author: GILDEA, Justice. PAGE, Justice

text:
    STATE of Minnesota, Respondent, v. Reginald Lee GAIL, Appellant.
    No. A05-329.
    Supreme Court of Minnesota.
    May 18, 2006.

      John Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

GILDEA, Justice.

Reginald Lee Gail appeals from his conviction for the first-degree murder of Yvain Braziel while committing or attempting to commit the felony crime of unlawful sale of powder cocaine. We affirm.

On February 2, 2004, Braziel contacted Gail to arrange for the purchase of marijuana and powder cocaine. Braziel and his friend Andre Hollingsworth left Bemidji in a red, two-door Chevrolet Cavalier to meet Gail in the Twin Cities. Braziel and Gail spoke via cell phone during the trip, and the parties met at approximately 5:15 p.m. in north Minneapolis. Gail, wearing a black, down jacket, got into Braziel’s car, told him what the price would be for the cocaine, and directed Braziel where to drive. The Cavalier pulled up behind a red, four-door Dodge Neon driven by De-Andre Hill. A passenger identified as Low was also in the Neon. After the two cars met, Gail got out of the Cavalier and talked with Hill and Low. Gail then went back to the Cavalier, got in, and told Bra-ziel to follow the Neon.

The Neon stopped at a yellow house, and Gail went to talk to one of the men in the Neon. Braziel and Hollingsworth circled the block and when they came back, the man Gail had spoken to was coming back from the house. Gail told Braziel to follow the Neon to another “stash” because they could not get into the yellow house. Gail got into the Neon and the two cars drove to an apartment building. Gail and one of the men from the Neon went into the apartment for about 10 minutes and after coming out, Gail told Braziel to follow the Neon to a side street “to make the transaction.” Both ears drove near a park; Gail got out of the Neon and told Braziel to get into the Neon. Braziel resisted initially, but after both cars drove to a convenience store parking lot, Braziel got into the back seat of the Neon. The Neon then left the parking lot and Holl-ingsworth followed the Neon in the Cavalier.

The Neon stopped in the middle of the street a short distance from the corner of 39th and Emerson, with Hollingsworth stopping the Cavalier about “a car length and a half’ behind the Neon. Gail got out of the Neon, left the front passenger door open, and stood between four and six feet from the passenger side of the car. Bra-ziel then climbed from the back seat to the front, and began to exit the Neon while facing the rear of the vehicle. Hollings-worth saw a struggle and believed that someone in the ear was pulling on Braziel’s leg as he tried to exit the car. Hollings-worth saw Gail shoot at Braziel once while Braziel’s leg was still in the car, and then Gail shot Braziel five or six more times. Braziel fell face down in the snow. Holl-ingsworth then saw the Neon “take off” and Gail leaving on foot.

A.L. also witnessed the shooting. She was shoveling snow one or two houses southeast of where the shooting occurred. A.L. saw the two vehicles in the street with an individual standing outside of each vehicle. A.L. saw the person near the Neon, who was wearing a dark, bulky coat, fire one shot, take a brief pause, and fire “four or five” additional shots. A.L. saw the shooter’s “arm go rigid in a downward motion in front of him” and then saw “flashes from the gun.” The shooter, standing on the passenger side of the car and partially blocked from A.L.’s vision by the hood of the car, was shooting downward “at something close by him.” A.L. saw the shooter start to run and the Neon start to move southbound before she ran into her house to call 911 at 6:19 p.m.

When police arrived a few minutes later, Braziel had no pulse. The cause of Bra-ziel’s death was determined to be multiple gunshot wounds and the manner of death was homicide.

Police found Braziel’s cell phone at the scene. The last call Braziel received was from a Verizon Wireless cell phone number. Police contacted Verizon on February 3 to request information about this phone number. On February 3, Verizon provided the requested information, indicating that the phone number was listed to Erick Larkins, at an address in Minneapolis. Police went to this address and spoke to Byron Davis, who explained that he paid Larkins to use Larkins’s name to lease cell phones. Davis told the police that he had “sublet” the Verizon phone that was used to call Braziel to a man he knew only as “Red or Reggie” and that Davis paid the bills attributed to that phone. On February 10, Davis identified Gail as the “Reggie” to whom he had sublet the cell phone. Because of the “Caller ID” function on his phone, Davis knew that Gail had used the Verizon cell phone to call Davis several times on the day of the shooting.

Hollingsworth positively identified Gail as the shooter. Specifically, Hollingsworth made a photo identification of Gail on February 11, 2004, writing, “This is the shooter,” on the back of the picture of Gail shown to him by an officer.

On February 12, 2004, Minneapolis Police Sergeant Gerhard Wehr was completing an application for a search warrant for Gail’s apartment in Minneapolis when he learned that Gail had been apprehended at a Plymouth apartment. Wehr then completed an application for a warrant to search the Plymouth apartment. In the warrant application for the Plymouth apartment, in addition to providing information tying Gail to the murder and indicating that the Minneapolis apartment was Gail’s residence, the application set forth the following information:

On 2/12/2004 Sgt. King advised your af-fiant that Reginald Gail had been in contact with his probation officer on this day, and that Gail had called from phone number 763-[deleted]. Your affiant learned that this number listfs] to the [Plymouth Apartment], Officers from the Minneapolis police went to this address. Officers knocked on the door and Reginald Gail came outside and was placed under arrest. Officers have since entered this apartment and have it secured.

A district court judge issued the warrant.

During the subsequent search of the Plymouth apartment, the police found a 9 mm Ruger semi-automatic handgun on top of a kitchen cabinet located above the refrigerator and a few feet from the entrance to the apartment. An expert testified that a bullet retrieved from Braziel’s body was, “to a reasonable degree of scientific certainty,” fired from the Ruger handgun.

Gail was indicted on three counts of felony murder: count 1 — intentional murder while committing or attempting to commit the crime of aggravated robbery; count 2 — -intentional murder while committing or attempting to commit the crime of unlawful sale of a controlled substance; and count 3 — intentional murder while committing or attempting to commit the crime of kidnapping. The trial began on Monday, November 15, 2004, and the case was submitted to the jury at 2:30 p.m. on Friday, November 19, 2004. On Saturday, November 20, 2004, the jury found Gail guilty on the second count of the charged crimes (intentional murder while committing or attempting to commit the crime of unlawful sale of a controlled substance). The district court sentenced Gail to life in prison.

Gail raises the following seven issues in this direct appeal:

1. Was the search warrant issued for the search of the Plymouth apartment supported by probable cause?
2. Should the cell phone records provided by Verizon have been suppressed?
3. Did the district court err in denying Gail’s motions to empanel a different jury venire because of underrepre-sentation of African-Americans or in denying Gail’s motion for additional discovery relating to the selection process for petit jury pools?
4. Was the evidence sufficient to support Gail’s conviction of first-degree felony murder?
5. Did the district court commit reversible error by failing, sua sponte, to allow the jury to decide whether a witness was an accomplice for purposes of giving an accomplice corroboration instruction?
6. Did the district court err in ordering that the jury be sequestered or in ordering that the jury begin deliberations on a Friday afternoon?
7. Did the State commit prosecutorial misconduct in closing argument?

I.

Gail argues that the search warrant issued for the Plymouth apartment violated the United States and Minnesota Constitutions because it was not supported by probable cause. See U.S. Const, amend. IV; Minn. Const, art. I, § 10. “When examining whether a search was supported by probable cause, the ultimate question is whether there is a ‘fair probability that contraband or evidence of a crime will be found in a particular place.’ ” State v. Carter, 697 N.W.2d 199, 204 (Minn.2005) (Carter III) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). We “look only to information presented in the affidavit” in making this determination. Carter III, 697 N.W.2d at 205. The application for the search warrant, “interpreted in a common-sense and realistic manner,” must be found to “contain information which would warrant a person of reasonable caution to believe that the articles sought are located at the place to be searched.” Rosillo v. State, 278 N.W.2d 747, 748-49 (Minn.1979); see also State v. Rochefort, 631 N.W.2d 802, 804 (Minn.2001) (“An appellate court reviews a district court’s decision to issue a warrant only to consider whether the issuing judge had a substantial basis for concluding that probable cause existed.”).

In addition, “[w]e afford great deference to the issuing judge’s determination on probable cause.” State v. Jones, 678 N.W.2d 1, 11 (Minn.2004). We do not want “the warrant requirement [to] become so burdensome as to discourage the police from seeking review by” a judge. State v. Harris, 589 N.W.2d 782, 791 (Minn.1999). Accordingly, “ ‘the resolution of doubtful or marginal cases * * * should be largely determined by the preference to be accorded to warrants.’ ” Massachusetts v. Upton, 466 U.S. 727, 734, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984) (quoting United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)).

Assessing the warrant issued to search the Plymouth apartment under the standards outlined above, we conclude that there was probable cause to issue the search warrant. As Gail notes, most of the application for the search warrant establishes the probable cause to arrest Gail and search his Minneapolis apartment, and only one paragraph is devoted specifically to the Plymouth apartment. That paragraph however contains the most important facts establishing a connection between the Plymouth apartment and the murder — the fact that the prime suspect in the murder (Gail) came out of the apartment immediately before he was arrested earlier that day and that the apartment had been “secured” since the time of the arrest.

The application states that Gail had been “positively identified” by an eyewitness “as the shooter.” The application also establishes that Gail had a connection to the Plymouth apartment; he did not simply happen upon it or briefly pass through the apartment. Rather, the application establishes that Gail had enough of a connection with the Plymouth apartment to contact his probation officer using the telephone in this residence. According to the application, Gail remained at the apartment long enough for the probation officer to call the police, for the police to locate the address of the apartment, and for the police to travel to the apartment and find Gail there. The murder weapon had not been located and the application establishes that the Plymouth apartment was the last place available to Gail to hide evidence of the crime for which he had been identified as the perpetrator. Because of Gail’s connection to this apartment and his arrest there just 10 days after the murder, we conclude it was reasonable to infer that the murder weapon might be found there. See State v. Thompson, 578 N.W.2d 734, 737-39 (Minn. 1998) (weapon connected with murder found at perpetrator’s acquaintance’s house where perpetrator was arrested); State v. Riley, 568 N.W.2d 518, 521-22 (Minn.1997) (same).

In sum, the application, interpreted in a common-sense and realistic manner, contained information which would lead a person of reasonable caution to believe that the gun might have been left behind in the Plymouth apartment. See Rosillo, 278 N.W.2d at 748^19. The “great deference” that this court affords to an issuing judge’s determination of probable cause, and the preference that we accord to warrants, support our conclusion that there was probable cause to issue the search warrant for the Plymouth apartment. See Jones, 678 N.W.2d at 11; Hams, 589 N.W.2d at 791. We hold that Gail’s constitutional rights were not violated because the warrant to search the Plymouth apartment was supported by probable cause.

II.

Gail argues that his rights under the Minnesota Constitution were violated when the police obtained cell phone records from Verizon Wireless. When we examine “whether a defendant can bring a claim asserting a violation of his or her Fourth Amendment rights, the issue is ‘whether the disputed search * * * has infringed an interest of the defendant which the Fourth Amendment was designed to protect.’ ” State v. McBride, 666 N.W.2d 351, 360 (Minn.2003) (quoting State v. Carter, 569 N.W.2d 169, 174 (Minn.1997) (Carter I), rev’d on other grounds, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998)). Gail “has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.” Rakas v. Illinois, 439 U.S. 128, 131 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). In 1999, we held “that appellants’ rights to challenge any search under Article I, Section 10 of the Minnesota Constitution are coextensive with appellants’ rights under the Fourth Amendment to the United States Constitution.” State v. Carter, 596 N.W.2d 654, 656 (Minn.1999) (Carter II). We therefore conclude that just as Gail would have the burden of establishing that he has a protectible right under the United States Constitution, he likewise has the burden of establishing that his rights under Article I, Section 10 of the Minnesota Constitution were violated when the state obtained cell phone records from Verizon Wireless.

The protections of the Minnesota Constitution are not triggered unless Gail has a legitimate expectation of privacy in the cell phone records. See McBride, 666 N.W.2d at 360. “Legitimate expectations of privacy are those expectations of privacy that ‘society is prepared to recognize as “reasonable.” ’ ” Id. (quoting Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). We use a two-step analysis to determine whether those protections are triggered. In re Welfare of B.R.K, 658 N.W.2d at 571. The first step is to determine whether Gail “exhibited an actual subjective expectation of privacy in the” cell phone records. Id. The second step is to determine whether that expectation is reasonable. Id.

In conducting the first step in the analysis, “courts should focus their inquiry on the individual’s conduct and whether the individual ‘[sought] to preserve [something] as private.’ ” Id. at 571 (quoting Bond v. United States, 529 U.S. 334, 338, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000)). We have found that a defendant illustrates a subjective expectation of privacy when he attempts to conceal activity or items. See id. at 572. In this case, Gail produced no evidence that he attempted to conceal anything about the cell phone he used. The evidence in the record supports the opposite conclusion.

Most importantly, Gail was a stranger to Verizon, the holder of the records at issue here. Accordingly, we do not have before us, and we specifically decline to reach, the question of whether a more typical user of a cell phone (i.e. the person who has the direct relationship with the cell phone company) has an expectation of privacy in her cell phone records. In this case, Gail was three steps removed from Verizon and the records it produced via the company’s “lease” to Larkins, Larkins’s “sub-lease” to Davis, and Davis’s “sub-sub-lease” to Gail. Moreover, Davis, not Gail, received the bills for the usage of the cell phone from Verizon, and Davis, not Gail, paid these bills. Because two other people stood between Gail and Verizon, and Gail did not testify or call any witnesses to support a finding that he had an expectation of privacy in the records, we cannot conclude on this record that Gail subjectively expected Verizon to keep records of his cell phone usage private.

Not only can we not conclude that Gail expected Verizon to keep this information confidential, but we cannot conclude that Gail did anything himself to keep his cell phone usage confidential. For example, Gail made numerous calls to Braziel from the cell phone. When the police obtained Braziel’s cell phone, they were able to determine that the number ultimately attributed to Gail was the last number to call Braziel’s phone via the “Caller ID” function on that phone. When Gail contacted Davis on the day of the shooting, Davis knew that the Verizon cell phone was used to make the calls because Davis also had “Caller ID.”

Gail had the burden of proving that he had a subjective expectation of privacy. He produced no evidence to support the notion that he was trying to keep his use of the cell phone he “sub-leased” from Davis private. Based upon this record, we find that Gail has not met his burden of showing he had a subjective expectation of privacy in the cell phone records obtained from Verizon. Accordingly, the district court did not err in refusing to suppress the cell phone records.

Our conclusion that Gail failed to demonstrate that he had a subjective expectation of privacy in the cell phone records is also dispositive of his alternative argument based upon Minn.Stat. § 388.23 (2004). Gail contends that the cell phone records should have been suppressed because this statute was violated. Specifically, Gail claims that the statute was violated because the police were not able to produce a subpoena signed by the County Attorney’s Office. Gail relies upon State v. Cook, 498 N.W.2d 17, 20 (Minn.1993) (telephone warrant), and State v. Frink, 296 Minn. 57, 74-75, 206 N.W.2d 664, 674 (1973) (wiretap), for the proposition that suppression of evidence is the appropriate remedy when statutory or rule requirements for the collection of that evidence have not been satisfied. For purposes of this case, we will assume that suppression is an available remedy for violation of Minn.Stat. § 388.23. In this case, Gail cannot avail himself of that remedy because, as set forth above, he is a complete stranger to Verizon with regard to the cell phone records. Accordingly, we hold that the district court did not err in failing to suppress the cell phone records on the basis of the statute’s alleged violation.

III.

Gail argues that the district court erred when it denied his motion to empanel a different jury venire because of underrep-resentation of African-Americans, and his alternative motion to discover information relating to the selection process for petit jury pools. Gail did not file a written challenge to the jury panel as required by Minn. R.Crim. P. 26.02, subd. 3. Instead, Gail’s counsel orally objected to the jury venire after it was brought into the courtroom. Gail argued that a new venire should be brought up because only one person self-identified as African-American on the 50-person venire. In the alternative, Gail asked the district court to order the jury office to provide information about the selection of the jury pool. The court denied the requests, “find[ing] no evidence of material departure from the requirements of law that govern the selection process here in Hennepin County.”

After five jurors had been selected and Gail had struck the only African-American venire person for cause, he renewed his request that the court order a new venire. Gail moved to restart the jury selection process, hoping that a new venire would be more representative. The district court denied this request by stating: “There is nothing in what I have heard up here * ⅜ * that calls into question, to me, the actual procedures.”

Sixth and Fourteenth Amendment challenges to the makeup of jury pools are questions of law that this court reviews de novo. See State v. Roan, 532 N.W.2d 563, 569 (Minn.1995) (Sixth Amendment challenges); State v. Willis, 559 N.W.2d 693, 700-01 (Minn.1997) (Fourteenth Amendment Equal Protection challenges). In order to “establish a pri-ma facie showing” that his Sixth Amendment right to a representative jury venire have been violated, a defendant must show “that over a significant period of time— panel after panel, month after month — the group of eligible jurors in question has been significantly underrepresented on the panels and that this results from ‘systematic exclusion.’ ” State v. Williams, 525 N.W.2d 538, 542-43 (Minn.1994). A challenge to thé jury venire under the Fourteenth Amendment likewise requires that the defendant show underrepresentation “over a significant period of time.” See Castaneda v. Partida, 430 U.S. 482, 494-95, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977).

Gail has provided no evidence to satisfy the Williams standard. To the contrary, Gail’s attorney told the district court: “I can tell you that it seems like we’ve had more African Americans on our panels recently. This was a shock yesterday to see only one.” Moreover, even if Gail had made a showing of underrepre-sentation, we have upheld the selection process for petit jury pools in Hennepin County against constitutional challenge. See Willis, 559 N.W.2d at 700; Roan, 532 N.W.2d at 569. Gail did not show that these procedures have changed in any material respect since Willis and Roan were decided.

Because Gail did not make a prima facie showing that his constitutional rights to a representative jury venire were violated, we hold that the district court did not err in denying Gail’s motions for a new venire.

Turning to Gail’s alternative argument, Gail did not provide either the district court or this court with the legal authority under which the district court was requested to gather information relating to the selection process for Hennepin County petit jury pools. The information Gail sought appears to have been available to him under rule 3, subd. 5(b), and rule 5 of the Rules of Public Access to Records of the Judicial Branch. We hold that the district court did not err when it denied Gail’s request that the court gather the information on Gail’s behalf.

IV.

Gail argues that the evidence was insufficient to convict him of murder in the first degree while committing or attempting to commit the felony crime of unlawful sale of a controlled substance. When reviewing sufficiency of evidence, we inquire whether, “given the facts in the record and any legitimate inferences that can be drawn from those facts, a jury could reasonably find that the defendant was guilty of the charged offense.” State v. Pierson, 530 N.W.2d 784, 787 (Minn.1995). We view the evidence in the light most favorable to the verdict. Id.

The evidence provides ample support for the conclusion that Gail shot Braziel intending to kill him and that the shooting happened as part of a drug deal. Hollingsworth testified that Braziel came to Minneapolis to buy $250 worth of cocaine from Gail. While Hollingsworth and Braziel were driving around Minneapolis with Gail, and after Gail received a cell phone call, Gail told Braziel “what the price was going to be” — $250. Gail then directed Braziel to drive to a four-door, red Dodge Neon where two men were waiting. Gail told Braziel to follow the Neon. Gail later told Braziel to get into the Neon, and after some reluctance, Braziel got in the Neon with Gail and the other two men to complete the deal. Hill testified that, after Gail and Braziel got into the car, “they just started to make the deal.” Hill testified that Braziel started arguing with Gail that he wanted his money back because the cocaine was “short” and Braziel and Gail started fighting.

Hollingsworth testified that he saw Gail shoot Braziel numerous times after he saw a struggle in the Neon. Hollingsworth’s description of Gail’s clothing matched the description given by A.L., who saw someone in a “bulky, dark coat” fire multiple shots down toward the ground from outside of the passenger side of the Neon. Finally, the medical examiner testified that Braziel died from multiple gunshot wounds and the manner of death was homicide.

Viewing the evidence in the light most favorable to the verdict, it is clear that there was sufficient evidence to convict Gail of murder in the first degree while committing or attempting to commit the unlawful sale of a controlled substance.

V.

Gail argues that the district court committed reversible error by not providing the jury with an accomplice corroboration instruction for the testimony of both Hollingsworth and Hill. We have held that “trial courts have a duty .to instruct juries on accomplice testimony in any criminal case in which it is reasonable to consider any witness against the defendant to be an accomplice.” State v. Strommen, 648 N.W.2d 681, 689 (Minn.2002). This court evaluates “the erroneous omission of [an accomplice] jury instruction under a harmless error analysis.” State v. Lee, 683 N.W.2d 309, 316 (Minn.2004).

Under Minn.Stat. § 634.04 (2004), a criminal conviction may not be based “upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense.” In general, the “test for determining whether a witness is an accomplice for purposes of section 634.04 is whether he could have been indicted and convicted for the crime with which the accused is charged.” Lee, 683 N.W.2d at 314 (internal quotation marks omitted). When the evidence establishing whether a witness is an accomplice “is disputed or susceptible to different interpretations, then the question whether the witness is an accomplice is one of fact for the jury.” Id. (internal quotation marks omitted).

Gail argues that both Hollings-worth and Hill were accomplices to the underlying felony of which the jury found him guilty — sale or attempted sale of a controlled substance' — -and also accomplices to the intentional murder. Hollings-worth, however, is clearly not an accomplice in the underlying felony. At most, Hollingsworth aided Braziel in the purchase of cocaine, not the sale of cocaine. Accordingly, Hollingsworth cannot be considered an accomplice even to the underlying felony.

Regarding Hill, we do not decide whether Hill was an accomplice in the murder or that it was error for the district court not to allow the jury to decide the question because we conclude that any error in not submitting the accomplice issue to the jury was harmless on this record.

In Lee, we determined that the failure to give the instruction was harmless when an accomplice in the crime of receiving stolen property testified that he stole the property and delivered it to defendant Lee. Id. at 312-13, 316. The testimony of the accomplice “was compelled under a grant of use immunity and not done pursuant to a promise of leniency.” Id. at 316. In finding the omission of the instruction harmless, we indicated that the testimony was “corroborated by other evidence,” and that, “[i]n closing argument, the state focused on the evidence corroborating [the accomplice’s] testimony, including that of Lee, as well as evidence independently connecting Lee to the offenses.” Id. at 316-17. Finally, we indicated that “the district court’s general instructions on witness credibility alerted the jury to the potential for conflicting motivations behind certain testimony.” Id. at 317.

In State v. Shoop, we pointed to factors similar to those indicated in Lee in finding that the refusal to give an accomplice instruction was harmless error. See State v. Shoop, 441 N.W.2d 475, 481-82 (Minn.1989). We also pointed to the state’s closing argument statement that the jury did not have “to accept everything that [the accomplice] says at face value” as support that the jury was properly warned about the possible lack of credibility of the accomplice. Id. at 481 (internal quotation marks omitted).

All of these factors discussed in Lee and Shoop exist in this case. The state did not give Hill any leniency for testifying against Gail. Hill’s testimony on the drug deal was against his own interest, because it tended to establish him as an accomplice in the felony sale of cocaine. Hollingsworth’s testimony corroborated Hill’s that Gail was an essential part of the drug deal. The state’s closing argument only mentioned Hill’s testimony to corroborate the testimony of Hollingsworth and A.L. The state’s argument regarding Hill constituted approximately two pages of transcript out of more than 30 pages of final arguments. .When the state began to talk about Hill, who clearly made the most contradicted statements of all the witnesses, the state said, “you don’t have to believe everything someone says.” Finally, the district court gave the jury a three-page instruction on “the believability of witnesses.”

As the state argues, the central point of having Hill testify was to counter the defense’s argument that someone in the Neon shot Braziel. Given the state’s cautious treatment of Hill’s testimony and the corroboration of his testimony by other evidence, if the failure to provide the instruction was error, “beyond a reasonable doubt the omission did not have a significant impact on the verdict.” Lee, 683 N.W.2d at 316 (internal quotation marks omitted). We therefore hold that any error in the district court’s failure to give the accomplice corroboration instruction was harmless.

VI.

The jury began deliberating on a Friday and returned its verdict on a Saturday. Once deliberations began and over Gail’s objection, the jury was sequestered. Gail raises two issues relating to the jury deliberations. First, Gail argues that Minn. R.Crim. P. 26.03, subd. 5(1) is unconstitutional insofar as it gives the state “veto power” over a decision to allow the jurors to separate after beginning deliberations. Second, Gail argues the district court abused its discretion in not asking the jurors for their preferences as to the timing of the start of deliberations.

Turning to the constitutional question, we review de novo the constitutionality of a rule of criminal procedure. See Ford v. State, 690 N.W.2d 706, 712 (Minn.2005). Minnesota Rule of Criminal Procedure 26.03, subd. 5(1) provides: “With the consent of the defendant and the prosecution, the court, in its discretion, may allow the jurors to separate over night during deliberation.” Gail argues that giving the prosecution the right to consent to the separation of jurors gives the state “the final word” on sequestration. Gail then argues that, because the judiciary has exclusive authority over procedural matters, the rule violates the separation of powers doctrine.

There is no merit to Gail’s argument. The district court, not the state, has “the final word” on the issue of sequestration. Even where both counsel consent, the rule, through the use of the permissive “may,” leaves the sequestration decision vested with the district court. In no way has a separate branch of government been given “the final word” in a procedural matter in this rule. We hold that Minnesota Rule of Criminal Procedure 26.03, subd. 5(1), by permitting the district court to consider separation of a jury only if both the defendant and the state consent to such separation, does not violate the separation of powers doctrine.

Turning to the second aspect of Gail’s argument, he contends he is entitled to a new trial because the district court did not ask the jurors whether they would prefer to begin deliberations on Friday or on Monday and whether, if deliberations began on Friday, there were concerns with deliberating over the weekend. We review this decision under an abuse of discretion standard. See State v. Blom, 682 N.W.2d 578, 607 (Minn.2004). As the district court noted, in denying Gail’s motion to inquire of the jurors as to their preferences, “trying to have the jury make a decision about when they would like to deliberate * ⅜ * is possibly fraught with real problems.” The district court also noted that the trial was being conducted the week before the Thanksgiving holiday, and that during jury selection scheduling issues were discussed. Finally, the district court expressed concern that further questioning of the jurors could be construed as an indication by the court as to how much time the court thought the jurors might need to reach a verdict. We hold that the district court did not abuse its discretion in denying Gail’s motion to ask the jurors about their preference as to the timing for the commencement of deliberations.

VII.

Gail argues that the state committed prosecutorial misconduct by improperly shifting the burden of proof, giving a personal opinion, and vouching for a witness. Gail’s claims of misconduct are without merit.

In claiming that the prosecutor improperly shifted the burden of proof, Gail relies upon the prosecutor’s statement in closing argument: “You have to know that the defendant, and the State has to prove beyond a reasonable doubt, that this defendant acted with the intent to kill Mr. Braziel.” No rational jury would have heard that statement to indicate that the defendant had to prove anything. This statement was not misconduct.

Gail next claims that the state gave a personal opinion when it said:

[Y]ou might decide that in looking at this that while the defendant had not completed the aggravated robbery or had not completed the drug sale, although I suggest to you that he had done both of those, you may decide he hadn’t, and you may decide to look at this as to whether it’s an attempt or not.

The state was merely telling the jury that Gail could be found guilty if the jury found that Gail had attempted, rather than completed, the underlying felonies. There was no misconduct by the state in making this statement.

Finally, Gail argues that the state’s argument that Hollingsworth was “a believable person” and was “frank and sincere” constitutes impermissible vouching for a witness. Vouching occurs “when the government implies a guarantee of a witness’s truthfulness, refers to facts outside the record, or expresses a personal opinion as to a witness’s credibility.” State v. Lopez-Rios, 669 N.W.2d 603, 614 (Minn.2003) (internal quotation marks omitted). “But the state may argue that particular witnesses were or were not credible.” Id. The state was merely arguing that Hollingsworth was credible, and therefore we hold that the state did not commit misconduct.

Affirmed.

PAGE, Justice

(concurring).

I concur with the court’s opinion as written except to the extent that it suggests in section II that an individual’s expectation of privacy in phone records maintained by a phone company is lessened as a result of caller ID.

      . The police indicated that they needed the information urgently and that an administrative subpoena issued under Minn.Stat. § 388.23 (2004) would be faxed in the next 24-48 hours. Police were unable to produce a signed copy of the subpoena.

      . The jury acquitted Gail of the first count of the indictment, intentional murder while committing or attempting to commit the crime of aggravated robbery. The district court dismissed the third count, intentional murder while' committing or attempting to commit the crime of kidnapping, prior to submitting the case to the jury.

      . As discussed in part II, infra, the Supreme Court has made it clear that Gail can only challenge the search warrant if the "disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect.” Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); see State v. McBride, 666 N.W.2d 351, 360 (Minn.2003) (same). Gail "has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.” Rakas, 439 U.S. at 131 n. 1, 99 S.Ct. 421. Because both parties appear to assume on appeal that Gail has met his burden, we also assume, without deciding, that Gail "has a right under the Fourth Amendment to challenge” the search warrant. In re Welfare of B.R.K., 658 N.W.2d 565, 571 (Minn.2003).

      . Gail does not claim that the use of the cell phone records violated his rights under the U.S. Constitution.

      . Because we conclude that Gail failed to demonstrate that he had a subjective expectation of privacy in the cell phone records, we do not reach the second issue, whether such all expectation would be one that " 'society is prepared to recognize as "reasonable.” ’" McBride, 666 N.W.2d at 360 (quoting Katz, 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J„ concurring)).

      . This statute provides that the county attorney "has the authority to subpoena and require the production of any records of telephone companies, cellular phone companies * * * £or recorc¡s that are relevant to an ongoing legitimate law enforcement investigation.”

      . This assumption should not be read as indicating one way or the other how we will view this issue in a different case. See, e.g., State v. Fakler, 503 N.W.2d 783, 787-88 (Minn.1993) (holding that pen register evidence was admissible even though the evidence was obtained without complying with statute authorizing installation of pen register). Gail's argument that suppression is an appropriate remedy is premised upon his assertion that the legislature enacted Minn.Stat. § 388.23 to protect individuals' privacy. Language in the statute, however, seems contrary to this assertion. See Minn.Stat. § 388.23, subd. 1 ("This provision applies only to the records of business entities and does not extend to private individuals or their dwellings.”). In any event, we leave this issue for another day.

      .Minn. R.Crim. P. 26.02, subd. 3, reads:
      Either party may challenge the jury panel on the ground that there has been a material departure from the requirements of law governing the selection, drawing or summoning of the jurors. The challenge shall be in writing, specifying the facts constituting the grounds of the challenge, and shall be made before a jury is sworn. If the opposing party objects to either the sufficiency of the challenge or the facts on which it is based, the court shall hear and determine the challenge.

      . Generally, this court reviews the failure to provide a sua sponte jury instruction under a plain error standard of review. E.g., State v. Earl, 702 N.W.2d 711, 720 (Minn.2005). When this court first applied a harmless error standard for failure to provide an accomplice corroboration instruction, the court appeared to use the harmless error standard because the district court had denied the defendant's motion for the instruction. See State v. Shoop, 441 N.W.2d 475, 479-80 (Minn.1989). The defendant in State v. Lee did not request an accomplice corroboration instruction. See 683 N.W.2d 309, 316 (Minn.2004). The court in Lee did not analyze if the standard for omission of a non-requested instruction should be the same as for a denied instruction, and applied the same harmless error standard as used in Shoop. Lee, 683 N.W.2d at 316. Because we conclude that Gail’s challenge would fail under either standard, we apply the harmless error standard employed in Lee.

      . We assume, but do not decide, that being an accomplice to the underlying felony would be sufficient to submit the accomplice question to the jury.

      . If Gail had argued that he was innocent because Hill had committed the crime, there would have been no error in failing to give the instruction. See State v. Swanson, 707 N.W.2d 645, 653 (Minn.2006) (“A witness who is alleged to have committed the crime
        instead, of the defendant is, as a matter of law, not an accomplice under section 634.04.'').

      . Gail also claims that the state committed misconduct by "disparagement of other party, counsel or theory” and cites all of the state's rebuttal in closing argument as support. Our careful review of the transcript reveals that any misconduct by the state, which we do not find, was cured when the district court allowed Gail to provide a surrebuttal. Thus, there is no merit to this argument.


source: Caselaw Access Project

author: DIETZEN, Judge.

license: Public Domain

text:
    James L. NOSKE, Appellant, v. Joseph S. FRIEDBERG, et al., Respondents.
    No. A05-1160.
    Court of Appeals of Minnesota.
    April 25, 2006.

      Lawrence H. Crosby, Jay D. Olson, Crosby & Associates, St. Paul, MN, for appellant.
    Paul C. Peterson, William L. Davidson, Lind, Jensen, Sullivan & Peterson, P.A., Minneapolis, MN, for respondents.
    Considered and decided by WRIGHT, ■ Presiding Judge; DIETZEN, Judge; and WORKE, Judge.
   OPINION

DIETZEN, Judge.

Appellant James Noske challenges the district court’s grant of summary judgment dismissing his legal-malpractice claim, arguing that genuine issues of material fact remain for trial. By notice of review, respondents Joseph Friedberg and Joseph S. Friedberg, Chartered, argue that the district court erred by not dismissing appellant’s claim for failure to submit a proper affidavit of expert review. Because we conclude that (1) appellant timely filed a proper substitute expert-review affidavit under the safe-harbor provisions of Minn.Stat. § 544.42, subd. 6(a) (2004), (2) appellant failed to establish any genuine issues of material fact, and (3) respondents are entitled to judgment as a matter of law, we affirm.

FACTS

In July 1989, appellant resided in a house on the north side of Highway 23 near Richmond, Minnesota. Based on the large number of cars he saw coming and going, appellant suspected that neighbors who lived in a cabin south of the highway may be involved in drug dealing. Late one afternoon, appellant walked down the road and met two neighbors who lived in’ the cabin, including Kirk Kellerman. Appellant drank beer with them for some time, but Kellerman asked him to leave the cabin after a dispute.

Within an. hour, appellant returned to his neighbors’ cabin with a gun to see if there were further signs of drug dealing. Appellant and Kellerman presented different versions of what occurred next. According to Kellerman, appellant walked back a short distance, fired six shots toward Kellerman’s cabin, and walked back up the road to Highway 23. Kellerman went through' the woods to follow appellant and ran toward him. When Kellerman was within six or seven yards, appellant spun around and aimed the gun at Keller-man’s chest. Kellerman heard three clicks, but the gun did not fire. Kellerman then started punching 'and kicking appellant to prevent him from firing the gun again.

According to appellant,, he walked to Kellerman’s cabin and brought a gun to protect himself. He looked through the window but could not see anything. As he was walking home, he believed that someone was following him. When he was north of the highway, he turned around and saw Kellerman, who yelled that appellant was a “dead man.” About ten feet and ninety degrees away, appellant saw another man holding a club-like object. Both men were yelling, “Kill.” He also saw a third man. At this point, appellant contends that he pointed the gun in the air and fired six shots in self-defense. He then clicked the trigger on empty chambers several times. Kellerman then started beating appellant. ■

As a result of this incident, the state filed a complaint charging appellant with five counts of second-degree assault with a dangerous weapon for shooting “at” five individuals, including Kellerman.

According to appellant, he hired respondent Joseph Friedberg and Joseph S. Friedberg, Chartered (collectively respondent), to defend him on a self-defense theory, and appellant continued to insist that respondent assert this theory throughout trial. Respondent did not request a self-defense instruction at trial. Instead, respondent proceeded on a theory that the state could not prove, as the complaint alleged, that appellant fired “at” his victims. The jury found appellant guilty of one count of second-degree assault against Kellerman but acquitted him of the other counts. The district court denied postcon-viction relief.

Appellant then appealed his conviction and the denial of postconviction relief. Noske v. State, No. CO-91-2486, 1992 WL 365990, at *1 (Minn.App. Dec.15, 1992), review denied (Minn. Jan. 28, 1993). Among other things, appellant argued that he received ineffective assistance of counsel because, despite assurances to the contrary, respondent failed to use the self-defense strategy. Id. at *6-7. This court rejected appellant’s argument, stating that “[djefense counsel’s decision to mislead his client was unfortunate, but it [was] not grounds for reversal.” Id. at *7.

In 1993, appellant petitioned the federal district court for a writ of habeas corpus. The federal district court ruled that respondent’s assistance was constitutionally deficient because his conduct breached his duty of consultation with appellant and fell below an objective standard of reasonableness. . Noske v. Stender, No. 4-93-518, slip op. at 22 (D.Minn. Jan. 8, 1999). Additionally, the federal district court found that the introduction of a self-defense theory to the jury had a reasonable probability of altering the outcome of the case. Id. Appellant had thus been “denied his Sixth Amendment right to effective assistance of counsel and was prejudiced thereby.” Id. The federal district court granted habeas relief, vacated appellant’s conviction, and authorized the state to retry appellant on the criminal-assault charge pertaining to Kellerman. Id. at 23. The state declined to retry appellant.

In September 2001, appellant filed a legal-malpractice action against respondent in state district court, asserting negligence, breach of contract, and misrepresentation. The district court dismissed the claim as barred by the statute of limitations. This court reversed and remanded, and the supreme court affirmed, holding that Noske’s cause of action did not accrue until he was granted habeas corpus relief in 1999. Noske v. Friedberg 656 N.W.2d 409 (Minn.App.2003), aff'd, 670 N.W.2d 740 (Minn.2003).

On remand to the district court, respondent moved to dismiss on the ground that appellant’s affidavit of expert review by Michael Scherschligt, a Hamline University School of Law professor, was inadequate. Respondent also moved for summary judgment on the merits. Appellant opposed the motion and, in response to the alleged deficiencies, submitted the affidavit of John Koch, an experienced criminal-defense attorney. The district court denied the motion to dismiss and allowed appellant to submit the substitute affidavit of expert review by Koch, but the district court granted summary judgment dismissing appellant’s malpractice claim. Appellant filed this appeal, and respondent filed a notice of review.

ISSUES

1. Did the district court abuse its discretion by ruling that appellant’s first affidavit of expert review was deficient because the affiant was not qualified as an expert in criminal law?

2. Did the district court err by allowing appellant to submit a substitute affidavit of expert review’under the safe-harbor provision of Minn.Stat. 544.42, Subd. 6(a), to replace an affidavit by an expert who lacked the necessary qualifications?

3. Did the district court err by granting summary judgment dismissing appellant’s legal-malpractice claim based on a determination that respondent was entitled to judgment as a matter of law?

ANALYSIS

I.

Appellant challenges the district'court’s ruling that it was unlikely that his expert, Michael Scherschligt, could give an admissible expert opinion regarding the conduct of a criminal-defense attorney because he had no practical or academic experience in this area. By notice of review, respondent challenges the district court’s decision allowing appéllant to submit an affidavit by a qualified expert on criminal law to remedy the deficiencies in the original affidavit.

An appellate court will “apply ‘a very deferential standard’ to the district court when reviewing a determination as to expert qualification, reversing only if there has been a clear abuse of discretion.” Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 427 (Minn.2002) (addressing expert-review affidavit'required for medical-malpractice action) (citations omitted).

When bringing a malpractice action against a professional such as a lawyer, if expert testimony will be used to establish a prima facie case, the plaintiff must serve the opponent with two affidavits. Minn. Stat. § 544.42, subd. 2 (2004). The first is an affidavit of expert review and the second is an affidavit of expert identification. Minn.Stat. § 544.42, subds. 3 (affidavit of expert review), and 4 (affidavit of expert identification) (2004). Only the affidavit of expert review is at issue in this case.

The affidavit of expert review is usually submitted with the pleadings and is generally drafted by the plaintiffs attorney. See Minn.Stat. § 544.42, subds. 2, 3. It must state, that the facts have been reviewed by the attorney with an expert “whose qualifications provide a reasonable expectation that the expert’s opinions could be admissible at trial” and that, in the expert’s opinion, “the defendant deviated from the applicable standard of care and by that action caused injury to the plaintiffi.]” Id., subd. 3(a)(1).

The proposed expert must “make a substantial showing of qualification in the. particular field of inquiry.” Swanson v. Chatterton, 281 Minn. 129, 140, 160 N.W.2d 662, 669 (1968) (medical malpractice action). Preferably, experts should also have practical experience in the particular matter at issue. See Lundgren v. Eustermann, 370 N.W.2d 877, 880-81 (Minn.1985) (holding that when psychologist had- no practical experience or knowledge of what physicians do, he was not competent to give an opinion on the standard of medical care or departure from that standard). The dispute in this case concerns Scherschligt’s qualifications to give admissible expert testimony as to criminal law.

Scherschligt is a law professor at Ham-line University School of Law. He teaches primarily torts- and professional responsibility. The district court ruled that although Scherschligt’s expertise in professional responsibility was likely relevant, it was unlikely that Scherschligt, who had no practical or academic experience in criminal law and had only academic experience on issues of professional responsibility, could provide admissible expert testimony at trial. The district court therefore concluded that the first affidavit of expert review failed to meet the requirements of the statute.

Appellant argues that Scherschligt had the required qualifications, citing his expertise in attorney ethics. He contends that, rather than holding that Scherschligt was not qualified as an expert in the relevant field, the district court should have allowed the jury to determine the value of his testimony. See Riewe v. Amesen, 381 N.W.2d 448, 458-59 (Minn.App.1986) (upholding district court decision that expert was qualified to testify), review denied (Minn. Mar. 27, 1986). Appellate courts must defer to the district court’s decision on the qualifications of experts and reverse only for a clear abuse of discretion. Teffe-teller, 645 N.W.2d at 427. The district court did not abuse its discretion by ruling that, although Scherschligt’s expertise in professional responsibility was arguably relevant, his lack of practical or academic experience in the criminal-law area made it unlikely that his testimony on the duty of a criminal-defense attorney would have been admissible as expert opinion in court. The district court therefore properly dismissed appellant’s first affidavit of expert review.

II.

Respondent argues that the district court erred by allowing appellant to submit a substitute expert-review affidavit, claiming that the safe-harbor provision of Minn.Stat. § 544.42, subd. 6(c) (2004), applies only to inadvertent drafting errors and does not permit substitution of experts. Respondent raises a question of statutory construction, which we review de novo. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188,190 (Minn.1990).

Initially, we observe that subdivision 6(a), not 6(c), applies to an affidavit of expert review. Subdivision 6(a) provides that failure to serve an affidavit of expert review “within 60 days after demand for the affidavit results, upon motion, in mandatory dismissal.” Minn.Stat. § 544.42, subd. 6(a). The affidavit requirement “cannot be met by a witness not reasonably expected to provide an admissible expert opinion at trial.” Teffeteller, 645 N.W.2d at 426-27

The district court held that the “safe-harbor” provision of the statute allowed appellant to submit a proper affidavit from a qualified new expert to replace the defective affidavit and thereby satisfy the disclosure requirement of the statute. The district court ruled that the substitute affidavit by John Koch, an experienced criminal-defense attorney, met the statutory requirements.

Respondent argues that the district court erred by allowing Koch’s affidavit, claiming that the safe-harbor provision is intended to apply to inadvertent drafting errors, not to a party’s failure to submit an opinion by a qualified expert. The crux of respondent’s argument is that subdivision 6(a) is limited to curing claimed deficiencies in an affidavit previously submitted and that the statute prohibits submission of a substitute expert-review affidavit that identifies a new expert.

For two reasons, we conclude that the “safe-harbor” provision of subdivision 6(a) does not prohibit the timely submission of a second affidavit of expert review that identifies a substitute expert witness to replace an expert disclosed under subdivision 3, after the district court has concluded that the initial affidavit is inadequate, provided that the new affidavit otherwise complies with the disclosure requirements of subdivision 3. First, subdivision 6(a) does not explicitly prohibit a party from substituting one expert with another as long as the other provisions of the statute are satisfied. Here, the other provisions of the statute were satisfied.

Second, we conclude that subdivision 4(b) provides the court with discretion to permit a second affidavit of expert review that identifies a new expert. It states, “The parties by agreement, or the court for good cause shown, may provide for extensions of the time limits specified in subdivision 2, 3, or this subdivision. Nothing in this subdivision prevents any party from calling additional expert witnesses or substituting other expert witnesses.” Minn.Stat. § 544.42, subd. 4(b). In the first sentence, the court is given the discretion to extend the time limits, inter alia, for affidavits of expert review required by subdivision 3. The second sentence provides that subdivision 4 does not prevént a party from “substituting other expert witnesses.” Id. We read the second sentence as applying to both affidavits of expert review and expert identification. We recognize that the title of subdivision 4 is entitled “Identification of experts to be called[,]” but clear statutory language controls over titles of statutes, and here the statutory language is broader than the title. See Minn.Stat. § 645.49 (2004); Johnson v. State Farm. Mut. Auto. Ins. Co., 574 N.W.2d 468, 471 (Minn.App.1998) (headnotes “are mere catchwords to indicate the content of the section or subdivision and are not part of the statute”). And we do not believe that the legislature intended that the right to substitute experts apply to affidavits of expert identification but not to- the initial, affidavit of expert review.

Respondent does not challenge Koch’s qualifications as an expert or the adequacy of his expert-review affidavit. Therefore, the district court correctly concluded that the substitute affidavit was properly submitted under MinmStat. § 544.42, subd. 6(a). . .

III.

Appellant argues that the district court erred by dismissing his legal-malpractice claim, contending that respondent was professionally negligent. On review of summary judgment, we determine de novo whether there are any genuine issues of material fact and whether the district court erred as a matter of law. STAR Centers, Inc. v. Faegre Benson, L.L.P., 644 N.W.2d 72, 76 (Minn.2002); Minn. R. Civ. P. 56.03. We view the evidence “in the light most favorable to the party against whom summary judgment was granted.” STAR Centers,-644 N.W.2d at 76-77. A party opposing summary judgment “may not rest upon the mere averments or denials of the adverse party’s pleading but must present specific facts showing that there is a genuine issue for trial.” Minn. R. Civ. P. 56.05.

To prevail on a legal-malpractice claim,- a plaintiff must establish four elements:

(I) the existence of an attorney-cliént relationship; (2) acts constituting negligence or breach of contract; (3) that such acts were the' proximate cause of the plaintiffs damages; [and] (4) that but for defendant’s conduct the plaintiff would have been successful in the prosecution or defense of the action.

Jerry’s Enters., Inc, v. Larkin, Hoffman, Daly Lindgren, 711 N.W.2d 811 (Minn.2006) (quotation omitted). “Failure to establish proof of any one of those elements defeats the entire claim.” Noske, 670 N.W.2d at 743.

A. Attorney-client Relationship

The parties do not dispute that an attorney-client relationship existed. The first element of a legal-malpractice claim is therefore satisfied.

B. Acts Constituting Negligence

The second element requires a showing of acts constituting negligence or breach of contract. Id. at 742-43. To prove negligence in a legal-malpractice case, the plaintiff must establish the standard of care and show that the attorney, through negligent acts, breached the standard of care. Wartnick v. Moss Barnett, 490 N.W.2d 108, 112 (Minn.1992). Expert testimony is generally required to establish both the standard of care and breach. Hill v. Okay Constr. Co., 312 Minn. 324, 337, 252 N.W.2d 107,116 (1977).

Initially, appellant argues that the determination by the federal district court in the habeas corpus proceeding satisfied the second element of this legal-malpractice claim. The habeas court concluded that counsel breached the duty to consult and intentionally misled appellant into believing that he could assert self defense at trial; that this prejudiced appellant’s case; and that this conduct violated his constitutional right to effective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984). Appellant asserts that respondent’s actions require immediate reversal. See Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 1264-65,113 L.Ed.2d 302 (1991). But the determination by the habeas court is not dispos-itive of appellant’s civil claims and does not estop respondent from litigating any of the elements of the legal-malpractice action. Noske, 670 N.W.2d at 746. Thus, we turn to the merits of appellant’s professional-negligence claim.

Appellant’s negligence claims are set forth in the affidavit of John Koch. Appellant’s first claim of negligence is that respondent breached the duty to consult by failing to assert self defense as appellant had directed. (Koch Aff. 11-12). Respondent argues, and the district court agreed, that the professional-judgment rule bars appellant’s claim.

The parties do not dispute that appellant discussed self defense as a trial strategy with respondent, that appellant directed respondent to assert that defense, and that respondent agreed to assert the defense. Nor do the parties dispute that respondent failed to assert the defense because respondent concluded that it was risky to do so and that the better strategy was to argue that the state could not prove, as the complaint alleged, that appellant fired “at” his victims.

But a client cannot prevail on a legal-malpractice claim based on a lawyer’s failure “to pursue a particular strategy.” See Dziubak v. Mott, 503 N.W.2d 771, 776 (Minn.1993) (addressing likelihood of success of malpractice action by indigent client against public defender). “[I]f a negligence claim involves a dispute over a choice of strategies, [the claim] should fail, since honest errors may be made which do not rise to the level of malpractice.” Id. at 776; cf. State v. Doppler, 590 N.W.2d 627, 635 (Minn.1999) (holding that a decision to focus on self defense rather than intoxication as a defense was a matter of trial strategy and did not constitute ineffective assistance of counsel). Under this rule, an attorney is not liable for mistakes made in the honest exercise of professional judgment. Wartnick, 490 N.W.2d at 113; see Glenna v. Sullivan, 310 Minn. 162, 170, 245 N.W.2d 869, 872-73 (1976); accord Simko v. Blake, 448 Mich. 648, 532 N.W.2d 842, 848 (1995) (affirming summary judgment for criminal-defense attorney, reasoning that “tactical decisions do not constitute grounds for a legal malpractice action”).

We conclude that respondent’s failure to assert self defense was a deliberate trial strategy resulting from the exercise of professional judgment. Even if respondent’s decision reflected an error in judgment, it does not rise to the level of malpractice.

Appellant further argues that the American Bar Association (ABA) standards support his claim that respondent breached his duty to consult by not asserting the defense. See ABA Standards for Criminal Justice: Prosecution Function and Defense Function (3d ed.1993). Under these standards, defense counsel should keep their clients informed of developments and progress and comply promptly with reasonable requests for information. Id. § 4-3.8(a). In the event that a “disagreement on significant matters of tactics or strategy arises between defense counsel and the client, defense counsel should make a record of the circumstances, counsel’s advice and reasons, and the conclusion reached.” Id. § 4-5.2(c). But the ABA standards do not require the attorney to pursue a particular trial strategy, even if it is favored by the client. And the ABA standards are not intended to create substantive or legal rights; instead, they are to serve as a guide to attorneys on how to conduct themselves. Id. § 3-1.1 cmt. Consequently, failure to comply with the ABA standards does not supply a basis for a breach-of-duty claim when, as here, the challenged conduct relates to counsel’s decisions about trial strategy, which are protected by the professional-judgment rule.

Appellant’s second claim of negligence is that respondent breached his duty to consult by deliberately and intentionally deceiving appellant about his intent to assert self defense. (Koch Aff. ¶ 11). Koch con-' eludes, inter alia, that respondent did not represent appellant to a “professionally adequate level” by “intentionally misleading his client.” He further concludes that “there is no standard of care in Minnesota that permits a lawyer to mislead his client. I do not believe that any-tactical defense includes the deliberate deception- of his client.”

Respondent’s alleged conduct, if true, is both serious and troubling. We do not condone such conduct. But we are limited by what appellant pleaded and argued to the district court and raised on appeal to this court. Minnesota law recognizes various legal theories of recovery related to attorney misconduct, including intentional fraud and misrepresentation, breach of contract, breach of fiduciary duty, and professional negligence. See, e.g., Jerry’s Enters., 711 N.W.2d at 811 (breach of contract); Rice v. Perl, 320 N.W.2d 407, 410 (Minn.1982) (breach of fiduciary duty); Francis v. Piper, 597 N.W.2d 922, 924 (Minn.App.1999) (professional negligence), review denied (Minn. Oct. 26, 1999); Brooks v. Doherty, Rumble & Butler, 481 N.W.2d 120, 128-29 (Minn.App.1992) (fraud and misrepresentation), review denied (Minn. Apr. 29,1992).

Although appellant initially alleged claims for breach of contract and intentional fraud and misrepresentation, he did not pursue those claims in the district court or on appeal. Those claims are, therefore, not before us. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988) (reviewing court must generally consider only issues that were presented to and considered by the district court in deciding the matter before it); see also Flooring Removal, Inc. v. Ryerson, 447 N.W.2d 429, 430 (Minn.1989) (reviewing court' may' not consider issues that were not addressed by the parties on appeal). Because appellant did not brief or argue separate theories of intentional fraud and misrepresentation, breach of contract, or breach of fiduciary duty, we do not decide whether appellant could survive summary judgment on any of those claims.

The only claim appellant raised on appeal is a claim for professional negligence based on respondent’s breach of the duty to consult by intentionally deceiving appellant that respondent would assert self defense at trial. As to that claim, neither appellant nor his experts have alleged a negligent act that would support a claim of professional negligence. Appellant has consistently alleged that respondent engaged in intentional acts that were both fraudulent and deceptive. While we do not condone intentional misconduct, the question is whether the conduct alleged is actionable as professional negligence.

Claims of professional negligence and fraud are separate and distinct. See, e.g., Prichard Bros., Inc. v. Grady Co., 436 N.W.2d 460, 466-67 (Minn.App.1989) (reversing finding of bad faith when jury instructions commingled the concepts of negligence and bad faith, noting that bad faith is not equivalent to negligence because it requires a showing of fraudulent intent), review denied (Minn. May 2, 1989). Fraud is an intentional act that “is distinguished from negligence by the element of scienter required.” Florenzano v. Olson, 387 N.W.2d 168, 173 (Minn.1986). “There is no doubt of fraudulent intent when the misrepresenter knows or believes the matter is not as he or she represents it to be.” Id.

On the other hand, professional negligence requires proof of a negligent act that departs from the standard of care. Wartnick, 490 N.W.2d at 112. “The very fact that an act is characterized as negligent indicates that harm to another as the result of it was neither foreseen nor intended, although a reasonable man would have foreseen danger to others because of it and would have adopted another course of conduct.” Hanson v. Hall, 202 Minn. 381, 385, 279 N.W. 227, 229 (Minn.1938) (emphasis added). In an action involving clients against an attorney, this court concluded that it is not inconsistent to ñnd damages arising from intentional acts done with the purpose to deceive and that the deception was not the result of negligence. Baker v. Ploetz, 597 N.W.2d 347, 351-52 (Minn.App.1999), rev’d on other grounds, 616 N.W.2d 263 (Minn.2000). Appellant has never identified a negligent act that respondent allegedly engaged in, or conduct that negligently departed from the applicable standard of care.

Further, claims of negligence and fraud involve different defenses and measures of damages. For example, a contributory-negligence defense is a proper offset to liability for an unintentional act, but is not an adequate defense for intentional acts. See, e.g., Hanson, 202 Minn, at 385-86, 279 N.W. at 229. And the measure of damages for fraud is “out-of-pocket” losses, while negligence damages are compensatory, which is a broader measure including general and special damages, and out-of-pocket and future losses. Ray v. Miller Meester Adver., Inc., 684 N.W.2d 404, 407 (Minn.2004) (discussing compensatory damages); see B.F. Goodrich Co. v. Mesabi Tire Co., 430 N.W.2d 180, 182 (Minn.1988) (out-of-pocket loss for fraud).

Appellant has failed to assert a negligent act consistent with his theory of professional negligence. Rather, he challenges his former attorney’s professional judgment — the exercise of which is protected — and conduct that was intentional and purposeful. But appellant did not pursue theories of intentional fraud and misrepresentation in response to summary judgment, and he rested on negligence. Consequently, appellant’s claim for professional negligence fails as a matter of law.

Because we conclude that appellant failed to establish as a matter of law that respondent committed acts that constitute negligence, it is not necessary for us to reach either the third or fourth element required to establish a legal-malpractice claim, and we decline to do so.

DECISION

The district court did not abuse its discretion by determining that appellant’s first affidavit of expert review was deficient. Nor did the district court err by permitting appellant to submit a substitute affidavit to correct the deficiency or by granting summary judgment on appellant’s malpractice claim on the ground that appellant failed to establish a prima facie case of professional negligence. Therefore, we affirm.

Affirmed.

      . Koch's affidavit also concurs with the conclusions in the affidavit of Professor Scher-schligt. The Scherschligt affidavit also asserts that respondent had a duty to present self defense. (Id. ¶ 9).

      . In a criminal case, the lawyer must abide by the client's decisions regarding whether to plead guilty, to waive a jury trial, or to testify. Minn. R. Prof. Conduct 1.2(a). None of those decisions is at issue here.

      . Appellant also has the right to file an ethics complaint with the Lawyers Professional Responsibility Board.


author: ROSS, Judge.

text:
    In the Matter of the WELFARE OF T.L.S.
    No. A05-861.
    Court of Appeals of Minnesota.
    May 9, 2006.

      Mike Hatch, Attorney General, St. Paul, MN and Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, St. Paul, MN, for respondent.
    John M. Stuart, State Public Defender, Bridget Kearns Sabo, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by RANDALL, Presiding Judge; MINGE, Judge; and ROSS, Judge.
   OPINION

ROSS, Judge.

In this appeal from an adjudication of delinquency on one count of possession of a dangerous weapon, appellant T.L.S. contends that the district court erroneously denied her motion to suppress the knife that officers found when they searched her purse. T.L.S. maintains that because the arresting officers lacked probable cause to arrest her, and bécause the offenses for' which they might have had probable cause do not permit a custodial arrest, the search violated her constitutional rights. We affirm.

FACTS

Two St. Paul police officers responded to a call from Area Learning Center (ALC) about a former student who was acting disorderly and refusing to leave the school building. That, former student, appellant T.L.S., went to ALC seeking readmission, and a school administrator told.her that she had been transferred to another school. T.L.S.. became upset and began yelling. A school administrator asked T.L.S. to leave, but she refused. The administrator warned T.L.S. that if she did not leave, he would call the police. T.L.S. still refused.

When uniformed police officers arrived, the school administrator directed them to T.L.S. They found her in the school administrative office. T.L.S. responded to the officers by declaring that she was not going to leave. An officer ordered T.L.S. to leave the building and wátaed that if she refused, she would be taken into custody and delivered to' the truancy center. T.L.S. said that she'wanted to call her mother. She ignored the instruction to leave and picked up a telephone. One Of the officers took the telephone 'from T.L.S., and T.L.S. began shouting profanities. As the district court would later find, T.L.S. “was shrieking at the officer,” and the noise was “disruptive to the running of the school and purposes of the school.” T.L.S..continued to refuse to leave, so the officers seized her- and escorted her from the building.

T.L.S.’s “loud shrieking” continued, and she shouted profanities at the officers as they removed her. Outside, the officers tried unsuccessfully to calm her. T.L.S.’s hostility continued, and the officers handcuffed her. T.L.S. refused to identify herself upon the officers’ request, shouting, “Yop dumb mother f — ing b — h ass cop you figure it out since you. know every f— ing thing!” The officers placed T.L.S. in a patrol car, searched her purse, and found a seven-inch steak knife.

The' state filed a juvenile-delinquency petition charging T.L.S. with possession of a dangerous weapon on school property, in violation of Minn.Stat. § 609.66, subd. ld(a) (2004), and disorderly conduct, in violation of Minn.Stat. § 609.72, subd. 1(3) (2004). T.L.S. moved to suppress admission of the knife, but the district court denied the motion. The state and T.L.S. agreed to submit the case to the court for a decision on the merits based on the testimony presented at the suppression hearing and on the documentary record. The district court found T.L.S. delinquent for possession of a dangerous weapon on school property, acquitted her of the disorderly conduct charge, and placed her on supervised probation. This appeal follows.

ISSUE

Did the district court err by denying T.L.S.’s motion to suppress evidence seized during a search incident to arrest for disorderly conduct, when probable cause- for the misdemeanor violation is based on the manner of delivering constitutionally protected speech, and on an uncharged trespassing violation?

ANALYSIS

T.L.S. argues that the search of her purse was constitutionally infirm and, therefore, that the district court erred by denying her motion to suppress. See Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963) (explaining that “evidence seized during an unlawful search [ean]not constitute proof against the victim of the search”); State v. Harris, 590 N.W.2d 90, 97 (Minn.1999). When the facts underlying a pretrial motion to suppress are undisputed, this court independently reviews the record to determine, as a matter of law, whether the district court erred by denying the motion. State v. Othoudt, 482 N.W.2d 218, 221 (Minn.1992). A determination of “probable cause as it relates to warrantless searches” is also subject to de novo review. In re Welfare of G.M., 560 N.W.2d 687, 690 (Minn.1997).

The federal and state constitutions prohibit unreasonable searches and seizures. U.S. Const. Amend. IV; Minn. Const, art I, § 10. Under both constitutions, a warrantless search is unreasonable unless it fits within one of the narrow exceptions to the warrant requirement. State v. Dickerson, 481 N.W.2d 840, 843 (Minn.1992), aff'd 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). A search incident to an arrest is an exception to the warrant requirement. United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973). If a police officer has probable cause to arrest, the officer may search an arrested person for weapons or evidence. State v. Varnado, 582 N.W.2d 886, 892 (Minn.1998). Probable cause to arrest exists when “the objective facts are such that under the circumstances, a person of ordinary care and prudence would entertain an honest and strong suspicion that a crime has been committed.” G.M., 560 N.W.2d at 695. We first determine whether the officers had probable cause to believe T.L.S. engaged in disorderly conduct in violation of Minnesota Statutes § 609.72.

T.L.S. argues that the officers did not have probable cause to arrest her for disorderly conduct because swearing at police officers cannot alone constitute disorderly conduct, relying on In re S.L.J., 263 N.W.2d 412 (Minn.1978). She misreads S.L.J. In S.L.J., the supreme court held that the prohibition of “offensive, obscene, or abusive language” in the disorderly conduct statute violates the First Amendment, and it construed the provision to proscribe “only ... the use of 'fighting words.’ ” Id. at 418-19. The statute does not limit disorderly conduct to fighting words; it also includes “abusive, boisterous, or noisy conduct.” Minn.Stat. § 609.72, subd. 1(3) (2004). So in light of the holding of S.L.J., it is certain that T.L.S.’s words alone did not constitute disorderly conduct based on their content, despite their rude and offensive nature. But the S.L.J. court addressed only that portion of the statute that criminalized “offensive, obscene, or abusive language.” Id. In construing the statute to limit speech-based disorderly conduct to fighting words, the S.L.J. court did not address, and therefore did not except, boisterous and noisy conduct from legislative prohibition.

More precisely, by its explanation of City of St. Paul v. Mulnix, 304 Minn. 456, 232 N.W.2d 206 (1975), the S.L.J. court expressly noted that it did not intend to deem unconstitutional the anti-noise provisions of disorderly conduct legislation. S.L.J., 263 N.W.2d at 419 n. 6. In Mulnix, the supreme court affirmed the conviction of a defendant charged under a city ordinance that prohibited disorderly conduct. 304 Minn, at 459-60, 232 N.W.2d at 207-OS. The charged conduct included “shouting and screaming” profanities. Id. at 460, 232 N.W.2d at 208. The S.L.J. court highlighted that the Mulnix decision Remains precedential because it involved “disorderly conduct which would have been sufficient to warrant a conviction without the addition of the offensive speech.” S.L.J., 263 N.W.2d at 419 n. 6. Although the disorderly conduct statute prohibits only “fighting words” as applied to speech content, the disorderly shouting of otherwise protected speech or engaging in other “boisterous or noisy conduct” may still trigger punishment under the statute without offending the First Amendment. In that circumstance, it is not the speech itself that triggers punishment; the statute may be applied to punish the manner of delivery of speech when the disorderly nature of the speech does not depend on its content. We therefore consider whether T.L.S.’s conduct would support probable cause in this framework.

The district court found that T.L.S. was disrupting the school by “shrieking” profanities inside the school administration office. While her language does not constitute fighting words and therefore would not support probable cause for content-based disorderly conduct, the objective facts would lead a person of ordinary care to an honest and strong suspicion that T.L.S. was engaging in boisterous and noisy conduct in violation of the statute. We therefore conclude that the officers had probable cause to arrest T.L.S. for disorderly conduct.

The district court noted that the officers were also aware that T.L.S. had continued to refuse to leave the school despite having been told to leave by individuals with authority to evict her. Under these circumstances, a person of ordinary care and prudence also would strongly suspect that T.L.S. was trespassing on school property. See Minn.Stat. § 609.605, subd. 4(a) — (d) (2004) (defining trespass on school property). We agree with, the district court that the -police had probable cause to arrest T.L.S. for trespassing.

That T.L.S. was not- charged with trespass and was found not guilty-on the disor-' derly conduct charge does not vary our assessment. See City of St. Paul v. Johnson, 288 Minn. 519, 523, 179 N.W.2d 317, 320 (1970) (noting that the ultimate charge and outcome of prosecution “is of no consequence” to a determination of probable cause to arrest); State v. Bauman, 586 N.W.2d 416, 421 (Minn.App.1998) (noting that a person need not be previously or subsequently arrested for the offense giving rise to the search because “[t]he focus is not on the arrest, but on whether probable cause to arrest exists before a search”), review denied (Minn. Jan. 27, 1999). The district court indicated accurately that denying T.L.S.’s motion did not require it to determine beyond a reasonable doubt that T.L.S. actually violated either law. Neither the prosecution decision nor the court’s acquittal here affects our holding that the officers. had probable cause to arrest. ,.

T.L.S. also argues that even if the police had probable cause to arrest, the custodial arrest and subsequent search are invalid because the possible offenses for which they might have had probable cause were misdemeanors. See Varnado, 582 N.W.2d at 892 (noting that a search incident to arrest is valid only if the crime is’ one for which a custodial arrest is authorized). Trespass on school property and disorderly conduct are indeed both misdemeanor offenses. Minn.Stat. §§ 609.605, subd. 4, 609:72, subd. 1. But an officer may make a custodial arrest for a misdemeanor offense if “it reasonably appears to the officer that the arrest or detention is necessary to prevent .... further criminal conduct, or that there is a substantial likelihood that the accused will fail to respond to a citation.” Minn. R.Crim. P. 6.01, subd. l(l)(a); See Varnado, 582 N.W.2d at 892. The arresting officers’ search incident to arrest here is therefore valid if they reasonably and substantially doubted that a citation would cause T.L.S. to stop violating the law.

The record suggests no basis for the officers to believe a citation would have led T.L.S. to yield. T.L.S. received no fewer than four demands to leave the school— each escalating in authoritative force — yet she refused. School administrators asked her to leave. Then they ordered her to leave, threatening that they would summon the police. Police officers arrived in full uniform and ordered T.L.S. to leave. Finally, officers warned that unless T.L.S. would voluntarily leave the school, they would take her into custody. None of this moved her. Witnessing firsthand T.L.S.’s obstinate defiance to lawful demands in the face of credible warnings of serious consequences, the officers had no reason to expect that a written citation would precipitate her compliance. We conclude that the officers’ custodial arrest was appropriate.

DECISION

Because the officers observed T.L.S. engage in conduct that violated the statutory prohibition against disorderly conduct and trespassing, the officers had probable cause to arrest her. The content-based constitutional protection of speech does not render the district court’s probable-cause determination erroneous because the conduct supported an alternative basis for a disorderly conduct violation. Because the officers could not reasonably expect T.L.S. to respond to a citation, the officers’ decision to arrest T.L.S. was valid. The district court did not err by denying T.L.S.’s motion to suppress evidence that the officers recovered in a search incident to that valid arrest.

Affirmed.


author: RANDALL, Judge.

text:
    Martin A. MORALES, Relator, v. DEPARTMENT OF EMPLOYMENT AND ECONOMIC DEVELOPMENT, Respondent.
    No. A05-1907.
    Court of Appeals of Minnesota.
    May 9, 2006.

      Martin A. Morales, Eden Prairie, MN, pro se relator.
    Linda A. Holmes, Department of Employment and Economic Development, St. Paul, MN, for respondent.
    Considered and decided by RANDALL, Presiding Judge; MINGE, Judge; and ROSS, Judge.
   OPINION

RANDALL, Judge.

This is a certiorari appeal from a decision of the unemployment law judge (ULJ) affirming his earlier decision that there were no statutory grounds to backdate relator’s account. Relator argues that when he attempted to apply by telephone and when he was told incorrectly that he should apply later, his benefit account should be backdated to the time he first attempted to apply for benefits. We agree and reverse.

FACTS

Relator worked full time for the American Red Cross from November 1995 through March 2, 2005, when he was laid off due to restructuring. On March 2, relator called the Department of Employment and Economic Development (DEED) to start the process of obtaining unemployment benefits. Relator told the DEED employee that he would be receiving vacation pay but was not yet sure whether he would be receiving severance pay. The DEED employee advised him that the receipt of severance pay would affect when his unemployment benefits would start. She told him to wait until his employer made a decision about severance pay and to apply for benefits then.

On May 20, the Red Cross advised relator that he would not receive any severance pay. On May 24, he contacted DEED again to establish a benefit account. He was then informed that DEED would not pay benefits retroactive to March 2 when he was first unemployed, because he had not applied then. After his May inquiry, he received written materials from DEED, which he learned for the first time he should have applied for in March.

Relator appealed this decision. The ULJ found that in March, the DEED employee told relator to file later. In spite of this, the ULJ ruled that because relator did not attempt to file an application in March, there was no statutory authority for backdating his account to that date. Relator requested reconsideration and the ULJ affirmed his initial decision to deny relator’s request. This certiorari appeal followed.

ISSUE

Is an unemployed person’s attempt to apply for unemployment benefits under Minn.Stat. § 268.07, subd. 3b(a) (2004), prevented if he telephones the Department of Employment and Economic Development for information on benefits and is incorrectly told to apply at a later date?

ANALYSIS

The facts in this case are undisputed. An appellate court will review questions of law de novo. Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 523 (Minn.1989).

An applicant’s benefit account “shall be established effective the Sunday of the calendar week that the application for unemployment benefits was filed.” Minn.Stat. § 268.07, subd. 3b(a) (2004). An exception exists if “an individual attempted to file an application for unemployment benefits, but was prevented from filing an application by the department.” Id. In that case, “the benefit account shall be effective the Sunday of the calendar week the individual first attempted to file an application.” Id.

The ULJ based his ruling on a determination that relator had not attempted to file an application in March. Relator argues that because the sole purpose of his initial call to DEED was to apply for benefits and because he relied on incorrect information that a DEED employee gave him, he should be qualified for unemployment benefits dating back to the initial date of contact.

DEED did not file a brief, advised this court that it did not agree with the ULJ’s decision and, with remarkable candor, stated that in these narrow circumstances in which relator was told incorrectly not to file for benefits, and where he had no written materials at that time that would have advised him to the contrary, he was effectively prevented from filing and was now entitled to benefits.

“Attempt” is defined as: “The act or an instance of making an effort to accomplish something, especially] without success.” Black’s Law Dictionary 123 (7th ed.1999). Here, relator made a bona fide attempt to apply for benefits by telephoning the department. Relator was told by a department employee to wait until his employer made a decision whether to give relator severance pay and that relator should then apply for benefits. Like DEED, we cannot agree with the ULJ that relator was still required to do anything more under the circumstances. Under Minn.Stat. § 268.07, subd. 3b(a), relator attempted to apply for benefits and was prevented from doing so by the department as a matter of law. His “benefit account shall be effective the Sunday of the calendar week” that he first attempted to file an application. Id. The court appreciates the candor of DEED in pointing out the inherent inequity of denying an application for benefits based on the department’s own misinformation.

DECISION

The decision by the ULJ affirming his earlier decision that there was no statutory authority for backdating- relator’s account is reversed.

Reversed.