author: BLATZ, C.J. PAGE, Justice GILBERT, Justice GILBERT, Justice

text:
    Mike ERLANDSON, John Eisberg, and Mollie Lorberbaum, Petitioners, v. Mary KIFFMEYER, Minnesota Secretary of State, and Patrick H. O’Connor, Hennepin County Auditor/Treasurer, individually and on behalf of all County and Local Election Officers, Respondents, Kathleen T. Blake, Michael J. Blake, Tom Kelly, and Ron Eibensteiner, individually and on behalf of the Republican Party of Minnesota, Intervenor-Respondents.
    No. C7-02-1879.
    Supreme Court of Minnesota.
    April 17, 2003.

      Alan W. Weinblatt, Weinblatt & Gay-lord, PLC, St. Paul, MN, for Petitioner,
    Michael A. Hatch, Attorney General, State of Minnesota, for Mary Kiffmeyer, Minnesota Secretary of State, Respondent.
    Lori R. Swanson, Deputy Attorney General, Kristine L. Eiden, Deputy Attorney General, St. Paul, MN, for Mary Kiffmeyer, Minnesota Secretary of State, Respondent.
    Amy Klobuchar, Hennepin County Attorney, Patrick C. Diamond, Assistant County Attorney, for Patrick H. O’Connor, Hennepin County Auditor/Treasurer, individually and on behalf of all County and Local Election Officers, Respondents.
    Tony P. Trimble, Matthew W. Haapoja, Jeffrey C. O’Brien, Trimble & Associates, Ltd., Minneapolis, MN, for Kathleen T. Blake, Michael J. Blake, Tom Kelly, and Ron Eibensteiner, individually and on behalf of the Republican Party of Minnesota, Respondents.
   OPINION

BLATZ, C.J.

Petitioners, three individuals, including the chair of the Democratic Parmer Labor Party, brought this action under Minn. Stat. § 204B.44 (2002) against the Minnesota Secretary of State and the Hennepin County Auditor/Treasurer. They sought relief regarding alleged errors, omissions and wrongful acts of respondents related to the then-upcoming election for United States Senator at the general election on November 5, 2002, following the death of Senator Paul Wellstone on October 25, 2002. Petitioners requested an order that would: (1) instruct the secretary of state to inform absentee voters of their right to obtain replacement ballots; (2) instruct local election officials to distribute replacement ballots to eligible voters who so requested; (3) instruct the secretary of state to print the supplemental ballot using the optical scan format with instructions in Hmong, Russian and Spanish and to have the ballots counted by optical scan machines; and (4) instruct that all distribution and receipt of ballots with Senator Paul Wellstone’s name on them be stopped immediately pending an order allowing replacement ballots.

Petitioners filed and served the petition on October 29, 2002. The court issued an order that day requiring responses by 1:00 p.m. on October 30 and set argument for October 31 at 10:00 a.m. Four individuals, including the candidate of the Republican Party of Minnesota for attorney general and the chair of the Republican Party of Minnesota, filed a motion to intervene to oppose some of the relief requested in the petition. That motion was granted by order filed on October 31, 2002.

The case was argued on October 31. At argument, the court was informed that earlier that morning the Democratic-Farmer-Labor (DFL) Party had filed papers nominating Walter Móndale as its replacement candidate for the United States Senate. By order filed October 31 we granted some of the relief requested, particularly with respect to mailing of replacement ballots to absentee voters who had been mailed absentee ballots before Senator Wellstone’s death and who requested a replacement absentee ballot and supplemental ballot. Because of the urgency of the situation, the order was issued with opinion to follow.

The event that gave rise to this case was the death of Senator Paul Wellstone in a plane crash on October 25. Senator Well-stone was the DFL candidate for United States Senator in the general election to be held on November 5. His death created a vacancy on the ballot. Minn.Stat. § 204B.13, subd. 1(a) (2002). State election law authorizes a major political party to name a replacement to fill a vacancy in nomination of that party’s candidate for partisan office. Minn.Stat. § 204B.13, subd. 2 (2002). In the event of a vacancy caused by the death of the candidate, the' nomination certificate for the replacement candidate must be filed within seven days after the vacancy occurs, but no later than four days before the general election. Id., subd. 2(b).

Minnesota Statutes § 204B.41 (2002) prescribes the process for conducting the election when a vacancy on the ballot created by the death or catastrophic illness of a candidate occurs after the 16th day before the general election. Most important is the provision for preparation of an “official supplemental ballot,” a separate paper ballot to be used for the race in which the vacancy occurred. This supplemental ballot is to accompany the regular ballot, on which the affected race must be crossed out. It is the interpretation and implementation of the procedures required by section 204B.41 that are at issue in this case.

I.

The petition alleged numerous errors, omissions and wrongful acts. They can be categorized generally into three groups: (1) issues relating to the form and method of counting supplemental ballots; (2) issues relating to the conduct of the election process; and (3) issues relating to advice the secretary of state was giving voters relating to this election. At oral argument, counsel for petitioners indicated that with the nomination of a replacement candidate, petitioners’ request for an order enjoining further distribution of regular absentee ballots until the official supplemental ballot was available was moot. In addition, counsel for the secretary of state stated that the parties had reached agreement on all issues related to the form of the official supplemental ballot and the method of counting those ballots, as well as most other issues raised in the petition. The remaining issues, as presented at oral argument, focused on treatment of regular absentee ballots cast before the vacancy occurred and distribution of supplemental ballots to voters to whom regular absentee ballots had already been sent.

Petitioners first addressed their request for relief concerning regular absentee ballots that had been returned by the voter to election officials before the vacancy occurred. Section 204B.41 states that “[a]b-sentee ballots that have been mailed prior to the preparation of official supplemental ballots shall be counted in the same manner as if the vacancy had not occurred.” According to the statute, for regular absentee ballots sent back prior to the vacancy, the vote for United States Senator counts for the candidate selected on the ballot. This means that votes for Senator Wellstone would be counted for him, not for the replacement candidate. Petitioner argued that issues of due process and equal protection were raised because votes of those who cast these ballots for Senator Wellstone would not count for a candidate who could be elected, but votes for other candidates on the ballot would. To avoid those constitutional issues, petitioners urged the court to interpret the statute as requiring that votes on those absentee ballots for all other offices be counted as if the vacancy had not occurred, but that no votes for United States Senator would be counted from those ballots. Petitioners further proposed that the court order distribution of absentee supplemental ballots by the most expeditious means possible to all voters who had requested absentee ballots in order to allow all of those voters to recast their ballots for United States Senator. This issue was not raised in the petition; nor was this form of relief requested in the petition.

At oral argument, petitioners proposed another alternative form of relief that also, was not included in their petition. As with the previous proposal, in this alternative all voters who had been mailed a regular absentee ballot would be sent a replacement absentee ballot that included a supplemental ballot for the Senate race. Unlike the petitioners’ first proposal, in this alternative, votes for United States Senator cast on regular absentee ballots would be counted if no replacement ballot was returned by the voter.

However, section 204B.41 states that “[ojfficial supplemental ballots shall not be mailed to absent voters to whom ballots were mailed before the official supplemental ballots were prepared.” Despite this apparent statutory bar to mailing replacement absentee ballots, petitioners argued that this court could order the blanket mailing by adopting a judicial presumption that absentee ballots cast prior to the vacancy were spoiled ballots subject to replacement under Minn.Stat. § 203B.06, subd. 3 (2002). Section 203B.06, subdivision 3, provides in relevant part: “Only one set of ballots may be mailed or delivered to an applicant for any election, except as provided in section 203B.13, subdivision 2, or when a replacement ballot has been requested by the voter for a ballot that has been spoiled or lost in transit.” (Emphasis added.) Petitioners argued that in these unique circumstances the requested judicial presumption that the ballots were spoiled would supplant the statutory requirement of a request by the voter for a replacement ballot and allow a replacement supplemental ballot to be sent automatically to all absentee voters to whom a ballot had previously been sent. According to petitioners, if the voter did not return the replacement supplemental ballot, the presumption that the regular ballot was spoiled would have been rebutted and the regular ballot should be counted.

As a third alternative form of relief, petitioners requested that replacement absentee ballots should be mailed to any voters who requested them, despite the prohibition in section 204B.41 against mailing replacement ballots. This request was also based on the spoiled ballot theory, but rather than a judicial presumption, the trigger for mailing the replacement ballot would be the voter’s request, as provided in section 203B.06. This relief was requested in the petition.

Thus, the relief requested by petitioners at the hearing was a series of three alternative courses of action:

1)Order replacement ballots, including official supplemental ballots, sent to all applicants for regular absentee ballots for the general election and count only replacement ballots returned in time for the election. Regular absentee ballots cast would not be counted for United States Senator regardless of which candidate received the vote.

2) Order replacement ballots sent to all applicants for regular absentee ballots and count replacement ballots if returned and regular ballots for voters who do not return a replacement ballot.

3) Order replacement ballots mailed to all applicants for regular absentee ballots who request a replacement ballot and count the replacement ballot if returned in time for the election.

Intervenors requested at the hearing that distribution of regular absentee ballots not be curtailed to await production of supplemental ballots so that voters would not be deprived of the opportunity to vote in other races due to the delay in distribution of absentee ballots and proximity of the election.

II.

The petition in this case was brought under Minn.Stat. § 204B.44, which allows any person to file a petition to correct or prevent certain types of errors, omissions or wrongful acts related to elections. The statute lists several specific types of errors related to preparation of ballots and has a catch-all section for “[a]ny wrongful act, omission, or error of any election judge, municipal clerk, county auditor, ⅜ * * the secretary of state, or any other individual charged with any duty concerning an election.” Minn.Stat. § 204B.44 (d) (2002). In assessing whether the conduct challenged was an error, omission or wrongful act, we must interpret and apply the applicable election statutes. Our review must be informed by the recognition that “[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” Burson v. Freeman, 504 U.S. 191, 199, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992) (quoting Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964)). “The right to vote * * * is a fundamental and personal right essential to the preservation of self-government.” State ex rel. South St. Paul v. Hetherington, 240 Minn. 298, 303, 61 N.W.2d 737, 741 (1953). Indeed, it is this paramount importance of the right to vote that imbues the state with a compelling interest in preserving the orderliness and integrity of the election process. See Burson, 504 U.S. at 199, 112 S.Ct. 1846.

A primary issue in the petition was the contention that it was improper for election officials to continue to distribute and accept regular absentee ballots that listed Senator Wellstone as a candidate after his death created a vacancy on the ballot. Petitioners requested in their memorandum in support of the petition an order stopping the distribution of regular absentee ballots immediately. The intervenors opposed that relief. At oral argument petitioners stated that their request for an immediate halt to distribution of regular absentee ballots was moot, because the nominating papers for the replacement candidate had been filed. Intervenors argued nevertheless that county election officials should be ordered to continue distributing absentee ballots as promptly as possible so that voters would not lose the opportunity to vote due to delay in receiving the ballot. Because it appeared that supplemental ballots would be available before or shortly after the pre-election order of this court would issue, the court considered the requests to either stop or continue distribution of regular absentee ballots pending the availability of supplemental ballots moot, and those requests were therefore not addressed in the court’s order.

As noted, petitioners introduced for the first time at oral argument their request for an order providing that votes for United States Senator on regular absentee ballots would not be counted, although votes on those ballots for all other offices would be counted. Other than simply asserting that counting regular absentee ballots cast for candidates other than Wellstone would raise due process and equal protection issues, petitioners presented no further rationale to support this requested relief, nor did they cite any legal authority for their position. The secretary of state responded that this issue was not raised in the petition and that the plain language of section 204B.41 requires that regular absentee ballots be counted as if no vacancy had occurred. Intervenors argued that votes for United States Senator on regular absentee ballots already returned cannot be ignored. To ignore those votes, interve-nors argued, would improperly disenfranchise voters who had voted for a candidate other than Senator Wellstone and had cast their absentee ballots in accordance with and in reliance on the applicable statutes.

Based on the parties’ arguments we see no sound legal basis on which to grant the relief of not counting votes for candidates for United States Senator cast on regular absentee ballots. The language of section 204B.41 providing that such ballots shall be counted as if no vacancy occurred requires that those votes be counted. While at first blush it may seem unfair to the replacement candidate to count votes for other candidates from regular absentee ballots on which the replacement candidate did not appear, those are properly cast ballots voting for a properly nominated candidate who remains eligible for election. The governing statute plainly provides for the counting of such votes, and petitioners have cited no authority that would justify, much less require, the discarding of those votes, especially when those voters might not have the opportunity to cast a replacement ballot due to the proximity to the election. We also acknowledge that absentee voters who voted for Senator Well-stone on a regular absentee ballot before his death may not have sufficient time to recast their ballot. But we must recognize that in the unfortunate circumstances presented, a perfect solution that enables all absentee voters an opportunity to cast a replacement ballot may not be possible. The fact that some Wellstone voters may be disenfranchised because of the Senator’s untimely death does not, without strong legal authority, support disenfranchising voters who have properly cast ballots for other candidates who remain on the ballot. Accordingly, petitioners’ request that the court order that votes for United States Senator cast on regular absentee ballots not be counted is denied.

Petitioners proposed two additional alternatives that would provide absentee voters an opportunity to re-vote, but that unlike their previously described proposal would count votes on regular absentee ballots only if no replacement ballot were cast. The first of these alternatives was-to send replacement ballots to all absentee voters to provide them with an opportunity to re-vote on a supplemental ballot that lists the replacement candidate. The second alternative was to mail replacement ballots to absentee voters who requested them.

To receive either of these forms of relief, petitioners must overcome the sentence in section 204B.41 that states: “Official supplemental ballots shall not be mailed to absent voters to whom ballots were mailed before the official supplemental ballots were prepared.” (Emphasis added.) Petitioners argued that the secretary of state improperly advised local election officials based on this sentence of section 204B.41 that they could not mail a replacement absentee ballot or an absentee supplemental ballot to a voter to whom they previously sent a regular absentee ballot. Petitioners contended this disenfranchised voters who already returned their regular absentee ballots and then wanted to vote for the DFL replacement candidate, but could not go to the polling place to vote on election day or go to the local election official before then to personally obtain a new ballot. Petitioners offered both a statutory and a constitutional basis on which they claimed replacement ballots could be mailed to absentee voters despite the mailing prohibition in section 204B.41.

Petitioners’ statutory argument was based on Minn.Stat. § 203B.Ó6, subd. 3 (2002), which authorizes an election official to mail a second absentee' ballot to a voter “when a replacement ballot has been requested by the voter for a ballot that has been spoiled or lost in transit.” (Emphasis added.) Petitioners contended that an absentee ballot cast with a vote for Senator Wellstone is a spoiled ballot because that vote is no longer valid, arguing that “[a] ballot is considered spoiled if the vote would be invalid as cast.” Without citation of authority, petitioners invited the court to establish a judicial presumption that all regular absentee ballots were spoiled and on that basis order that replacement ballots be sent to all voters to whom regular absentee ballots were sent earlier. If a replacement ballot was cast by a voter, that ballot would supersede a regular ballot previously returned by that voter. If no replacement ballot was cast, the regular ballot cast would be counted.

Neither statute nor caselaw defines what makes a ballot “spoiled.” At oral argument, petitioners asked the court to adopt a presumption that all votes for United States Senator cast on regular absentee ballots were spoiled, although votes for all other races would be counted. In their memorandum, petitioners defined a spoiled ballot as one that would be invalid as cast, and therefore any ballot with a vote for Paul Wellstone in petitioners’ view would be spoiled. However, petitioners offered no authority for either definition of spoiled ballot. Rather, they offered at oral argument only the factual assertion of counsel, albeit supported by respondent Hennepin County Auditor/Treasurer, that at the polls a voter who has inadvertently voted for the wrong candidate can obtain a replacement ballot — treating the original ballot as spoiled.

In her memorandum to the court, the secretary of state pointed out that there is no definition of “spoiled ballot” in the statutes. Relying upon other statutes that use the term, she concluded that spoiled ballot is used “to describe situations where a ballot has been subject to unlawful or inappropriate conduct by the voter.” The secretary contended that votes for Paul Wellstone cast before his death were not mistaken or improper and therefore the ballots cannot be considered spoiled.

Another problem with petitioners’ statutory argument is that a well-established canon of statutory construction requires that the more particular statute that prohibits mailing of supplemental ballots to voters who previously received a regular absentee ballot supersede the more general statute that provides for replacement of spoiled ballots. See Minn.Stat. § 645.26, subd. 1 (2002) (stating that when statutes are in conflict, particular statute prevails over the general).

Alternatively, petitioners argued in their memorandum in support of the petition that to deny replacement ballots to those who requested them would violate equal protection, because replacement ballots were available under Minn.Stat. § 203B.16-.27 (2002) to absentee voters in the military and living temporarily overseas. At oral argument the equal protection issue was discussed from a different perspective. The parties apparently were in agreement that a voter who previously was mailed a regular absentee ballot could obtain a replacement absentee ballot by going to their local election official to pick one up or could vote at the polls on election day. Thus, voters who could pick up a replacement absentee ballot or could get to the polls could re-vote, but absent voters who only had access to a replacement absentee ballot through the mail could not re-vote, because section 204B.41 prohibits mailing a replacement ballot. The question is whether this differential treatment created by the section 204B.41 ban on mailing replacement absentee ballots violates the equal protection rights of voters who previously were sent a regular absentee ballot and who could not pick up a replacement ballot personally or get to the polls. The secretary of state’s counsel acknowledged at oral argument that this discrimination is neither logical nor fair. More importantly, for the reasons that follow, by treating similarly-situated voters differently with no rational explanation, the statute violates equal protection guarantees.

A first step in equal protection analysis is to determine whether the challenged classification must satisfy strict scrutiny or merely the rational basis standard. A restriction that either dilutes the effectiveness of some citizens’ votes or denies the franchise to citizens who are otherwise qualified by residence and age, “received close scrutiny from the Court.” Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 626, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969). When reviewing a statute that denies “some residents the right to vote, the general presumption of constitutionality afforded state statutes and the traditional approval given state classifications if the Court can conceive of a ‘rational basis’ for the distinctions made are not applicable.” Id. at 627-28, 89 S.Ct. 1886.

On the other hand, where only the ability to vote by absentee ballot, and not the right to vote generally, has been at issue, the United States Supreme Court has applied rational basis- analysis. See McDonald v. Board of Election Comm’rs of Chicago, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). In McDonald, the Court concluded that an Illinois statute that denied unconvicted jail inmates absentee ballots did not restrict the inmates’ right to vote, but rather only restricted the inmates’ claimed right to an absentee ballot, because there was no evidence that jail officials would not provide another means for the inmates to vote. Because the fundamental right to vote was not at issue, the Court declined to apply strict scrutiny and required only that the statute “must bear some rational relationship to a legitimate state end.” Id. at 809, 89 S.Ct. 1404.

In a subsequent case, inmates eligible to vote challenged New York’s absentee voter statute that did not permit them to receive absentee ballots, and the Supreme Court noted the state had also denied the inmates transportation to the polls. O’Brien v. Skinner, 414 U.S. 524, 525, 94 S.Ct. 740, 38 L.Ed.2d 702 (1974). The Court’s opinion in O’Brien did not expressly state which standard of scrutiny it applied, but the Court found that the restriction on absentee ballots was “wholly arbitrary” because there was no rational basis for denying inmates confined within their resident counties absentee ballots when inmates confined outside their resident counties were entitled to absentee ballots. 414 U.S. at 530, 94 S.Ct. 740. In his concurrence, Justice Marshall stated that because, unlike in McDonald, there was evidence in O’Brien that the inmates would not otherwise be able to vote, the denial of absentee ballots infringed on their right to vote and thus triggered strict scrutiny. Id. at 532-33, 94 S.Ct. 740 (Marshall, J., concurring).

We need not resolve whether strict scrutiny or rational basis review is the proper standard here, because in the circumstances of this case the restriction on mailing replacement ballots imposed by Minn. Stat. § 204B.41 cannot survive even the lower level of scrutiny. For voters who cast their regular absentee ballots for Wellstone before the vacancy occurred but were unable to go to their polling place on election day or visit an election official’s office before election day to pick up a replacement ballot, the prohibition on mailing replacement ballots in section 204B.41 prevented them from obtaining a supplemental ballot and denied them the right to cast a meaningful vote for United States Senator. Neither the secretary of state nor the Hennepin County Auditor/Treasurer suggested any rationale for the statutory prohibition on mailing replacement absentee ballots to persons who had already been mailed regular absentee ballots. Because voters who mailed in their regular absentee ballots could obtain a replacement ballot in person either at their local election official’s office or at the polls, the state’s interest in not mailing replacement ballots cannot be based on concern about people voting twice or controlling voter fraud. Intervenors suggested at argument that the purpose for the prohibition may be to avoid voter confusion, but the risk of confusion from mailing a replacement ballot with appropriate instructions seems no greater than providing one to the voter in person.

The purpose of the absentee ballot is to enfranchise those voters who cannot vote in person. To prohibit mailing of replacement absentee ballots to absentee voters who continue to be unable to vote or pick up a ballot in person disenfranchises the very people the absentee voter laws are intended to benefit. In the total absence of any rational explanation, allowing some absentee voters to revote with replacement ballots but denying that opportunity to the very group for which absentee voting is designed by prohibiting the mailing of replacement absentee ballots is a denial of equal protection that requires remedial action.

Hence, our October 31, 2002, order was based on the conclusion that equal protection required election officials to make an effort to enfranchise absentee voters who previously cast their regular absentee ballots and were unable to obtain a replacement absentee ballot in person either before or on election day. Election officials therefore were required to mail a replacement ballot (consisting of the regular absentee ballot with the Senate race crossed out and an official supplemental ballot) to any absentee voter who requested one. To avoid confusion, the replacement ballot was required to be accompanied by clear instructions explaining what would occur if a replacement ballot was cast. If a replacement ballot was returned in time to local election officials, the regular absentee ballot previously returned would not be counted. The voter was therefore instructed to vote for all races in which he or she intended to vote on the replacement and supplemental ballot.

These same principles required similar relief to absentee voters in health care facilities and voters who had voted by mail prior to the vacancy but who could not obtain a replacement ballot in person. Accordingly, the court’s order contained provisions for distribution of replacement absentee ballots to absentee voters in health care facilities under MinmStat §§ 203B.06, subd. 3(c) and 203B.11(2002) and replacement mail ballots to voters in communities that vote by mail under Minn. Stat. § 204B.45 (2002).

Petition granted in part, denied in part.

PAGE, Justice

(concurring in part and dissenting in part).

The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.

Bush v. Gore, 531 U.S. 98, 104-05, 121 S.Ct. 525,148 L.Ed.2d 388 (2000).

While I concur in the court’s reasoning and the result reached with respect to whether the prohibition against mailing supplemental ballots violates the equal protection rights of voters requesting replacement ballots, I respectfully dissent from the court’s decision relating to that part of Minn.Stat. § 204B.41 which provides that “[a]bsentee ballots that have been mailed prior to the preparation of official supplemental ballots shall be counted in the same manner as if the vacancy had not occurred.”

I dissent because the issue is not properly before the court for resolution and therefore should not be addressed. At oral argument, petitioners for the first time requested that the court issue an order requiring that no votes for United States Senator east on regular absentee ballots be counted. Petitioners argued that counting regular absentee ballots only for candidates other than Senator Well-stone raised due process and equal protection concerns. That issue was not raised in the parties’ petition or argued in any party’s memorandum. Moreover, in raising this issue at oral argument, petitioners did not provide any legal authority in support of their position. The court, nonetheless, addresses the issue. Because the issue was not properly raised, briefed, or argued, it should not be addressed. See Morrow v. LaFleur, 590 N.W.2d 787, 796 n. 15 (Minn.1999) (declining to address an issue that was not briefed by the parties and only addressed at oral argument).

I also dissent because the court’s decision on the merits goes too far. Although the court may be correct in its conclusion that the remedy sought by petitioners is not proper, the proper remedy cannot be one in which some voters must necessarily be disenfranchised. Implicit in the court’s resolution is the suggestion that there is no constitutional problem with the “shall be counted in the same manner” language of Minn.Stat. § 204B.41. In fact, there are fundamental problems with allowing the votes for United States Senator on some regular absentee ballots to be counted while not counting others. See Bush, 531 U.S. at 104-05, 121 S.Ct. 525.

While not properly before the court, the issue as raised presents a fundamental constitutional question that reaches to the very core of democracy: the right of citizens to have their votes counted. Yet the court, ignoring this question, resolves these constitutional concerns without any citation to authority or law. These concerns should not have been so casually raised nor so cavalierly dismissed.

Therefore, I concur in part and dissent in part.

GILBERT, Justice

(concurring in part).

I join in Justice Page’s concurrence, but not the dissent.

GILBERT, Justice

(concurring).

I generally agree with the result reached by the majority but join Justice Page in his concurrence, but not his dissent. We should not address issues not properly raised or briefed in a timely fashion and without appropriate citation to authority. The petition filed in this case only addressed errors in the supplemental ballot form and lack of information to those who may want to request a replacement ballot. Those include not having an “oval target” as did the regular ballot; no place for dates or judges’ initials; generally confusing instructions; incorrect and confusing directions to voters who already voted absentee; and erroneous and incomplete directions from the Secretary of State to local election officials and absentee voters. These were the only complaints that were set forth in the petition wherein corrective action was requested. These are the only issues that we should address.

My concern with the petitioners’ request for relief at oral argument relates to then-suggestion to disregard all regular absentee ballots cast for U.S. senate. If we granted such relief, assuming there was proper authority to do so, it would only compound the problem that the petitioners are attempting to address on behalf of the DFL Party. Their proposal, carried out to the extreme, would void numerous properly filled out and filed absentee ballots sent on behalf of the four other nominated candidates, plus any write-in candidates for this office. The end result reached by the majority, based on this tragic accident and the short time frame before Election Day, is fair to the absentee voters who voted for the late Senator Paid Wellstone, without impinging upon the voting rights of those of our citizens who had voted for the other four candidates or chosen to write in the name on the regular absentee ballots.

      . The petition states that the county auditor/treasurer is named on behalf of all county and local election officials.

      . In addition to Senator Wellstone, the absentee ballot listed the following candidates: Norm Coleman, Republican Party; Jim Moore, Independence Party; Ray Tricomo, Green Party, and Miro Drago Kovatchevich, Christian Constitution Party.

      . Minn.Stat. § 204B.41 provides:
      When a vacancy in nomination occurs through the death or catastrophic illness of a candidate after the 16th day before the general election, the officer in charge of preparing the ballots shall prepare and distribute a sufficient number of separate paper ballots which shall be headed with the words "OFFICIAL SUPPLEMENTAL BALLOT.” This ballot shall contain the title of the office for which the vacancy in nomination has been filled and the names of all the candidates nominated for that office. The ballot shall conform to the provisions governing the printing of other official ballots as far as practicable. The title of the office and the names of the candidates for that office shall be blotted out or stricken from the regular ballots by the election judges. The official supplemental ballot shall be given to each voter when the voter is given the regular ballot or is directed to the voting machine. Regular ballots shall not be changed nor shall official supplemental ballots be prepared as provided in this section during the three calendar days before an election. Absentee ballots that have been mailed prior to the preparation of official supplemental ballots shall be counted in the same manner as if the vacancy had not occurred. Official supplemental ballots shall not be mailed to absent voters to whom ballots were mailed before the official supplemental ballots were prepared.

      . The phrase “regular absentee ballots” is used in this opinion to refer to absentee ballots with Senator Wellstone listed as the DFL candidate for United States Senator.

      . The phrase “replacement absentee ballot” is used' in this opinion to refer to a second regular absentee ballot sent to a voter with the U.S. Senate race crossed out and accompanied by an official supplemental ballot.

      . The proposed order filed by petitioners at the hearing provided, however, that write-in votes for United States Senator on regular absentee ballots would be counted. This proposed relief would have had the effect of excluding votes for candidates whose names appeared on the ballot, because there would be no incentive to write in their names, while counting write-in votes, which presumably would be primarily for candidates whose names did not appear on the ballot, such as the replacement candidate.

      . Our general practice is to avoid a constitutional ruling if there is another basis on which a case can be decided. E.g., In re Senty-Haugen, 583 N.W.2d 266, 269 n. 3 (Minn. 1998). But in the circumstances of this case, prudence dictates that we deviate from our usual practice. A decision based on petitioners’ statutory argument would require that we define for the first time what constitutes a spoiled ballot. Whatever definition was selected could have broad ramifications in a variety of other electoral circumstances. We are reluctant to embrace a specific definition of spoiled ballot based on the limited record available, lacking both factual development of the current practice regarding spoiled ballots other than unsworn anecdotal statements of counsel presented at argument and examination of the consequences of adopting a particular definition in other circumstances not presently before the court.
      Conversely, a ruling based on the constitutional issue has narrow impact. The ruling is limited to the particular circumstances presented in this case and affects only one sentence of section 204B.41, which section itself is only applicable to the unusual circumstances of a vacancy created by the death or catastrophic illness of a candidate after the 16th day before the general election.

      . In a similar vein, in a case challenging an absentee ballot on the grounds that it was not executed in conformity with the law, we stated that the opportunity to vote by absentee ballot “has the characteristics of a privilege . rather than of a right.” Bell v. Gannaway, 303 Minn. 346, 354, 227 N.W.2d 797, 802 (1975). Because absentee voting is a privilege, the cqurt concluded that the legislature could "mandate the conditions and procedures for such voting.” Id.

      . We limited this relief to those absentee voters who requested a replacement ballot, rather than extending it to all absentee voters as requested by petitioners. First, even the "spoiled ballot" statute on which petitioners relied requires a request from the voter before a replacement ballot is made available. Minn.Stat. § 203B.06, subd. 3. More importantly, requiring distribution of replacement ballots to all absentee voters would undoubtedly entail mailing ballots to many voters who did not desire to re-vote. Such relief would unnecessarily increase the scope of the additional burden imposed on election officials just days before the election and at the same time increase the risk of confusing voters about the need to re-vote. Cf. Mattson v. McKenna, 301 Minn. 103, 108, 222 N.W.2d 273, 277 (1974) (stating that in the absence of clear legislative direction, the court will not order corrective action in cases of alleged errors in election ballots unless it is satisfied that the change can be made in an acceptable way within the time available and at a reasonable cost, considering the danger of unfairness at issue).


source: Caselaw Access Project

author: HANSON, Justice.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Secundus Arie RAY, Appellant.
    No. C0-00-228.
    Supreme Court of Minnesota.
    April 17, 2003.

      Mark D. Nyvold, St. Paul, 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

HANSON, Justice.

Appellant Secundus Ray was convicted of murder in the first degree in connection with the shooting death of Chauncey Teas-ley on June 13, 1998, in North Minneapolis. On appeal, Ray argues that (1) his in-custody statement to police, used against him at trial, was obtained in violation of his right to counsel, and (2) prose-cutorial misconduct, during testimony of a police officer and in closing argument, deprived him of a fair trial. Ray also raises a number of pro se issues. We reverse and order a new trial on the grounds that portions of Ray’s in-custody statement were obtained in violation of his right to counsel.

On June 13,1998, Chauncey Teasley and two of his cousins visited Depring Jackson at her apartment in a high-rise building at 1201 12th Avenue North in North Minneapolis. The security guard, Mitchell Hicks, observed their arrival. After the visit, Teasley was standing in front of the building talking to Jackson and her sister. While they were talking, a red Ford Taurus pulled into the parking lot. Hicks had previously seen the car at the building. Hicks testified that the people in the Taurus appeared to be friends of Jackson.

Although she initially denied it both to the police and the grand jury, Jackson later said that she knew both individuals in the Taurus. Jackson testified at trial that the individuals in the car were Coley Gates, the driver, and Ray, the passenger. Jackson’s sister did not identify Ray as the passenger when she first talked to police but later picked him out from a photo lineup.

Hicks was never able to identify either Gates or Ray in lineup photos. He described the driver of the Taurus as dark-skinned, wearing a red cap and red shirt, with braided hair, and the passenger as light-skinned, 6 feet 2 inches tall, wearing a blue shirt and blue jeans.

Gates got out of the Taurus, and several individuals witnessed what appeared to be a confrontation between him and Teasley. Teasley returned to the car where his cousins were waiting and said, “I think they’re about to get me” and “That’s the dude CK I got into it with.” A camera monitoring the building then showed Teas-ley running down the sidewalk. He ran to a wooded area south of the apartment complex.

Jackson told the cousins to get Teasley. When they pulled out of the parking lot, driving east and then south of the apartment complex, the Taurus followed closely. A few moments later, the Taurus turned right toward the wooded area, while the cousins continued straight ahead. The cousins made several turns and ultimately returned to the west of the apartment complex. Neither of the cousins heard any gunshots.

Teasley was shot near the wooded area south of the apartment complex. No witness claimed to have seen the actual shooting. Several witnesses testified about the number of shots they heard. At trial, Hicks testified that he heard two volleys of gunshots, three shots each. At the scene, however, he told officers he heard five sounds like firecrackers, a pause, and then six shots. Jackson testified that she heard six shots, a pause, and then six more. Her sister testified that she heard eight shots, then a pause, then two or three more. She stated that the second round of shots sounded different. Kiachi Blake, a nearby resident, claimed she heard four shots, as did another resident, Kimberly Cooper.

Both Blake and Cooper saw a man running from the scene of the shooting. Blake testified at Ray’s trial that the man was wearing short blue jeans, a red shirt, and a red jacket. However, before the grand jury and during Gates’ trial, she testified that the person fleeing wore a blue and white jacket. She described his height as 5 feet 3 inches, although she had previously given his height as 5 feet 6 inches or 5 feet 7 inches. Cooper testified that the man she saw fleeing wore a blue jacket with white stripes and had a red rag in his pocket.

"When the area of the shooting was searched, investigators located seven expended shell casings, all fired from the same weapon, as well as one live round and a cell phone. Ray’s then-girlfriend Latasha Johnson had given Ray the phone a few months earlier, but there was evidence that Gates also used the phone. Ray later told Johnson he had lost the phone.

Ray was indicted by a grand jury for first-degree murder on October 27, 1998. He was later arrested in Chicago. Two Minneapolis police investigators, Sergeant James Violette and Sergeant Michael Tic-hich, traveled to Chicago to interview Ray on November 9,1998.

Sergeant Violette read Ray his Miranda rights. After Ray agreed to talk to the police, they repeatedly informed Ray that they knew he was present at 1201 North 12th Avenue on the day of the shooting. They then informed him that he had been indicted by a grand jury for murder in the first degree and that he needed to “stop pretending” that he was not aware of why the police were questioning him. The police went on to say that if Ray started out with an obvious lie, “then nobody believes you.” Ray then stated:

Ray: Then get me a public defender down here because you’re kind of getting upset and you want to act like you want to try to take this shit out on me like I’ve got [to] lie. Nobody got to lie to you. I got nothing to lie to you for.
[Inaudible]
Ray: Take me back then.
Violette: We are not the ones that are going to take you back to Minnesota.

(Emphasis added.)

Following this brief discussion, which the state characterizes as a discussion about extradition, Sergeant Tichich went on:

Tichich: You indicated that you wanted a public defender so when you say that, we have to leave and honor your request * * *. Now, we had hoped that we could (inaudible) address soipe things, we could share some information and you could make a decision about what you weren’t going to say or were going to say * * * but we can’t do that as long as you have asked for an attorney.
Ray: I was gonna talk to you all as long as you don’t get upset. * * *
Tichich: * * ⅜ [WJe’ll try not to be accusatory * * * we came a long way from Minneapolis in an airplane here to try to talk to you and share some things with you * * * and that you could make your best judgment * * * and make that assessment as to what the best thing for you would be. We can’t do that unless you clearly say * ⅜ * [“]I don’t want to have a public defender here, I am willing to continue the conversation. [”]

Another discussion about extradition procedure followed. Ray then stated:

Ray: Alright, what’s you all gonna talk about?
Tichich: You willing to talk?
Ray: Yeah[,] go ahead.
Tichich: Without an attorney present?
Ray: Yeah, without you all being upset and shit.

The interrogation then ensued. At first, Ray continued to deny being present at the apartment complex on June 13, 1998. He eventually admitted being present but denied any involvement in the shooting. At trial, the district court admitted testimony concerning the statements made by Ray in this custodial interrogation. The state used Ray’s repeated denials, followed by admissions, to argue that an innocent individual would not have lied repeatedly to the police.

Ray appeals his conviction of murder in the first degree.

I.

Ray argues that the admission of testimony concerning statements be made in custodial interrogation was reversible error because his statements were obtained after he made a clear and unequivocal request for the assistance of counsel. The right to have counsel present during all custodial interrogations is undisputed. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The United States Supreme Court elaborated upon this requirement in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), holding that once an accused has expressed a desire to deal with police only through counsel, he or she cannot be further interrogated absent counsel unless the accused initiates further conversation. Id. at 484-85, 101 S.Ct. 1880 cited in State v. Munson, 594 N.W.2d 128, 138 (Minn.1999).

The request for counsel must be clear and unequivocal. Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). A request for counsel is considered to be unequivocal if it is articulated “sufficiently clearly that a reasonable police officer, in the circumstances, would understand the statement to be a request for an attorney.” Munson, 594 N.W.2d at 139 (quoting Davis, 512 U.S. at 459, 114 S.Ct. 2350). But even if the request is equivocal, police may only ask narrow questions designed to clarify the desire to obtain counsel. State v. Robinson, 427 N.W.2d 217, 223 (Minn.1988).

The state bears the burden of demonstrating that any claimed waiver of Miranda rights was knowing, voluntary and intelligent. State v. Hannon, 636 N.W.2d 796, 806 (Minn.2001) (citing State v. Linder, 268 N.W.2d 734, 735 (Minn.1978)). This court reviews the district court’s findings of fact for clear error but conducts a de novo review of the district court’s legal conclusions based on those findings. Id. at 806 (citing State v. Dominguez-Ramirez, 563 N.W.2d 245, 252 (Minn.1997)).

Early in the interrogation, Ray told police “[t]hen' get me a public defender down here because you’re kind of getting upset and you want to act like you want to try to take this shit out on me like I’ve got [to] lie.” The state argues that the explanation made the statement equivocal and that the discussion that followed was merely a response to Ray’s seeming confusion about whether he would be extradited to Minnesota to stand trial. The state asserts that this “extradition discussion” did not amount to continued interrogation but was rather designed to clarify Ray’s wishes.

The state’s position fails for two reasons. First, the invocation was clearly unequivocal. In Munson, this court found that the statement “I think I’d rather talk to a lawyer” was unequivocal. 594 N.W.2d at 138-39. In Hannon, we held that the statement “[c]an I have a drink of water and then lock me up — I think we really should have an attorney” was also unequivocal. Hannon, 636 N.W.2d at 804-05. We see nothing in Ray’s statement— “[tjhen get me a public defender down here” — to render it equivocal in light of these holdings. Moreover, Officer Tic-hich’s subsequent comments make it clear that the police were aware of the unequivocal nature of Ray’s request. Tichich told Ray that the officers would need to leave because Ray had invoked his right to counsel, stating, “You indicated that you wanted a public defender so when you say that, we have to leave and honor your request * * *.” This response from the interrogating officer is very similar to what occurred in Hannon, where this court recognized that the objective sufficiency of an invocation of a right to counsel was supported by the reaction of the interrogating officers. Id. at 805. There, the detective responded by saying, “If you want to talk to an attorney, you understand that we have to stop talking to you. OK?” Id.

Second, once Ray made an unequivocal request for counsel, the police were prohibited from extending the interrogation. Instead, the police engaged in an impermissible effort to persuade Ray to withdraw his request for counsel. The officers intimated that they would be unable to share information freely because of Ray’s request for counsel: “Now, we had hoped that we could (inaudible) address some things, we could share some information and you could make a decision about what you weren’t going to say or were going to say * * * but we can’t do that as long as you have asked for an attorney.”

In Munson, we concluded that (1) the detectives’ references to a “window of opportunity” that would be closing and (2) statements that Munson’s “buddies” would be brought in for federal questioning were both impermissible inducements to waive the right to counsel. 594 N.W.2d at 140-43. Similarly, in Hannon, we said that police made impermissible inducements by telling the defendant that if he wanted to talk to an attorney, his side of the story would never be known. 636 N.W.2d at 806. We hold that the admission of testimony concerning Ray’s statements after his invocation of the right to counsel was error.

Both Munson and Hannon recognize that a determination that a defendant’s statements were admitted in error does not end our analysis, because Ray’s conviction can stand if the admission of his statements was harmless beyond a reasonable doubt. See Hannon, 636 N.W.2d at 807; Munson, 594 N.W.2d at 143. “The relevant standard for determining harmless error is whether the jury’s verdict is ‘surely unattributable’ to the error.” State v. Roman Nose, 649 N.W.2d 815, 823 (Minn.2002) (quoting State v. Juarez, 572 N.W.2d 286, 292 (Minn.1997)). In deciding the harmless error issue, we must determine what effect the statement had on the jury in reaching a guilty verdict. See State v. Day, 619 N.W.2d 745, 750 (Minn.2000).

Although Ray’s statements did not amount to a confession, the state did rely heavily on them to challenge his credibility and to infer his guilt for the murder. The state questioned Sergeant Yiolette about each of Ray’s eighteen assertions that he was not present at the apartment complex on the day of the murder. In its closing argument, the state emphasized these repeated denials. The state stressed that an innocent person would not have needed to lie about his activities. In short, the denials and inconsistencies contained in Ray’s statements provided the state with a basis to argue that Ray was lying to cover his own role in the crime.

Apart from Ray’s statement, the state’s case was weak. The only witnesses who were able to testify that Ray was present at the apartment complex on the day of the shooting were Jackson and her sister. Notably, both witnesses initially told police they did not know the identity of the passenger in the Taurus. Neither the security guard nor Teasley’s cousins identified Ray as the passenger. The two nearby residents who saw a man run from the woods did not agree about what the man was wearing, and witness Blake gave alternating descriptions — from a red shirt to a blue shirt, depending on who was asking the question. The only testimony describing the clothing worn by the passenger came from Hicks, who said the passenger had on a blue shirt.

The police did not find the murder weapon. Although the cell phone found at the scene was traced to Ray, there was testimony that it was also used by Gates. The only confrontation with Teasley that was witnessed by others occurred between Gates and Teasley, while Ray remained at the car.

We conclude that Ray’s statement had significant evidentiary value to the state. Under these facts, we cannot say that the jury verdict was surely unattributable to the error in the admission of statements made by Ray after his unequivocal request for counsel. Accordingly, a new trial is necessary.

II.

Ray raises two issues relating to prose-cutorial misconduct. First, he contends that the trial court abused its discretion in allowing the prosecutor to elicit inadmissible testimony from Sergeant Violette regarding the state’s two-gun theory. Second, he asserts that the prosecutor committed misconduct during closing argument by suggesting that the jury should judge Ray and many of the witnesses differently because they came from a different environment. Ray contends that this argument made the implicit suggestion that it was appropriate to apply racial considerations to Ray and to the crime.

Because we have reversed Ray’s conviction and granted a new trial on the grounds that it was prejudicial error to admit parts of his statement, we need not decide whether Ray’s claims of prosecuto-rial misconduct also constitute prejudicial error that would independently warrant a new trial. But we will address those claims to provide guidance to the district court should the state engage in similar conduct in the new trial.

A. Eliciting Inadmissible Evidence

We address first the question of whether the prosecutor committed misconduct by eliciting inadmissible testimony from Sergeant Violette. We recognize that the district court ultimately admitted the evidence. We have held that “[t]he district court has broad discretion in ruling on evidentiary matters and we will not overturn a district court’s evidentiary rulings unless appellant shows a clear abuse of discretion and that this abuse resulted in prejudice to him.” State v. Steward, 645 N.W.2d 115, 120 (Minn.2002). But we are troubled by the state’s repeated attempts to elicit testimony that had previously been ruled inadmissible.

Ray made a motion in limine to restrict the proposed testimony of Sergeant Viol-ette regarding the theory that there had been two gunmen. Sergeant Violette had performed an additional search of the scene two days after the shooting. The search did not uncover any new physical evidence. The day before Sergeant Viol-ette was to testify, the state informed defense counsel that it intended to ask Sergeant Violette what his rationale was for going back to the scene to perform a second search. The state explained that Sergeant Violette had received information from a man who claimed that he had heard the sound of two different guns. Defense counsel argued that because the source of this information was unavailable, Sergeant Violette’s testimony based on it would be inadmissible hearsay. The court agreed that if the state was pursuing “some sort of a two-gun theory,” this would be “very significant hearsay” and would not be allowed.

At trial, the prosecutor asked Sergeant Violette a series of questions about the information he had obtained that suggested that the number of shots fired did not match the expended casings found at the scene. The prosecutor went on to ask the following:

Prosecutor: [Y]ou were also aware that the expended casings and the live round were found in one general location?
Violette: That is correct.
Prosecutor: Does the fact that they were found in one general location, was that also a significant in respect to why you went back up there on the 16th?
Violette: Yeah, the information that I had received was

At this point, defense counsel objected and an off-the-record discussion was held. The defense then withdrew the objection. The prosecutor went on to ask Sergeant Violette if the second search was performed specifically to determine if there was evidence of a second shooter, to which Sergeant Violette replied affirmatively. Defense counsel did not object to this exchange.

At a bench conference a short while later, defense counsel made a record regarding his earlier motion in limine to exclude evidence of Sergeant Violette’s hearsay information. Counsel then made a motion for a mistrial based on the fact that the jury had “essentially * * * been allowed to hear that there is a theory that there is more than one shooter.” The court denied the motion for a mistrial but offered defense counsel the opportunity to draft a curative instruction. The following curative instruction, as drafted by defense counsel, was read to the jury:

There has been testimony elicited from Sergeant Violette that he had received information that the sounds of shooting came from more than one position. You are hereby ordered to disregard that portion of Sergeant Violette’s testimony.

On redirect, the prosecutor returned to the line of questioning about the disparity between the number of shots reported and the number of spent casings found. He asked Sergeant Violette whether his second search was intended to turn up additional spent casings, to which Sergeant Violette replied “Correct.” The prosecutor then asked questions designed to have Sergeant Violette explain the conclusion he reached from his second search, but the objections were sustained. He then tried another tack, asking about eyewitnesses:

Prosecutor: Now, you were asked about eyewitnesses to the shooting. I want to get into that. There really would have been only three eyewitnesses to the shooting, correct? •

Defense counsel objected on foundational grounds but was overruled. The prosecutor posed his question again, but prior to Sergeant Violette’s reply, the district court interjected, asking, ‘You’re talking about based upon the information that he had.” The prosecutor agreed and asked three leading questions to which defense counsel did not object, suggesting that the three eyewitnesses would have been Chauncey Teasley, Coley Gates, and Ray. The prosecutor then asked:

So, the only ones who would have— could have told you about who fired when and what and all that, answered those questions, answered those — put together that last chapter, would have been one of those three?

No objection was made and Sergeant Viol-ette answered: “That’s correct.”

Following the district court’s order in limine to exclude any information regarding two shooters, Sergeant Violette should have been briefed by counsel to avoid that subject. See State v. Underwood, 281 N.W.2d 337, 342 (Minn.1979). The prosecutor not only failed to instruct Sergeant Violette appropriately, he compounded the problem by persistently seeking to elicit the inadmissible testimony and did so by leading questions.

In State v. Van Wagner, 504 N.W.2d 746 (Minn.1993), the state repeatedly tried to use a police witness to provide hearsay evidence. This court reversed prophylac-tically, noting that “[t]he prosecutor is bound to seek that truth which is governed by the rules of evidence * * *.” Id. at 750. There, we noted that the state’s questioning, overall, was simply too pointed and persistent to make an innocent explanation plausible. Id. at 750 n. 1. Here, there can be no claim that the inadmissible hearsay was inadvertently mentioned by Sergeant Violette, because all references to it were contained in the prosecutor’s leading questions, to which Sergeant Violette only responded in the affirmative. Assuming that there is no basis for the district court to modify its order in limine for the new trial, the state is directed to avoid any efforts to elicit this inadmissible hearsay evidence. In addition, the prosecutor’s concluding question, implying that Ray could have put together the “last chapter” by providing information about the crime is also objectionable as implying that Ray had some obligation to speak or present evidence, in violation of Ray’s right to remain silent under the Fifth Amendment.

B. Improper Closing Argument

We next address Ray’s claim that the prosecutor’s closing argument was misconduct. We have previously held that “[t]he propriety of a prosecutor’s final argument is a matter within the sound discretion of the trial court.” State v. Parker, 358 N.W.2d 122, 127 (Minn.1984).

During his closing argument, the prosecutor invited the jury to put the evidence “in context, particularly the type of people that presented this evidence to you.” He went on to explain that the murder occurred in broad daylight, on a Saturday afternoon, near a busy high rise in North Minneapolis. The prosecutor then stated:

I would suggest that if this happened in a lot of other neighborhoods, say in Golden Valley, or Edina, or Minnetonka * * * the reaction of the citizenry * * * would be a whole lot different from the reaction of the people in North Minneapolis.
Their reaction basically takes one of two forms. One form, they don’t want to be involved. Why? For one of two reasons, either they don’t care, they’re apathetic or they fear reprisals. I would suggest that if this happened in a neighborhood in Edina, people * ** couldn’t get to the phone fast enough to tell the police what they saw * * * to insure [sic] that this kind of conduct would never happen in their neighborhood ever again. But this is a different environment ⅜ * * and it’s a challenge for you, because it’s not in an environment that most, if not all of you people, are familiar with.
This is not a dispute between a businessman or a businesswoman from Edi-na and another businessman or businesswoman from Minnetonka. This is a dispute * * * involving three young black males in the hood in North Minneapolis. This is not your environment, this is the Defendant’s environment. So it’s a challenge to you to remove yourself from your environment and look at this case and these witnesses in the context of the environment that they come from.

The prosecutor also discussed the criminal background of one of the state’s witnesses, saying it was not a surprise that someone from this environment would have criminal convictions. Defense counsel did not object to the state’s closing argument.

Ray asserts that the prosecutor’s closing argument was an attempt to supply a “race-based” explanation for the states’ witnesses and to imply that racial considerations were appropriate in considering Ray’s fate. The state counters that the prosecutor’s statements were merely designed to forestall attacks by Ray’s counsel on the credibility of the state’s witnesses.

The state’s position would be stronger if the same prosecutor had not previously faced similar challenges, both before this court and the court of appeals. In State v. Robinson, 604 N.W.2d 355, 363 (Minn. 2000), the defendant argued that there was prosecutorial misconduct in closing argument when the prosecutor reminded jurors that the defendant’s world was different from that of a “businessman from Edina, Pope John Paul, and Mother Teresa.” We found no misconduct because the comments were isolated and were appropriate to inform the jury about unfamiliar aspects of the drug culture. But in State v. Brown, 2000 WL 978756 (Minn.App. July 18, 2000), the same prosecutor compared a Minneapolis minority community unfavorably to the world of Mother Teresa or Pope John Paul. The court of appeals determined that these statements “rose to the level of misconduct” and reversed the conviction. Id. at *1.

In a recent decision by this court, in State v. Varner, 648 N.W.2d 298 (Minn. 2002), we addressed a situation where a juror made a racial comment to other jurors, stating that an area of Saint Paul was a “miracle mile” — so named because if a white person walked down the street and didn’t get beaten or robbed, it was a miracle. Id. at 302. In reversing the conviction, we used language that foreshadowed the problem with the prosecutor’s argument in Ray’s trial:

In cases where race should be irrelevant, racial * * * considerations, in particular, can affect a juror’s impartiality and must be removed from courtroom proceedings to the fullest extent possible * * *. Above all, demeaning references to racial groups compromise the right to a fair trial by inviting jurors to view a defendant as coming from a different community than themselves.

Here, the prosecutor invited the jurors to view the entire occurrence as “involving three young black males in the hood in North Minneapolis,” a world wholly outside their own. Such an invitation asks the jury to apply racial and socio-economic considerations that would deny a defendant a fair trial. Such an invitation must be avoided in the new trial.

III.

Ray raises a number of pro se issues which we also address. He asserts that the state engaged in misconduct by dispatching a deputy to examine trial material he kept in his cell. While we agree that this was misconduct, we also agree with the district court that the state did not obtain any information for use at trial from this activity and, accordingly, no remedy can be given for it on this appeal. Ray also argues that the state improperly elicited testimony that Jackson was afraid of Ray. However, we conclude that this examination was permissible to explain the inconsistencies in Jackson’s statements to police and in her prior testimony.

Ray argues that the evidence against him was insufficient to warrant a conviction. We conclude that the evidence against Ray was sufficient for a reasonable jury to conclude that Ray was guilty. See State v. Lando, 642 N.W.2d 720, 725 (Minn.2002). We base that conclusion principally upon the presence at the murder scene of the cell phone that had been entrusted to Ray.

Ray also takes issue with a number of evidentiary rulings by the district court, including a denial of a juror’s request to view an unredacted transcript of Ray’s statement. The decision to allow the jury access to testimony is within the discretion of the district court. See State v. Lane, 582 N.W.2d 256, 260 (Minn.1998). Similarly, we decline to hold that the court erred in refusing to allow Ray to present evidence that some third party had committed the crime where the district court determined that the foundation for such evidence was insufficient. Evidentiary rulings such as this rest within the court’s discretion and will not be reversed absent a clear abuse of that discretion. See State v. Stewart, 643 N.W.2d 281, 292 (Minn.2002).

Ray also contends that he did not receive a speedy trial, but the procedural history of the case makes clear that the delays were the result of defense counsel requests. See State v. Johnson, 498 N.W.2d 10, 16 (Minn.1998) (holding that where delays are the result of the defendant’s actions, there is no speedy trial violation).

Ray argues that the accomplice testimony instruction should have been given because Depring Jackson was eventually charged with the crime of accessory after the fact. Minnesota Statutes § 634.04 (2002) does require that accomplice testimony be corroborated by “other evidence as tends to convict the defendant of the commission of the offense * * But, for that section to apply, an accomplice must be a person who “could have been indicted and convicted for the crime with which the accused is charged.” State v. Henderson, 620 N.W.2d 688, 701 (Minn.2001). There is no suggestion that Jackson could have been tried for the murder of Teasley. Thus, it was not error to decline to give the accomplice testimony instruction.

Finally, Ray’s argument that his counsel was ineffective is rendered moot by our grant of a new trial.

Reversed and remanded for a new trial.

      . Gates was also tried and convicted for the murder of Teasley. We affirmed that conviction. State v. Gates, 615 N.W.2d 331, 335 (Minn.2000).

      . Testimony at trial established that Gates went by two different nicknames: "CK” and "CJ.”

      . We note that defense counsel was somewhat inconsistent in making objections to the inadmissible testimony and, if there were no independent grounds to order a new trial, we would consider whether Ray had waived this claim of prosecutorial misconduct by failing to object timely and consistently. We caution defense counsel to be vigilant in preserving their objections for appellate review.

      . We again note that defense counsel did not object at trial to the prosecutor’s closing argument. We would be concerned if defense counsel were deliberately passing on such an objection with the hope of securing reversible error for appeal and, as a result, getting two chances at a jury trial. We again caution defense counsel that the failure to object to improper closing argument may waive any claim of prosecutorial misconduct on appeal.


author: GILBERT, Justice.

text:
    STATE of Minnesota, Petitioner, Appellant, v. Jela DeShaun JONES, Respondent.
    No. CX-01-1431.
    Supreme Court of Minnesota.
    April 17, 2003.
   OPINION

GILBERT, Justice.

This case involves review of a court of appeals decision that the addition of a 10-year conditional release term to respondent Jela DeShaun Jones’s 15-year sentence for third-degree criminal sexual conduct violated the constitutional rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Á Le Sueur County jury found Jones guilty of two counts of criminal sexnal conduct in the third degree. The district court sentenced Jones to a 15-year sentence using the patterned and predatory sex offender statute, Minn.Stat. § 609.108, subd. 1 (2002), and then imposed an additional 10-year conditional release term, under subdivision 6 of the same statute. Minn.Stat. § 609.108, subd. 6 (2002). Concluding that imposition of the conditional release term violated the rule set forth in Apprendi, the court of appeals reversed Jones’s sentence and remanded with instructions to reduce the conditional release term. We reverse in part, affirm in part and remand.

Between February and July 2000, Jones had sexual relations with 15-year-old S.G. multiple times. In July 2000, Jones also sexually assaulted S.G.’s 17-year-old sister, A.G. While A.G. was-sleeping, Jones entered her bedroom, laid down, next to her, unbuttoned her pants and inserted his finger into her vagina. Subsequently, Jones was charged with two counts of third-degree criminal sexual conduct: (1) sexual penetration of a person between 13 and 16 years of age in violation of Minn.Stat. § 609.344, subd. 1(b) (2002) (Count I); and (2) sexual penetration of a person he knows to be helpless in violation of Minn. Stat. § 609.344, subd. 1(d) (Count II). A jury found Jones guilty of both counts.

At the sentencing hearing, the district court entered judgment of conviction on both counts. Addressing Count I, the court sentenced Jones in accordance with the sentencing guidelines to 28 months and stayed the execution for 15 years. Turning to Count II, the court sentenced Jones to the statutory maximum prison sentence, 15 years for violating Minn.Stat. § 609.344, subd. 1(d) by utilizing the patterned and predatory sex offender statute, Minn.Stat. § 609.108, subd. 1. As the' factual basis to support the enhancement of the sentence, the court found that Jones was a patterned sex offender based on the following findings: (1) Jones’s conduct was motivated by sexual impulses and was part of a predatory sexual pattern; (2) Jones presented a “very clear” danger to society at large and specifically to females under the age of 16; and (3) Jones was not amenable to probation. In addition, pursuant to subdivision 6 of Minn.Stat. ’§ 609.108, the court notified Jones that he was also subject to 10 years of conditional release to begin after the completion of his incarceration.

On appeal to the court of appeals, Jones argued, among other claims, that he was sentenced to more than the statutory maximum sentence in violation of the United States Constitution as interpreted in Ap-prendi The court concluded that the conditional release term, added to the 15-year sentence, violated the constitution and reversed Jones’s sentence. State v. Jones, 647 N.W.2d 540, 548 (Minn.App.2002). The court remanded for resentencing and instructed the district court to “reduce appellant’s conditional release time to less than ten years so that the conditional release time plus the incarceration time do not exceed the statutory maximum of 15 years.” Id. We granted the state’s petition for review and must determine whether Minn.Stat. § 609.108, subd. 6, as applied to Jones, violates the rule of due process announced by the United States Supreme Court in Apprendi.

I.

We review constitutional challenges to statutes de novo. State v. Gross- man, 636 N.W.2d 545, 548 (Minn.2001). Minnesota statutes are presumed to be constitutional and the party challenging a statute on constitutional grounds “must demonstrate, beyond a reasonable doubt, that the statute violates a provision of the constitution.” Id.

Jones asserts that his 10-year conditional release term imposed under Minn. Stat. § 609.108, subd. 6 violates Apprendi. The facts of Apprendi are as follows. On December 22, 1994, Apprendi fired several .22-caliber bullets into the home of an African-American family in Vineland, New Jersey. Apprendi 530 U.S. at 469, 120 S.Ct. 2348. After being indicted for the shooting, he entered into a plea agreement in which he pleaded guilty to second-degree possession of a firearm for an unlawful purpose. Id. at 469-70, 120 S.Ct. 2348. Under New Jersey law, the offense carried a maximum prison sentence of 10 years. Id. at 470, 120 S.Ct. 2348. As part of the plea agreement, the state reserved the right to increase the sentence under a separate hate crime statute that authorized the imposition of an “enhanced” sentence when the offense was committed with a biased purpose. Id. The district court found by a preponderance of the evidence that the crime was motivated by racial bias and sentenced Apprendi to a 12-year term of imprisonment using the separate hate crime statute. This sentence was 2 years more than the 10-year statutory maximum sentence for the possession of a firearm offense. Id. at 470-71, 120 S.Ct. 2348.

On appeal, the Supreme Court considered whether due process “requires that a factual determination authorizing an increase in the maximum prison sentence * * * be made by a jury on the basis of proof beyond a reasonable doubt.” Id. at 469, 120 S.Ct. 2348. The Court stated that the Due Process Clause of the Fourteenth Amendment and the Sixth Amendment right to a jury trial entitle a defendant to “a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” Id. at 478, 120 S.Ct. 2348 (quoting United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)). Applying this principle, the Court articulated the following rule: “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi 530 U.S. at 490, 120 S.Ct. 2348. Thus, we must determine whether Jones’s 10-year conditional release term was predicated on factual findings made by a judge by a preponderance of the evidence; and whether Jones’s 10-year conditional release term was constitutionally significant in that it exceeded the maximum penalty prescribed by statute.

Jones asserts that the imposition of the 10-year conditional release term was based on post-jury verdict judicial findings made by a preponderance of the evidence standard. We agree. Jones’s sentence was first enhanced to 15 years under the authority of the patterned and predatory sex offender statute. Minn.Stat. § 609.108, subd. 1. The statute directs the district court, upon conviction, to impose an enhanced sentence of not less than double the presumptive sentence and not more than the statutory maximum for violations of criminal sexual conduct when (1) the crime was motivated by the offender’s sexual impulses or was part of a predatory-pattern of behavior; (2) the offender is a danger to public safety; and (3) the offender needs long-term treatment or supervision. Id. The findings required by subdivision 1 are made by a judge using a preponderance of the evidence standard. See State v. Christie, 506 N.W.2d 293, 299 (Minn.1993).

Having made the required findings, the district court then followed subdivision 6 of the same statute, and imposed an additional 10-year conditional release term. Subdivision 6 provides that “[a]t the time of sentencing under subdivision 1, the court shall provide that * * * the commissioner of corrections shall place the offender on conditional release for the remainder of the statutory maximum period, or for ten years, whichever is longer.” MinmStat. § 609.108, subd. 6.

In Grossman, we concluded that Minn. Stat. § 609.108, subd. 1 requires the sentencing court to make a series of findings by a preponderance of the evidence and Apprendi is violated when those findings are used in subdivision 2 to increase a sentence beyond the statutory maximum, from 30 to 40 years. Grossman, 636 N.W.2d at 550-51. As in Grossman, the district court here made findings under subdivision 1. The effect of the court’s findings under subdivision 1 was to increase the executed sentence to 15 years and to add the 10-year conditional release term. Accordingly, we hold that the imposition of Jones’s 10-year conditional release term was predicated on factual findings, other than the fact of a prior conviction, made by a judge by a preponderance of the evidence.

Next, we consider whether Jones’s 10-year conditional release term exposed him to constitutionally significant conditions beyond the maximum penalty prescribed by statute. Before we can determine whether Jones’s sentence exceeded the maximum penalty prescribed by statute, we must determine the maximum penalty for Jones’s offense. The court of appeals concluded that the maximum penalty is 15 years. In contrast, the state argues that Jones could have been sentenced to a 15-year executed sentence plus an additional 5-year conditional release term based on the jury verdict without judicial findings. We agree with the state.

Jones was convicted of and sentenced for third-degree criminal sexual conduct in violation of MinmStat. § 609.344. An individual convicted under Minn.Stat. § 609.344 “may be sentenced to imprisonment for not more than 15 years.” Minn. Stat. § 609.344, subd. 2. Here, the 15-year maximum sentence was imposed under Minn.Stat. § 609.108, subd. 6. But, notwithstanding the maximum sentence otherwise applicable, offenders sentenced for a violation of Minn.Stat. § 609.344, who have no prior sex offenses, are also subject to a mandatory 5-year conditional release term under MinmStat. § 609.109, subd. 7 (2000). See State v. Schwartz, 628 N.W.2d 134, 139 (Minn.2001). Subdivision 7 provides “[njotwithstanding the statutory maximum sentence otherwise applicable to the offense or any provision of the sentencing guidelines, ⅜ * * [i]f the person was convicted for a violation of section * * * 609.344 * * * the person shall be placed on conditional release for five years, minus the time the person served on supervised release.” The imposition of the 5-year conditional release term under Minn.Stat. § 609.109, subd. 7 is “a mandatory aspect of the sentence to be imposed by the district court” for offenders convicted under Minn.Stat. § 609.344. Schwartz, 628 N.W.2d at 139. Accordingly, Minn.Stat. § 609.109, subd. 7 is relevant in determining the maximum conditional release term allowed under these circumstances, even though Jones was “otherwise” sentenced under Minn.Stat. § 609.108, subd. 6.

The imposition of the 5-year conditional release term under Minn.Stat. § 609.109, subd. 7 is permissible under Apprendi. This 5-year conditional release term is authorized on the basis of the jury verdict, and does not require any additional findings of fact to be made by the district court. For statutorily designated sex offenders it is a mandatory aspect of their sentence. Accordingly, as part of the legislatively mandated sentencing parameters, an offender sentenced under Minn. Stat. § 609.344 is also subject to a mandatory 5-year conditional release term, minus the time the offender serves on supervised release. Thus, we conclude that the jury verdict exposed Jones to a maximum executed sentence of 15 years plus an additional 5-year conditional release period.

Here, Jones was sentenced to a 15-year executed sentence and a 10-year conditional release term. The 10-year conditional release term imposed under Minn. Stat. § 609.108, subd. 6, exceeds by 5 years the statutory maximum conditional release term established by Minn.Stat. § 609.109, subd. 7. The state argues that even if Jones’s 10-year conditional release term exceeds the maximum' term prescribed by statute, his sentence still does not violate the rule articulated in Appren-di. Specifically, the state maintains that Apprendi applies only to imprisonment and not to supervision in a nonincarcerated setting, such as conditional release. We disagree.

In Apprendi, the Supreme Court looked not only to-the absolute number of years in prison, but also to the stigma that was attached to the increased sentence. The Court reasoned that due process is concerned with “criminal culpability” and “[t]he degree of criminal culpability the legislature chooses to associate with particular, factually distinct conduct has significant implications both for a defendant’s very liberty, and for the heightened stigma associated with an offense the legislature has selected as worthy of greater.punishment.” Apprendi 530 U.S. at 495, 120 S.Ct. 2348. Applying its rule to Apprendi’s sentence, the Court reasoned that “[b]oth in terms of absolute years behind bars, and because of the more severe stigma attached, the differential here is unquestionably of constitutional significance.” Id.

Therefore, the relevant inquiry is whether conditional release is constitutionally significant. While on conditional release, the offender is placed under the supervision of the commissioner of corrections. “[(Conditions of release may include successful completion of treatment and aftercare in a program approved by the commissioner, * * * and any other conditions the commissioner considers appropriate.” Minn.Stat. § 609.108, subd. 6; see also Minn.Stat. § 609.109, subd. 7(b). If the offender violates the terms of his conditional release, the commissioner may order the offender to serve the remainder of the conditional release term in prison. Minn.Stat. § 609.108, subd. 6; Minn.Stat. § 609.109, subd. 7(b). The legislature has directed that conditional release under Minn.Stat. § 609.108, subd. 6 and Minn. Stat. § 609.109, subd. 7 is governed by the provisions relating to supervised release, except as otherwise provided. Minn.Stat. § 609.108, subd. 6; Minn. Stat § 609.109, subd. 7(b). Moreover, conditional release under Minn.Stat. § 609.109, subd. 7, is a mandatory aspect of an offender’s sentence. Schwartz, 628 N.W.2d at 139. Accordingly, we conclude that conditional release is constitutionally significant for purposes of Apprendi.

Therefore, we hold that the court of appeals did not err in determining that Jones’s 10-year conditional release term imposed under Minn.Stat. § 609.108, subd. 6 violates the rule set forth in Apprendi. However, the court of appeals did err in determining that the conditional release term plus the incarceration time could not exceed 15 years. Accordingly, we remand to the district court to impose a 5-year conditional release term under Minn.Stat. § 609.109, subd. 7.

Reversed in part, affirmed in part, and remanded.

      . Jones does not contest his 15-year executed sentence imposed under Minn.Stat. § 609.108, subd. 1.

      . If an offender was convicted of a previous sex offense, the offender shall be placed on conditional release for 10 years. Minn.Stat. § 609.109, subd. 7. Jones had no prior sex offense convictions and therefore was subject only to the 5-year conditional release term.

      . Some federal courts have applied Apprendi to both incarceration and supervised release. U.S. v. Combs, 267 F.3d 1167, 1180 (10th Cir.2001).


author: /s/ Paul H. Anderson Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Carol A. COLLINS, a Minnesota Attorney, Registration No. 17942.
    No. CX-01-1798.
    Supreme Court of Minnesota.
    April 17, 2003.
   ORDER

On September 26, 2002, the Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against respondent Carol A. Collins. Respondent filed a general denial denying any misconduct. This court appointed the Honorable Warren E. Litynski, Judge of District Court, as referee to hear the matter.

Respondent submitted to the referee a letter from her expert witness in which the expert states that respondent suffers from a disability. Respondent also submitted an affidavit in which she states that this expert has concluded that as a result of her disability, respondent is “unable to participate in [her] defense or represent clients.”

On March 31, 2003, the referee filed a recommendation with this court recommending that respondent be transferred to disability inactive status under Rule 28, Rules on Lawyers Professional Responsibility (RLPR), and that further action on the petition for disciplinary action filed against her be stayed until such time as respondent seeks reinstatement to the practice of law. The referee states in his recommendation that neither respondent nor the Director oppose his recommendation.

This court has independently reviewed the file and concludes that staying the disciplinary proceedings and transferring respondent to disability inactive status is appropriate. The court further concludes that, as part of the stay of disciplinary proceedings, all motions pending before the referee shall also be stayed.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Carol A. Collins is transferred to disability inactive status under Rule 28, RLPR, effective immediately. Further proceedings in this matter, including motions pending before the referee, are stayed until such time as respondent moves for reinstatement. Upon the filing of a petition for reinstatement to active status, the stay of the disciplinary proceedings mil automatically be lifted and a hearing and decision on the pending petition for disciplinary action will be required as a precondition to reinstatement in addition to the requirements of Rules 28(d) and 18, RLPR. Respondent shall comply with Rule 26, RLPR.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST John Dov SCOTT, a Minnesota Attorney, Registration No. 270635.
    No. C9-03-260.
    Supreme Court of Minnesota.
    April 22, 2003.
   AMENDED ORDER

On March 5, 2003, this court suspended respondent John Dov Scott from the practice of law for 30 days, effective 14 days from the date of the order.

The Director of the Office of Lawyers Professional Responsibility has filed an affidavit stating that respondent has filed an affidavit for reinstatement and that to the best of the Director’s knowledge, respondent has complied with all conditions of reinstatement. The Director does not object to the reinstatement of respondent to the practice of law, subject to the requirement in the March 5, 2003, order that respondent successfully complete the professional responsibility bar examination within one year of the date of that order.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent John Dov Scott is reinstated to the practice of law effective immediately. Respondent shall successfully complete the professional responsibility bar examination by March 5, 2004.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice