author: PAGE, Justice.

text:
    John A. WINTERS, Petitioner, v. Mary KIFFMEYER, Minnesota Secretary of State, Respondent.
    No. C8-02-1180.
    Supreme Court of Minnesota.
    Aug. 30, 2002.

      John A. Winters, Winters Law Office, Crookstom, for Petitioner. .
    Mike Hatch, Attorney General, Alan I. Gilbert, Chief Deputy and Solicitor General, Kenneth E. Raschke, Jr., Assistant Attorney General, St Paul, for Respondent.
   OPINION

PAGE, Justice.

Petitioner John A. Winters seeks relief under Minn.Stat. § 204B.44 (2000) from an alleged wrongful act by the secretary of state for her failure to place Winters’ name on the ballot for the 2002 election as a candidate for the judicial seat currently held by the Honorable Donna Dixon of the Ninth Judicial District. It is the secretary of state’s position that the seat is not up for election until the 2004 general election. This opinion confirms the order filed on July 25, 2002, denying the petition.

On October 24, 2001, Governor Jesse Ventura filed with the secretary of state a “Notice of Appointment” of Donna Dixon to fill a judicial vacancy in the Ninth Judicial District. The notice of appointment states that the governor has “appointed and commissioned” Judge Dixon to hold the office of judge of district court effective November 9, 2001, with the term to continue until January 3, 2005. Judge Dixon was sworn in and took office on November 9, 2001. Consistent with the length of the term indicated on the notice of appointment, the secretary of state did not designate Judge Dixon’s seat as a judicial seat subject to election in the 2002 election scheduled to take place on November 5, 2002.

Winters claims that he has had a “general interest for several months in possibly running” against Judge Dixon, but did not know whether she was up for election in 2002. Winters claims that, since May 2002, he has checked the secretary of state’s website and telephoned that office to determine whether the seat was up for election, without receiving a clear answer. These efforts intensified in late June and early July, in anticipation of the July 2-16, 2002, candidate filing period. Winters was informed by a court administrator on July 1, 2002, that Judge Dixon’s seat was not subject to election in 2002. Shortly thereafter he received a copy of the notice of appointment of Judge Dixon, and thought there was something “technically wrong” with the appointment, but decided not to run against Judge Dixon in any event. However, after reading about this court’s decision in another ballot contest, he reconsidered his decision not to run. On July 10, 2002, by petition for writ of mandamus filed as an original action in this court, Winters sought an order requiring the secretary of state to hold an election for Judge Dixon’s seat. We dismissed the petition for lack of jurisdiction. On July 17, 2002, Winters filed the instant petition for relief under section 204B.44. We ordered expedited briefing, specifically ordering the parties to brief whether the relief requested in the petition should be barred by laches.

The issue presented in Winters’ section 204B.44 petition involves interpretation of Article VI, section 8, of the Minnesota Constitution, which provides:

Whenever there is a vacancy in the office of judge the governor shall appoint in the manner provided by law a qualified person to fill the vacancy until a successor is elected and qualified. The successor shall be elected for a six year term at the next general election occurring more than one year after the appointment.

Specifically, we must determine when Judge Dixon’s appointment was made-on October 24, 2001, when the governor filed the notice of appointment, or on November 9, 2001, the effective date of the appointment pursuant to the governor’s notice. The answer to that question determines whether the successor is to be elected this year, the first general election more than one year after October 24, 2001, but less than one year after November 9, 2001, or in 2004, the first general election occurring more than one year after November 9, 2001. The answer to that question, therefore, also determines whether the secretary of state has committed or will commit a “wrongful act, omission, or error” by not placing Judge Dixon’s seat on the ballot for the 2002 election. See Minn.Stat. § 204B.44(d) (2000).

Winters claims that, under Article VI, section 8, of the Minnesota Constitution, Judge Dixon’s judicial seat should be up for election in 2002 because more than one year has elapsed since her appointment. Acknowledging that the constitution does not give much guidance on the issue of when the one-year period begins to run and that the legislature has passed no statute clarifying the operative act establishing when an appointment is made, Winters relies on the common meaning of the word “appointment” and argues that the common meaning “does not allow for some future effective date of the appointment.” Winters claims that there is a need for a definitive act to constitute an appointment, and the date the governor’s notice of appointment is filed with the secretary of state should constitute that act. He argues that to hold otherwise allows the governor to defeat judicial elections, the primary method of selection of judges mandated by the constitution.

In contrast, the secretary of state claims that Judge Dixon’s appointment did not occur until November 9, 2001, and therefore under the constitution a successor is to be elected at the first general election occurring more than one year thereafter, which in this case would be the 2004 general election. The secretary of state claims that the opposite result would conflict with the constitutional purpose of allowing an appointed judge a minimum of one year to demonstrate her capabilities before being required to stand for election.

I.

We first consider whether laches should bar consideration of Winters’ petition. Laches is an equitable doctrine applied to “prevent one who has not been diligent in asserting a known right from recovering at the expense of one who has been prejudiced by the delay.” Aronovitch v. Levy, 238 Minn. 237, 242, 56 N.W.2d 570, 574 (1953). The doctrine has particular application in challenges to ballot preparation and election proceedings:

The very nature of matters implicating election laws and proceedings rou-. finely requires expeditious consideration and disposition by courts facing considerable time constraints imposed by the ballot preparation and distribution process. As a result, we have examined applications for relief not only on their merits, but also from the perspective of whether the applicant acted promptly in initiating proceedings.

Peterson v. Stafford, 490 N.W.2d 418, 419

(Minn.1992).

“In considering laches, we have held that the practical question in each case is whether there has been such an unreasonable delay in asserting a known right, resulting in prejudice to others, as would make it inequitable to grant the relief prayed for.” Fetsch v. Holm, 236 Minn. 158, 163, 52 N.W.2d 113, 115 (1952). In this case, Winters made some inquiries into whether the seat would be subject to election, but took no direct action until July 10, well into the filing period for the office. Other potential candidates and the sitting officeholder would be prejudiced by his delay. Running for any office requires a significant commitment of time and other resources. A candidate must organize a campaign committee, including finding a treasurer knowledgeable in the requirements of Minnesota Statutes chapter 10A that govern the operation of campaigns in Minnesota. See Minn.Stat. ch. 10A (2000) (delineating registration and reporting requirements for candidates for statewide office, including judges). The candidate must register the committee, decide when, where, and how to campaign, and then do so. In light of the nature of campaigns for public office, the sitting officeholder and other potential candidates will be materially prejudiced by an unexpected order to hold an election. Finally, Winters has presented no persuasive reason why he could not have brought this petition in a timely manner so as not to prejudice others in this fashion.

The late date at which Winters decided to pursue relief in this case, coupled with the significant effect that ordering an election would have on the current officeholder and other potential candidates for the seat, gives us great concern. Thus, the application of laches would be appropriate. Nonetheless, the need for certainty in the judicial election process compels us to address the merits of Winters’ petition. See Peterson, 490 N.W.2d at 420 (addressing merits of case “because of the nature of these proceedings” despite concluding that petitioner did not act with dispatch in asserting challenge);

II.

Under the Minnesota Constitution, a successor to an appointed judge is elected for a six-year term “at the next general election occurring more than one year after the appointment.” Minn. Const, art. VI, § 8. We must decide, then, when an appointment is made for these purposes. Winters argues that the appointment is made when the governor’s notice of appointment is filed with the secretary of state; the secretary of state argues that the appointment is not made until its effective date. We hold that, for purposes of Article VI, section 8, a judicial appointment is made on its effective date.

Winters claims that the common meaning of “appointment” does not allow for some future date of the appointment. The common meaning of “appointment” — the designation of a person for an office' — has two components, a person and an office. Here, the effective date describes the office at issue. Until the effective date, the office is not available to and cannot be claimed by the appointee. Therefore, the effective date is part and parcel of the appointment.

In support of his argument, Winters also refers us to the source of all judicial authority, Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), which held that an appointment is effective when the “last act” required of the appointing authority has been completed. The issue in Marbury was whether James Madison as secretary of state should be commanded to deliver certain commissions of justices of the peace of the District of Columbia. Marbury’s appointment was one of several made by President John Adams before he left the office of the presidency. Madison refused to deliver the commissions, and in addition to establishing the authority of the courts to “say what the law is,” the Court addressed the question whether the appointment was complete upon the appointment and president’s signature of the commission, or upon delivery of the signed commission. The Court stated:

This is an appointment made by the president, by and with the advice and consent of the senate, and is evidenced by no act but the commission itself. In such a case, therefore, the commission and the appointment seem inseparable; it being almost impossible to show an appointment otherwise than by proving the existence of a commission; still the commission is not necessarily the appointment, though conclusive evidence of it.
But at what stage does it amount to this conclusive evidence?
The answer to this question seems an obvious one. The appointment being the sole act of the president, must be completely evidenced, when it is shown that he has done every thing to be performed by him.
Should the commission, instead of being evidence of an appointment, even be considered as constituting the appointment itself; still it would be made when the last act to be done by the president was performed, or, at furthest, when the commission was complete.

Id. at 157.

Winters argues that under Marbury Judge Dixon’s appointment was complete when the last act of the governor was taken, the filing of the notice of appointment with the secretary of state on October 24, 2001. There are, however, important distinctions between the appointment and commission in Marbury and the appointment at issue herein. First, the appointment in this case carried with it an effective date at a point in the future. The judge was not authorized to assume office until that date. In contrast, in Marbury, once the commission was signed the official was entitled to the office.

The discretion of the executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it.

Id. at 162. The second important distinction is that in Marbury the salary of the officer commenced from his appointment, not the delivery of the commission. Thus, the officer presumably began to serve upon the appointment and did not await the delivery of the commission. In this case, the judge does not begin to serve in office until the effective date of the appointment and after taking the oath of office. See Minn.Stat. § 358.05 (2000) (requiring every appointed or elected public official to take the oath of office defined in Minn. Const, art. 5, § 6). As such, the judge’s salary cannot commence until service in office begins — and never before the effective date of the appointment.

Actual service in office was significant to the determination of when the appointment occurred in Marbury, see 5 U.S. at 162; likewise here, when a notice of appointment carries an effective date that signals the judge’s ability to claim the office, that date governs when the appointment has occurred.

The effect of this interpretation is that an appointed judge who claims the office upon the effective date of the appointment will actually serve in office for at least one year before a successor is elected. Presumably, the appointed judge will want to continue in office by being elected to the position, and considering the appointment to occur on its effective date gives the public an opportunity to “reflect favorably or unfavorably on a judge’s competence in office.” Peterson, 490 N.W.2d at 423 (quoting Minnesota Constitutional Study Commission, Judicial Branch Committee Report (1972)); see also State ex rel. Hennepin County Bar Ass’n v. Amdahl, 264 Minn. 350, 357, 119 N.W.2d 169, 173 (1962) (“The complexity of modern society makes it imperative that ample opportunity be given the' people to evaluate the qualifications of candidates for judicial positions.”). We stated in Peterson that one purpose of the amendment to Article VI, section 8, extending the time before an election for judicial office from 30 days to one year, was to allow for such evaluation by the public. Peterson, 490 N.W.2d at 423. However, under Winters’ interpretation of when the appointment was made, the public may have less time to evaluate a sitting judge than contemplated by the constitution.

Winters also directs our attention to Division of Elections of State v. Johnstone, 669 P.2d 537 (Alaska 1983), in which the Supreme Court of Alaska reversed a district court ruling that the date of appointment under the state constitution is the date on which the judge assumed office, and held instead that the appointment was made when the governor selected or designated the person to fill the office. Id. at 540. The Alaska Constitution provides for retention elections for all superior court judges and supreme court justices through a “nonpartisan ballot at the first general election held more than three years after his [or her] appointment.” Alaska Const, art. IV, § 6. Karl Johnstone was appointed by the governor of Alaska on October 8, 1979, to fill a superior court seat and assumed office on December 13, 1979. The issue presented was whether Judge John-stone was required to stand for election in the general election of 1982 or 1984. The court found the plain meaning of the word “appointment” (“the selection or designation of a person * * * to fill an office”) persuasive. Johnstone, 669 P.2d at 539.

As part of its analysis, the Alaska Supreme Court recounted the history of its retention election system for judges and noted that the framers of the Alaska Constitution intended to “offer potential judges a reasonably long first term in order to provide a measure of job security sufficient to attract meritorious candidates to the bench.” Johnstone, 669 P.2d at 544. However, the court noted that, given the breadth of the three-years-from-appointment provision, this purpose was “neither served nor disserved by choosing one date as opposed to the other for Johnstone’s retention election.” Id. at 545.

In contrast, the determination of when the appointment is made under the Minnesota Constitution affects whether voters will have one year of service on which to assess the competence of a recently appointed judge, as we believe the framers of our constitutional provision intended. If, as Winter claims, an appointment is made when the governor announces it, voters could have significantly less than one year of service on which to evaluate the appointed judge’s performance. We read the opinion in Johnstone to signify that the determination of when the appointment was made did not affect achievement of the goals of the framers of the Alaska Constitution. See Johnstone, 669 P.2d at 545. Because in this case determination of when the appointment is made affects whether the purposes of our constitutional provision to allow at least one year of service are met, we decline to follow Johnstone.

Finally, we note that our interpretation of the term “appointment” is consistent with the legislature’s use of the term. There is elsewhere in the law a recognition that written notice of an appointment may be made before an actual appointment. See Minn.Stat. § 15.0597, subd. 6 (2000). Other statutes describe a term of office, presumably constituting a term of actual service, from the date of appointment. See Minn.Stat. §§ 488A.03, subd. 2(c) (2000),.488A.03, subd. 3a(e) (2000), 488A.04 (2000). These provisions are consistent with construction of the term “appointment” in Article VI, section 8, as the effective date of the appointment.

We therefore hold that, for purposes of Article VI, section 8, an appointment is made on its effective date and a successor must be elected to the position at the next general election occurring more than one year after the effective date of the appointment. As such, there has been no wrongful act, omission, or error on the part of the secretary of state in not designating Judge Dixon’s judicial seat for election in 2002.

Petition denied.

MEYER, J., not having been a member of this court at the time of submission, took no part in the consideration or decision of this case.

ANDERSON, Paul H., Justice (concurring in part and dissenting in part).

I share the majority’s concern regarding the significant prejudice to those who would be affected by a ruling granting Winters’ petition. Further, I conclude that the facts in this case weigh strongly in favor of holding that this action is barred by laches. However, I disagree with the majority’s holding that a judicial appointment is made only upon its effective date.

Adequate notice regarding judicial elections was the ’genesis for the amendment of Article VI, section 8 ■ at issue herein. See State ex rel. Hennepin County Bar Ass’n v. Amdahl, 264 Minn. 350, 359, 119 N.W.2d 169, 174 (1962). Thus, it is somewhat .ironic that less than 60 'days before the primary election petitioner brings a petition asking us to declare a seat subject to election under Article VI, section 8. Petitioner cannot reasonably expect that others who might aspire to Judge Dixon’s seat, including Judge Dixon, can instantly prepare for an election, and this court should not facilitate an unanticipated election being called at this late date. Petitioner admits that he had a “general interest for several months” in running for this seat, but failed to take any action to trigger an election. Although he claims he did not get a clear answer on whether the position was up for election, he could have taken action to get that answer, but he did not. A section 204B.44 petitioner simply cannot sit idly by while election preparations are made, or, in this case, not made, and expect the court to grant relief. Thus, I agree with the majority that the petitioner’s dilatory conduct and the potential harm to those affected by a ruling from this court ordering an election call for application of laches.

Nevertheless, on the merits I cannot agree with the majority that, for the purposes of Article VI, section 8, an appointment is made only on its effective date — as defined by the appointing authority in the notice of appointment. When analyzing this issue, the court should begin with the plain meaning of the word appointment: “[t]he act of designating a person, such as a nonelected public official, for a job or duty,” Black’s Law Dictionary 96 (7th ed.1999); or “[t]he act of appointing or designating for an office or position,” The American Heritage Dictionary of the English Language 89 (3d ed.1992). A designation is simply the identification of the person chosen; it does not require assumption of the duties of the office. I find no support for the majority’s focus on the judge’s ability to claim the office when the word appointment has no correlation to this concept. The more appropriate focus when interpreting this word is on the acts of the appointing authority rather than the acts of the appointee.

I conclude that Marbury answers with clarity the question of when an executive appointment is made — when the last act required of the appointing authority has been completed. See Marbury v. Madi son, 5 U.S. (1 Cranch) 137, 157, 2 L.Ed. 60 (1803). Neither the majority nor the secretary of state identifies another act of the governor after the notice of appointment is issued and filed with the secretary of state. The notice is “an open, unequivocal act” as described in Marbury that signals the completion of the executive appointment duty. Id. Therefore, I can only conclude that the appointment is made when the notice of appointment is filed with the secretary of state.

The majority attempts to distinguish Marbury on the basis that the officials in that case had assumed the office and were being paid and then concludes that an appointment does not occur until the official assumes the office and is paid. This reasoning is faulty — the Court in Marbury did not look to when payment began as signaling the appointment. Rather, the date on which the executive had taken the final act for appointment was dispositive and signaled that the appointee could claim the office and was entitled to payment. Id. at 161-62.

For judicial appointments in Minnesota, an appointee may claim the office on or after the effective date established in the notice of appointment. The appointee may even consult with the governor as to the effective date of the appointment. That date may be sooner or later, often depending on the appointee’s need to wrap up a law practice or other commitments. In light of these practical realities, the effective date of an appointment can in no way be considered part of the executive’s “designation of a person for office.” Instead, the appointee can claim the office earlier, presumably directly on the heels of the notice of appointment. The Court in Mar-bury made clear, however, that the actions of the appointee do not negate an appointment. Id. at 161 (stating that appointee may resign position or refuse to accept, “but neither the one nor the other is capable of rendering the appointment a nonentity.”). As such, in Marbury service in office did not signify the appointment. Likewise, the effective date of a judicial appointment in Minnesota, which is sometimes based on the appointee’s schedule, cannot signify the appointment.

The majority also supports its conclusion with reference to the presumed intent of Article VI, section 8 to allow judicial appointees to actually serve in office for one year before facing election. But that intent is not apparent in section 8, which states only that a successor to an appointee shall be elected “at the next general election occurring more than one year after the appointment.” Minn. Const, art. VI, § 8. Instead, the majority relies on a statement in Peterson that one purpose of the amendment to section 8 was to give the public an opportunity to “reflect favorably or unfavorably on a judge’s competence in office.” Peterson v. Stafford, 490 N.W.2d 418, 423 (Minn.1992).

I fail to find support in Peterson for the majority’s conclusion. The issue in Peterson was whether a statute providing for designation of an incumbent as such on the ballot was constitutional. Id. at 419. Thus, section 8 was not implicated in the ruling, and the statement the majority relies upon was certainly dicta. Moreover, taken in context, the statement in Peterson does not require an interpretation of appointment to mean the effective date.

[Section 8] was amended to provide that an election to succeed the appointee be held “at the next general election occurring more than one year after the appointment.” It appears the extension of the time before an election for the office was, in the words of the 1972 subcommittee, “to allow the public to reflect favorably or unfavorably on a judge’s competence in office” while, at the same time, “retaining] ultimate control of the judiciary in the hands of the voting public. ” To achieve this purpose, it appears that the legislature considered it appropriate for the ballot to inform the voters which candidate was seeking retention.

Id. at 423 (emphasis added). There is nothing in this language to indicate that the court in Peterson or the framers of our state constitution thought one full year of actual service in office was necessary for voters to reflect on the competence of the appointee. It is reasonable to presume that a newly appointed judge will take office not long after appointment. As such, the public will have an opportunity to reflect on the judge’s competence based, on the time that judge serves before election day.

Moreover, the language quoted from Peterson demonstrates that allowing the public to reflect on the judge’s competence was not the only intent of the framers— they also considered “ultimate control” by the electorate, important. Id. This language could equally support an interpretation of the term appointment that requires an election within one year of the notice of appointment to ensure ultimate control by the electorate. For these reasons, Peterson does not establish that one full year of actual service before election is the only permissible interpretation of the word appointment in section 8. Likewise, language in Amdahl that the majority takes to signify an intent that an appointee actually serve in office for one year before election, and the Peterson language quoted above, is more accurately read to require only sufficient notice to the public of who the candidates are, not the particular qualification of the incumbent.

Finally, one result of the majority’s holding is to open the door to a certain mischief in the appointment process. Under the majority’s holding, a governor not running for reelection could notice the appointment of a judge to take effect in the term of the next governor. Indeed, a sitting judge who intends to retire or resign within the next governor’s term could notify the sitting governor of that fact, with a future date of resignation. There is nothing in the majority’s opinion that would prevent the sitting governor from noticing the appointment of a successor judge to take effect in future years, thereby extending the “appointment” into the term of the governor’s successor. This result is clearly contrary to the appointing authority of the governor in office at the time the vacancy actually occurs. See Minn. Const, art. VI, § 8. This absurd result further compels me to conclude that the date of appointment is the date the notice of appointment is filed with the secretary of state.

In short, it appears that the majority strains to reach its interpretation of appointment. The plain meaning of the term, coupled with the force of precedent in Marbury and Amdahl, leads to the conclusion that an appointment is made when the governor completes the last act necessary to the function: filing with the secretary of state a notice of appointment. For this reason, I respectfully dissent in part.

      . Pursuant to Minn.Stat. § 586.11 (2000), the district court has exclusive original jurisdiction in cases of mandamus except when the writ is to be directed to a district court or the court of appeals or a judge of either the district court or the court of appeals. Because the writ was to be directed to the secretary of state, jurisdiction was in the district court and not this court pursuant to statute.

      . In this case, the secretary of state's time constraints are considerable. Between June 1 and July 1, 2002, the secretary of state must notify each county auditor of the offices to be voted on in that county. Minn.Stat. § 204B.33(a) (2000). Not later than 42 days before the primary (July 30, 2002, in this case), the secretary of state must certify to each county auditor the names of all candidates who have properly filed affidavits of candidacy with her office. Minn.Stat. § 204D.06 (2000). In addition, absentee ballots must be available at least 30 days before the September 10 primary election (August 9, 2002, in this case). See Minn.Stat. § 204B.35, subd. 4 (2000).

      . Winters claims that only upon learning of this court's order in Zettler v. Ventura, No. C8-02-1048 (Minn. July 3, 2002) (granting a section 204B.44 petition and ordering the secretary of state to hold an election for a judicial seat), was he emboldened to seek relief frpm the secretary of state’s action with respect to Judge Dixon's seat. However, the legal issues presented in the Zettler case and this case are entirely distinct, and the result in Zettler should not have factored into the legal analysis of whether relief was warranted under section 204B.44.

      . The dissent relies on the asserted practice of past governors of considering the desires of the appointee in establishing the effective date of the appointment. While accommodating the legitimate needs of appointees to disengage from law practices may be the practice, the governor clearly has the authority to unilaterally set the effective date. Thus, the effective date is exclusively part of the appointing authority, and is not subject to veto or annulment by the appointee.

      . The relevant constitutional provision, Article II, provides that the president "shall nominate, and, by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for * * U.S. Const, art. II, § 2.

      . The dissent overstates our reliance on Peterson and Amdahl. We do not suggest that these cases addressed when an appointment is made for purposes of Article VI, section 8; we simply note there is a policy reflected in those decisions that the public have an opportunity to evaluate a judge’s competence. To give full effect to this policy, we interpret Article VI, section 8, to require one year of service before a successor is chosen by election.

      . The dissent posits that considering the appointment to be made on its effective date will create mischief by allowing a governor to extend his or her appointing authority beyond the governor’s term. These facts are not before us, and we choose not to rule based on a hypothetical and perhaps cynical view of the future use of the appointing authority.

      . A series of cases since Marbury have reaffirmed this interpretation of "appointment”: United States v. Le Baron, 60 U.S. (19 How.) 73, 78, 15 L.Ed. 525 (1856) (dealing with the appointment of a deputy postmaster); Molnar v. City of Aurora, 38 Ill.App.3d 580, 348 N.E.2d 262, 264 (1976) (dealing with the appointment of a fire fighter to the rank of lieutenant); McChesney v. Sampson, 232 Ky. 395, 23 S.W.2d 584, 587 (1930) (dealing with the appointment of a member to the state textbook commission); Smith v. State, 200 Miss. 184, 26 So.2d 543, 544 (1946) (dealing with the appointment of a special judge to serve during the illness of another judge); Thomas v. McGrath, 145 N.J.Super. 288, 367 A.2d 898, 901-02 (Ct.App.Div.1976), rev’d on other grounds, 75 N.J. 372, 382 A.2d 1121 (1978) (dealing with the appointment of a sergeant of county detectives).

      . As the majority notes, we expect candidates for judicial office to deliberate over the decision and be prepared to take timely action to secure the position. We should expect the same of those who apply to the governor for appointment to the bench. I find the example the majority gives of an October 31, 2003 notice of appointment and June 1, 2004 effective date to be unrealistic and contrary to the need to fill judicial vacancies in a timely manner.

      . The majority quotes the following language from Amdahl. "The complexity of modern society makes it imperative that ample opportunity be. given the people to evaluate the qualifications 'of cándidates for judicial positions.” Note the use of the term "candidates” rather than "incumbents” or "sitting judges.” This language must be read to refer not just to the incumbent appointee, but all candidates, and therefore the proposition . does not support the conclusion that an incumbent must serve in office for at least one year.


source: Caselaw Access Project

author: ANDERSON, Russell A., Justice. GILBERT, Justice

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Kevin Richard LITZAU, Petitioner, Appellant.
    No. C3-00-2099.
    Supreme Court of Minnesota.
    Aug. 30, 2002.

      John M. Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, Minneapolis, for Appellant.
    Mike Hatch, Minnesota Attorney General, John E. Galus, Assistant Atttorney , General, Caia Johnson, Certified Student Attorney, St. Paul, Boyd Beccue Kandiyohi County Attorney, Wilmar, for Respondent.
   OPINION

ANDERSON, Russell A., Justice.

Appellant Kevin Richard Litzau was convicted of controlled substance crime in the first degree for possessing methamphetamine with intent to sell in violation of Minn.Stat. § 152.021, subds. 1(1), 8(b) (2000), and sentenced to 134 months in prison. On appeal, the court of appeals affirmed the conviction by panel majority but remanded for resentencing. Concluding that the cumulative effect of evidentia-ry rulings deprived appellant of a fair trial, 4 we reverse and remand for new trial.

Based on a tip from an informant, at approximately 1:30 p.m. on February 22, 2000, Atwater police placed appellant’s 1984 Crown Victoria, which was parked at a specified residence, under surveillance. At approximately 8:15 p.m., appellant arrived at the residence in a blue Buick Regal. Appellant got into the Crown Victoria, started the engine and then went into the residence. A few minutes later, appellant left the residence and drove away in the Crown Victoria.

The police followed appellant, stopped him, and obtained his permission to search anywhere in the vehicle. At about that time, the Atwater police chief arrived with his canine partner Max, a certified nareot-ics-detection canine. As the police chief began walking Max around the vehicle, Max alerted to drugs under the vehicle’s hood and then to drugs in the air cleaner housing when the hood was opened. Inside the air cleaner housing, police found a plastic bag with eight smaller bags inside. All of the bags contained a white substance that tested positive for methamphetamine. Appellant was arrested and, following a Miranda warning, invoked his rights to silence and to counsel.

A vehicle registration check listed someone other than appellant as the registered owner of the Crown Victoria; but, a copy of the vehicle’s title, found during an inventory search, indicated that appellant purchased the vehicle in December 1999. An oil change sticker indicated that the vehicle had been serviced recently, and further investigation revealed that the air filter was changed on January 6, 2000 and inspected on February 4, 2000. On neither occasion did the station manager who serviced the vehicle observe plastic bags in the air cleaner.

Appellant was charged by complaint with first-degree controlled substance crime for possession with intent to sell. The trial court denied appellant’s pretrial request to compel disclosure of the informant’s identity but granted appellant’s motion to preclude testimony about the contents of the informant’s tip, finding the risk that the jury would consider the contents as substantive evidence of appellant’s guilt “too great.”

On the morning of trial, the court revisited its earlier ruling pertaining to the contents of the informant’s tip, indicating that the state would be allowed to elicit testimony “that a tip was received suggesting that [appellant] had possession of a controlled substance * * ⅜.” In opening statement, the prosecutor told the jury that on February 22, 2001, the Atwater police chief “received a tip. He received information suspecting [appellant] of possessing controlled substances and pursuant to that tip he commenced with [surveillance] * *

During direct examination of the trial’s first witness, the Atwater police chief, the prosecutor elicited through leading questions testimony that the police chief had received a “tip indicating the suspicion that [appellant] possessed controlled substances.” On cross-examination, defense counsel elicited that the informant had observed methamphetamine in the air cleaner about a half hour before reporting this to the police. On direct examination of the arresting officer, the prosecutor elicited that after stopping appellant and identifying him, the arresting officer “explained to [appellant] that we had a reliable source that has told us that he was carrying— transporting drugs in his car * * Both the police chief and the arresting officer made unsolicited references to appellant’s exercise of his rights to silence and counsel. Other evidence for the state included testimony from a drug expert on the operation of drug dealers and testimony from the owner of the house where the police first observed the Crown Victoria. This witness testified that the vehicle had been in the driveway from 4:30 or 5 p.m. on February 21, 2000 until the next day when appellant picked up the vehicle, and that she did not see or hear anyone tamper with it while it was in the driveway. Appellant called two witnesses who testified that from about 8 a.m. on February 21, 2000 until about 5 p.m. on February 22, 2000, appellant was in Litchfield.

The trial court, without objection from appellant’s counsel, gave a permissive-inference instruction to the jury. Following deliberations, the jury found appellant guilty of first-degree controlled substance crime. On appeal, the court of appeals affirmed the conviction by a 2-1 decision, rejecting appellant’s claims that evidentia-ry rulings denied him a fair trial.

I.

Evidentiary rulings are committed to the trial court’s discretion and will not be reversed absent a clear abuse of discretion. State v. Bjork, 610 N.W.2d 632, 636 (Minn.2000). “Evidentiary errors warrant reversal if ‘there is any reasonable doubt the result would have been different had the evidence not been admitted.’ ” State v. Grayson, 546 N.W.2d 731, 736 (Minn.1996) (quoting State v. Naylor, 474 N.W.2d 314, 318 (Minn.1991)). As a general rule, where a defendant fails to object to a particular error at trial, the defendant is deemed to have forfeited his right to have the alleged error reviewed on appeal; however, a defendant may obtain appellate review and relief from plain errors affecting substantial rights if those errors had the effect of depriving the defendant of a fair trial. State v. Williams, 525 N.W.2d 538, 544 (Minn.1994).

Appellant initially contends that the admission of hearsay testimony relating the contents of the confidential informant’s tip was reversible error where the state was allowed to elicit that the tip came from a “reliable source” who reported to police that appellant was transporting drugs in his car. The state argues that appellant is not entitled to any relief where the testimony was not offered for the truth of the matter asserted, appellant failed to ask for a limiting instruction, additional details concerning the tip were elicited by defense counsel, and error, if any, was not prejudicial.

In criminal cases, evidence that an arresting or investigating officer received a tip for purposes of explaining why the police conducted surveillance is not hearsay. Nevertheless, “[w]e have said a number of times that ‘a police officer testifying in a criminal case may not, under the guise of explaining how [the] investigation focused on defendant, relate hearsay statements of others.’ ” Williams, 525 N.W.2d at 544 (quoting State v. Cermak, 365 N.W.2d 243, 247 (Minn.1985)); see also State v. Hardy, 354 N.W.2d 21, 24-25 (Minn.1984) (“[E]ven a limited elicitation, for nonhearsay purposes, of general testimony that a tip had been received that led to defendant’s prints being compared with the latent print would have been unjustified in this case because the potential of the evidence being used for an improper purpose outweighed its very limited probative value.”); 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 387, at 87 (2d ed.1994); 2 Charles T. McCormick, McCormick on Evidence § 249, at 104 (John W. Strong et al. eds., 4th ed.1992).

“Hearsay is evidence of a declar-ant’s out-of-court statement to prove the

truth of what is asserted in the statement.” United States v. Reyes, 18 F.3d 65, 69 (2d Cir.1994); see also Minn. R. Evid. 801(c). The “principal vice” of hearsay is that it deprives the opponent of the opportunity to cross-examine the declarant. Reyes, 18 F.3d at 69. In criminal cases, the denial of the defendant’s right to challenge the de-clarant’s statements in cross-examination implicates constitutional concerns. Ohio v. Roberts, 448 U.S. 56, 63, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).

We agree with appellant that testimony to the effect that the police had received a tip from a “reliable source” who said that appellant was suspected of possessing and “was carrying — transporting drugs” in his car was inadmissible hearsay. Even relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice.” Minn. R. Evid. 403. There was no reason for the officers’ testimony about the substance of the informant’s conversation which pointed directly to appellant’s guilt of the crime for which he was on trial. Context and background can be established, and are properly established, without the admission of the confidential informant’s hearsay declaration.

The state asserts that error in the admission of the substance of the tip, if any, was waived where appellant failed to object to the direct examination of the officers and elicited additional details about the tip on cross-examination. The trial court ruled on appellant’s motion in limine to preclude the substance of the tip. Ordinarily, a party need not renew an objection to the admission of evidence to preserve a claim of error for appeal following a ruling on a motion in limine. Minn. R. Evid. 103(a) advisory committee’s note (stating that a motion in limine to preclude evidence operates as a timely objection and obviates the requirement for further objection). If, however, excluded evidence is offered at trial because the court has changed its initial ruling, the objection should be renewed at trial. 1 Jack B. Weinstein & Margaret A. Berger, Wein-stein’s Federal Evidence § 103.11(2)(b)(ii), at 103-20.1-.3 (Joseph M. McLaughlin ed., 2d ed.2002). The record reflects some confusion as to the intent of the trial court’s comments concerning the informant’s tip at the beginning of trial; but if, as the state asserts, the trial court was merely explaining its earlier definitive ruling, appellant preserved the issue for appeal, although the better practice would have been to renew the objection at trial. It is true that hearsay evidence may be admitted to rebut “initiatives launched by the defendant,” Reyes, 18 F.3d at 70, but here the substance of the confidential informant’s tip preceded appellant’s attempt to refute in a limited way the impression made by that information.

The state claims that any evi-dentiary error was harmless. “ Tf the verdict actually rendered was surely unattributable to the error, the error is harmless beyond a reasonable doubt.’ ” State v. Juarez, 572 N.W.2d 286, 292 (Minn.1997) (quoting State v. Jones, 556 N.W.2d 903, 910 (Minn.1996)). In this case, the substance of the informant’s tip went to the critical issue at trial: whether appellant knowingly possessed the drugs found in his car. The state used the informant’s tip to tie appellant to the crime, referring to the substance of the tip in opening remarks, eliciting the substance of the tip on examination of two officers, and ultimately arguing the credibility of the informant and the reliability of the information to the jury in closing argument. Where the evidence was aimed at having an impact on the verdict, we cannot say that the verdict was surely unattributable to the error.

The error in admitting the substance of the informant’s tip was compounded by the denial of appellant’s request for disclosure of the informant. The state has a legitimate interest in protecting the identity of persons who provide information to law enforcement. Roviaro v. United States, 353 U.S. 53, 59-60, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Where the disclosure of an informant’s identity is relevant and helpful to the defense, or is essential to a fair determination of a cause, the state’s privilege to withhold the informant’s identity must give way. Id. at 60-61. In considering a request for disclosure of the identity of an informant, the trial court considers (1) whether the informant is a material witness; (2) whether the informant’s testimony will be material to the issue of guilt; (3) whether the state’s evidence is suspect; and (4) whether the informant’s testimony might disclose entrapment. State v. Ford, 322 N.W.2d 611, 614 (Minn.1982).

When the informant is an eyewitness to the crime, an in camera hearing is appropriate to determine whether “there is a reasonable probability that the informer’s testimony is necessary to a fair determination of guilt or innocence.” 3 Wein-stein & Berger, supra, § 510.07(5), at 510-17, quoted in Syrovatka v. State, 278 N.W.2d 558, 562 (Minn.1979). “All that is needed to justify an in camera inquiry is a minimal showing of a basis for inquiry but something more than mere speculation by the defendant that examination of the informant might be helpful.” State v. Moore, 438 N.W.2d 101, 106 (Minn.1989). Where the informant is merely a transmitter of information rather than an active participant in or material witness to the crime, however, disclosure is generally not required, State v. Houle, 257 N.W.2d 320, 323 (Minn.1977), and mere speculation that the informant may have framed the defendant does not, by itself, warrant disclosure. See Ford, 322 N.W.2d at 614. In this case, in view of the prominent role the substance of the informant’s tip took on at trial, the failure to afford at least an in camera inquiry exacerbated the error in admitting the substance of the tip in the first instance.

II.

Appellant also challenges the admission of expert testimony, references to the exercise of his constitutional rights, and the permissive inference instruction. The admission of expert opinion testimony is within the broad discretion of the trial court. State v. Ritt, 599 N.W.2d 802, 810 (Minn.1999), cert. denied, 528 U.S. 1165, 120 S.Ct. 1184, 145 L.Ed.2d 1090 (2000); Dunshee v. Douglas, 255 N.W.2d 42, 47 (Minn.1977). “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Minn. R. Evid. 702.

Before trial, the court granted the state’s motion to qualify an agent from the Kandiyohi County Sheriffs Department, a member of the CEE-VI Drug Task Force, as an expert witness, subject to the limitation that the expert’s testimony be confined to information “within his personal knowledge” and that the expert would be “permitted to testify regarding the quantities of controlled substances and items commonly found in [a suspect’s] possession which are indicative of the sale of drugs compared to personal use.” At trial, however, the expert also testified that drug dealers often purchase vehicles without transferring title to their own names, sometimes use a second older vehicle to transport drugs to avoid forfeiture of a newer vehicle, and often hide drugs in obscure places such as in the air cleaner. The expert also suggested that it was not uncommon for drug dealers to consent to a search of their vehicles. The expert’s testimony went well beyond that which was allowed by the trial court’s ruling and was instead drug profile evidence, akin to character evidence, and “plainly inadmissible” under our decision in Williams, 525 N.W.2d at 548.

As for references to appellant’s request for counsel and subsequent silence following a Miranda warning, it has long been recognized that a defendant’s decision to exercise his constitutional rights to silence and to counsel may not be used against him at trial. Juarez, 572 N.W.2d at 290 (citing Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and State v. Roberts, 296 Minn. 347, 352, 208 N.W.2d 744, 747 (1973)). This is so because á jury would be “likely to infer from the testimony that [the] defendant was concealing his guilt * * Roberts, 296 Minn, at 353, 208 N.W.2d at 747. To avoid the problem occasioned by unsolicited references to a defendant’s exercise of his constitutional rights, “the state has a duty to properly prepare its own witnesses prior to trial.” State v. Underwood, 281 N.W.2d 337, 342 (Minn.1979).

Finally, with regard to the permissive-inference instruction, as a general rule, jury instructions advising that a particular fact may be inferred from other particular facts, if proved, should be avoided. State v. Olson, 482 N.W.2d 212, 215 (Minn.1992). Such instructions ‘“are undesirable in that they tend to inject argument into the judge’s charge and lengthen it unnecessarily.’ ” Id. (quoting Manual of Model Criminal Jury Instructions for the Ninth Circuit, 48 (1989 ed.)). Such instructions also improperly influence the jury not only by isolating particular facts but also by giving a particular step of logic “the official legal imprimatur of the state.” Charles Collier, The Improper Use of Presumptions in Recent Criminal Law Adjudication, 38 Stan. L.Rev. 423, 456 (1986).

The permissive instruction given in this case allowed the jury to infer knowing possession of the controlled substance from two isolated facts: that the defendant was the driver and that methamphetamine was concealed in the body of the vehicle. The instruction amounted to an intrusion on the jury’s deliberative process because it effectively told the jury in this case that the judge thought there was sufficient evidence for a conviction. It was undisputed that appellant was the driver and that methamphetamine was concealed in the body of the vehicle. The only real issue was whether appellant knew that the vehicle contained methamphetamine. The instruction also focused the jury on some facts, rather than all the facts. “Permissive inferences * * * permit juries to avoid assessing the myriad facts which make specific cases unique.” Charles R. Nesson, Reasonable Doubt and Permis sive Inferences: The Value of Complexity, 92 Harv. L.Rev. 1187, 1192 (1979). Because the instruction focused the jury on two isolated facts, the instruction suggested that the jury could convict without consideration of all of the evidence; and under these circumstances, submission of the instruction was plain error. See Williams, 525 N.W.2d at 544; State v. Malaski, 330 N.W.2d 447, 451-53 (Minn.1983).

In summary, our examination of the record convinces us that the cumulative effect of the admission of hearsay testimony relating to the substance of the confidential informant’s tip, drug dealer profile evidence, unsolicited references to appellant’s invocation of his rights to silence and counsel, and submission of a permissive inference instruction deprived appellant of a fair trial.

Reversed and remanded for a new trial.

MEYER, J., not having been a member of this court at the time of argument and submission, took no part in the consideration or decision of this case.

GILBERT, Justice

(concurring in part and dissenting in part).

I concur that it was error to admit the expert testimony cited by the majority as well as Chief Schmidt’s testimony about appellant’s request for an attorney, but would hold that these errors were harmless. As to the alleged remaining errors, either they were not errors at all, were brought on by defense counsel, or were waived and forfeited at trial or on appeal. Therefore, I respectfully dissent to the balance of the opinion.

The majority sets the stage in support of its holding by reversing the natural order of things that actually occurred at trial. First of all, it overemphasizes the “prominent role the substance of the informant’s tip took on at trial.” The majority next discounts and then disregards the threats of harm that the appellant allegedly made about the confidential informant. Rather than address that issue, or set appropriate standards for addressing that issue, the majority then inexplicitly states that the trial court’s error “was compounded by the denial of appellant’s request for disclosure of the informant.” This rationale rewards appellant for the alleged threat.

The trial court was confronted with the serious dilemma of what to do about appellant’s request for the disclosure of the confidential reliable informant when appellant allegedly threatened to physically harm whoever “snitched” on him. The court was informed that the informant was afraid for his/her safety and the safety of his/her family. There is nothing in the record to rebut this allegation. Although there was no trial court finding relative to the informant’s safety, I would affirm the court of appeals’ holding that the trial court was “legitimately concerned about the informant’s safety.” The threat to the informant’s safety was a factor that overshadowed the trial court’s decision and not a factor that this court should simply ignore, especially in light of appellant’s extensive past criminal record.

The majority acknowledges that the trial court correctly considered the four factors outlined in Ford in determining whether disclosure was necessary. However, the majority then glosses over significant facts relating to materiality of the informant’s information. While the informant may have been a material witness to the fact that there was methamphetamine in the air cleaner of appellant’s vehicle, the informant’s testimony was immaterial to the ultimate issue of guilt. The informant’s statement was used solely to explain the surveillance and stop — issues appellant never appealed. The informant’s identity was immaterial since appellant voluntarily consented to the search that enabled the state to gather the evidence to prove its case without the informant’s testimony. It was only after appellant’s voluntary consent that the police officers, with the help of a trained dog, discovered a plastic bag with several smaller bags inside of it, containing a total of 86.5 grams of methamphetamine worth approximately $9,000, hidden inside the air cleaner of appellant’s vehicle. None of this evidence is disputed. After the discovery of the methamphetamine, the only issue remaining in the case became whether appellant knowingly possessed methamphetamine. As to this issue, the informant adds nothing because the vehicle, at the designated address, had drugs in it and was being used for trafficking in these drugs. At the omnibus hearing, Chief Schmidt testified the informant had not seen appellant in possession of the drugs. Contrary to the “prominent role” the majority assumes that this testimony played, the informant’s tip added nothing about whether appellant knowingly possessed the drugs found in his car. The trial court reasonably concluded any further testimony would not be of any probative value.

The informant was a mere transmitter of information, rather than an active participant and/or material witness to the crime. Accordingly, the informant’s name did not have to be disclosed. State v. Houle, 257 N.W.2d 320, 323 (Minn.1977). There was at best mere speculation that the informant may have framed the appellant, but there was no testimony by appellant or any other evidence to support this speculation, meaning disclosure was not required. State v. Ford, 322 N.W.2d 611, 614 (Minn.1982). Appellant simply argues on appeal that he was denied a fair trial because his defense hinged on his ability to provide some plausible explanation for the presence of the methamphetamine in his vehicle. The only “evidence” in the record to support this explanation was appellant’s assertion that he was somehow framed, but this was not evidence at all; it was mere speculation.

The informant merely told the police what the informant observed about the car and drugs. He/she did not participate in the crime nor offer any evidence about what knowledge the appellant had or role he played, if any, in placing the drugs in the air cleaner. The facts of this case are similar to the facts in Ford, where the informant supplied conclusory information to the police leading to surveillance and ultimately to the gathering of evidence independent from the informant’s tip used to convict the defendant of the charged offense. See Ford, 322 N.W.2d at 613-14. While it is true that the informant did witness the methamphetamine in appellant’s car on the date appellant was arrested, the state did not rely on the informant’s testimony in establishing appellant’s guilt, as in Ford. 322 N.W.2d at 614.

Although appellant in this case asserted that someone else must have placed the methamphetamine in his vehicle, no offer of proof was made indicating that anybody else had access to appellant’s vehicle during the time in question. There was nothing in the record to indicate that the state’s evidence was suspect in any manner or that any of the Ford factors were implicated. On these facts, the trial court did not abuse its discretion by failing either to require disclosure of the informant’s identity or to hold an in camera hearing.

With regard to the admittedly hearsay testimony of the contents of the informant’s tip, the appellant failed to object to this particular error at trial. A defendant who does not object to the admission of evidence waives the right to appeal such admission, even if the evidence should not have been admitted. State v. Moorman, 505 N.W.2d 593, 602 (Minn.1993). The trial court’s final ruling on this issue did not allow the state to introduce the details of the informant’s tip. The majority focuses on the trial court’s initial ruling that testimony concerning the informant would be limited to the fact that a tip was received and that “the record reflects some confusion as to the intent of the trial court’s comments concerning the informant’s tip at the beginning of trial * *

Appellant’s attorney did not object to the trial court’s ruling the morning of trial, did not object to the state’s opening statement, and did not object to Chief Schmidt’s testimony about what the informant said. Instead, appellant’s counsel proceeded to cross-examine Chief Schmidt as to the exact nature of the informant’s tip over the hearsay objection of the state rather than pursue “the better practice * * * to renew the objection at trial,” as the majority recommends. Appellant’s counsel embarked upon a detailed cross-examination of the disputed statement to make it perfectly clear what the exact nature of the informant’s tip was by not only repeating this information but going into more detail about the tip. Therefore, the jury was left with a full understanding of exactly what the informant said.

It is true that some of Chief Schmidt’s testimony may have been hearsay; however, appellant’s counsel knowingly and intentionally cross-examined á witness to insert this information in the record and it is this same testimony that appellant now argues was admitted in error. Appellant cannot now argue that allowing the content of the tip was prejudicial. This argument is not based on any precedent, does not articulate any workable rule of law under these facts, and negates the better practice recommendation of making an objection to help remind the judge of either an objection or of its prior ruling. Many of these issues relate to the quality of legal representation that the appellant received from his counsel. While an ineffective assistance of counsel claim may have merit, that claim is not before us.

The majority then ventures to establish new law as to when an in camera inquiry would be held. This is done without any cite to authority and supported by the mere conclusion that “it seems to us that the failure to afford at least an in camera inquiry exacerbated the error in admitting the substance of the tip in the first instance.” The majority gives no explanation as to how this may have exacerbated the error or what standard should be used by the trial court in deciding when to use an in camera hearing when the request is based on mere speculation. If there was any exacerbation of an error, that occurred because of appellant’s alleged threats, with which the appellant is now rewarded.

The majority should not simply dismiss the alleged threat because it “was confirmed by neither live testimony nor affidavit.” This offer by the state was done in compliance with the offer of proof analysis we recently reiterated in Santiago v. State, 644 N.W.2d 425, 441-43 (Minn.2002). Appellant did not even put into contention the legitimacy of the alleged threat. Contrary to what the majority asserts, we have never held that an offer of proof would require “live testimony” or an “affidavit” in this context and any suggestion to that effect is contrary to our precedent. See id. at 442-43.

Finally, the majority incorrectly concludes that it was plain error for the trial court to give the permissive inference of possession instruction. This instruction was based on a statute. Appellant failed to object to this jury instruction, thereby requiring him to show that giving this instruction was plain error. While we discussed concerns about this sort of permissive inference instruction in State v. Olson, 482 N.W.2d 212, 215-16 (Minn.1992), we reversed and remanded for a new trial in that case because the instruction was not a balanced one and failed to inform the jury that it was not required to infer that the defendant knowingly possessed the drugs. Id. at 216. Here, the trial court’s instruction was balanced, explicitly telling the jury that “[t]he law allows, but does not require, you to find knowing possession * * * ” and that the jury “may, but [is] not required to, find that the defendant knowingly possessed methamphetamine.” (Emphasis added). Under these facts, the instruction was neither erroneous nor did it affect appellant’s substantial rights.

For the foregoing reasons, I would affirm appellant’s conviction.

      . At around 1 p.m. on February 22, 2000, an informant told the Atwater police chief that about 30 minutes earlier the informant had personally observed methamphetamine in the air cleaner housing of appellant’s Crown Victoria and that he thought appellant would be picking up the vehicle sometime that day. The informant had not seen appellant in possession of the controlled substance.

      . A forensic chemist later determined that the substance was a mixture containing methamphetamine weighing 86.5 grams, with the large bag containing 27.9 grams of substance and the eight individual bags weighing a total of 58.5 grams. While 27.9 and 58.5 add up to 86.4, the testimony at trial was that the total weight was 86.5 grams.

      . Out-of-court statements may be admitted to show the probable state of mind and good faith subsequent conduct of the person who heard the statements. When the out-of-court statements have an impermissible hearsay aspect as well as a permissible nonhearsay aspect, the evidence has generally been admitted with a limiting instruction unless the need for the evidence is outweighed by the danger of misuse. 2 McCormick, supra, § 249, at 103-04.
      However, one area of apparently widespread abuse should be noted. In criminal cases, an arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct. His testimony that he acted “upon information received,” or words to that effect, should be sufficient. Nevertheless, cases abound in which the officer is allowed to relate historical aspects of the case, replete with hearsay statements in the form of complaints and reports, on the ground that he was entitled to give the information upon which he acted. The need for the evidence is slight, the likelihood of misuse great.

        Id. § 249, at 104 (footnotes omitted), quoted in State v. Hardy, 354 N.W.2d at 25.

      . A police officer "may reconstruct tire steps taken in a criminal investigation, may testify about his contact with an informant, and may describe the events leading up to a defendant's arrest, but the officer's testimony must be limited to the fact that he spoke to an informant without disclosing the substance of that conversation.” United States v. Williams, 133 F.3d 1048, 1052 (7th Cir.1998) (citing United States v. Lovelace, 123 F.3d 650, 652 (7th Cir.1997)); United States v. Reyes, 18 F.3d at 70; see, e.g., United States v. Walker, 636 F.2d 194 (8th Cir.1980); United States v. Campbell, 466 F.2d 529 (9th Cir.1972).

      . The trial court denied appellant’s motion for disclosure of the informant's identity on grounds that appellant had not made a sufficient showing that disclosure would lead to any testimony or other evidence material to the defense. In a memorandum of law submitted to the trial court in opposition to appellant's motion, the state represented to the court that the police chief had information that appellant planned to harm whoever “snitched" on him. This information was confirmed by neither live testimony nor affidavit, and the trial court did not rely on this information in denying appellant’s motion.

      . The second reference to appellant's exercise of his constitutional rights occurred during cross-examination of the arresting officer when defense counsel asked the officer whether he recalled appellant asking him to dust for fingerprints. In response to counsel’s third request, the officer volunteered that appellant had invoked his right to silence. Defense counsel "has a certain responsibility to limit the cross-examination so as to avoid areas which he knows may lead to objectionable testimony” and may not "bootstrap a reversal” through the elicitation of improper testimony on cross-examination, Underwood, 281 N.W.2d at 342, but there is no indication that any such attempt was made here. Nevertheless, "[a]n accused, whether guilty or innocent, is entitled to a fair trial, and it is the duty of the court, and of prosecuting counsel as well, to see that he gets one.” State v. Haney, 222 Minn. 124, 125, 23 N.W.2d 369, 370 (1946). It seems to us that given the precarious path on which defense counsel was proceeding, either the prosecutor or the trial court in their respective roles as administrators of justice could have called for a bench conference to call this to counsel’s attention, thereby obviating the risk of retrial.

      . Permissive-inference instructions are also unnecessary in that "[i]f the rational connection between facts presented and facts inferred is derived from common sense and experience, the matter can normally be left to the jury’s judgment upon general instructions.” Olson, 482 N.W.2d at 215 (quoting Manual of Model Criminal Jury Instructions for the Ninth Circuit, 48 (1989 ed.)). A permissive-inference instruction may also be improper if "it was not a balanced instruction on the various relevant factors bearing on the jury's determination of the disputed possession issue but rather was one which singled out and unfairly emphasized one factor, one piece of the circumstantial evidence, bearing on that determination, thereby suggesting to the jury that in the court’s opinion that factor was of greater importance than other relevant factors.” Olson, 482 N.W.2d at 216.

      . The trial court instructed the jury as follows:
      In determining whether or not it has been proven beyond a reasonable doubt that the defendant was in knowing possession of methamphetamine, you should consider all the evidence presented. The law allows, but does not require, you to find knowing possession from proof beyond a reasonable doubt that the defendant was the driver or in control of a passenger automobile and the methamphetamine was present in the automobile. If you so find beyond a reasonable doubt, you may, but are not required to, find that the defendant knowingly possessed methamphetamine.
      This instruction was patterned after 10A Minn. Dist. Judges Ass'n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 20.56 (4th ed.1999) which, in turn, was based on Minn.Stat. § 152.028 (2000). This provision was aimed at alleviating the prosecution’s burden of proof in constructive possession situations involving several occupants of a residence or passenger automobile in which controlled substances are found. Philip Leavenworth, Illegal Drugs, New Laws, and Justice: An Examination of Five Recently Enacted Minnesota Statutes, 16 Wm. Mitchell L.Rev. 499, 502 (1990). Nevertheless, as we have said in a number of cases, we have " ‘primary responsibility under the separation of powers doctrine for the regulation of evi-dentiary matters and matters of trial and appellate procedure.’ ” State v. Lindsey, 632 N.W.2d 652, 658 (Minn.2001) (quoting Olson, 482 N.W.2d at 215). "Moreover, one of the primary or core functions of this court is to ensure that each criminal defendant receives a fair trial.” Olson, 482 N.W.2d at 215.

      . The trial court was also aware of appellant’s two prior controlled substance convictions and burglary conviction.