeant Jane Laurence should not have been allowed to testify that an unidentified informant told the police that the three people who committed the murders were: J.G., Danny V. and Brooklyn.

Initially, we note that Medal-Mendoza failed to object to this evidence at trial and, therefore, we review the admission of the evidence under the plain error doctrine. Minn. R.Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn.1998). Accordingly, Medal--Mendoza must show that the district court’s failure to sua sponte exclude the testimony at issue constituted (1) an error; (2) that was plain; and (3) that affected Medal-Mendoza’s substantial rights. State v. Strommen, 648 N.W.2d 681, 686 (Minn.2002).

We have stated that when an informant is a mere transmitter - of information and not an active participant in the crime itself, the informant’s name need not be disclosed. State v. Villalon, 305 Minn. 547, 549, 234 N.W.2d 189,191 (1975). Further, disclosure of an informant’s identity is not generally required when the only participation by the informant in the crime is to bring together the defendant and the government agent. State v. Werber, 301 Minn. 1, 7-9, 221 N.W.2d 146, 150 (1974). Specific factors a district court should consider when determining whether disclosure of the identity of an informant is necessary to a fair trial include: (1) whether the informant was a material witness; (2) whether the informant’s testimony will be material to the issue of guilt; (3) whether the testimony of the law enforcement officer is suspect; and (4) whether the informant’s testimony might disclose entrapment. Syrovatka v. State, 278 N.W.2d 558, 561-62 (Minn.1979).

Here, the record indicates that Sergeant Laurence’s testimony at issue was not material to Medal-Mendoza’s guilt. Specifically, Laurence did not use the informant’s statement to prove that Medal-Mendoza had committed the murder, but rather to show the jury how the investigation process proceeded and to explain how she came to identify Medal-Mendoza as a suspect. Further, there is no evidence that would indicate the confidential informant was a material witness to the crime, that Laurence’s testimony was suspect, or that the informant’s testimony might disclose entrapment. We therefore conclude that the district court did not need to sua sponte exclude the testimony at issue.

Medal-Mendoza last argues that he received ineffective assistance of trial counsel because his attorney (1) failed to object to the above testimony; (2) failed to object to Crosby’s testimony; (3) failed to question the police officers’ method of investigation; and (4) refused to call certain witnesses. The United States Supreme Court has stated that to succeed in an ineffective assistance of counsel claim, a convicted defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Here, Medal-Mendoza failed to demonstrate how his trial counsel’s alleged failures “fell below an objective standard of reasonableness.” See id. at 688, 104 S.Ct. 2052. More importantly, as discussed above, the state’s case against Medal-Mendoza was very strong, and the record does not indicate that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. Accordingly, we conclude that Medal-Mendoza’s ineffective assistance of counsel claim also fails.

For the above reasons, we affirm Medal-Mendoza’s convictions.

Affirmed.


text:
    Derrick Ramon DUKES, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A05-2264.
    Supreme Court of Minnesota.
    Aug. 3, 2006.

      Frederick J. Goetz, Goetz & Eekland PA, Minneapolis, MN, for Appellant.
    Michael Hatch, Attorney General, Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Asst. Ramsey County Attorney, St. Paul, MN, for Respondent.
   OPINION

MEYER, Justice.

Derrick Ramon Dukes appeals the denial of his second petition for postconviction relief. The petition alleged Crawford error entitling Dukes to a new trial. We affirm the district court.

Following a jury trial, Dukes was convicted of first-degree felony murder, attempted first-degree felony murder, and attempted aggravated robbery. State v. Dukes, 544 N.W.2d 13, 15 (Minn.1996) (Dukes I). The district court sentenced Dukes to consecutive terms of life and 180 months’ imprisonment. Id. Our opinion issued in response to Dukes’ direct appeal provides a full statement of the facts in this case. See id. at 15-18. Dukes appealed his convictions and sentences, raising five issues. Id. at 15. One of these issues was whether the admission at trial of a transcript of a eodefendant’s statements made at the codefendant’s guilty plea hearing violated Dukes’ constitutional right to confrontation. Id. at 19. Citing Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), we held the admission of the transcript did not violate Dukes’ Sixth Amendment rights and affirmed Dukes’ convictions and sentences. Dukes I, 544 N.W.2d at 15,19.

Dukes’ first petition for postconviction relief raised six issues; the postconviction court denied the petition after holding an evidentiary hearing. See Dukes v. State, 621 N.W.2d 246, 250-51 (Minn.2001) (Dukes II). On appeal, we affirmed the denial of relief on four of the claims, but remanded the remaining two claims to the postconviction court for additional findings. Id. at 249-50. On remand, the postconviction court again denied Dukes’ petition, and we affirmed on appeal. Dukes v. State, 660 N.W.2d 804, 807 (Minn.2003) (Dukes III). After the Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), Dukes filed a second petition for postconviction relief alleging he was entitled to relief under Cravjford based on the admission at trial of the transcript of his codefendant’s statements. The postconviction court denied relief, and this appeal followed.

“Review of a postconviction proceeding is limited to determining ‘whether there is sufficient evidence to sustain the postconviction court’s findings, and a post-conviction court’s decision will not be disturbed absent an abuse of discretion.’ ” Zenanko v. State, 688 N.W.2d 861, 864 (Minn.2004) (quoting Sanders v. State, 628 N.W.2d 597, 600 (Minn.2001)). When making this determination, we are not limited to the reasoning of the postconviction court, and we can affirm the denial of postconviction relief on grounds other than those on which the postconviction court relied. See Hummel v. State, 617 N.W.2d 561, 563 (Minn.2000); see also Black v. State, 560 N.W.2d 83, 85 (Minn.1997).

Whether Dukes is entitled to have the rule in Crawford retroactively applied to his case is governed by the framework of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See State v. Houston, 702 N.W.2d 268, 270 (Minn.2005). Under Teague, a new rule of federal constitutional criminal procedure is usually not retroactively applicable to a defendant’s .case once the defendant’s case has become final. 489 U.S. at 310, 109 S.Ct. 1060 (plurality opinion). An exception to Teague’s rule, which is “known as the ‘watershed rule’ exception, applies when the new rule ‘requires the observance of those procedures that * * * are implicit in the concept of ordered liberty’ or ‘alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of any particular conviction.’ ” Houston, 702 N.W.2d at 270-71 (omission in original) (quoting Teague, 489 U.S. at 311,109 S.Ct. 1060).

As Dukes concedes, his case was final at the time Crawford was announced. Dukes argues that Crawford applies retroactively to his case because: (1) Crawford did not announce a “new” rule and, alternatively, (2) that Crawford established a “watershed rule” of criminal procedure and therefore is fully retroactive under an exception to Teague’s general rule. The state urges us to adopt the reasoning of federal circuit courts that have held, pursuant to Teague, that Crawford is not retroactively applicable to cases final at the time Crawford was decided.

We have already decided in Danforth v. State, 718 N.W.2d 451, 2006 WL 2075145 (Minn.2006), that Crawford announced a new rule, the rule is not a “watershed rule” of federal constitutional criminal procedure and, consequently, the rule is not retroactive to eases that were final at the time of the Crawford decision. Because Dukes’ case was final at the time of the Crawford decision, he is not entitled to retroactive application of Crawford to his case and the postconviction court did not abuse its discretion in denying Dukes’ petition for relief.

Affirmed.

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


text:
    STATE of Minnesota, Respondent, v. Richard Lowell BOURKE, Appellant.
    No. A04-1121.
    Supreme Court of Minnesota.
    Aug. 3, 2006.

      John Stuart, State Public Defender, Bridget Kearns Sabo, Assistant Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, Thomas R. Ragatz, Mary McKinley, Assistant Attorney Generals, St. Paul, MN, Jeffrey Edbald, Isanti County Attorney, Cambridge, MN, for Respondent.
   OPINION

GILDEA, Justice.

Richard Lowell Bourke was found guilty of conspiring to manufacture methamphetamine and sentenced to 72 months in prison. Bourke argues that the district court erred in denying his motion to suppress the evidence seized during the nighttime search of his property. Bourke contends that the search warrant application did not contain specific facts to justify a nighttime search as required by the constitution and Minn.Stat. § 626.14 (2004). The court of appeals affirmed the district court. State v. Bourke, No. A04-1121, 2005 WL 1514324, at *2 (Minn.App. June 28, 2005). We affirm.

Isanti County Deputy Sheriffs Lisa Lov-ering and Robert Bowker drove to Richard Lowell Bourke’s property at approximately 8:00 p.m. on November 7, 2002. A bonding agent had contacted Lovering to inform her that William Kelly Brown, who was wanted on an outstanding felony warrant, was staying in the pole barn on Bourke’s property. Lovering knocked on Bourke’s door and Bourke answered. While Lovering spoke with Bourke, Bowker walked to the pole barn and looked through an uncovered window. Inside the pole barn, Bowker saw two men, guns in a gun rack, syringes, pipes, small straws, a fan, and a woman wearing latex gloves. Bowker thought methamphetamine was being manufactured inside the pole barn and that one of the men was Brown, and he shared these suspicions with Lovering when she finished talking with Bourke at the house and joined Bowker near the pole barn.

Although Bourke told Lovering that he had not seen Brown for about a week, Bourke told the officers that he would let them into the pole barn, which was located about 200 feet from Bourke’s residence. The officers testified that as Bourke was opening the door of the pole barn, he yelled out, “cops” or “the cops are here.” After seeing the three people in the barn gather up items and head toward the stairs to the barn loft, Bowker entered the barn, ordered all three people to the ground, and Bourke fled the scene.

Later that night, Isanti County Sheriffs investigator Chris Janssen applied for a warrant to search Bourke’s residence and “any and all outbuildings located on [Bourke’s] property.” The application included a list of a number of items associated with the manufacture of methamphetamine that Janssen believed would be found on the property, and the attached affidavit established Janssen’s familiarity “with various methods of processing, ingesting, and distributing controlled substances, as well as equipment and paraphernalia associated with these processes.”

The affidavit recited the factual events of the evening as follows:

On 11/7/2002 at 2020 hours Deputies Bowker and Lovering of the Isanti County Sheriffs Office responded to the residence of [Bourke] in an attempt to locate [Brown], Brown had an active felony warrant for controlled substance from Anoka County. Deputy Lovering had received information that Brown was staying at a pole barn at the residence. Upon the deputies arrival Deputy Bowker went to the pole barn and while he looked through a window in an attempt to locate Brown he observed two males and a female at a table in the process of manufacturing methamphetamine. The homeowner Richard Bourke let the deputies into the pole barn and the three parties inside were placed under arrest and the homeowner fled the scene before he could be apprehended.

The application then indicated, “A nighttime search is (set) necessary (including the hours of 8:00 p.m. to 7:00 a.m.) to prevent the loss, destruction or removal of the objects of the search because: of the lateness of the hour and the possible destruction of evidence.” The application requested that the warrant be issued to allow the search to be conducted “in the daytime or nighttime.” The district court judge signed the warrant, which was dated November 7, 2002. The receipt and inventory of the search, filed the following day, indicated that the search was conducted at 11:30 p.m. on November 7, and listed a number of weapons and assorted drug paraphernalia that had been found on Bourke’s property.

Bourke was arrested approximately 100 yards from his residence after a State Patrol helicopter located him. Bourke was charged by complaint on November 8, 2002, for both manufacturing and conspiring to manufacture a controlled substance in the first degree. Prior to trial, Bourke made a motion to suppress all of the evidence obtained in the search, arguing that there was a “lack of sufficient information provided to the magistrate to justify the issuance of [a warrant] authorizing a nighttime search.” The district court denied Bourke’s motion in a written order.

After a bench trial on stipulated facts, the district court found Bourke guilty of conspiring to manufacture methamphetamine in violation of Minn.Stat. § 152.096, subd. 1 (2004). Bourke was sentenced to 72 months in prison. The court of appeals affirmed the district court’s denial of Bourke’s suppression motion. Bourke, 2005 WL 1514324, at *2. We granted Bourke’s petition for review and now affirm.

I.

Bourke argues that the nighttime search of his property violated United States and Minnesota constitutional protections against unreasonable searches, and also violated Minn.Stat. § 626.14. We have noted that the question of whether a nighttime search is authorized is the subject of statutory regulation in Minnesota, and that the issue “may also have a constitutional dimension.” State v. Lien, 265 N.W.2d 833, 839 (Minn.1978). We address Bourke’s statutory argument first because “[o]ur general practice is to avoid a constitutional ruling if there is another basis on which a case can be decided.” Erlandson v. Kiffmeyer, 659 N.W.2d 724, 732 n. 7 (Minn.2003); see also In re Senty-Haugen, 583 N.W.2d 266, 269 n. 3 (Minn.1998) (“It is well-settled law that courts should not reach constitutional issues if matters can be resolved otherwise.”).

Minnesota Statutes § 626.14 requires that before the court issues a warrant for a nighttime search, it must first determine that the nighttime search “is necessary to prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public.” The statute thus contains the reasons for which the court could find necessity to authorize a search at night. The statute, however, does not set forth the showing required to sustain a conclusion of necessity.

In Lien, we said that “[w]hat the Minnesota statute seems to require is some showing to the magistrate that the warrant can only be executed successfully in the nighttime.” 265 N.W.2d at 840. The affidavit reviewed in Lien stated only that “it is unknown when the person described herein will be at the premises described herein.” Id. We concluded that such an assertion, which we noted “could be made in almost any case,” was not sufficient to authorize a nighttime search. Id.

Beyond the general statement in Lien that the statute requires “some showing,” we have not articulated the quantum of proof required for the authorization of a nighttime search under the statute. We now hold that the statute requires at least a finding that there is reasonable suspicion to believe a nighttime search is necessary to preserve evidence or to protect officer or public safety.

The United States Supreme Court has noted that in the context of unannounced entries, the reasonable suspicion standard “strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by” such entries. Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997). Similar competing interests are at issue in the context of nighttime searches, and we conclude that applying at least the reasonable suspicion standard provides a way to balance these competing interests in this context as well.

“The policy behind prohibiting nighttime searches in the absence of specific judicial authorization in the warrant is to protect the public from the ‘abrasiveness of official intrusions’ during the night.” State v. Stephenson, 310 Minn. 229, 233, 245 N.W.2d 621, 624 (1976) (quoting United States v. Ravich, 421 F.2d 1196, 1201 (2d Cir.1970)). We have said that, in enacting section 626.14, “[t]he legislature recognized that entry into a residence in the middle of the night is a greater invasion of residential privacy than entry during the daytime.” State v. Winchell, 363 N.W.2d 747, 750 (Minn.1985); see also Lien, 265 N.W.2d at 839-40 (“Underlying the Minnesota statutory rule * * * is the belief that a nighttime search of a home involves a much greater intrusion upon privacy and is presumably more alarming than an ordinary daytime search of a home.”).

Requiring that a judicial officer conclude that there is at least a reasonable suspicion that the warrant needs to be executed at night, in addition to finding probable cause to issue the warrant itself, recognizes the legislature’s policy judgment in providing a statutory protection against nighttime intrusions. At the same time, the reasonable suspicion showing is “not high.” Richards, 520 U.S. at 394, 117 S.Ct. 1416. We have said that reasonable suspicion requires “something more than an unartic-ulated hunch, that the officer must be able to point to something that objectively supports the suspicion at issue.” State v. Wasson, 615 N.W.2d 316, 320 (Minn.2000). The reasonable suspicion standard thus is consistent with our characterization in Lien that section 626.14 requires “some showing” of necessity. See Lien, 265 N.W.2d at 840.

We hold that before a nighttime search is authorized under section 626.14 the application for the warrant must establish at least a reasonable suspicion that a nighttime search is necessary to preserve evidence or to protect officer or public safety.

II.

We turn next to a review of the application for a warrant to search Bourke’s property to determine whether it made the reasonable suspicion showing. When reviewing pretrial orders on motions to suppress evidence, we independently review the facts and determine, as a matter of law, whether the district court erred in its ruling. State v. Harris, 590 N.W.2d 90, 98 (Minn.1999). The district court’s factual findings are reviewed under the clearly erroneous standard, but we review the district court’s legal determinations de novo. See State v. Wiernasz, 584 N.W.2d 1, 3 (Minn.1998).

On review, we give “great deference to the issuing judge’s determination” of probable cause for a search warrant. State v. Jones, 678 N.W.2d 1, 11 (Minn.2004). The primary rationale for giving the issuing judge “great deference” is to avoid setting such a high standard for warrants that the police would be discouraged from seeking the warrant in the first place. See State v. Harris, 589 N.W.2d 782, 791 (Minn.1999) (“To ensure that the warrant requirement does not become so burdensome as to discourage the police from seeking review by * * * a neutral [magistrate], 'the resolution of doubtful or marginal cases should be largely determined by the preference to be accorded warrants.’ ”) (quoting State v. Wiley, 366 N.W.2d 265, 268 (Minn.1985)). Under this same rationale, we conclude that we should give the same deference to the issuing judge’s determination of whether a nighttime search warrant should be authorized under Minn.Stat. § 626.14. The issuing judge’s determination must be based on “the factual allegations contained in the affidavit in support of the warrant application and the reasonable inferences to be drawn therefrom.” See State v. Bradford, 618 N.W.2d 782, 786 (Minn.2000).

The search warrant application and supporting affidavit stated, “A nighttime search is (not) necessary (including the hours of 8:00 p.m. to 7:00 a.m.) to prevent the loss, destruction or removal of the objects of the search because: of the lateness of the hour and the possible destruction of evidence.” Bourke argues that the search warrant application’s “unsupported contention that evidence might be destroyed is the precise type of boilerplate language found to be insufficient by both the United States Supreme Court and Minnesota courts.”

Bourke is correct that “boilerplate language” has been found to be insufficient to justify a warrant under the reasonable suspicion standard. Cf. Richards, 520 U.S. at 394, 117 S.Ct. 1416 (rejecting Wisconsin Supreme Court’s blanket exception to reviewing reasonableness of no-knock provision in search warrant for felony drug investigations and requiring review of the facts and circumstances of the particular search); Garza v. State, 632 N.W.2d at 638 (requiring a “particularized showing of dangerousness, futility, or destruction of evidence” and holding that mere statement in “general terms ⅜ * * with no factual nexus to particularized facts” was insufficient). The search warrant application for Bourke’s property, however, provides more than mere boilerplate language to justify a nighttime search. As the court of appeals correctly noted, “several reasonable inferences to support a nighttime search” are apparent from the information provided. Bourke, 2005 WL 1514324, at *2. The court of appeals listed several inferences that could have been drawn from facts presented in support of the search warrant about Bourke and his premises:

[Bourke] was at large and could destroy evidence in the barn before morning; ⅜ * * [Bourke] and his co-defendants were in the process of manufacturing methamphetamine which could cause explosions, thus destroying evidence and property, and putting human life in peril; * * * and * * * the premises was a crime scene and evidence needed to be preserved and catalogued.

Id.

We agree with the court of appeals that the above inferences were reasonably drawn from the application. The facts presented indicated that Bourke opened the door to the barn and then fled the scene while the police entered the pole barn to apprehend three suspects inside. The investigator averred that the pole barn was the site of methamphetamine production. As far as the issuing judge knew, Bourke was at large. There is nothing unreasonable in concluding that Bourke, then a suspect, would want to destroy the evidence of the methamphetamine production on his property if he were given the opportunity. Given our “great deference to the issuing judge’s determination,” Jones, 678 N.W.2d at 11, and “the preference to be accorded warrants,” Harris, 589 N.W.2d at 791 (internal quote marks omitted), those facts alone establish a reasonable suspicion that the nighttime search was “necessary to prevent the loss, destruction, or removal of the objects of the search.” MinmStat. § 626.14; see also State v. Quick, 659 N.W.2d 701, 719 (Minn.2003) (concluding that “[bjecause of the necessity of preserving and testing evidence at a crime scene in a timely manner, the nighttime provision was justified” under section 626.14); State v. Van Wert, 294 Minn. 464, 465, 199 N.W.2d 514, 515 (1972) (finding that nighttime search was authorized “[t]o prevent destruction of the easily disposable items” that related to defendant’s “check-forging activities”).

We hold that, under our deferential standard of review, and given the facts and reasonable inferences available to the issuing judge in Bourke’s case, the state met its burden of showing that there was at least a reasonable suspicion that a nighttime search of Bourke’s property was necessary under Minn.Stat. § 626.14 to preserve evidence.

III.

We turn next to Bourke’s constitutional argument. Bourke argues that nighttime searches are unreasonable under the Fourth Amendment unless the warrant application presents particularized facts showing that there is a reasonable suspicion that the search needs to be conducted in the nighttime. The essence of Bourke’s argument is that, similar to no-knock searches, the Fourth Amendment requires that the police have a reasonable suspicion that a nighttime search is necessary under the circumstances. Cf. Richards, 520 U.S. at 394, 117 S.Ct. 1416 (“[Pjolice must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.”). Bourke bases his argument on the assertion that at the time of the ratification of the Fourth Amendment, reasonable searches were “those that were conducted during daytime hours and after law enforcement officials had knocked and announced their presence and authority to search.” Thus, Bourke concludes that “a nighttime search should only be conducted if a neutral magistrate first finds it reasonable to do so.”

Because we have held that Minn.Stat. § 626.14 requires a showing that is at least as high as Bourke’s proposed Fourth Amendment requirement and because, as discussed supra, we conclude that the statute was not violated, we decline to decide the constitutional issue raised by Bourke.

Affirmed.

      . The precise timing of Bourke’s arrest is unclear, and it may have occurred before, during, or after the search of his property.

      . The Fourth Amendment to the United States Constitution provides that:
      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
      Article I, Section 10 of the Minnesota Constitution has nearly identical language to the Fourth Amendment of the United States Constitution.

      .Minnesota Statutes § 626.14 states:
      A search warrant may be served only between the hours of 7:00 a.m. and 8:00 p.m. unless the court determines on the basis of facts stated in the affidavits that a nighttime search outside those hours is necessary to prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public. The search warrant shall state that it may be served only between the hours of 7:00 a.m. and 8:00 p.m. unless a nighttime search outside those hours is authorized.
      The parties did not raise any potential separation of powers issues with Minn.Stat. § 626.14. Accordingly, we do not address this question.

      . Lien also addressed a "no-knock” entry by officers in possession of a search warrant. 265 N.W.2d at 836-39. In Lien, we appear to have stated a blanket rule authorizing "no-knock” search warrants whenever the affidavit alleged "that the dwelling is being used as an outlet or a warehouse for a drug business.” Id. at 839. This portion of Lien is no longer good law after Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997). See Garza v. State, 632 N.W.2d 633, 638 n. 1 (Minn.2001) ("To the extent Lien can be understood to authorize an unannounced entry on a showing only that the premises were used for drug trafficking, it is overruled.”).

      . The parties do not argue that the statute requires more than reasonable suspicion. Because the issue was not directly advanced in this case, we leave for another day the question of whether the statute requires more than a finding of reasonable suspicion of necessity.

      . We note that in the constitutional context of a '‘no-knock” entry, the Supreme Court has assessed all of the circumstances confronting the officers at the time of entry in determining whether there was reasonable suspicion sufficient to make an unannounced entry. See Richards, 520 U.S. at 395, 117 S.Ct. 1416 (examining "reasonableness of the officers’ decision * * * as of the time they entered”). Minn.Stat. § 626.14, by contrast, limits the inquiry to an examination “of facts stated in the affidavits.”

      . Because we have concluded that the nighttime search was proper under the statute, we do not reach the question of whether suppression of evidence seized in execution of an improperly issued nighttime search warrant is an appropriate remedy. See Lien, 265 N.W.2d at 840-41 (refusing to suppress evidence even though a nighttime search warrant was not authorized under Minn.Stat. § 626.14). Regarding Bourke's constitutional argument, we note that the Supreme Court has recently determined that the Fourth Amendment does not automatically require the exclusion of evidence obtained as a result of an improper no-knock search. Hudson v. Michigan, 547 U.S. —, —, 126 S.Ct. 2159, 2163-64, 165 L.Ed.2d 56 (2006). Because, as set forth infra, we do not decide the constitutional question Bourke raises, we likewise express no opinion as to the proper remedy if there had been a constitutional violation here.