author: ANDERSON, PAUL H„ Justice.

text:
    Joseph Allen AZURE, petitioner, Appellant. v. STATE of Minnesota, Respondent.
    No. A04-2211.
    Supreme Court of Minnesota.
    July 21, 2005.

      Samuel A. McCloud, McCloud & Boedi-gheimer, P.A., Shakopee, MN, W. Harvey Skees, Paul Egtvedt, Egtvedt & Skees, LLP, Minneapolis, MN, for Appellant.
    Mike Hatch, Minnesota State Attorney General, Kelly O’Neill Moller, Assistant Attorney General, St. Paul, MN, Joseph A. Evans, Becker County Attorney, Detroit Lakes, MN, for Respondent.
   OPINION

ANDERSON, PAUL H„ Justice.

On September 21, 1999, a Becker County District Court jury found appellant Joseph Allen Azure guilty of the first-degree premeditated murder of David King. On direct appeal, Azure claimed that the judge who presided over his trial should have removed himself in accordance with Azure’s oral pretrial request. We affirmed Azure’s conviction. State v. Azure, 621 N.W.2d 721 (Minn.2001).

On July 12, 2004, Azure filed a petition for postconviction relief alleging that (1) the state presented insufficient evidence to sustain a conviction of first-degree premeditated murder; (2) the state committed misconduct during his trial; (3) the trial court erred by denying his change of venue motion; (4) evidence the state presented was obtained in violation of his Fourth Amendment rights; and (5) his trial counsel was ineffective because he made specific errors. The postconviction court summarily denied Azure’s petition for relief on the grounds that the claims raised in the petition were procedurally barred under State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). In his postconviction petition, Azure did not claim that he received ineffective assistance of appellate counsel during his direct appeal, but he did raise this issue in his brief to our court. On appeal, Azure urges us to either remand to the postconviction court for further, findings or review his claims on the merits. We affirm.

On March 31, 1999, appellant Joseph Allen Azure was indicted for first-degree premeditated murder and first-degree intentional murder while committing a drive-by shooting that caused the death of David King. MinmStat. §§ 609.185(1); 609.185(3) (2004). Azure’s trial in Becker County District Court began on September 13, 1999. Eight days later the jury found Azure guilty of first-degree premeditated murder and not guilty of first- and second-degree murder while committing a drive-by shooting. Azure was convicted of first-degree premeditated murder and sentenced to life in prison.

On January 10, 2000, Azure filed a Notice of Appeal, and on June 6, 2000, the State Public Defender’s Office filed a brief on his behalf (Public Defender’s Brief). The Public Defender’s Brief raised two issues: (1) that, as a matter of law, the evidence presented at trial was insufficient to sustain Azure’s conviction of first-degree premeditated murder, and (2) that Azure was denied his right to a fair trial on the issue of premeditation because of the state’s misconduct during its closing argument.

On July 5, 2000 — approximately one month after the Public Defender’s Brief had been filed — Azure retained private counsel to represent him. Azure’s private counsel filed a motion with our court for leave to file a substitute or additional appellate brief. The state filed a response to Azure’s motion and requested that Azure be allowed to file “just one counseled brief, whether it be the one already filed by the State Public Defender or a substitute brief by new counsel.” On July 10, 2000, we issued an order granting Azure leave to file a substitute brief, stating that “[t]he brief served and filed on June 6, 2000, by the public defender is stricken from the record and will not be considered by the court.” Azure’s private counsel then filed a substitute brief (Private Counsel Brief). The Private Counsel Brief did not mention either the sufficiency of evidence or prose-cutorial misconduct claims raised in the Public Defender’s Brief. Rather, it presented only one issue for consideration— whether Azure properly filed his notice of removal regarding the judge who presided over Azure’s trial. Azure, 621 N.W.2d at 722.

We affirmed Azure’s conviction, holding that the trial court did not err in denying Azure’s motion to remove the trial court judge because Azure had failed to file a notice of removal with the court administrator and did not request removal within the time period set forth in Minn. R.Crim. P. 26.03, subd. 13(4). Azure, 621 N.W.2d at 724-25. We did not address the two issues in the stricken Public Defender’s Brief.

Approximately three and one-half years after we affirmed Azure’s conviction, he filed a petition for posteonviction relief. The postconviction court summarily denied Azure’s petition on the grounds that the claims raised in the petition were procedurally barred. See Knaffla, 309 Minn. at 252, 243 N.W.2d at 741. In the current appeal, Azure'asserts that the sufficiency of evidence and prosecutorial misconduct claims raised in the stricken Public Defender’s Brief were properly before us on direct appeal and, because we did not review these claims in his direct appeal, he is entitled to a review on the merits here. Azure also raises the issue for the first time on this appeal that his appellate counsel on his direct appeal was ineffective because his appellate counsel failed to assert the five claims he raised in his post-conviction petition. Azure concedes that he did not expressly raise an ineffective assistance of appellate counsel claim in his postconviction petition, but asserts that, because he has raised the issue in his brief to our court, he preserved the issue for review.

Resolving this case requires a three-part analysis. First, we must consider whether the sufficiency of evidence and prosecutorial misconduct arguments raised in the Public Defender’s Brief were properly before us on direct appeal. Second, we must decide whether, in the current appeal, Azure has properly raised the claim that he received ineffective assistance of appellate counsel on direct appeal. Finally, we must determine whether the postconviction court erred in concluding that each claim raised by Azure in his postconviction petition is procedurally barred.

I.

We first consider whether the issues raised in the Public Defender’s Brief were properly before us on direct appeal and thus warranted review on the merits at that time. Azure argues that “it appears” that all of the arguments contained in the Public Defender’s Brief and the Private Counsel Brief required “judicial determination” on direct appeal. According to Azure, because we did not address these claims in his direct appeal, he is entitled to review on the merits in this postconviction appeal. In making this argument, Azure omits the critically important fact that, on July 10, 2000, we issued an order stating that “[t]he brief served and filed on June 6, 2000, by the public defender is stricken from the record and will not be considered by the court.”

The state argues that the unambiguous wording of this order striking the Public Defender’s Brief “contradicts the claims [Azure] makes now that there was either confusion about what briefs were being considered by this Court on direct appeal or that the issues raised in the public defender’s brief were before this Court but not ruled on.” The state also notes that the Private Counsel Brief could have incorporated the issues raised in the Public Defender’s Brief, but did not, and therefore asserts that the claims raised in the Public Defender’s Brief are not entitled to review on the merits. We agree.

Our July 10 order expressly stated that the Public Defender’s Brief “will not be considered” by our court. Azure’s private counsel was free to incorporate the sufficiency of evidence and prosecutorial misconduct arguments presented in the stricken Public Defender’s brief. Instead, Azure’s counsel raised only the issue of whether Azure’s removal request had been improperly denied. Thus, the sufficiency of evidence and prosecutorial misconduct issues raised in the Public Defender’s Brief were not before us during Azure’s direct appeal. Accordingly, we hold that there is no merit to Azure’s claim that, because we did not address these two issues on direct appeal, he is entitled to review of these issues on the merits in this postconviction appeal.

II.

Next we turn to the question of whether Azure’s failure to expressly raise the issue of ineffective assistance of appellate counsel in his postconviction petition constituted a waiver of his right to have the claim considered in this appeal. Azure concedes in his brief to our court that he “did not simply ask for post-conviction relief under the general legal notion of ‘Ineffective Assistance of Counsel.’ ” Rather, Azure asserts that “he delineated and broke down these arguments so that the trial court would have an opportunity to more fully view the arguments being raised by the Appellant.” The state argues that Azure “waived his ineffective assistance of appellate counsel claim by failing to raise it expressly in his postconviction petition.

“It is well settled that a party may not raise issues for the first time on appeal” from denial of postconviction relief. Robinson v. State, 567 N.W.2d 491, 494 n. 2 (Minn.1997); Matter of Welfare of K.T., 327 N.W.2d 13, 16-17 (Minn.1982). In Robinson, the petitioner alleged in his postconviction petition that he received ineffective assistance of appellate counsel because on direct appeal his counsel failed to raise the issue of whether the trial court had erred in not giving a lesser-included offense jury instruction. 567 N.W.2d. at 495. In his postconviction petition, the petitioner did not name the specific jury instruction about which his counsel should have claimed error. On appeal to our court, however, the petitioner specified that his counsel should have requested a first-degree manslaughter instruction. Id. We refused to review the petitioner’s claim on the merits, stating that “[bjecause it was not raised below, this claim is not properly before this court.” Id. Here, Azure did not even raise the claim of ineffective assistance of appellate counsel in his postconviction petition. Because Azure did not raise the claim in his post-conviction petition and the postconviction court made no findings on the issue, we have no postconviction ruling to review. Accordingly, we hold that Azure’s ineffective assistance of appellate counsel claim has been waived for the purposes of this postconviction appeal.

III.

Finally, we turn to the question of whether the postconviction court; erred when it determined that each of the claims Azure raised in his postconviction petition — including the sufficiency of evidence and prosecutorial misconduct claims originally raised in the stricken Public Defender’s Brief — are procedurally barred. A defendant is permitted to seek postconviction relief “to vacate and set aside the judgment * * * or grant a new trial * * * or make other disposition as may be appropriate.” Minn.Stat. § 590.01, subd. 1 (2004). A postconviction court must grant an evidentiary hearing for any petition filed unless the issues raised in the petition conclusively show that the petitioner is not entitled to relief. Minn.Stat. § 590.04, subd. 1 (2004); Roby v. State, 531 N.W.2d 482, 483 (Minn.1995).

Under the rule established in Knaffla, once a direct appeal has been taken and litigated before our court, all matters raised during that appeal and all claims known but hot raised by the defendant will not be considered upon a subsequent petition for postconviction relief. Carney v. State, 692 N.W.2d 888, 891 (Minn.2005); Ives v. State, 655 N.W.2d 633, 635 (Minn.2003); Knaffla, 309 Minn. at 252, 243 N.W.2d at 741. We have -established two exceptions to the Knaffla rule: (1) where a claim is so novel that the legal basis was not available on direct appeal, and (2) where the petitioner did not “deliberately and inexcusably” fail to raise the Claim on direct appeal and fairness requires its consideration. Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001).

In his postconviction petition, Azure asserted five general claims: (1) the state, presented insufficient evidence to sustain a conviction of first-degree premeditated murder; (2) the state committed misconduct during his trial; (3) the trial court erred by denying his change of venue motion; (4) evidence the state presented was obtained in violation of his Fourth Amendment rights; and (5) his trial counsel was ineffective because he made five specific errors. The postconviction court concluded that Azure’s claims were Knaffla-barred because “the grounds on which [Azure] bases this petition for relief were known but not raised in the direct appeal” and that the exceptions to Knaffla did not apply. We agree.

We first consider Azure’s claims that insufficient evidence was presented to support premeditation, that the state committed misconduct during closing argument, that the trial court erred in denying his change of venue motion, and that evidence presented at trial was obtained in violation of Azure’s Fourth Amendment rights. When Azure directly appealed his conviction to this court, he knew what evidence had been adduced to support the jury’s finding of premeditation, what the state had asserted in its closing argument, that the trial court had denied his change of venue motion, and that the state had obtained evidence pursuant to a search warrant and presented that evidence at trial. Accordingly, because these claims were known but not raised on direct appeal, Azure is entitled to review on the merits only if one of the two exceptions to Knaffla applies. Carney, 692 N.W.2d at 891. The first exception to Knaffla does not apply to these claims because none is so novel that the legal basis was not available on direct appeal. The second exception to Knaffla also does not apply because Azure did not offer any reason in his post-conviction petition for not raising the claims on direct appeal. We therefore hold that the postconviction court did not abuse its discretion in finding that Azure’s claims were procedurally barred. Knaffla, 309 Minn. at 252, 243 N.W.2d at 741.

We next turn to Azure’s claims that his trial counsel was ineffective. Specifically, Azure asserts that his counsel was ineffective when he (1) submitted a “follow-up brief’ to the trial court after the close of arguments without also providing a copy to the state, resulting in the court’s decision to exclude the brief from consideration; (2) failed to .object during closing argument when the state, inter alia, referred to Azure as an “executioner”; (3) failed to make any post-trial motions on behalf of Azure “on any grounds whatsoever despite an apparent factual and procedural basis to do so”; (4) failed to seek a writ of prohibition from the proper appellate authority when the trial judge refused to honor Azure’s request for removal; and (5) failed to bring a timely motion to remove the trial judge under Minn. R.Crim. P. 26.03 (2000).

Each of these ineffective assistance of trial counsel claims was known at the time of direct appeal, as they all involve conduct by Azure’s trial counsel that is discernible from thé trial court record. Accordingly, these claims warrant review only if one of the two exceptions to Knaffla applies. Because none of the ineffective assistance of trial counsel claims is so novel that the legal basis was not available on direct appeal, we conclude the first Knaffla exception does not apply. The second Knaffla exception also does not apply because Azure did not offer any reason in his post-conviction petition for not raising the ineffective assistance of trial counsel claims on direct appeal. Accordingly, we hold that the postconviction court did not abuse its discretion in finding that all of Azure’s ineffective assistance of trial counsel claims were procedurally barred.

Affirmed.

      . Azure also asserted in his postconviction petition that his trial counsel committed "other irregularities in the actions of counsel for Petitioner which could be presented at the hearing on petition in this matter” as well as "all other legal and equitable grounds that may be discovered during these proceedings.” We do not consider such claims, "because a petitioner’s allegations must be 'more than argumentative assertions without factual support.'” Zenanko v. State, 688 N.W.2d 861, 864 n. 2 (Minn.2004) (quoting Hodgson v. State, 540 N.W.2d 515, 517 (Minn.1995)).


source: Caselaw Access Project

author: MEYER, Justice. ANDERSON, PAUL H„ Justice ANDERSON, G. BARRY, Justice BLATZ, Chief Justice PAGE, Justicé

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Diane Marcella HARTMANN, et al., Appellants.
    No. A03-1674.
    Supreme Court of Minnesota.
    July 28, 2005.

      Gary K. Woods, Advocacy Alliance PA, Minneapolis, MN, for Appellants.
    Mike Hatch, Attorney General, St. Paul, MN, Michael K. Junge, McLeod County Attorney, Mark Metz, Asst. McLeod County Attorney, Glencoe, MN, for Respondent.
   OPINION

MEYER, Justice.

Appellants Diane and Michael Hart-mann appeal their convictions of failure to obtain a license to sell meat under Minn. Stat. § 28A.04 (2004) and unauthorized sale of custom-processed meat under MinmStat. § 31A.10(4) (2004). Before the district court and the court of appeals, the Hartmanns argued that their conduct was statutorily exempt from prosecution and also protected by Article XIII, Section 7, of the Minnesota Constitution. Both lower courts concluded that the Hartmanns’ conduct was neither statutorily nor constitutionally exempt from prosecution. We affirm in part and reverse in part.

The Hartmanns own a small organic farm in rural Gibbon, Minnesota, where they raise crops and animals. The cows and hogs raised on the farm by the Hart-manns were custom-processed by Lafayette City Meats in Lafayette, Minnesota. The processed meat was then returned to the Hartmanns, who sold the meat directly to consumers from their van at a residence in Hutchinson, Minnesota. In April 2001, the state began an investigation into the Hartmanns’ meat-selling practices after it received information that they were selling uninspected meat. The state performed surveillance on their activities and on two separate occasions agents of the Department of Agriculture purchased from the Hartmanns small quantities of custom-processed ground beef, wieners, pork chops, beef liver, and bacon. On December 7, 2001, Minnesota Department of Agriculture compliance officer Theresa Chirhart picked up an order of meat from Diane Hartmann outside a van in Hutchinson. After the sale, Chirhart issued Diane Hartmann the following: an order to stop the sale of food without a retail food handler’s license; an order to stop the sale of custom-processed meat; copies of the Minnesota statutes that were the subject of the orders; and a written report. In response, the Hartmanns sent a letter requesting the state’s interpretation of a number of state constitutional and statutory provisions and informing the state that if it failed to respond, the Hartmanns would consider the state in agreement with their interpretation. The state did not respond to this letter.

On March 8, 2002, the state filed criminal complaints against the Hartmanns, charging each of them with one count of failure to obtain a license in violation of Minn.Stat. § 28A.04, and one count of unauthorized sale of custom-processed meat in violation of Minn.Stat. § 31A.10(4). The complaints were mailed to the Hartmanns at a street address, but were returned to the district court because the Hartmanns had no mail receptacle. No further attempt was made to notify the Hartmanns of the complaint against them.

The ease was submitted to the district court on stipulated facts, and the Hart-manns were convicted on both counts. The court of appeals affirmed the convictions, State v. Hartmann, 681 N.W.2d 690, 693 (Minn.App.2004), and we granted review.

I.

The Hartmanns were found guilty of selling their meat products without a license under the Minnesota Consolidated Food Licensing Law, which states: “No person shall engage in the business of manufacturing, processing, selling, handling, or storing food without having first obtained from the commissioner a license for doing such business.” Minn.Stat. § 28A.04, subd. 1 (2004). The Hartmanns claim that they are exempt from this licensing requirement by Minn.Stat. § 28A.15, subds. 1-2 (2004), which provides in pertinent part:

The licensing provisions of sections 28A.01 to 28A.16 shall not apply to the following:
* * * Persons selling the products of the farm or garden occupied and cultivated by them, or to persons not regularly engaged in the business of manufacturing and selling food and who prepare food only on order of and for sale directly to the ultimate consumer, or to educational, charitable or religious organizations not regularly engaged in the business of manufacturing, processing, or selling food at their established educational, charitable or religious institutions.

The language of the first clause of this exclusion is nearly identical to language in the Minnesota Constitution, which provides: “Any person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license therefor.” Minn. Const. art. XIII, § 7. The Hartmanns argue that because the statutory exclusion includes nearly identical language to the Minnesota Constitution, they are constitutionally protected from the licensure requirement.

Several principles of construction guide our analysis of this issue. When examining constitutional provisions, we “give effect to the clear, explicit, unambiguous and ordinary meaning of the language.” Rice v. Connolly, 488 N.W.2d 241, 247 (Minn.1992) (construing the meaning of the words “on-track betting” to determine that telephone wagering and tele-racing were not allowable forms of betting under the Minnesota Constitution because they take place away from the track); State ex rel. Gardner v. Holm, 241 Minn: 125, 129, 62 N.W.2d 52, 55 (1954). We will not “substitute for words used in the constitution having a well-defined meaning other words having a different meaning.” State v. Pett, 253 Minn. 429, 432, 92 N.W.2d 205, 207 (1958) (holding that the phrase “capital offenses” has a clear and well-defined meaning, which is “crimes punishable by death,” and that interpreting it to mean only first-degree murder would constitute a de facto amendment to the Minnesota Constitution, and would be an impermissible act by this court). When considering the ordinary meaning of the words of a constitutional provision, we must construe them “in the light of the social, economic, and political situation of the people at the time of its adoption, as well as subsequent, changes in such conditions.” Rice, 488 N.W.2d at 247 (quoting State ex rel. Chase v. Babcock, 175 Minn. 103, 107, 220 N.W. 408, 410 (1928)).

The state contends, and the court of appeals held, that article XIII, section 7, simply provides that people may sell without a license “cultivated products of the farm” and cultivated products can mean only fruits and vegetables. Hartmann, 681 N.W.2d at 695. The court of appeals concluded that because meat is not “cultivated” it can never be sold without a license. We do not agree with this reading of article XIII, section 7. The language of the provision extends its protection to all products; the only limitation is that the farm or garden must be occupied and cultivated by the seller. This is evidenced by the conjunctive use of “occupied and cultivated” — a product cannot be both occupied and cultivated, but a farm or garden can. Therefore, we conclude that article XIII, section 7, provides that people may sell without a license the product of a' farm or garden so long as the farm or garden is occupied and cultivated by the seller.

The state next argues that even if “products of the farm” are not restricted to fruit and vegetable products, “products” does not include processed meat because meat is no longer in its raw or natural state. The state asserts that once a raw farm product is altered in any way, it no longer qualifies as a product of the farm or garden. Thus, berries, cream, and live pigs are products of the farm, but preserves, butter or cheese, and ham are not. In other words, the state would substitute the words “raw or natural products” for the word “products.” The state offers no authority to support its position, asserting only that any other conclusion would jeopardize the well-being of the public.

We consider whether “product” has a well-defined and clear meaning. Webster’s Dictionary defines “product” as “a thing produced by labor” and a “thing produced by or resulting from a process, as a natural, social, or historical one.” Random House Webster’s Unabridged Dictionary 1544 (2d ed.2001). Black’s defines “product” as: “Something that is distributed commercially for use or consumption and that is usu. (1) tangible personal property, (2) the result of fabrication or processing, and (3) an item that has passed through a chain of commercial distribution before ultimate use or consumption.” Black’s Law Dictionary 1245 (8th ed.2004). Neither of these sources suggests that a product is limited to unprocessed things. To the contrary, both definitions recognize processing as incidental to the making of a product. These dictionary definitions support the generally accepted notion that meat, cheese, and butter are products of the farm.

An opinion of the attorney general from 1939 expressed the view that “meat from animals * * * raised on land occupied by a farmer would be interpreted as ‘products of the farm or garden’ within the meaning of [article XIII, section 7].” Op. Att’y Gen. No. 213 (Dec. 7, 1939). In that opinion, the attorney general cited a case from the District of Columbia, which stated:

[T]he common practice of the country, has been to consider all those things as farming products or agricultural products which had the situs of their production upon the farm, and which were brought into condition for the uses of society by the labor of those engaged in agricultural pursuits, as contra-distinguished from manufacturing or other industrial pursuits.

Id. The attorney general’s opinion, while not binding, is persuasive authority for the proposition that “products of the farm” was understood to include meat, at a time close to the adoption of Minn. Const, art. XIII, § 7. Since we must use the ordinary meaning of constitutional words or phrases in light of the social, economic, and political situation of the people at the time the provision was adopted, we consider documents providing insight into these factors highly persuasive.

The state argues that the Hartmanns’ product is the animal sent to the butcher, but that the end product, the meat, is a product of the butcher’s effort and not the Hartmanns’. The state’s argument would have some merit if the butcher were selling the meat, rather than returning it to the Hartmanns, or if the butcher delivered to the Hartmanns a certain quantity of meat that the butcher had processed from all the animals it received from various farmers. But, the- parties stipulate here that the butcher processed the Hart-manns’ animals individually and kept the finished products separate, ensuring that the Hartmanns received their own animals as processed meat. Thus, the butcher performed one step in creating the final product sold by the Hartmanns, but it cannot accurately be said that the end product was the butcher’s.

The common understanding and dictionary definitions of the word “product,” and the attorney general’s opinion from 1939, lead us to conclude that a product of the farm under article XIII, section 7, may be a processed item and need not be in its “raw or natural” state. Meat is generally understood to be a product of the farm; therefore, we conclude that meat that has been raised on a farm occupied and cultivated by the seller and then processed and returned to the seller is a “product” and may be sold without a license under article XIII, section 7.

We do not believe, however, that article XIII, section 7, can reasonably be read to grant farmers the right to sell products of the farm, the growing or sale of which is otherwise prohibited by law. This provision merely provides that products of the farm for which any person may obtain a sales license; i.e., lawful products, may be sold by farmers without obtaining a license to do so. A license is “formal permission from a governmental or other constituted authority to do something, as to carry on some business or profession.” Webster’s, supra, 1109. Being relieved of the need to obtain a license therefore allows farmers to sell the products of their farm without obtaining the government’s permission. That is not to say that article XIII, section 7, protects farmers from any government regulation of the production of farm products for sale. To regulate is to control or direct by a rule. In other words, we read article XIII, section 7, to exempt farmers from licensure to sell products but not from substantive regulation of the production or sale of their farm products.

The following history of the adoption of Minn. Const, art. XIII, § 7, supports this reading. In 1904, this court decided State v. Jensen, 93 Minn. 88, 100 N.W. 644 (1904). In Jensen, a peddler was convicted of selling melons from his wagon along the streets of Minneapolis without having obtained a license to peddle. Id. at 88-90, 100 N.W. at 644-45. The defendant argued that he was not a peddler, but was a farmer selling his own goods, and therefore he should not be subject to the peddler’s licensing requirement. Id. at 90, 100 N.W. at 645. This court affirmed his conviction, stating:

[T]he fact that the articles sold from house to house are the products of the seller’s own farm or garden offers no just reason why he should not be placed on the same basis as parties who purchase their stock from others. * * * There can be no distinction in principle between the party who peddles his own product, and the one who buys his stock from the producer, and peddles it, and we cannot recognize any such distinction.

Id. at 91, 100 N.W. at 645. The legislature reacted to the Jensen case by proposing an amendment to the Minnesota Constitution, which was heartily ratified by the voters of Minnesota in 1906 and is now codified at article XIII, section 7. William Anderson, A History of the Constitution of Minnesota 157 (1921).

The circumstances leading up to the passage of article XIII, section 7, make clear that the voters of Minnesota intended to protect the commercial relationship between farmers and their customers by restricting the state’s power to license the sale of farm products directly to the consumer. This view is supported by this court’s observation in a 1925 case that article XIII, section 7, gives “recognition [ ] to the fact that tillers of the soil stand in a peculiar position in reference to the marketing of their products, and it prohibits the imposition of a license to sell or peddle the same.” Minnesota Wheat Growers’ Co-op. Marketing Ass’n v. Huggins, 162 Minn. 471, 480, 203 N.W. 420, 424 (1925).

We hold that article XIII, section 7, grants farmers the right to sell products of the farm or garden that they are not otherwise legally prohibited from selling, without obtaining a license. The language of article XIII, section 7, is broad and clear. Defining “products of the farm” to include any farmer’s product for which a license may issue gives effect to the “clear, explicit, unambiguous and ordinary meaning of the language” and honors the intent of the Minnesota voters who ratified Minn. Const, art. XIII, § 7. Therefore, the Hartmanns may not be prosecuted for failure to obtain a license to sell meat products of their farm.

II.

The Hartmanns also challenge their convictions for selling custom-processed meat in violation of Minn.Stat. § 31 A. 10(4), which is part of the Minnesota Meat and Poultry Inspection Act. The Hartmanns challenge this conviction on two grounds. First, they contend that the statutory prohibition on sale of custom-processed meat violates their right to sell the products of their farm protected by Article XIII, Section 7, of the Minnesota Constitution. Second, they argue that Minn.Stat. § 31A.15, subd. 1(1) (2004), exempts them from the prohibition.

Constitutional Claim

The Hartmanns’ constitutional argument based on article XIII, section 7, fails because the right to sell farm products without a license created by that provision is not as broad as they contend. As noted supra, the protection provided by article XIII, section 7, against licensing requirements does not exempt farmers from substantive regulation related to the production or sale of their farm products. Therefore, although article XIII, section 7, exempts a farmer from obtaining a license to sell the products of his or her farm, the farmer is not free to ignore regulations imposed on the production of those products. Similarly, if sale of a particular farm product is otherwise prohibited by law, article XIII, section 7, does not insulate farmers from that prohibition.

Sale of the product at issue here, custom-processed meat, is prohibited by statute. Minn.Stat. § 31A.10(4). The statutory regulation of custom-processed meat is but a small part of a much larger regulatory structure that governs the production and sale of food products in Minnesota for the protection of the public’s health and safety. See, e.g., Minn.Stat. chs. 28A (Licensing Food Handlers); 31 (Food); and 31A (Meat and Poultry Inspection) (2004). In general, processing of meat is governed by regulations that require licensing and inspection of processing facilities; see Minn.Stat. § 28A.04 (2004) (licensing), Minn.Stat. § 31.53 (2004) (inspection of slaughter houses), and Minn.Stat. §§ 31A.03 and 31A.04 (2004) (inspection of animals both before and after processing). Custom-processed meat is subject to less rigorous regulation, in that it is exempted from the requirements for inspection of the animals pre- and post-slaughtering. Minn.Stat. § 31A.15, subd. 1(2). But the trade off for this exemption from these health and safety inspections is that custom-processed meat may not be sold. See MinmStat. § 31A.10(4).

Article XIII, section 7, does not exempt the Hartmanns from this health and safety regulation that prohibits the sale of unin-spected meat. In other words, custom-processed meat is not a product that lawfully may be sold, and the fact that the Hartmanns are constitutionally protected from needing a license to sell lawful products of their farm does not legalize their sale of custom-processed meat. Accordingly, the Hartmanns’ convictions for illegal sale of custom-processed meat did not violate their rights under article XIII, section 7.

The Hartmanns do not make any other coherent constitutional claims with respect to the sale of custom-processed meat. They make a terse reference to a due process claim in their reply brief, in the section addressing their convictions for sale without a license, where they attempt to rebut respondent’s argument that selling farm produce is not a fundamental right. However, neither the Hartmanns’ petition for review to this court nor the statement of issues in their principal brief mentions the Due Process Clause, or any other constitutional provision besides article XIII, section 7; there is no argument regarding due process in the Hartmanns’ principal brief; there is no discussion in either of their briefs of the legal standards applicable to a due process claim and no citation to authority with reference to due process. Vague references to the state’s police power are not enough to invoke an unarticulated and unidentified constitutional protection. We have repeatedly held that failure to argue an issue in a party’s brief constitutes waiver of that issue. See, e.g., In re Application of Olson, 648 N.W.2d 226, 228 (Minn.2002); Koppinger v. City of Fairmont, 311 Minn. 186, 189 n. 2, 248 N.W.2d 708, 711 n. 2 (1976). Although we have not defined in detail what constitutes failure to argue an issue, it should be clear that making only one cryptic reference to a constitutional provision in a reply brief, without any other express explanation, argument, or citation .to relevant authority, is not sufficient. Accordingly, we must conclude that constitutional claims other than those based on article XIII, section 7, have been waived by the Hartmanns.

Statutory Exemption Claim

The Hartmanns also contend that Minn.Stat. § 31A.15, subd. 1(1), exempts them from the prohibition on the sale of custom-processed meat. Section 31A.15, subd. 1, provides:

The provisions of sections 31A.01 to 31A.16 requiring inspection of the slaughter of animals and the preparation of the carcasses, parts of carcasses, meat, * * * and meat food products at establishments conducting slaughter and preparation do not apply:
(1) to the processing by a person of the person’s own animals and the owner’s preparation and transportation in intrastate commerce of the. * * * meat * * * of those animals exclusively for use by the owner and members of the owner’s household, nonpaying guests, and employees; or
(2) to the custom processing by a person of cattle, sheep, swine, poultry or goats delivered by the owner for processing, and the preparation or transportation in intrastate commerce of the * * * meat * * * exclusively for use in the household of the owner by the owner and members of the owner’s household, nonpaying guests, and employees.

The Hartmanns argue that the term “use” in the phrase “exclusively for use by the owner” in clause (1) is not defined and therefore can include the owner’s sale of the processed meat.

The Hartmanns’ reliance on the statutory exemption fails for several reasons. First, clause (1) of subdivision 1 does not apply to the Hartmanns’ circumstances because clause (1) by its terms applies only to “the processing by a person of the person’s own animals.” Id. The Hart-manns did not process their own animals; they sent them to Lafayette City Meats for processing.

In contrast, clause (2) by its terms applies to “custom processing by a person of [animals] delivered by the owner for processing.” Minn.Stat. § 31A.15, subd. 1(2). Custom processing is defined as “slaughtering, [etc.] an animal or processing meat products * * * for the owner of the animal or of the meat products * * * if all meat products * * * derived from the custom operation are returned to the owner * * Minn.Stat. § 31A.02, subd. 5. Plainly, custom processing involves processing of the meat by someone other than the owner, with all of the product returned to the owner. Just as plainly, custom processing does riot include processing of the meat by the owner himself. The exemption provided in clause (1) of section 31A.15, subdivision 1, applies to owner processing, whereas the exemption in clause (2) applies to custom processing. Because the Hartmanns’ meat was custom-processed, they must look to clause (2) for any exemption.

However, one of the conditions of the clause (2) exemption is that meat must be “exclusively for use in the household of the owner by the owner and members of the owner’s household, nonpaying guests, and employees.” Minn.Stat. § 31A.15, subd. 1(2) (emphasis added). The precise language of this exemption “for use in the household of the owner” belies the Hart-manns’ argument that the “use” allowed includes sale of the meat to others.

An additional reason that the statutory exemption does not render the Hartmanns’ conviction for unlawful sales invalid is that the exemption is only from the inspection provisions of the designated statutes. There is no reference at all in the exemption language to the prohibition against sale of custom-processed meat, and therefore no reason to conclude the exemption covers that activity.

For these reasons, the Hartmanns’ constitutional and statutory challenges to their convictions of selling custom-processed meat in violation of Minn.Stat. § 31A.10(4) fail,

III.

In their brief, the Hartmanns argued that the state’s decision to prosecute them after failing to provide them with an administrative hearing is “objective evidence of vindictiveness.” The Hartmanns also cited as further evidence of prosecutorial vindictiveness the state’s failure to resend the complaint against the Hartmanns when it was returned undeliverable, despite having notice that the Hartmanns obtained their mail by general delivery from the Glencoe post office. But, the Hartmanns explicitly abandoned their prosecutorial vindictiveness claim, at oral argument. Therefore, we do not reach the merits of this issue.

Affirmed in part and reversed in part.

ANDERSON, PAUL H„ Justice

(concurring).

I concur in the result reached by the majority and the reasons stated for that result. Nevertheless, I write separately to first acknowledge the attraction of certain aspects of the dissent’s position and second, to explain why I believe it is inappropriate to reach the dissent’s conclusion given the record in this case.

The dissent would have us hold that Minn.Stat. § 31A.10(4) is unconstitutional as applied to the Hartmanns. It may be possible to reach that conclusion, but, to reach it here, it is necessary to go outside of the parameters of the arguments made by the Hartmanns — a concern that has been articulated by the majority. Therefore, I believe the majority is exercising the proper degree of judicial restraint when it declines the dissent’s invitation to expand the reach of this case by sua sponte declaring Minn.Stat. § 31A.10(4) unconstitutional.

The question of whether a statute is unconstitutional is one of “much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case.” Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 128, 3 L.Ed. 162 (1810). We must always proceed on the assumption that a statute is constitutional and “we are required to place a construction on the statute that will find it so if at all possible.” Kline v. Berg Drywall, Inc., 685 N.W.2d 12, 23 (Minn.2004). We exercise our power to declare a statute unconstitutional “with extreme caution.” State v. Harris, 667 N.W.2d 911, 919 (Minn.2003) (quoting State v. Larsen, 650 N.W.2d 144, 147 (Minn.2002)). “Due respect 'for the coequal branches of government” requires us to exercise this restraint. State v. McCoy, 682 N.W.2d 153, 160 (Minn.2004) (quoting State v. Willis, 332 N.W.2d 180, 184 (Minn.1983)).

When the basis for declaring a statute unconstitutional is not argued by the parties in either their briefs or at oral argument, it should be a very rare occasion where we proceed to consider the constitutionality of the statute on unargued and unarticulated grounds. See Maytag Co. v. Comm’r of Taxation, 218 Minn. 460, 462, 17 N.W.2d 37, 39 (1944) (declining to consider the constitutionality of a tax statute when the plaintiff did not argue the issue in its brief or at oral argument). We should not “anticipate a question of constitutional law in advance of the necessity of deciding it.” Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-48, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (quoting Liverpool N.Y. & Phila. S.S. Co. v. Emigration Comm’rs, 113 U.S. 33, 39, 5 S.Ct. 352, 28 L.Ed. 899 (1885)) (Brandeis, J., concurring); see also In re Senty-Haugen, 583 N.W.2d 266, 269-70 n. 3 (Minn.1998) (declining to sua sponte declare a statute unconstitutional); Lisa A. Kloppenberg, Avoiding Constitutional Questions, 35 B.C. L.Rev. 1003 (1994).

Here, neither party specifically raises or argues the specific constitutional grounds that are necessary for the dissent to reach its conclusion that section 31A.10(4) is unconstitutional as applied to the Hartmanns. Without having those arguments presented to us and in the absence of any competing legal analysis of these arguments, I believe the dissent’s conclusion is inappropriate. Therefore, I concur with the majority opinion.

ANDERSON, G. BARRY, Justice

(dissenting).

I agree with the majority’s conclusion that the clear and unambiguous language of Article XIII, Section 7, of the Minnesota Constitution permits any person to sell the products of his or her farm, including meat products, without obtaining a license. But because I also conclude that the majority opinion, by upholding the custom meat processing regulation in the context of the present dispute, guts the constitutional protections granted to farmers to sell their own products, I respectfully dissent.

We today declare, that it is “clear that the voters of Minnesota intended to protect the commercial relationship between farmers and their customers by restricting the state’s power to license the sale of farm products directly to the consumer.” This much the majority grants. The language of article XIII, section 7, the majority says, is “broad and clear.” But then, by adopting a distinction between “pure licensing requirements and substantive regulation,” the majority states that “[ajrticle XIII, section 7, does not exempt the Hart-manns from [Minn.Stat. § 31A.10(4)] that prohibits the sale of uninspected meat.” The distinction the majority draws between licensure and substantive regulation is real, but it cannot be employed, without more, to circumvent-constitutional provisions and the intent of the people of Minnesota.

There "is no dispute that ensuring the safety of the food supply is a valid purpose of regulation, nor is it disputed that inspection is a valid means to that end. Food inspection has a long history in Minnesota — the first sanitary food law giving the Minnesota Dairy and Food Department (the precursor to the current Department of Agriculture) general inspection duties for food-related establishments was promulgated in 1913; state meat inspection, first enacted in 1969, is of more recent vintage. Act of March 6, 1913, ch. 47, 1913 Minn. Laws 41; Act of Apr. 29, 1969, ch. 225, 1969 Minn. Laws 338 (codified at Minn.Stat. ch. 31A. (2004)). What is disputed here is a provision of Minnesota law that permits the custom slaughtering and preparation of animals for use by the immediate family of the farmer. The state alleges, and the majority agrees, that because the statute does not permit sale of custom slaughtered animals by the farmer-owner, such sale is therefore illegal notwithstanding the constitutional prohibition against a licensing requirement.

But in the present case, the state makes no showing that the small-scale sale of custom processed meats by livestock farmers presents a public health risk. Nor does the state attempt to justify the disparate treatment of custom processors of meat and farmers wishing to sell then-meat directly to consumers. Custom processors may, without inspection, process and return meats to individual farmers for use by the farmer, his or her family and employees. Minn.Stat. § 31A.15, subd. 1(2) (2004). Despite the fact that custom processors may return uninspected, processed meats to an unlimited number of qualifying persons for individual use, a farmer may not sell his own custom-processed meats to the public. Id. If the former does not present a public health risk, it is difficult to see how the latter does, especially considering the low volume of sales normally associated with sales by a single farmer. The state makes no showing that the Hartmanns’ sale of the produce of their farm endangers public health any more than does the custom processing and return of uninspected meat for use by farmers, their families and employees. The majority merely notes without analysis that the prohibition of the sale of custom-processed meats is a “trade off’ for exemption from inspections.

A word needs to be said about the underlying arguments offered by the parties. The basis of the state’s argument is that custom processed meat is a threat to public health if offered for sale to the public. This is not illogical but it is unsupported by the statute and the record before us. The legislature could speak clearly on this question, addressing when and where, consistent with public health, a farmer is permitted to sell processed meat that is the product of his or her farm. But this the legislature has not done.

Similarly, implicit in appellant’s argument is the superiority of “organic” meat custom processed by the farmer for sale to the public. Not only is this not self-evident, but, here, too, there is nothing in this record to support such a conclusion. Indeed, it may very well prove that public health demands tight and burdensome regulation of custom processed meat before permitting, if at all, sale of a farmer’s product to the general public.

As footnote four in the majority opinion implicitly demonstrates, the licensing requirement prohibited by Minnesota voters was so onerous (essentially a fee equivalent to nearly 50% of annual household income) as to be an indirect bar to the sale of farm products. The custom slaughter sale ban we consider here has virtually the same effect. I do not contend, and the Hartmanns do not argue, that the voters insulated farmers from public safety regulation. But where the Minnesota Constitution has protected the commercial relationship between a farmer and the farmer’s customers, there needs to be at least some minimal showing that the regulation in question actually addresses public safety issues. This is not a difficult burden to impose on the state; to hold otherwise, however, is to ignore the intent of the voters as expressed in article XIII, section 7, which recognized “the fact that tillers of the soil stand in a peculiar position in reference to the marketing of their products,” Minnesota Wheat Growers’ Co-op. Marketing Assn. v. Huggins, 162 Minn. 471, 480, 203 N.W. 420, 424 (1925). Because I conclude that the prohibition on the sale of custom processed meat found in section 31A.10(4) is unconstitutional as applied to the Hartmanns, I respectfully dissent.

BLATZ, Chief Justice

(dissenting).

I join in the dissent bf Justice G. Barry Anderson.

PAGE, Justicé

(dissenting).

I join in the dissent of Justice G. Barry Anderson.

      . Custom processing is defined as "slaughtering, eviscerating, dressing, or processing an animal or processing meat products * * * for the owner of the animal or of the meat products * * * if all meat products * * * derived from the custom operation are returned to the owner of the animal or of the meat products * * * •’ Minn.stat. § 31A.02, subd. 5 (2004).

      . The court of appeals also held that article XIII, section 7, only protected the activity of peddling. Hartmann, 681 N.W.2d at 694-95. The state now concedes that this is an erroneous reading of the constitutional provision and that both peddling and selling activities are protected. We agree.

      . The court of appeals did not rule on this issue.

      . The license cost $125, which represented nearly 50% of the average farmer's annual income in 1900. See American History: Agriculture, http ://www. answers. com/topic/agriculture.

      . The amendment received 190,897 votes in favor and 34,094 in opposition, out of a total of 284,366 votes. William Anderson, A History of the Constitution of Minnesota 157 (1921).

      . Section 31A.10(4) provides: “No person may, with respect to an animal, carcass, part of a carcass, * * * meat, or meat food product: * * * (4) sell, offer for sale, or possess with intent to self meat derived from custom processing.”

      . The distinction between pure licensing requirements and substantive regulation is also reflected, for example, in the legislature’s Declaration of Policy in the Minnesota Consolidated Food Licensing Law:
      It is hereby declared to be the policy of the legislature, recognizing that food in its various forms is essential to the health and well-being of the people of this state and that its production, processing, packaging, labeling, handling, distribution and sale may create health hazards, misinform consumers, perpetuate frauds or otherwise jeopardize the public health and welfare * * * to require * * * that all producers, processors, packagers, labelers, handlers, distributors and vendors of food, whether or not subject to licensing, shall be required to comply with all applicable mies adopted by the commissioner.

      Minn.Stat. § 28A.02 (2004) (emphasis added).

      . The dissent concludes that the state failed to make a required showing that the statute prohibiting sale of custom-processed meat is rationally related to achievement of a legitimate governmental purpose, citing Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981), and Contos v. Herbst, 278 N.W.2d 732 (Minn.1979). The state is required to make such a showing when a statute is challenged as a violation of equal protection, as in Clover Leaf Creamery, or substantive due process, as in Contos. But the Hartmanns have made no cognizable equal protection or due process challenge. Further, although we express no opinion on the issue because it was not properly raised by the Hartmanns, we note in response to the dissent's suggestion that there is no public health or safety rationale for treating the sale of custom-processed meat differently than the use of such meat in the owner's household, that it is not uncommon for governmental regulation at every level, federal, state, and local, to treat commercial activity differently than the same activity engaged in on a personal, noncommercial basis.

      . By noting the “in the household” phrase that is present in clause (2) and not in clause (1), we do not mean to suggest that "use” in clause (1) may therefore have the broad meaning attributed to it by the Hartmanns. Because clause (1) is inapplicable to the facts of this case, we express no opinion on the scope of that exemption.

      . See the comments of Chief Justice John Marshall in Fletcher v. Peck, where Chief Justice Marshall said:
      The question, whether a law be void for its repugnancy to the constitution, is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative, in a doubtful case. The court, when compelled by duty to render such a judgment, would be unworthy of its station, could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.
      10 U.S. (6 Cranch) 87, 128, 3 L.Ed. 162 (1810).

      . The underlying assumption in this litigation is that the only vehicle available for the Hart-manns to sell directly to the public their own organically raised animal products is by way of the custom processing provisions found at Minn.Stat. § 314A.10(4). In any event, neither party cites any authority for the proposition that the Hartmanns had other options available that would avoid the constitutional interpretation issue presented here.

      . Given the absence of litigation in connection with Article XIII, Section 7, of the Minnesota Constitution, it is perhaps not surprising that it is unclear what standard applies to constitutional analysis of this provision and which party bears the burden of proof in connection with a constitutional challenge. Usually, a statute is presumed valid and the duty is on the challenging' party to prove invalidity. Essling v. Markman, 335 N.W.2d 237, 239 (Minn.1983). But the burden may shift to the state when a law impinges on a right recognized implicitly or explicitly in the constitution. See, e.g., Skeen v. State, 505 N.W.2d 299, 312 (Minn.1993). Similarly, while it is at least arguable that a higher level of scrutiny applies when a challenged statute directly impinges on a right guaranteed by the Minnesota Constitution, see id. at 312-13, here, at the very least, the state must show that the statute ’must be rationally related to achievement of a legitimate governmental purpose. See, e.g., Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981); Contos v. Herbst, 278 N.W.2d 732, 741 (Minn.1979). Because the state is unable to meet these minimal analytical standards, it is not necessary to resolve these issues in' the context of this appeal.
      Additionally, because the Hartmanns have clearly asserted that the sale of their own meat is protected by the Minnesota Constitution, I reject the argument made by the majority and the concurring opinion that the Hartmanns somehow failed to make the required constitutional challenge to the custom slaughtering provision. While greater clarity in the argument would have been helpful, the Hartmanns have claimed from the start of these proceedings that they are constitutionally permitted to sell the products of their farm, e.g., custom slaughtered meat. I believe the issue is adequately preserved for consideration by this court in this criminal prosecution.

      . It is undisputed that Minnesota is far more urban in character than 1906, when Minnesotans amended the state constitution. Yet it is worth noting that according to the Minnesota Department of Agriculture, Minnesota currently ranks 7th in total agricultural production among the states, and is home to some 80,900 farms, comprising 55% of our state's land. And, given that the average Minnesota farm is 344 acres, smaller farm operations are still significant contributors to Minnesota agriculture. Minnesota Department of Agriculture, Minnesota Agriculture: A Profile of Minnesota’s Agriculture and its Contribution to the State Economy at 3 (2004-05), available at http ://www.mda.state.mn.us/maitc/agpro-file.pdf.


author: PER CURIAM. ANDERSON, PAUL H., Justice BLATZ, Chief Justice PAGE, Justice BLATZ, Chief Justice

text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST Richard Edward EDINGER, a Minnesota Attorney, Registration No. 263965.
    No. A04-1276.
    Supreme Court of Minnesota.
    July 28, 2005.

      Kenneth L. Jorgensen, Director, Craig Donald Klausing, Senior Assistant Director, St. Paul, MN, for Appellant.
    Bruce Douglas Quick, Fargo, ND, for Respondent Edinger.
   OPINION

PER CURIAM.

The Director, of the Office of Lawyers Professional Responsibility made inquiries concerning a series of overdrafts from the trust account of attorney Richard Edward Edinger. When Edinger failed to .timely respond to those inquiries and then responded minimally, the Director began a formal disciplinary investigation. During that investigation, Edinger made a series of false statements concerning the nature of the funds deposited in his trust account and why the overdrafts occurred. The Director filed a petition for disciplinary action, alleging both trust account violations and noncooperation with the investigation. Edinger waived a panel proceeding. A referee was appointed and, after a hearing, recommended that Edinger be suspended for S months. The Director disagreed with the referee’s recommendation and requested this court’s review. We accept the referee’s recommendation and determine that Edinger has committed serious misconduct warranting indefinite suspension from the practice of law, with no right to apply for reinstatement for at least 3 months.

Edinger was admitted to practice in Minnesota on May 10, 1996, and also admitted to practice in North Dakota in October 1996. Edinger practices in the Fargo-Moorhead area and focuses his practice on family law and contract public defender work for Cass County, North Dakota.

On January 14, 2002, the Director received a notice pursuant to Minn. R. Prof. Conduct 1.15(j)-(o) that Edinger’s trust account was overdrawn on January 4, 2002. The Director wrote to Edinger on January 15 requesting an explanation for the overdraft and certain documents related to the trust account. Edinger contacted the Director on January 16 to give notice that his trust account was again overdrawn and to request that the Director mail him a copy of the informational trust account brochure. Edinger did not respond to the Director’s January 15 letter. On January 23, the Director received a notice that confirmed a January 15 overdraft on Ed-inger’s trust account.

The Director mailed a second letter on February 8, 2002, to Edinger requesting that he explain the January 4 overdraft. The Director received a fax from Edinger stating that Edinger had mailed his response that same day, but Edinger had not done so. On February 15 and 16, Edinger sent two faxes to the Director containing his explanation for the January 4 overdraft and supporting documentation. Edinger informed the Director that the January 4 overdraft resulted from a delay in depositing a $650 retainer check from a client, W.R. Edinger included a handwritten client subsidiary ledger documenting W.R.’s payment of the retainer. He also explained that the January 15 overdraft was caused by an inadvertent delay in depositing an $840 payment from W.R. for the hiring of an expert witness.

The Director received another notice that Edinger’s trust account was overdrawn on April 15, 2002. The Director wrote to Edinger on April 22 requesting an explanation for the April 15 overdraft and supporting documents, including Ed-inger’s trust account bank statements and client subsidiary ledgers from February through April 2002. By early May 2002, the Director had not received a response from Edinger and the Director sent Ed-inger a follow-up request on May 13. Ed-inger responded to the Director’s request by fax on May 28. The Director also received Edinger’s response by mail on June 7, 2002, but the response was incomplete because it included only Edinger’s April 2002 trust account bank statement. Edinger attributed the April 15 overdraft to the deposit of a check from a client, P.B., that was returned for insufficient funds after Edinger had made expenditures related to P.B.’s case. Edinger included with his explanation a signed statement from P.B. that authorized Edinger to withdraw funds from the client trust account to cover expenses incurred by Ed-inger’s representation of P.B.

The Director wrote to Edinger on June 21, requesting that Edinger submit his May 2002 trust account bank statement, his client subsidiary ledgers, and the trust account check that caused the April 15 overdraft. Edinger responded by fax on July 8, 2002, and informed the Director that the requested documentation had been mailed and that his delay in responding was due to his having been on vacation when the June 21 letter was received. The only document that the Director received from Edinger was a signed statement from a client that the client’s insufficient funds check had caused the April 15 overdraft.

On July 9, 2002, the Director received a notice that Edinger’s trust account was again overdrawn as of July 8. The Director wrote to Edinger on July 10, requesting an explanation for the July 8 overdraft and supporting documentation. The Director also sent a letter to Edinger on July 11 noting that Edinger had failed to fully respond to the Director’s June 21 request and instructing Edinger to appear at a meeting with the Director on August 6, 2002, to discuss the overdrafts. Edinger attended the August 6 meeting and informed the Director that he had closed his client trust account. Edinger also stated that he had mistakenly believed that his secretary had mailed the documents that the Director had requested in the June 21 letter. The Director requested that Ed-inger provide his trust account bank statements and client subsidiary ledgers from April through August 2002, as well as an explanation for the July 2002 overdraft. Edinger partially responded to the Director’s request on August 13 by faxing to the Director his July and August trust account bank statements.

On August 22, the Director received from Edinger: (1) a statement from Ed-inger that the July 8 overdraft resulted from a bookkeeping error; (2) the May through July 2002 trust account bank statements; (3) the subsidiary client ledgers for four clients, P.B., P.D., T.E. and D.M.; and (4) a signed statement from P.B. The P.B. ledger reflected the issuance of several trust account checks for “investigative” and “travel” expenses, an April 22, 2002, cash retainer and a June 8, 2002, $1,292 deposit described as a “Retainer for Investigator (cash).” The Director observed that Edinger’s trust account bank statements reflected significant activity not reflected in Edinger’s subsidiary client ledgers.

The Director initiated a formal disciplinary investigation. The Director wrote to Edinger on September 16, 2002, requesting that within 14 days Edinger provide complete trust account books and records from January 1, 2001, to August 30, 2002. By October 25, the Director had not received the requested documentation from Edinger. The Director sent a letter to Edinger instructing him to appear for a meeting on November 12, 2002, and to bring the requested documentation with him. On November 12, Edinger faxed a letter to the Director requesting that the meeting be rescheduled for November 14 or 15. The meeting was rescheduled for November 14, but Edinger failed to attend and did not explain his absence to the Director.

In February 2003, the Director called Edinger to schedule a meeting for February 19 and to encourage him to participate in the investigation process. Edinger atT tended the meeting and acknowledged that he had not maintained the proper records and that he had used the trust account as a personal account. Edinger produced trust account bank statements for most of the requested period of January 2001 through August 2002, and copies of some trust account checks. The trust account bank statements not produced were for May through July 2001 and for September 2001.

At the February 19 meeting, the Director had requested that by March 5, 2003, Edinger provide a reconstructed trust account checkbook register, missing bank statements, and his original trust account checks. The Director received the missing trust account bank statements and some of Edinger’s original trust account checks on March 7. In the cover letter of Edinger’s March 7 response, Edinger wrote that he had requested the missing cancelled checks and deposit slips, forwarded all originals to the Director, and completed 90% of the reconstructed trust account checkbook register. Edinger also admitted to violating the Minnesota Rules of Professional Conduct by using the trust account to pay his personal expenses and failing to keep appropriate trust account records.

The Director called Edinger on March 21 to request that he send all information that he had received since his last submission on March 7. Edinger agreed to provide that information to the Director but failed to do so. On April 1, 2003, the Director wrote to Edinger again and requested his appearance at an April 10 meeting. On April 10, Edinger’s attorney informed the Director that he would represent Edinger in the Director’s proceedings from that point forward. By January 23, 2004, Edinger’s attorney had provided the Director with most of the requested documentation.

Ultimately, Edinger acknowledged that he had falsified the documentation that he submitted to the Director in order to conceal his misuse of the trust account. Ed-inger’s representations to the Director about W.R. were false. W.R. was Edinger’s former girlfriend and not a client. The $650 deposit into the trust account in her name was a personal loan to Edinger, not a retainer. Edinger admitted that the $840 deposit attributed to W.R. was actually a personal loan to Edinger by another attorney. Edinger also acknowledged that the checks and deposits attributed to P.B. had nothing to do with P.B., but were fabricated to conceal his misuse of the client trust account for personal expenses.

The client subsidiary ledgers for P.D. indicated that Edinger had received a $1,500 settlement check on P.D.’s behalf and had subsequently issued P.D. a trust account check for the same amount. However, Edinger had not received any such funds on P.D.’s behalf. The payment made to P.D. was to settle a dispute over the adequacy of Edinger’s representation.

Likewise, the client subsidiary ledger for T.E. indicated that Edinger had received a $1,208.92 settlement payment on T.E.’s behalf. The ledger reflected that Edinger had paid the $1,208.92 settlement benefits to T.E. Edinger had not received a settlement payment on T.E.’s behalf. In fact, the $1,208.92 payment to T.E. was paid to resolve a dispute about the adequacy of Edinger’s services.

The client subsidiary ledger for D.M. was also false. According to the ledger, Edinger received $2,500 on D.M.’s behalf, and then issued her a check for that same amount. But Edinger did not receive funds on D.M.’s behalf. Edinger issued D.M. a trust account check for $2,500 to resolve a dispute about the adequacy of Edinger’s representation.

On July 14, 2004, the Director filed a petition for disciplinary action. The Honorable Bruce W. Christopherson, Eighth Judicial District, was appointed referee. The referee issued his findings, conclusions and recommendation for discipline on December 27, 2004. The referee found that between January 2001 and August 2002

[Edinger] inappropriately used his trust account as a business/personal account by: (a) disbursing numerous trust account checks in direct payment of personal and/or business expenses; (b) repeatedly depositing his own funds into the account to pay his tax obligations, his secretary’s salary and other personal and/or business expenses; and (c) making cash withdrawals from the account.

The referee further found that Edinger had not complied with Lawyers Professional Responsibility Board Opinion No. 9 from “at least January 2001 to August 2002” by failing to maintain proper trust account client subsidiary ledgers, trial balances, and reconciliations.

To arrive at a recommendation for discipline, the referee considered factors weighing positively in favor of and negatively against Edinger. The positive factors considered were (1) the lack of prior discipline, (2) the lack of actual monetary loss or risk of loss to any client, (3) that none of the funds removed from the trust account should have remained in the trust account, and (4) the relatively small amounts at issue. The negative factors considered were (1) the possible deleterious effect upon any of Edinger’s personal or business creditors, and (2) Edinger’s intentional misleading of the Director during the investigation.

Ultimately,' the referee concluded that Edinger had violated Minn. R. Prof. Conduct 8.1(a)(1) and 8.4(c)-(d) by providing false statements to the Director and preparing and submitting fictitious documents to the Director; Minn. R. Prof. Conduct 8.1(a)(3) and Rule 25, Rules on Lawyers Professional Responsibility (“RLPR”) by failing to cooperate with the Director’s investigation; Minn. R. Prof. Conduct 1.15(a) by using his trust account for personal purposes; and Minn. R. Prof. Conduct 1.15(h) and Lawyers Professional Responsibility Board Opinion No. 9 by failing to maintain the proper trust account books, records, and procedures. The referee recommended that Edinger be suspended from the practice of law for 3 months; be required to comply with Rule 26, RLPR; be assessed costs and disbursements pursuant to Rule 24, RLPR; and be required to comply with the reinstatement requirements of Rule 18(a)-(e), RLPR.

The Director does not challenge the referee’s findings or conclusions but disagrees with the referee’s recommended discipline and requested this court’s review. The Director requests an indefinite suspension for at least 6 months.

Although a referee’s recommendation for discipline carries great weight, we have final responsibility for determining whether discipline is appropriate and, if so, the type of discipline to be imposed. In re Jagiela, 517 N.W.2d 333, 335 (Minn.1994). While we seek consistency, we also examine each case individually and impose sanctions based on unique circumstances of each case. In re Ruffenach, 486 N.W.2d 387, 390 (Minn.1992). To determine appropriate sanctions, we consider our prior disciplinary decisions, any aggravating or mitigating circumstances, and the following four factors: (1) the nature of the misconduct, (2) the cumulative weight of the disciplinary violations, (3) the harm to the public, and (4) the harm to the legal profession. In re Moore, 692 N.W.2d 446, 450 (Minn.2005).

The Director asserts' that 3 months’ suspension is insufficient discipline for Ed-inger’s misconduct. The Director argues that E dinger’s conduct warrants an indefinite suspension of at least 6 months, emphasizing the seriousness of Edinger’s noncooperation and false statements. The Director relies on our prior disciplinary decisions that involved manufacturing documents to conceal misconduct. See, e.g., In re Peterson, 620 N.W.2d 29, 30 (Minn.2000) (ordering 6 months’ suspension for fabricating a homestead waiver); In re Margolis, 570 N.W.2d 688, 689-90, 692 (Minn.1997) (ordering 12 months’ suspension for forging client’s signature on workers’ compensation documents, completing a settlement without the client’s consent, and fabricating file notes to cover up the misconduct); In re Zotaley, 546 N.W.2d 16 (Minn.1996) (ordering 6-month suspension for submitting insurance form from other client’s file); and In re Jagiela, 517 N.W.2d at 335-36 (ordering 6 months’ suspension for backdating an agreement and then producing it in discovery).

Edinger argues that 3 months’ suspension is too severe and would work a hardship on him as a solo practitioner and on the public defense system. Edinger asserts that an adequate discipline would be a public reprimand with 2 years’ probation. Edinger contends that a public reprimand is appropriate because this is his first disciplinary proceeding, he is a solo practitioner providing a crucial public service, and he admitted that his conduct was dishonest and fraudulent. Edinger relies on our prior disciplinary decisions that involved the making of false statements in disciplinary investigations. See, e.g., In re Hoover, 645 N.W.2d 85, 86 (Minn.2002) (ordering public reprimand and probation for using the client trust account for personal expenses and not cooperating in the disciplinary investigation); In re Bidjou, 615 N.W.2d 275, 275 (Minn.2000) (ordering public reprimand for false statements in bar application concerning involvement in prior legal proceedings); In re Iliff, 487 N.W.2d 234, 236 (Minn.1992) (ordering 3 months’ suspension for client neglect and fraudulent response to an ethics complaint where there had been prior discipline).

We recognize that the underlying trust account violations presented no risk of harm to clients and, thus, by themselves, might justify lesser discipline. See, e.g., In re Erickson, 506 N.W.2d 628, 629 (Minn.1993) (60-day suspension for trust account violations without intent to profit, as well as mismanagement of private placement adoption). But we are troubled by the pattern of actions that Edinger took to conceal his misuse of the client trust account. It is imperative that a lawyer fully cooperate with the Director’s inquiries on trust account overdrafts and timely and truthfully respond to any ensuing disciplinary investigation. Failure to cooperate with the disciplinary process is a serious violation and itself warrants discipline, including suspension. In re Flatten, 611 N.W.2d 340, 341, 343 (Minn.2000) (ordering indefinite suspension for complete lack of cooperation in investigation of trust account violations); In re Grzybek, 552 N.W.2d 215, 217 (Minn.1996) (ordering a 6 months’ -suspension, despite absence of direct injury to clients, for attorney’s neglect of client matters and noncooperation with the discipline investigation).

The referee carefully weighed all of these factors. Accordingly, we adopt his recommendation and order that effective 20 days from the date of this opinion Richard Edward Edinger be indefinitely suspended from the practice of law, pay $900 in costs and disbursements pursuant to Rule 24, RLPR, and comply fully with Rule 26, RLPR. Edinger may seek reinstatement after 3 months from the date of this opinion, but must comply fully with Rule 18(a)-(e), RLPR.

So ordered.

ANDERSON, PAUL H., Justice

(dissenting).

I respectfully dissent. Given the nature and degree of Edinger’s misconduct, I conclude that the disciplinary sanction we are imposing is insufficient because it is disproportionate to sanctions we have imposed in other cases. Further, while I am cognizant that Edinger is a solo practitioner and acknowledge the positive benefit that his service as a public defender has for society, I nevertheless disagree with his attempt to use this service as a reason to mitigate the sanction we impose. Given Edinger’s misconduct, I deem it inappropriate to look at the nature of his practice as a mitigating factor.

I would increase the length of time after which Edinger may seek reinstatement from three months to four months. For further explanation of the reasons that underlie my conclusion, see my companion dissent in In re Crandall, 699 N.W.2d 769 (Minn. July 28, 2005), a case heard on the same day we heard this case, which is being released simultaneously with this opinion.

BLATZ, Chief Justice

(dissenting).

I join in the dissent of Justice Paul H. Anderson.

PAGE, Justice

(dissenting).

I respectfully dissent. Given Edinger’s misconduct, I believe that the disciplinary sanction imposed is insufficient to deter other lawyers from engaging in like misconduct.

BLATZ, Chief Justice

(dissenting).

I join in the dissent of Justice Page.

      . The Director alleges that Edinger violated Minn. R. Prof. Conduct 1.15(a) by using his trust account for personal purposes; rule 1.15(h) for failing to maintain proper trust account client subsidiary ledgers, trial balances, and reconciliations; rule 8.1(a)(1) for making false statements in an investigation; rule 8.1(a)(3) for failing to cooperate with the Director; and rules 8.4(c) and (d) for preparing and submitting fictitious client trust ledgers.


author: BLATZ, Chief Justice.

text:
    STATE of Minnesota, Respondent, v. Christopher Fausto CABRERA, Appellant.
    No. A04-1306.
    Supreme Court of Minnesota.
    July 28, 2005.

      Robert D. Miller, Stephan V. Grigsby, Minneapolis, MN, for Appellants.
    Michael A. Hatch, Minnesota Attorney General, St. Paul, MN, Amy Klobuehar, Hennepin County Attorney, David Craig Brown, Assistant County Attorney, Minneapolis, MN, for Respondents.
   OPINION

BLATZ, Chief Justice.

On February 4, 2004, appellant Christopher Fausto Cabrera was found guilty of first-degree murder while committing a drive-by shooting, second-degree intentional murder, and four counts of attempted first-degree murder under Minn.Stat. §§ 609.185(a)(3); 609.19, subd. 1(1); and 609.17 (2004). In addition to raising several pro se issues, appellant argues on appeal that multiple instances of prosecutorial misconduct during closing argument warrant reversal of his conviction. Appellant’s chief claim is that the prosecutor improperly injected race into the closing argument. We reverse and remand.

At approximately 12:00 a.m. on June 22, 2003, appellant went to Stardust, a bar and bowling alley in Minneapolis. He was accompanied by his friend, Tywon Beasley, who was also appellant’s girlfriend’s brother. While at Stardust, appellant was involved in a verbal and physical confrontation with Gwendolyn Carter. Carter was at the bar with her boyfriend, Antoin Crawford; her brother, Terrance Ring-gold; his girlfriend, Tavona Johnson; and a cousin, George Grant. The confrontation between appellant and Carter began when appellant walked across the bar and “[felt] someone’s eyes on him.” He made eye contact with Johnson, walked up to her, and handed her his business card. Carter, who was standing near Johnson, felt someone touch her buttocks. When Carter turned around to see who had touched her, she found appellant standing behind her, and they began arguing.

During the argument, Carter grabbed appellant’s ponytail and refused to let go. Sergeant Andrew Schmidt and Officer David Campbell, two uniformed Minneapolis police officers working off-duty at the bar, attempted to break up the fight, but Carter did not let go of appellant’s ponytail until the officers sprayed a chemical irritant at the group.

Sergeant Schmidt then asked appellant, Beasley, Carter, and the members of Carter’s group to leave Stardust. Sergeant Schmidt followed them out of the bar to the parking lot where he observed them get into their two separate vehicles and then drive out of the parking lot. With appellant in the passenger seat, Beasley drove a teal-green truck out of the parking lot. Soon after the truck exited, Carter’s group left the parking lot in a blue Caprice driven by Grant.

Carter, who was sitting in the front passenger seat of the car, testified at trial that shortly after leaving the Stardust parking lot, she felt a sharp pain and heard screaming from the back seat of the car. She then looked out the window of the Caprice and saw appellant leaning out the window of a truck with a gun in his hand, firing at the Caprice. Grant testified that he stopped the car at a red light when he heard a “pop, pop, pop” sound and “heard the bullets buzzing through.” He “let off the brake” and, swerving to the side of the road, saw appellant leaning out the window of a moving truck while firing a gun at the car.

After Grant stopped the Caprice, Crawford, who was sitting in the back seat of the car, got out and ran back to Stardust to get the off-duty police officers who had broken up the fight earlier. When Sergeant Schmidt and Officer Campbell arrived, Ringgold, who had been shot in the head, was already dead. Carter had been hit in the chest by a bullet, required emergency surgery, and ultimately lost her spleen. Grant and Crawford had also sustained gunshot wounds. Johnson was the only passenger in the car who was not shot. At the scene, the police recovered eight 9mm shell casings.

Appellant and Beasley fled the scene of the crime. Over the course of the next few hours they spent time with Adele, Barrow, the mother of Beasley’s children; Beasley’s parents; and Beasley’s girlfriend. Barrow testified at trial that appellant told her the night of the shooting that he “got in a fight at Stardust and they left and somebody started shooting or — it was shots fired.” He also told her that “he messed up and somebody got shot” and that “he fired shots.”

After a few minutes at Barrow’s home, Beasley and appellant left and went to Beasley’s parents’ house where Beasley’s father, John Harris, was present. Harris testified at trial that appellant told him about the incident at Stardust and said that Beasley “didn’t have anything to do with it.” Harris also said that appellant told him he felt his “life was threatened twice and [he] was scared so [he] shot.”

Later the same morning, Beasley and appellant went to the home of Lavenia Gaines, Beasley’s girlfriend. Testifying for the state, Gaines stated that appellant and Beasley came to her house in the early morning hours of June 22, 2003, and that she and appellant had a conversation about the Stardust incident. According to Gaines, appellant told her that he got in a fight at the bar and “said that he felt bad about what happened and that it was all on him.”

In the days following the shooting, appellant had his teal-green truck painted black and the end-gate removed. After seeing a television news report that played a surveillance video taken at Stardust on the night of the incident, appellant fled “up north” and then took a bus to Texas. After spending approximately one week in Texas, appellant returned to Minnesota and turned himself in to the authorities. Between the time of the shooting and trial, appellant changed his appearance by cutting off his ponytail, shaving his face, and wearing glasses.

Prior to appellant’s trial, Beasley pleaded guilty to aiding an offender after the fact for his role in the shooting. Beasley testified for the state at trial. According to Beasley, he drove the truck out of the Stardust parking lot and was still driving when appellant fired several shots out the front passenger-side window. Beasley’s testimony was corroborated by the testimony of two of the victims, Grant and Carter, who both identified appellant as the person who shot at them from a truck after they left the Stardust. Beasley’s testimony was further corroborated by Barrow, Gaines, and Harris who all testified that, within hours of the incident, appellant told them he was the shooter. In addition, appellant’s uncle, Warren Swanson Jr., testified that he had bought appellant a 9mm handgun several months prior to the shooting.

After the state rested, appellant testified in his own defense. According to appellant, he lent Beasley his 9mm handgun several months before the shooting and Beasley never returned it. Appellant testified that after leaving the Stardust parking lot, he and Beasley switched seats jm the truck and appellant was driving when Beasley unexpectédly fired the gun out of the front passenger window. After appellant heard shots, he looked at Beasley in the passenger seat. Beasley had the gun on his lap — pointed in appellant’s direction — with his finger still on the trigger. Appellant further testified that he did not have conversations with Barrow, Gaines, or Harris in the hours following the shooting and he denied telling them that he was the shooter. Finally, appellant testified that he did not notify the police after the shooting because he was afraid of Beasley and that he was aware at the time of the shooting that Beasley had been in a gang.

In addition to placing the blame on Beasley, appellant’s primary defense strategy was to attack the credibility of the state’s witnesses. This strategy was evident from the defense’s opening statement, examination of the witnesses, and closing argument. For example, when cross-examining the state’s witnesses, the defense asked them questions about their relationships with Beasley, their prior convictions, and prior inconsistent statements. The defense also questioned the state’s three witnesses regarding their knowledge relating to or involvement with gangs. First, the defense asked Sergeant Schmidt, who had worked on a gang strike force, whether he recognized any of the people involved in the altercation at Stardust. Before Sergeant Schmidt answered the question, the state objected and, after a bench conference, the trial court stated on the record that defense counsel should continue the cross-examination of Sergeant Schmidt, but “without any reference to gangs.” Second, during cross-examination of Beasley, the defense elicited that Beasley used to be a member of the Crips gang and had gang tattoos on his body that were visible during the fight at Stardust. Finally, both the state and the defense elicited testimony from Crawford about his past involvement with gangs. In response to questions by the state, Crawford testified that he had been in a gang, but was no longer involved with gangs and that the shooting was unrelated to gang activity. In response to the defense’s questions about Crawford’s gang-related tattoos, Crawford admitted that his gang tattoos were visible during the fight at Stardust. Implicit in the defense’s cross-examination of these three witnesses was that gang rivalry played a role in the shooting.

The defense continued its focus on the credibility of the state’s witnesses during closing argument. The closing argument of the defense wove together parts of the witnesses’ actual statements and appellant’s own testimony in an attempt to cast reasonable doubt on appellant’s guilt. Specifically, the defense noted Beasley’s and Crawford’s gang affiliations, stating:

I submit to you that if truth be told, [the state is] asking you to subscribe and believe gang members.
⅜ ⅜ ⅜ ⅜
You heard from Crawford. Gang Member.
# ⅝ * *
What do we know about Mr. Beasley? Gang Member. We know he’s a tough looking guy, big guy. We know he’s got a criminal history. And I submit to you that violence — he’s no stranger to violence. He’s intimidating and he’s dangerous.

After deliberating, the jury found appellant guilty of first-degree murder by drive-by shooting, second-degree intentional murder, and four counts of attempted first-degree murder. The jury acquitted appellant of first-degree premeditated murder.

On appeal, appellant claims that the prosecutor committed misconduct in his closing argument by: (1) impermissibly injecting race into the trial; (2) commenting on appellant’s opportunity to hear the testimony of all the other witnesses before testifying; (3) offering public policy explanations regarding why first-degree murder by drive-by shooting does not require premeditation; (4) personalizing the victim; and (5) demeaning the defense. In his pro se supplemental brief, appellant also argues that the state failed to disclose the criminal history of two state witnesses, that the prosecutor vouched for a witness in closing argument, and that the cumulative effect of the errors denied him a fair trial.

We begin by addressing appellant’s claim that the prosecutor’s improper injection of race into his closing argument constituted serious prosecutorial misconduct. When faced with serious prosecuto-rial misconduct, we reverse unless the misconduct was harmless beyond a reasonable doubt. See State v. Roman Nose, 667 N.W.2d 386, 401 (2003); State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (Minn.1974). Such misconduct is harmless beyond a reasonable doubt “[i]f the verdict actually rendered was surely unattributable to the error.” State v. Ashby, 567 N.W.2d 21, 28 (1997).

Appellant claims that the prosecutor’s following statement, made during closing argument, constituted serious misconduct:

Prosecutor: Now, the defense case in addition to the — in addition to just throwing mud on young black men and saying that they’re — if they’re young black men they must be in gangs—
Defense: Objection, Your Honor, It was never our contention to be racist in this case.
Court: Overruled. It’s argument.

Appellant argues that the prosecutor committed additional misconduct during its rebuttal following appellant’s closing argument when the prosecutor stated:

Finally, the other thing you didn’t hear in the courtroom, other than counsel who apparently is an expert on gangs, you heard nothing about gangs. You heard nothing about gangs other than what came from the State’s witnesses telling about their past association and some wild and, I submit, racist speculation on the part of counsel here, that because these men who happen to be black are in — have been in gangs in the past, despite their testimony about trying to get on with their lives, that they are people to be feared, they’re rough characters. Well, we know what that’s a code word for. He’s a big, strong black man, but he’s a rough character.
Members of the Jury, this is not about race.

The defense objected to this statement, but was again overruled by the trial court.

We have said that it is improper to inject race into a closing argument when race is not relevant. State v. Ray, 659 N.W.2d 736, 747 (Minn.2003); see also State v. Varner, 643 N.W.2d 298, 304 (Minn.2002). The state argues, however, that the prosecutor in this case did not improperly inject race into the closing argument because “the defense injected the issue of gangs, and by implication race, into the trial.” We disagree. In our view, the record does not support the state’s assertions that the defense was engaging in “wild” “racist speculation” by referring to the witnesses’ gang associations. Rather the defense’s statements were based on testimony elicited at trial regarding Beasley’s and Crawford’s gang affiliations. Further, defense counsel’s statement during closing argument that Beasley was “intimidating” and “dangerous” was relevant to and supported by appellant’s testimony that he did not report the shooting because of his fear of Beasley.

Appellant’s defense was that Beasley was the shooter, that the state’s witnesses were not tó be believed, and that, based on the witnesses’ admitted past gang membership, gang rivalry possibly played a role in the shooting. The defense never mentioned the race of a witness or even implied that race was a factor in this case during his examination of witnesses or in closing argument. Moreover, the defense made timely objections to the prosecutor’s improper statements.

In State v. Ray we stated that the failure to object to improper closing argument may waive a claim of prosecutorial misconduct on appeal and that we “would be concerned if defense counsel were deliberately passing on such an objection with the hope of securing reversible error for appeal.” 659 N.W.2d at 747 n. 4. In the instant case, the defense properly objected to the prosecutor’s improper statements, but was erroneously overruled. Working in tandem, the improper argument and the court’s ruling may have led the jury to conclude that defense counsel himself was racist — an implication wholly unsupported by the record.

The prosecutor is a “minister of justice” whose obligation is “to guard the rights of the accused as well as to enforce the rights of the public.” State v. Salitros, 499 N.W.2d 815, 817 (Minn.1993) (quoting I ABA Standards for Criminal Justice, The Prosecution Function 3-1.1 and commentary at 3.7 (2d ed.1979)); see also State v. Henderson, 620 N.W.2d 688, 701-02 (Minn.2001) (“Prosecutors have an affirmative obligation to ensure that a defendant receives a fair trial.”). We believe that within the context of the record before us, the prosecutor’s allegation that defense counsel was engaging in “racist speculation” was incorrect and undermined the prosecutor’s obligation to ensure that the defendant received a fair trial. We must — and do — take such allegations very seriously. It was up to the jury to judge the weight and credibility of the witnesses’ testimony. The jury should have been free to accept or reject the testimony without the suggestion by the state that the defense theory amounted to “racist speculation.” Accordingly, we conclude that the prosecutor’s statements injecting race into closing argument were serious prosecutorial misconduct.

Our conclusion that serious prose-cutorial misconduct occurred does not end our inquiry. We must also decide whether the verdict was unattributable to the error. See Ashby, 567 N.W.2d at 28. Given the strength of the evidence in this case— Beasley’s testimony, both eyewitnesses’ identifications, and appellant’s admissions — it would be difficult for us not to conclude that the prosecutor’s comments were harmless beyond a reasonable doubt. Nonetheless, as we stated in Varner, “[t]he issue of racial or ethnic bias in the courts * * * is an issue that must be confronted whenever improperly raised in judicial proceedings.” 643 N.W.2d at 305. We believe that these words apply in full force to the case at hand.

Bias often surfaces indirectly or inadvertently and can be difficult to detect. We emphasize, nonetheless, that the improper injection of race “can affect a juror’s impartiality and must be removed from courtroom proceedings to the fullest extent possible.” Id. at 304. Affirming this conviction would undermine our strong commitment to rooting out bias, no matter how subtle, indirect, or veiled. Accordingly, in the interests of justice and in the exercise of our supervisory powers, we reverse appellant’s conviction and remand for a new trial. See Salitros, 499 N.W.2d at 820 (reversing the conviction prophylae-tically in the exercise of the court’s supervisory power and in the interests of justice); State v. Kaiser, 486 N.W.2d 384, 387 (Minn.1992) (same); see also State v. Glaze, 452 N.W.2d 655, 662 (Minn.1990) (concluding that a new trial was not warranted but emphasizing that “[p]rosecutors are officers of the court * * * and we will not hesitate in a suitable case to grant relief in the form of a new trial”).

Reversed and remanded.

      . Because we are reversing and because the additional claims of prosecutorial misconduct were not objected to at trial, we decline to resolve whether the remaining allegations of prosecutorial misconduct constituted plain error. Finally, given the disposition of this case, we do not address appellant’s pro se claims.