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

text:
    STATE of Minnesota, Respondent, v. Vong CHOMNARITH, Appellant.
    No. C2-02-106.
    Supreme Court of Minnesota.
    Jan. 2, 2003.

      John M. Stuart, Minnesota State Public Defender, Theodora Gaitas, Assistant State Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Minnesota. Attorney General, John B. Galus, Assistant Attorney General, St. Paul, MN, Kenneth Kohler, Nobles County Attorney, Worthington, MN, for Respondent.
   OPINION

ANDERSON, Russell A., Justice.

Appellant Vong Chomnarith appeals his conviction of first-degree premeditated murder in connection with the stabbing death of George Berndt, Jr. Chomnarith challenges the sufficiency of the evidence with regard to premeditation and the propriety of witness identification photographs introduced at trial. We affirm.

Vong and Kongpang Chomnarith were married for over 20 years and had five children. They emigrated from Laos to the United States, settling first in Stockton, California. In 1997, the Chomnariths moved to Worthington, Minnesota, where they purchased a home and found employment at the Swift and Company meat-processing plant. Kongpang worked as a meat cutter, and George Berndt, Jr. was her immediate cut supervisor. The Chom-nariths divorced in September 1999. In accordance with the final divorce decree, Kongpang received title to the family’s residence (the “residence”) in Worthing-ton. After the divorce, Kongpang entered into a romantic relationship with Berndt and moved into his house. Chomnarith eventually took another job in Sioux Falls, South Dakota, returning periodically to Worthington on the weekends to visit the children.

On March 17, 2001, Kongpang held a birthday party at the residence for her youngest child. Berndt did not plan to attend. On the day of the party, Berndt drove Kongpang to the residence and left. The agreement between the two was that Kongpang would call Berndt when she was ready to leave the residence. Kongpang’s mother invited Chomnarith to the party. He took an active role by hiring a traditional Laotian music ensemble and cooking food. More than 50 Laotian friends and family members attended the party.

Around midnight, as the party was ending, Chomnarith helped the musicians load their equipment into a van. ■ Berndt arrived at the residence driving Kongpang’s green van. At some point, Chomnarith and Berndt encountered each other in the driveway, where Chomnarith stabbed Berndt several times. Berndt fell to the ground and crawled into the street. Chomnarith entered the residence holding a bloody knife in his right hand. He had blood on his hands, clothes, and face. He told two guests that he had killed Berndt. Chomnarith washed the bloody knife in the sink, placed it in a kitchen drawer, then went upstairs and washed and changed his clothes.

Meanwhile, police responded to a radio dispatch placed at 1:11 a.m. and, upon arrival at the residence, found Berndt lying in the middle of the street in a pool of blood. The police believed Berndt was the victim of a hit-and-run car accident and, after rendering first aid, placed him in an ambulance. Berndt was transported to the hospital where he was pronounced dead at 1:47 a.m. A preliminary examination at the hospital showed he had died of stab wounds. The officers at the residence then began a homicide investigation that led to Chomnarith’s arrest.

During a search of the residence, police recovered a knife from a kitchen drawer. The knife, used in the meat-packing industry to skin and separate flesh from bone, had a six-inch blade and a black plastic handle. Kongpang identified the knife as one she had brought from the Swift plant to the residence during a locker-cleaning procedure at the plant. She had not returned the knife despite her employer’s instructions to do so. Subsequent DNA tests matched traces of blood on the knife to Berndt’s DNA type.

Chomnarith was charged by indictment with first-degree premeditated murder, Minn.Stat. §§ 609.185(1) (2000), 609.11 (2000), second-degree intentional murder, Minn.Stat. §§ 609.19, subd. 1(1) (2000), 609.11, and second-degree felony murder, MinmStat. §§ 609.19, subd. 2(1) (2000), 609.11. Following a contested omnibus hearing, the trial court granted Chomnar-ith’s motion to suppress statements he made to the police on the grounds that he. had not validly waived his Miranda rights. At trial, the state moved to introduce into evidence individual photographs of each Laotian witness, identified by name. Over Chomnarith’s objection that the photographs would unnecessarily emphasize the race of the defendant • and the witnesses in comparison to the victim, the court granted the state’s motion on the condition that .the state introduce similar photographs of all state witnesses.

During trial, the state offered into evidence individual photographs of Laotian witnesses after each witness authenticated his or her photograph. In contrast, the state offered into evidence individual photographs of its nonLaotian witnesses in two groups, representing to the court that the photographs were of the witnesses identified by name. The photographs of the state’s witnesses were all the same size, all in color, and all the names were printed in the same font above the photographs. The trial court’s order allowed Chomnarith to introduce photographs of his witnesses, but Chomnarith’s sole witness declined to be photographed.

The forensic pathologist who conducted the autopsy of Berndt’s body testified at trial that he found nine stab wounds, four of which were deep stab wounds in critical areas: one in the middle of the upper back, another under the arm, another near the collar bone, and another below and behind the right ear. The wound under the arm had a six-inch wound track and left a bruising pattern, suggesting that the assailant inserted the knife all the way to the handle in a forceful manner. The wound near the collar bone severed the victim’s subclavian artery, which typically results in a significant loss of blood and a loss of consciousness within seconds. The victim also appeared to have various bruises and abrasions on his face. A toxicology report indicated that the victim’s blood-alcohol level was .11 percent. The pathologist noted that the blood-alcohol level was most likely higher at the time of death.

The jury found Chomnarith guilty as charged. The trial court entered judgment of conviction for first-degree premeditated murder and sentenced Chomnarith to life in prison. This appeal followed.

I.

Chomnarith contends that the evidence of premeditation was insufficient to support the conviction of first-degree murder. In reviewing a claim of evidentia-ry insufficiency, we view the evidence in a light most favorable to the verdict and assume the fact-finder disbelieved any testimony conflicting with that verdict. State v. Thomas, 590 N.W.2d 755, 757 (Minn.1999). The verdict will not be overturned if, giving due regard to the presumption of innocence and to the prosecution’s burden of proving guilt beyond a reasonable doubt, the jury could reasonably have found the defendant guilty of the charged offense. Id. at 757-58. Circumstantial evidence is entitled to the same weight as any other evidence so long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt. State v. Jones, 516 N.W.2d 545, 549 (Minn.1994). The conviction may stand only where the circumstances form “ ‘a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.’” Id. (quoting State v. Wahlberg, 296 N.W.2d 408, 411 (Minn.1980)).

A person who “causes the death of a human being with premeditation and with intent to effect the death of the person or of another” is guilty of first-degree murder. Minn.Stat. § 609.185(1) (2002). Chomnarith argues that the state’s evidence of premeditation was insufficient to support his conviction. Under the criminal code, premeditation means “to consider, plan or prepare for, or determine to commit, the act referred to prior to its commission.” Minn.Stat. § 609.18 (2002). Premeditation is a state of mind and, thus, generally proven through circumstantial evidence. State v. Cooper, 561 N.W.2d 175, 179 (Minn.1997). “A finding of premeditation does not require proof of extensive planning or preparation to kill, nor does it require any specific period of time for deliberation.” Id. at 180. The state, however, must prove that before the commission of the act, some appreciable amount of time elapsed during which the defendant considered, planned, or prepared for his or her actions. State v. Moore, 481 N.W.2d 355, 361 (Minn.1992).

Evidence relevant to premeditation includes “ ‘facts about how and what the defendant did prior to the actual killing which show he was engaged in activity directed toward the killing, that is, planning activity.’ Id. (emphasis in original) (quoting Wayne R. LaFave & Austin W. Scott, Jr., Handbook on Criminal Law §• 73, at 564-65 (1972)). Accordingly, premeditation may be inferred from evidence of “ ‘prior possession of the murder weapon.’ ” Id. (quoting LaFave & Scott, supra); see, e.g., United States v. Blue Thunder, 604 F.2d 550, 553-54 (8th Cir.1979) (defendant brought butcher knife used as murder weapon to the murder scene); Bangert v. State, 282 N.W.2d 540, 544 (Minn.1979) (defendant carried gun from one area of the house, down a hallway, and into the bedroom of sleeping victims); State v. Merrill, 274 N.W.2d 99, 112, (Minn.1978) (defendant carried knife from kitchen to wounded victim’s bedroom).

Other evidence relevant to premeditation includes “‘facts about the nature of the killing, from which it may be inferred that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design.’ ” Moore, 481 N.W.2d at 361 (quoting LaFave & Scott, supra). Thus, premeditation may be inferred from evidence showing that “‘wounds were deliberately placed at'vital areas of the body.’ ” Id. (quoting LaFave &' Scott, supra); see, e.g., United States v. Treas-Wilson, 3 F.3d 1406, 1410 (10th Cir. 1993) (precise and fatal injury severing the esophagus, trachea and large veins of the neck); United States v. Slader, 791 F.2d 655, 657-58 (8th Cir.1986) (two shots to the back of the head); Merrill, 274 N.W.2d at 112, n. 11 (multiple stab wounds to vital areas of the body).

Here the evidence showed that Chomnarith obtained an industrial grade meat-cutting knife from the residence and had it with him at the mouth of the driveway where he inflicted precise wounds to vital areas of Berndt’s body, including puncturing the lung, penetrating a rib bone, and transecting the subclavian artery. Viewed in a light most favorable to the verdict, we conclude that the totality of the evidence clearly supports the jury’s finding of premeditation and guilt of first-degree murder.

II.

Chomnarith also asserts that the admission of individual photographs of the state’s witnesses and the method by which the photographs were offered into evidence violated his constitutional rights to a fair trial and an impartial jury.’ See U.S. Const. amends. VI, XIV; Minn. Const. art. 1, §§ 6, 7. Rulings on evidentia-ry matters rest within the sound discretion of the trial court, and we will not reverse such evidentiary rulings absent a clear abuse of discretion. State v. Nunn, 561 N.W.2d 902, 906-07 (Minn.1997). The defendant has the burden on appeal of proving both that the trial court abused its discretion by admitting the evidence and that the defendant was thereby prejudiced. Id. at 907. “Reversal is warranted only when the error substantially influences the jury’s decision.” . Id. For constitutional error, however, the inquiry is whether the guilty verdict actually rendered was surely unattributable to the error. State v. Juarez, 572 N.W,2d 286, 292 (Minn.1997) (citing Sullivan v. Louisiana, 508 U.S. 275, 278-82, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993)).

Photographs are generally admissible as evidence if they “‘accurately portray anything which it is competent for a witness to describe in words, or where they are helpful as an aid to. a verbal description of objects and conditions, provided they are relevant, to.some material issue’ ”. State v. Alton, 432 N.W.2d 754, 758 (Minn.1988) (emphasis in original) (quoting State v. DeZeler, 230 Minn. 39, 46-47, 41 N.W.2d 313, 319 (1950)). Chomnarith argues that the photographs of the' trial witnesses were not relevant to any material issue. In response, the state argues that the photographs were relevant to the extent that they assisted the jury in remembering the testimony of each witness, and cites State v. Lane, 582 N.W.2d 256, 259 (Minn.1998), State v. Barbo, 339 N.W.2d 905, 906 (Minn.1983), and State v. Ming Sen Shiue, 326 N.W.2d 648, 653 (Minn.1982), cases in which the jury, during its deliberation, was allowed in the courtroom to rehear portions of testimony and review audiotape or videotape evidence. These cases, however, simply concern the propriety of granting a jury’s request under Minn. R.Crim. P. 26.03, subd. 19(2) to return to the courtroom and review testimony or other evidence relevant to material issues.

We have, of course, allowed police identification photographs, or “mug shots,” of defendants when identification is a key issue. State v. McAdoo, 330 N.W.2d 104, 106 (Minn.1983). We have also allowed photographs showing that “ ‘[t]he victim was not just bones and sinews covered with flesh, but was imbued with the spark of life.’ ” State v. Day, 619 N.W.2d 745, 752 (Minn.2000) (quoting State v. Graham, 371 N.W.2d 204, 207 (Minn.1985)). But we have never condoned the admission of posed photographs of trial witnesses in a criminal matter for the sole purpose of allowing the jury to take them to the jury room in order to associate a name with a face, and the state has provided no authority for doing so.

We have strong reservations about the practice of creating trial witness identification photographs solely for jury deliberations. The trial court instructs the jurors that they are “the sole judges of whether a witness is to be believed and of the weight to be given to the particular testimony.” 10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 3.12 (4th ed.1999). In determining the believability and weight of a witness’s testimony, jurors consider, for example, the “manner” in which the witness testified and also the witness’s “frankness and sincerity, or lack thereof.” Id. The manner of testimony and the sincerity of a witness can best be assessed, we believe, by observation, not by a single posed photograph produced by the state.

Additionally, the method by which the photographs were offered and received is troublesome. We are concerned that the dissimilar means by which the photographs were offered at Chomnar-ith’s trial impermissibly placed race or bias in the courtroom, thereby “inviting [the] jurors to view [the] defendant as coming from a different community than themselves.” State v. Varner, 643 N.W.2d 298, 304 (Minn.2002). Under due process analysis, when racial comments raise serious questions' of possible prejudice, “the relevant question” is whether the comments “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Pickens v. Lockhart, 4 F.3d 1446, 1453 (8th Cir.1993) (improper references to races of victims did not deprive petitioner of fair resentencing hearing) (citations and internal quotations omitted); see Varner, 643 N.W.2d at 306 (race-based juror misconduct warranted a new trial). Under this standard, the state’s method of offering the photographs into evidence, which clearly differentiated between the Laotian and nonLaotian witnesses, was improper. Although improper, it was not so egregious as to deprive Chomnarith of a fair trial, particularly where there was no objection from defense counsel as to the specific method of submission at trial. Likewise, we conclude that the admission of trial witness identification photographs for jury deliberations was improper. On this record, however, this error was also harmless. See Juarez, 572 N.W.2d at 292-93.

Affirmed.

CONCURRENCE

GILBERT, Justice

(concurring).

I concur with the result reached by the majority. I agree with the holding that the admission of trial witness identification photographs for jury deliberations was improper. However, I would respectfully end the opinion with that holding and eliminate the dicta based on supposition and speculation relating to issues that were not properly raised at the trial court level. My concern relates to editorial comments about “tacit racial comment” that did not occur and to the method by which the pictures were offered at trial when no objection as to method occurred during trial. Dicta such as this weakens our jurisprudence and encourages trial lawyers to sit on their hands rather than raise appropriate and timely objections. This deprives the trial court of the opportunity to correct errors as they occur and inappropriately rewards appellate lawyers for creatively coming up with new theories of objection long after trial when no adequate record was made.

      . In support of allowing the photographs, the prosecutor stated:
      Those, Your Honor, are current photographs of several of the witnesses who will testify in this case. * * * I believe all of them are Laotian and, Your Honor, the purpose of offering these current photographs, and you will note that it's not only a photograph, but it also has the person's name on the top, I can tell the Court from my own personal experience reading through this case for the past six-odd months and preparing for trial that sometimes it's very difficult to keep people's names straight when you are not particularly familiar with certain types of pronunciations and spellings. * * * What this does is associates a name with a face.

      . It is true, as the state notes, issues not raised at trial will not be decided on appeal.
        Roby v. State, 547 N.W.2d 354, 357 (Minn.1996). But an appellate court also has a " 'responsibility to review the record even though assignments of error are inadequate' ” when the interests of justice so require. See State v. Post, 512 N.W.2d 99, 103 (Minn.1994) (quoting State v. Peterson, 266 Minn. 77, 83, 123 N.W.2d 177, 182 (1963)). Racial or ethnic bias in the courtroom "must be confronted whenever improperly raised in judicial proceedings.” Varner, 643 N.W.2d at 305. Certainly it can be inferred the state had no intention of making improper use of race given the importance of the credibility of its own witnesses. Nonetheless, the method by which the photographs of these witnesses was offered and received raised serious questions of impermissible tacit racial comment. As for the concern expressed in the concurring opinion that our discussion is mere dicta, the question of racial prejudice was directly involved with the admission of the photographs in the first instance and argued by counsel on appeal. "[TJhere is a distinction between 'ob-iter dictum' and 'judicial dictum,’ the latter constituting an expression emanating from the judicial conscience and the responsibilities that go with it.” State v. Rainer, 258 Minn. 168, 178, 103 N.W.2d 389, 396 (1960).


source: Caselaw Access Project

author: GILBERT, Justice.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Vernon Neal POWERS, Appellant.
    No. C3-01-1478.
    Supreme Court of Minnesota.
    Jan. 2, 2003.

      Melissa Victoria Sheridan, # 180269, Assistant Public Defender, St. Paul, MN, for Appellant.
    Mike Hatch, Minnesota State Attorney General, Thomas R. Ragatz, # 236822, Assistant Attorney General, St. Paul, MN, Patrick A. Oman, Mower County Attorney, Austin, MN, for Respondent. '
   OPINION

GILBERT, Justice.

Appellant, Vernon Powers, was convicted of two counts of first-degree premeditated murder in violation of Minn.Stat. § 609.185(1) (2000), two counts of second-degree intentional murder in violation of Minn.Stat. § 609.19, subd. 1(1) (2002), two counts- of first-degree felony murder in violation of Minn.Stat. § 609.185(3) (2000), two counts of second-degree felony murder in violation of Minn.Stat. § 609.19, subd. 2(1) (2002), one count of first-degree assault in violation of Minn.Stat. § 609.221, subd. 1 (2002), and one count of possession of a pistol by a felon in violation of Minn. Stat. § 624.713, subd. 1(b) (2002). Appellant, in this direct appeal, asks for review on the following grounds: 1) the district court erred by joining appellant with code-fendants for trial and by not issuing a midtrial severance; 2) the district court abused its discretion by not hearing all relevant evidence in a Schwartz hearing into improper contact between a prosecutor and a juror; 3) the prosecutor engaged in prejudicial misconduct during his opening statement and closing argument; 4) the district court erred by conducting several hearings during trial without appellant present; 5) appellant received ineffective assistance of counsel; and 6) selecting a jury with codefendants denied appellant’s right to an impartial jury and adequate voir dire. We affirm.

Juan Ramirez, his 14-year-old nephew, Jorge Ramirez, Raul Gutierrez, Arturo Ca-ballaro-Duran and Benjamin Moreno-Hernandez, all of whom were in town working as roofers, were staying in room 28 of the Downtown Motel in Austin, Minnesota. In the early morning hours of June 30, 2000, a woman knocked on the door of their hotel room. Raul Gutierrez opened the door and the woman entered the room, followed by two men who were both holding guns. The men demanded money from those inside the hotel room. One man stood by the doorway while the other stood by the nightstand. The man by the nightstand came over to the man by the doorway and said, “shoot him, shoot him.” The man standing by the door then started shooting. Juan Ramirez and Raul Gutierrez were both shot numerous times and died as a result of their wounds. Benjamin Moreno-Hernandez was shot too, but his injuries were not fatal.

Appellant and three others were indicted for the murders and assault in room 28. Janea Weinand, one of the four indicted for these crimes, pleaded guilty to two counts of second-degree intentional murder and one count of first-degree assault. Her plea agreement was contingent on her testifying in the trial of the other three defendants, which she did. Appellant, Scot Christian and David Christian were joined for trial pursuant to Minn. R.Crim. P. 17.03, subd. 2(1). A joint jury trial was held and appellant was found guilty on all ten counts. A summary of the evidence brought forth at trial follows.

A Bureau of Criminal Apprehension (BCA) team investigating the crime scene found a Halloween mask underneath the body of Juan Ramirez. A forensic scientist from the BCA testified at trial that the predominant profile of the DNA found on the inside of the mask matched that of appellant, and that the probability of selecting “an unrelated individual at random from the general population that would have had that same profile is one in 700 trillion.” The same BCA scientist examined a shoe left at the crime scene and testified that the predominant DNA profile present in the shoe was that of the appellant; and that the probability of an unrelated person at random having the “same profile is one in 20 billion.”

At the time of the murders, appellant was in Austin and had been staying in the Downtown Motel along with Scot Christian, Janea Weinand, Janet Hall, and Tanisha Patterson. Shortly before the murders, David Christian and Natasha Munos joined the others at the Downtown Motel. Weinand testified at trial that on June 29, 2000, while receiving payment for prostitution, she noticed that Juan Ramirez was carrying a large amount of cash in a red bandana. Weinand then testified that she told Hall and Patterson that Scot Christian and appellant should be informed about the man with the money so they could rob him. Weinand also testified that later that evening appellant, Scot Christian, David Christian, Patterson and Hall discussed the plan for the robbery. Weinand testified that immediately before leaving the hotel room she, appellant, Scot Christian and David Christian discussed the robbery while two guns, two masks, some nylons and handcuffs lay on the bed. According to Weinand, in the early morning hours of June 30, 2000, the group, having packed their belongings into the appellant’s Dodge Durango, got in, and David Christian backed the truck into a spot near room 28. Weinand exited the truck and knocked on the door of room 26. Appellant and Scot Christian stood facing'Weinand while she knocked. When there was no response, she realized she had the wrong room and moved on to room 28. , Appellant was wearing a “Scream mask,” and Scot Christian was wearing the “mask of a bald headed white guy.” Raul Gutierrez opened the door and Weinand entered, followed by Scot Christian and appellant.

Appellant testified at trial that he was in room 28 with Weinand and Scot Christian the night of the murders but was unaware of any plan to rob the men inside. Appellant testified that once inside the room, Scot Christian turned to him and Weinand and asked, “Who owes the money?” Immediately thereafter, a scuffle broke out and a Mexican man yelled, “Shoot ’em. Shoot ’em.” Appellant went on to claim that a shot rang out from the direction of the room where Scot Christian and occupants of the motel room were standing. Appellant ducked down, his hands touching the ground. He then heard shots coming from directly behind him. Appellant turned around and saw Weinand head toward the Durango. A few seconds later, appellant spun around to leave the room,stumbled and lost his shoe in the process. Appellant admitted the mask found in the motel room was his, but denied having brought it to the motel room that night.

Appellant’s version of the facts that night is contradicted by the testimony of his companions and the testimony of those inside room 28. Janea Weinand and Tanisha Patterson both testified that appellant was party to the planning of the robbery. Weinand testified appellant was in' the motel room when the guns, masks and nylons were'lying on the bed. Jorge Ramirez testified that two men came ihto the room carrying guns and idéntified appellant as the man standing hext to the door who first fired his weapon. Benjamin Moreno-Hernandez testified that two men entered the room demanding money and that each had a gun. Arturo Caballaro-Duran also testified that two men came into the room pointing guns. Natasha Munos testified that Weinand returned before appellant and Scot Christian, that the shooting started after Weinand had returned to the Du-rango and she saw appellant stumble out of the motel room shooting. Janet Hall also testified that Weinand returned to the truck before the shooting started and appellant and Scot Christian returned later.

Once appellant and Scot Christian re-turned, David Christian drove the group out of town. Hall testified that she saw appellant and Scot Christian throw a wallet and a jacket out the window as the Durango left Austin. Weinand and Munos also both testified that a jacket was thrown out the window. On Friday morning, June 30, 2000, the group arrived back in St. Paul. Appellant, Scot and David Christian, Tanisha Patterson and Natasha Munos stayed at Weinand’s house. Weinand testified that while at the house she, appellant, Scot Christian, Munos and Patterson discussed leaving town and that Scot Christian, Patterson and Munos left the house to obtain fake identification to facilitate travel out of the state. Patterson and Munos corroborated that fact; both testified that they left the house to get fake identification. Weinand also testified that at around 5:00 or 6:00 p.m. appellant became concerned that the police had picked up the members of the group who had left to get fake identification. Either appellant or David Christian took two guns from under the couch. The guns were then wrapped in a beach towel and placed in appellant’s Oldsmobile Bravada parked outside. Appellant then directed Weinand to park the vehicle somewhere else so the police, if they came, would not be able to find the guns.

That evening, appellant’s girlfriend called and notified him that the license plate number from his truck was on the news. Appellant then decided that they needed to come up with a story to tell the police. He called Janet Hall and a story was concocted. Weinand called her mother and was instructed by appellant to leave a message describing where the Bravada was parked, informing her mother that the keys would be in the apartment, and instructing her to clean up the truck. Later that same day appellant and David Christian were arrested outside of Weinand’s apartment. Weinand’s mother, Linda Thomas, testified at trial that she did begin to clean out the Bravada pursuant to the instructions she had received. She found two guns and put them in a bag. She then took the vehicle to Minneapolis and sold it to a drug dealer for $40 to prevent it from being connected to her or her daughter. After talking to her lawyer, she turned the two guns over to the police.

I.

Appellant argues joinder was inappropriate in this case, that the district court committed reversible error by joining appellant for trial with codefendants Scot and David Christian, and that the subsequent failure to sever appellant’s case mid-trial was reversible error.

The district court, in its December 28, 2000 omnibus order, joined for trial the cases of appellant, Scot Christian, and David Christian. In making this decision the district court looked to Minn. R.Crim. P. 17.03, subd. 2(1). Appellant contends that although the district court appropriately relied on Minn. R.Crim. P. 17.03, subd. 2(1) as the standard for whether a joint trial is appropriate, the facts in this case did not support joinder. This court reviews district court rulings on joinder of defendants by making, “an independent inquiry into any substantial prejudice to defendants that may have resulted from their being joined for trial.” State v. DeVerney, 592 N.W.2d 837, 841 (Minn.1999) (quoting State v. Hathaway, 379 N.W.2d 498, 502 (Minn.1985)). Minnesota Rules of Criminal Procedure 17.03, subd. 2(1) states:

When two or more defendants are jointly charged with a felony, they may be tried separately or jointly in the discretion of the court. In making its determination on whether to order joinder or separate trials, the court shall consider the nature of the offense charged, the impact on the victim, the potential prejudice to the defendant, and the interests of justice.

We will address each of the four factors in turn. The district court found that the nature of the offense charged favored joinder. We agree. Joinder is appropriate when codefendants act in close concert with one another. DeVerney, 592 N.W.2d at 842. In this case, the appellant, Scot Christian and David Christian each played a role in a joint scheme to perpetrate an aggravated robbery. The code-fendants each were involved in discussions to plan the crime, each had a role in the scheme, two possessed loaded pistols that were used in the robbery and all worked together to accomplish a criminal objective. They fled the scene of the crime together and once back in the metro area, together endeavored to hide evidence and fashion a plan to avoid prosecution by leaving the state.

The next factor to be considered is impact on the victim. The district court found that multiple trials would have some negative impact on the ■ surviving shooting victim and that other eyewitnesses to the shootings would be traumatized if compelled to testify to the same facts on numerous occasions. Based on our independent review of the record, the violent nature of the crime charged, the number of people involved, and the actions of appellant and codefendants to avoid apprehension immediately following the crime, we conclude that the factor of victim impact favored joinder.

We now move to a discussion of potentially antagonistic defenses. The district court found that none of the defendants had shown or identified any potentially antagonistic or inconsistent defenses to be asserted at trial, relying on Santiago v. State, 617 N.W.2d 632 (Minn.App.2000). Subsequently, this court reversed the court of appeals and held that the district court erred by not granting the defendant’s pretrial motion for severance. Santiago v. State, 644 N.W.2d 425, 447 (Minn.2002). We stated that “Santiago presented sufficiently specific evidence that his defense theory was antagonistic to [code-fendant’s] defense theory.” Id. at 446. In Santiago, the two defendants pointed the finger at each other and sought to shift blame for the shooting to the other. Id. at 446. However, in the case before us, there was not sufficient evidence that antagonistic defenses existed. At the November 3, 2000 pretrial hearing addressing the issue of joinder, appellant’s counsel argued that as family, Scot and David Christian and their half sister, Janet Hall, would be inclined to point the finger at the appellant, while admitting these individuals had said nothing to support that theory.

General concern on the behalf of defense counsel that familial bonds will work against his client is not adequate to demonstrate the existence of inconsistent or antagonistic defenses. Absent an offer of proof or the identification of any inconsistent or antagonistic defenses by the appellant, there was no indication that join-der would substantially prejudice his trial. We conclude that based on the failure to show the existence of antagonistic defenses, joinder did not create the potential for prejudice to the appellant. - Furthermore, the district court commented in its order about its ability to address any potential prejudice that may arise at the trial with the power to .sever pursuant to Minn. R.Crim. P. 17.03, subd. 3(3).

The district court found that the interests of justice also weighed in favor of granting the state’s motion to join the trials of appellant, Scot Christian and David Christian. That decision was based on the belief that separate trials would drag on for a long time and could prejudice potential jurors through the publicity related to each trial. The district court also found that separate trials would create difficulty because several potential witnesses were foreign nationals, and because Bureau of Criminal Apprehension personnel would have to travel from St. Paul to Austin.

Appellant claims that ■ the subsequent change of venue from Mower County to Dakota County eliminated the problem of travel for the witnesses .from the BCA. While this is true, the other factors cited by the district court in support of joinder remained even after the change of venue.

Appellant also asserts that the primary justice interest in this case should be providing a fair trial for each defendant. Under Minnesota law, however, there is no presumption that a joint trial will deny the defendant the right to a fair trial. See Santiago, 644 N.W.2d at 446. Indeed, that determination has been left to the sound discretion of the district court. See Minn. R.Crim. P. 17.03, subd. 2(1). The interests of justice are one of four factors to be considered by the district court when determining whether a joint trial would be a fair trial. Arguing that a joint trial itself is against the interest of justice is flawed. A defendant should demonstrate how the interests of justice are affected in a joint trial such that joinder would result in the denial of a fair trial. We conclude that all four factors found in Minn. R.Crim. P. 17.03 favored joinder and, therefore, appellant did not suffer substantial prejudice by being joined for trial. Accordingly, wé affirm the district court ruling to join for trial appellant and codefendants Scot Christian and David Christian.

Next, we address the question of midtrial severance. The standard for midtrial severance is set out in Minn. R.Crim. P. 17.03, subd. 3(3), which states:

The court shall sever defendants during trial with the defendant’s consent or upon a finding of manifest necessity, if the court determines severance is necessary to achieve a fair determination of the guilt or innocence of one or more of the defendants.

The defendant made two midtrial motions for severance, both during jury selection. The first came in response to a codefendant striking a juror whom appellant found acceptable. The second was made when codefendant Scot Christian requested the right to proceed pro se. In his arguments to this court on severance, appellant does not rely on these motions. Issues not addressed by a party’s brief are considered waived, and we will not address those two motions here. See Scruggs v. State, 484 N.W.2d 21, 27 n. 1 (Minn.1992).

Although no further motions for midtrial severance were made, appellant now argues that on cross-examination of some of the witnesses, Scot Christian’s attorney pointed to appellant as the shooter while David Christian’s attorney’s cross-examination of some witnesses depicted appellant as the ring leader, citing both as evidence of antagonistic defenses. The standard for midtrial severance is higher than that for pretrial severance. Santiago, 644 N.W.2d at 448. Thus, when antagonistic defenses arise during the course of trial the judge may sever, either in response to a party’s motion or sua sponte, only if the fair determination test has been met. See Minn. R.Crim. P. 17.03, subd. 3(3). Because appellant did not move for midtrial severance when these incidents occurred, this court will only review the trial court’s application of the fair determination test if there was “(1) error; (2) that is plain; and (3) the error must affect substantial rights.” State v. Griller, 583 N.W.2d 736, 740 (Minn.1998) (citing Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)); Minn. R.Crim. P. 31.02. Further, even if the error meets all three criteria, this court will decide if it must be addressed to “ensure fairness and the integrity of the judicial proceedings.” Griller, 583 N.W.2d at 740.

The fair determination test required under Minn. R.Crim. P. 17.03, subd. 3(3) has two parts: “whether (1) the trier of fact is able to distinguish the evidence and apply the law intelligently as to each defendant, and (2) [whether] the defendants have inconsistent or antagonistic defenses.” Santiago, 644 N.W.2d at 448. The judge instructed the jury to consider the evidence against each defendant separately. There is no reason to believe the jury would be unable to intelligently apply the law to each defendant. Therefore, our analysis will focus on part two of the two-part test. As in Santiago, we must determine whether severance was required for the fact finder to reach a fair determination of appellant’s guilt or innocence. See id. at 449. In Santiago, we were presented with a case where each defendant attempted to depict the other as the shooter and numerous motions for midtrial severance were made. Id. at 434-36, 449. Here, we must first examine the defense theories of all three codefendants and determine if it was error for the district court to fail to sua sponte order a midtrial severance, when none of the three code-fendants made such a request on his own behalf.

Appellant correctly points out that at times in their respective cross-examinations of the state’s witnesses, the attorneys for the Christian brothers did ask questions highlighting appellant’s role in the aggravated robbery and murder. Questions relating to threats, cover up, disposing of evidence and prostitution were posed to two of the state’s 23 witnesses, by codefendant’s counsel. However, when considered in light of the overwhelming evidence of a joint and common robbery scheme, these questions did not present prejudicial antagonistic defense issues, as in Santiago. This is especially true where there was evidence of two shooters and two guns and the questioning in issue was not exculpatory as to any of the defendants but merely clarified the roles played by each of the participants in this joint crime.

Appellant also points to a question from a codefendant’s attorney’s cross-examination of Munos, which clarified that she had witnessed appellant shooting. This question merely sought to clarify what was already in the record and was not sufficiently prejudicial to demonstrate the existence of antagonistic defenses. The record demonstrated there were two individuals who fired the shots in question. It is clear from a thorough review of the entire record that the instances cited by the appellant as proof of the existence of antagonistic defenses were at most clarifications elicited in the context of what were otherwise consistent and collaborative defenses.

Clear evidence of the lack of antagonistic defenses can be found in the passive manner in which each codefendant cross-examined appellant and the content of each codefendant’s closing argument. On cross-examination, neither of the codefend-ants’ counsel attempted to undermine any of appellant’s testimony. Indeed, each looked to appellant to bolster his own case and present exculpatory evidence, which appellant attempted to provide. In closing argument as well, all three codefendants attempted to cast doubt on the testimony of the state’s witnesses, and did not attempt to shift blame from one defendant to another. The lack of an antagonistic cross-examination of appellant by his code-fendants, the absence of any motion for midtrial severance after jury selection by any of the codefendants, and the presentation of compatible closing arguments, clearly demonstrate that the theories of defense were not antagonistic. Having concluded that the defenses presented at trial by Scot Christian, David Christian and appellant were not antagonistic, we conclude that the district court did not err by failing to sua sponte sever appellant’s case midtrial.

II.

Appellant contends that the district court abused its discretion by refusing to hear all the relevant evidence to determine if a private communication between the prosecutor and a juror improperly influenced the juror. Late in the ⅛⅛1,. counsel for appellant relayed to the-judge a report from a friend of appellant that-there had been improper contact between a prosecutor and a juror at a local restaurant during lunch. According to appellant’s counsel, the witness to the exchange heard the prosecutor say, “we are about to blow it up” or “it’s about to blow up” and the juror responded by mumbling something or laughing. The prosecutor upon hearing the allegation claimed that he had said, “done soon” or “should be done soon.” The judge decided not to hear from the witness to the interaction, and instead opted to only conduct an un-sworn examination of the juror involved, believing this was the appropriate manner in which to conduct a Schwartz hearing. When questioned, the juror told the court that, in passing, the prosecutor had said, “It’s winding down” and did not believe that the few seconds long interaction was an attempt to influence him.

This court has found, “that the manner in which a Schwartz hearing is conducted rests within the sound discretion of the trial court.” State v. Olkon, 299 N.W.2d 89, 109 (Minn.1980). We conclude that the. judge did not abuse his discretion by limiting the examination to the juror involved. It was also proper for the judge to accept as an offer of proof defense counsel’s assertion of what the witness to the interaction had told him. There was no objection at trial as to the manner in which the Schwartz hearing was conducted. Having taken notice of the substance of the alleged improper influence, an examination of the juror was sufficient to find that the contact, beyond a reasonable doubt, would not contribute to the jury’s verdict.

III.

Appellant claims that the prosecutor deprived him of his right to a fair trial by engaging in prejudicial misconduct during his opening statement and closing argument. This court reviews claims of prosecutorial misconduct and will reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial. State v. Johnson, 616 N.W.2d 720, 727-28 (Minn.2000). When assessing prosecutorial misconduct, the closing argument will be considered as a whole. Id. at 728. There are two distinct standards. If the misconduct was serious, “the misconduct is harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error.” State v. Hunt, 615 N.W.2d 294, 802 (Minn.2000). For less serious misconduct, the standard is “whether the misconduct likely played a substantial part in influencing the jury to convict.” Id. If the defendant failed to object to the misconduct at trial, he forfeits the right to have the. issue considered on appeal, but if the error is sufficient, this court may review. State v. Sanders, 598 N.W.2d 650, 656 (Minn.1999).

Appellant asserts that in the following statement from closing argument the prosecutor improperly asserted his opinion that appellant’s testimony was a he and that the sarcastic nature of the prosecutor’s comment compounded the misconduct.

Well, I’m not sure I have the energy to dignify and talk to you about Vernon Powers’ testimony in here. I just don’t think I can do it, and I’m not going to.

A prosecutor engages in misconduct if he expresses his personal opinion on the defendant’s credibility as a witness. State v. Ture, 353 N.W.2d 502, 516 (Minn.1984). This court has also held that it is misconduct to disparage the defense. State v. Griese, 565 N.W.2d 419, 427 (Minn.1997). The comment by the prosecutor does seem to disparage the defense and express an opinion on the credibility of the defendant. However, when viewed in context of the closing argument taken as a whole, as required under our case law, the statement does not amount to misconduct. Johnson, 616 N.W.2d at 727-28. The improper statement was only two sentences in a closing argument that amounted to over 20 transcribed pages.

The defendant also claims that the prosecutor engaged in misconduct during opening statement and closing argument by asking the jury to seek justice beyond the parameters of the case. The prosecutor brought his opening statement to a close as follows:

Now, when we are done presenting these witnesses, Ladies and Gentlemen, we are going to ask you, like we already have, as citizens to come into this court to take a week out of your life to do the right thing. * * * We are asking you to find some justice for the people of Minnesota.

Appellant also points to the following excerpts from the prosecution’s closing argument in support of this claim:

Now, in my opening statement I asked you folks to seek justice, and one of the defense attorneys objected. I am asking you again now. Now I am asking you to seek justice, and I am asking you to do it without any objection. I am asking you to take this evidence and do the right thing with it. That’s what we are asking you to do. We are just asking you to do the right thing.
⅜ ⅜ ⅜ ⅜
One last thing, folks, about that justice thing — you know, many years ago Edmond Burke, an old English jurist, said, “The only way for evil to triumph is when good people do nothing.” Now it’s up to you folks. You can either let evil prevail in this or justice prevail, and I am asking [you to do the] right thing.

It is improper for a prosecutor to “seek justice beyond the parameters of the case.” State v. Atkins, 543 N.W.2d 642, 648 (Minn.1996). However, in Atkins we stated that it was proper for a prosecutor to ask the jury to “seek justice.” Id. The mere addition of the phrase, “for the people of Minnesota,” is not improper. The language used does not encourage the jurors to consider issues beyond the parameters of the case, nor does it hold the jury to a higher standard than is their obligation under the law.

The quotation from Burke is more troubling, however, because it was an improper call for justice beyond the parameters of the case. Nonetheless, in State v. Stufflebean, 329 N.W.2d 314, 318 (Minn.1983), this court held substantially similar language to be “technically improper” but not warranting reversal. We reiterate the improper nature of such arguments, but we conclude that those comments do not warrant reversal.

IV.

Appellant alleges that his absence from a hearing relative to a motion to dismiss counsel, a hearing with a juror regarding improper contact between the juror and the prosecutor, and a hearing to respond to questions by the jury during deliberations, amount to reversible error. Minnesota Rules of Criminal Procedure 26.03, subd. 1(1) states: “The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the. imposition of sentence, except as otherwise provided by these rules.” In State v. Ware, 498 N.W.2d 454, .457 (Minn.1993), this court held that the right to be present is broader under the Minnesota Rules of Criminal Procedure than under the United States Constitution. In this case, the district court erred by not having appellant present at each of the three hearings of which appellant now complains. However, mere error will not result in relief for the appellant, if the error was harmless beyond a reasonable doubt. See id.

The first hearing from which the defendant was absent was an examination of his counsel by the trial judge. ’ During the trial appellant made a motion to replace counsel. The judge held a hearing into the. matter with appellant present. Appellant made an oral presentation of his motion to replace counsel. In that presentation he alleged that he had communicated in confidence with Sara Jane Olson, one of his attorneys, before he discovered that she was married to an attorney in the Mower County Attorney’s Office. He concluded his oral presentation by moving to have new attorneys assigned and a continuance, issued.

The judge asked Olson whether she had disclosed to her client the fact that she was married to an attorney in the Mower County Attorney’s Office. Olson responded that she had disclosed the relationship the first time she met with appellant, in July of the preceding year. The judge noted that appellant had presented an ex parte motion to substitute counsel.months before the trial, which was denied by the-court in a written ruling. Having- found that each of the matters raised. by -the appellant in this new motion were known months before the trial and that the purpose behind the motion was to obtain a continuance and a severance, the judge concluded the hearing by denying all the motions brought by the appellant.

Later that same day the court held a hearing that appellant alleges he was absent from and did not know about until reviewing the transcript in preparation for this appeal. During this courtroom hearing the judge asked Olson three questions: whether formal waiver was given, whether appellant had objected to her representation of him for reasons of any relationship, and whether she had discussions or made disclosures to members of the Mower County Attorney’s Office. Olson replied as follows: no formal written waiver was given, appellant had expressed concerns about the relationship, but in their many discussions on .the issue consistently wished she continue in her representation, and she had not disclosed information to any member of the Mower County Attorney’s Office.

The court made no ruling at the conclusion of the hearing. The timing, brevity and- content of the hearing give the proceeding the character of a mere supplement to the record of the morning-hearing. Appellant’s presence at the hearing could not have-changed the judge’s ruling made earlier the same day when the judge ruled that appellant had known of the matters raised in his brief months before he presented his motion at trial. The court ruled that there was not sufficient basis to either substitute counsel or continue the matter. There is no evidence to indicate that appellant’s presence at the afternoon hearing could have changed the result. Olson claimed to have discussed the matter with appellant in the afternoon hearing, just as she had done in the morning hearing. She admitted that appellant had signed no ■written waiver, a fact that in no way worked against appellant’s pro se motion. Finally, Olson denied having disclosed any information to the Mower County Attorney’s Office. Appellant, had he been present, would not have been able to cast doubt on that response.

Appellant was also absent during the Schwartz hearing, where the judge examined the juror involved in the improper contact with the prosecutor. The nature of the contact between the prosecutor and the juror was so brief and innocuous that appellant’s absence at the hearing into the matter can be considered nothing more than harmless error.

Appellant was also absent from a hearing conducted by the judge to respond to a question from the jury during the course of their deliberations. The question was, “If we find one defendant guilty of First Degree Premeditated Murder, does the other shooter’s charge automatically become premeditated murder based upon liability for crimes of another?” The judge conducted a hearing with the attorneys for all parties present, but in the absence of the defendants. The judge then brought the jury into the courtroom and referred the jury to the relevant sections of the previously issued jury instructions.

In other cases where the issue of the absence of the defendant from the judge’s response to a jury question was raised, this court has determined the defendant’s absence to be harmless error. See State v. Sessions, 621 N.W.2d 751 (Minn.2001); State v. Hudspeth, 535 N.W.2d 292 (Minn.1995). In Hudspeth, this court ruled the absence of the defendant during the judge’s response to a jury question was, “harmless beyond a reasonable doubt because the trial court’s answers were neutral and nonsubstantive and could not have played a significant role in the verdict.” Id. at 295. In Sessions, the court concluded that because no new instructions were issued and the repeated instructions were neutral, the defendant’s absence was not prejudicial to his defense. Sessions, 621 N.W.2d at 757.

In the case before us, the judge’s response was neutral and he did not issue any new instructions. The judge pointed out the instruction regarding joinder of defendants, section 4.01 on aiding and abetting, and the definition of first-degree murder with premeditation and instructed the jury that they should read those sections together. Thus, we conclude appellant’s absence from the hearing to respond to the jury’s question harmless beyond a reasonable doubt.

V.

Next, appellant claims he received ineffective assistance of counsel in violation of the Sixth Amendment. Appellant’s ineffective assistance of counsel claim has two parts. First, he argues that in closing argument his defense counsel implied his guilt without his consent, and cites six portions of the closing argument to support that claim. Second, appellant claims that throughout the criminal proceedings his defense counsel’s representation was so deficient as to deny him the right to adequate counsel.

The portions of the record cited by appellant in his pro se brief as admissions of guilt were taken out of context and were in fact defense counsel’s comments on direct evidence, his attribution of testimony to various witnesses, an attempt to demonstrate that the physical evidence did not match the state’s theory of the case, and a rhetorical question implying the state had failed to prove its case. The challenged statements do not amount to an admission of guilt. Therefore, we conclude appellant’s claim is without merit.

As to appellant’s second claim of deficient performance, the appellant must first show that the representation fell below an objective standard of reasonableness. State v. Doppler, 590 N.W.2d 627, 633 (Minn.1999). Considerable deference is given to the decisions of counsel in recognition of the wide range of reasonable professional conduct. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Here, there is no evidence in the record that appellant’s counsel was deficient. As such, we conclude that appellant’s Sixth Amendment right to effective assistance of counsel was not violated.

VI.

Appellant claims that the requirement that he select the jury with his codefendants violated his right to an impartial jury and adequate voir dire. Appellant argues that a codefendant used preemptory challenges to strike several of the jurors that appellant found acceptable, thereby denying him a fair trial by an impartial jury. To succeed on a claim for the denial of an impartial jury, a defendant must show the existence of actual bias or prejudice. State v. Barlow, 541 N.W.2d 309, 312 (Minn.1995). In this case, appellant has failed to even allege bias on the part of any juror. Absent evidence of bias or prejudice, there is no basis for appellant’s claim. We conclude that appellant’s right to an impartial jury and adequate voir dire was not violated by having to select a jury with his codefendants.

Affirmed.

      . Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 104 N.W.2d 301 (1960), is the case that lends its name to hearings into improper influences on jurors in Minnesota.


author: MULALLY, Judge.

text:
    In re ESTATE AND TRUST OF Walter G. ANDERSON, Deceased.
    No. C6-02-450.
    Court of Appeals of Minnesota.
    Dec. 3, 2002.

      William J. Berens, Michael J. Wahoske, David Y. Trevor, Dorsey & Whitney, LLP, and John F. Bonner, III, Robert J. Bor-hart, Bonner & Borhart, LLP, Minneapolis, MN, for appellant Jacquelin Powell.
    Eric J. Magnuson, Patrick J. Rooney, John J. Wackman, Rider, Bennett, Egan & Arundel, LLP, Minneapolis, MN, for respondent Richard G. Anderson.
    Considered and decided by MINGE, Presiding Judge, WRIGHT, Judge, and MULALLY, Judge.
   OPINION

MULALLY, Judge.

This is an appeal from an order allowing a final accounting and issuing a decree of distribution for a trust. Because we are not persuaded that the district court erred in its supervision of the administration of the trust, we affirm.

FACTS

Walter G. Anderson (decedent), founder of Walter G. Anderson, Inc., and father to the parties in this case, died in February 1997. Seven years earlier, decedent executed three instruments on the same day: a pour-over will, a trust agreement, and a stock-redemption agreement. At his death, decedent owned approximately 37 percent of the outstanding stock of Walter G. Anderson, Inc. (Anderson, Inc.).

The pour-over will named decedent’s son, respondent Richard Anderson (Anderson), as personal representative and devised the residuary estate, defined as “all property remaining in [the] estate after payment of all items required by law to be paid therefrom,” to the trustee pursuant to the trust agreement. The trust agreement created a trust with decedent and Anderson as trustees; Anderson and his sister, appellant Jacquelin Powell (Powell), were named beneficiaries. The trust agreement directed the trustee to pay all “death taxes” with proceeds from the redemption of Anderson, Inc. stock held by the trustee pursuant to the stock-redemption agreement. Under the stock-redemption agreement, Anderson, Inc. agreed

to redeem [on decedent’s death] all or a portion of the Company common stock owned by [decedent’s] legal representative on [decedent’s] date of death in an amount sufficient to pay the death taxes and the allowable funeral and administration expenses arising as a result of [decedent’s] death.

The stock-redemption agreement was designed to take advantage of a provision of the Internal Revenue Code that allows a corporation to redeem a deceased shareholder’s stock in an amount necessary to pay federal estate taxes and funeral and administration expenses. See 26 U.S.C. § 303 (2000).

After decedent’s death, Anderson transferred the Anderson, Inc. stock that decedent owned to the trust but did not immediately attempt to have the stock redeemed pursuant to the stock-redemption agreement or pay any estate taxes. Anderson apparently elected to pay the federal estate tax in installments, pursuant to 26 U.S.C. § 6166 (2000). Anderson also attempted to probate decedent’s will in Florida, where decedent had lived before moving back to Minnesota, his long-time home, ten months before he died. Powell appeared in and opposed the Florida probate proceeding. The Florida court found that decedent was domiciled in Minnesota when he died, making probate in Florida improper. The will was eventually admitted to probate in Minnesota.

Anderson and Powell have engaged in extensive litigation over decedent’s business affairs and estate, but only the recent litigation concerning the trust is relevant to this appeal. In 1998 and 1999, Powell filed petitions seeking to have Anderson replaced as trustee. She alleged that Anderson had failed to comply with the terms of the pour-over will in that he had failed to transfer the stock to the trust before paying any estate taxes. She also alleged that Anderson was unreasonably tardy in redeeming the Anderson, Inc. stock pursuant to the stock-redemption agreement. Powell claimed that this had the effect of reducing her interest in the trust because, so long as the stock remained unredeemed, the liquid assets of the trust, in which she had an interest, were used to pay expenses of the estate, including the estate taxes. In March 2000, a referee ruled on Powell’s petition and found that the transfer of the stock before payment of taxes did not violate the terms of the pour-over will. The district court adopted the referee’s ruling; Powell chose not to appeal.

In September 2001, a referee heard Anderson’s petition for allowance of his final accounting as trustee and for a decree of distribution. Powell again argued that Anderson had not complied with the terms of decedent’s pour-over will and that his conduct as trustee amounted to a breach of his fiduciary duty of loyalty to her. By this time, both parties had incurred extensive legal fees because of the litigation relative to the estate, and both sides sought reimbursement from the estate. The referee rejected Powell’s arguments concerning Anderson’s conduct, allowed Anderson reimbursement for his attorney fees, and denied Powell’s request for attorney fees. The district court again adopted the referee’s ruling, and Powell now appeals.

ISSUES

I. Is Powell precluded from challenging the district court’s interpretation of decedent’s will?

II. If Powell is not precluded from raising the issue, did the district court err in its interpretation of decedent’s will?

III. Is the district court’s finding that Anderson did not breach his fiduciary duty to Powell clearly erroneous?

IV. Did the district court abuse its discretion by allowing Anderson reimbursement and denying Powell reimbursement for attorney fees from the estate?

ANALYSIS

I.

Powell contends that the district court erred by not construing decedent’s will to require payment of estate taxes before transferring the Anderson, Inc. stock to the trust. Anderson asserts that the issue of will construction was decided in an earlier proceeding and that Powell is thus precluded from raising it here. In the alternative, Anderson argues that decedent’s estate plan countenanced transfer of the stock before payment of taxes.

A. Preclusive Effect of Earlier Ruling

In June 1999, Powell petitioned the district court to remove Anderson as trustee pursuant to Minn.Stat. § 501B.16 (2002). The district court ruled on the petition in an order filed March 13, 2000. Anderson argues that Powell is precluded from now challenging the findings of fact in that order.

An order on a petition brought under section 501B.16

is final as to all matters determined by it and binding in rem upon the trust estate and upon the interests of all beneficiaries, vested or contingent, even though unascertained or not in being.

Id. § 501B.21 (2002).

[T]he legal effect of such an order is that it is final and conclusive as to all matters thereby determined[.] * * * The words ‘final’ and ‘conclusive’ are used in the law to denote the legal effect of final judgments as determining a question in such a manner as to terminate or end the matter * * * [so] as to preclude all future inquiry concerning the truth thereof.

In re Enger’s Will, 225 Minn. 229, 236, 30 N.W.2d 694, 699-700 (1948) (citation omitted).

The matters determined in an action or judicial proceeding are the questions decided in determining the issues raised by the conflicting claims of the parties.

Id. at 238, 30 N.W.2d at 701 (citations omitted).

Each such order is appealable, and after the time for appeal has expired it may not be collaterally attacked but stands as a judgment on the matters determined by the order. In other words, it is res judicata on the issues of fact involved in the hearing even if based on an erroneous theory of law.

In re Trust Created by Warner, 263 Minn. 449, 455, 117 N.W.2d 224, 228 (1962) (citations omitted).

In her June 1999 petition, Powell alleged:

12. Instead of redeeming stock as required by the Will Instrument and Stock Redemption Agreement, Richard Anderson transferred all stock to the trust and paid, and continues to pay, expenses attributable to the estate, including initial estate taxes, from property belonging to the trust. * * * His actions * * * [are] directly contrary to the instructions of the Will Instrument, the Stock Redemption Agreement, and the trust instrument, and are a direct attempt to preserve his stock distribution at the expense of other beneficiaries.
⅜ ⅜{ ⅝ ⅜
31. Given the issues [Powell] and her attorneys have identified, [Powell] is requesting that Richard Anderson be removed as trustee and that either [Powell] or an independent trustee be appointed to marshal the assets of the trust * * *.

The district court, in its ruling on the petition, made the following finding of fact:

While [Anderson] was the personal representative in the Florida [probate] proceeding he transferred the shares owned by his father into the trust. The pour-over will clearly contemplated that this would be done and no fault can be attached to that action.

Powell chose not to appeal this finding of fact.

Powell’s petition to remove Anderson as personal representative raises the issue of Anderson’s transfer of the stock and failure to pay the estate taxes immediately. In his response to the petition, Anderson denied the allegation. We conclude that this issue was a “matter,” as defined in Enger’s Will, that was decided in the earlier proceeding and thus has preclusive effect on this appeal. See 225 Minn. at 238, 30 N.W.2d at 701.

Powell makes two arguments against granting that the earlier finding has pre-clusive effect on these proceedings. First, she claims that it would be poor public policy to punish her for accepting the earlier finding in good faith. But Powell is responsible for the consequences of not vindicating her right to appeal the finding. Furthermore,

[t]he effect of making an order * * * final and conclusive as to matters thereby determined is * * * to attribute to each order the finality of a judgment, and so, instead of one final and formal adjudication of the whole matter as in ordinary actions, we have a succession of judgments in the same case settling it piecemeal.

Id. at 237, 30 N.W.2d at 700 (citation omitted). We believe that this is a better public policy.

Second, Powell argues that In re Dutch-er, 26 Minn. 391, 4 N.W. 685 (1880), provides guidance in this case. There, the supreme court reasoned that a probate court’s finding, in a proceeding to remove an administratrix, of whether a non-party owned certain property was merely “incidental” to the probate case and was not res judicata to a subsequent proceeding against the non-party. Id. at 404, 4 N.W. at 690. Here, Dutcher is inapposite because the finding that the pour-over will contemplated the transfer of stock was not “incidental” to the question of whether to remove Anderson as trustee. On the contrary, Anderson’s compliance with the estate plan and management of the trust were integral issues. Dutcher is therefore unhelpful to Powell’s argument.

Thus, we conclude that Powell is precluded from challenging the earlier finding in this proceeding and that her appeal is untimely.

B. Will Construction

Even assuming Powell’s appeal on this issue is timely, we are not persuaded that the district court erred by construing decedent’s will to allow transfer of the stock before payment of the estate taxes. We review a district court’s construction of an unambiguous instrument de novo. In re Trust Created by Hill, 499 N.W.2d 475, 482 (Minn.App.1993), review denied (Minn. July 15, 1993). But where critical evidence in the case turns on extrinsic language about the testator’s intent and disputed expert opinions about the language of the instrument, a “clearly erroneous” standard of review applies. Id.

The primary purpose of construing a will is to discern the testator’s intent. In re Trust of Wyman, 308 N.W.2d 311, 315 (Minn.1981). Normally, a court cannot consider extrinsic evidence, such as the trust and stock-redemption agreements in this case, to clarify the testator’s intent unless the will is ambiguous. In re Estate of Zagar, 491 N.W.2d 915, 916 (Minn.App.1992).

But there is also ample authority for the proposition that, where a will and a trust form part of the same estate plan, they must be construed together. Cent. Trust Bank v. Scrivner, 963 S.W.2d 383, 385 (Mo.Ct.App.1998); 96 C.J.S. Wills § 876 (2001); see also In re Estate of Potter, 469 So.2d 957, 959 (Fla.Dist.Ct.App.1985) (holding that interdependent language of will and inter vivos trust established that trust was incorporated by reference into will); cf. In re Estate of Pickrell, 248 Kan. 247, 806 P.2d 1007, 1013 (1991) (holding that, where a conflict exists between an earlier executed will and a later amended inter vivos trust concerning payment of estate taxes, the last instrument in time controls); Blochowitz v. Blochowitz, 130 Neb. 789, 266 N.W. 644, 651-52 (1936) (construing will in light of four warranty deeds also executed on the same day).

We agree with the district court that the will, trust agreement, and stock-redemption agreement, should be construed as parts of a single, well-considered estate plan. All three instruments were executed on the same day. More important, the language of the three instruments shows that they are interdependent. . The trust agreement requires the trustee to pay ■ “all death taxes of any character.” The agreement then directs the trustee to redeem stock held by the trust pursuant to the stock-redemption agreement. Finally,. the trust agreement directs the trustee to use the redemption proceeds to pay the “death taxes.” Because the trust held no Anderson, Inc. stock at decedent’s death, the trustee could not pay the estate taxes as directed unless the stock were first transferred to the trust. Powell maintains that the will language, defining the residuary estate as property remaining “after payment of all items required by law to be paid therefrom,” requires payment of estate taxes before any transfer of property in, the residuary estate to, the trust. , But her argument ignores the mechanism that decedent created for paying the estate taxr es found in the trust and stock-repurchase agreements.

Thus, we conclude that the district court did not err by construing decedent’s will to allow transfer of the stock before payment of the estate taxes.

H.

Powell next challenges the district court’s finding that Anderson did not breach his fiduciary duty to her.

Findings of fact, whether based on oral, or documentary evidence, shall not-be set aside unless clearly erroneous,- and due regard shall be given to the opportunity of the trial court to-judge the credibility of the witnesses. The findings of a referee, to the extent adopted by the court, shall be considered as the findings of the court.

Minn. R. Civ. P. 52.01.

Evidence in the record supports this finding. The district court received expert testimony that the Florida probate proceeding was not unreasonable. More importantly, the record shows that, as trustee, Anderson made distributions to Powell to compensate for any losses to her interest in the trust’s assets resulting from his election to pay the estate taxes in installments. Thus, the district court’s finding was not clearly erroneous and we will not set it aside.

III.

Finally, Powell challenges the district court’s award of attorney fees to Anderson and its refusal to award attorney fees to her. This court reviews a district court’s award or denial of attorney fees on an abuse-of-discretion standard. Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn.1987).

A. Anderson’s Attorney Fees

Powell contends that the district court abiised its discretion • by allowing Anderson'to be reimbursed for attorney' fees he incurred in his capacity as personal representatives of the estate. Attorney fees incurred on behalf of an estate shall be paid out of the estate if the amount is “just ' and reasonable.” Minn.Stat. § 525.515(a) (2002). In determining whether fees are “just and reasonable,” the district court must consider:

(1) The time and labor required;
(2) The experience and knowledge of the attorney;
(3) The complexity and novelty of problems involved;
(4) The extent of the responsibilities assumed and the results obtained; and
(5) The sufficiency of assets properly available to pay for the services[.]

Id. § 525.515(b) (2002). Furthermore, a personal representative may be reimbursed for attorney fees spent “defending] any proceeding in good faith, whether successful or not * * *.” Minn. Stat. § 524.3-720 (2002).

Here, the district court received expert testimony on the five factors listed in section 525.515(b). The expert concluded that the amount of attorney fees was “reasonable and justified.” Powell cites no legal authority suggesting that allowing reimbursement under these circumstances is an abuse of discretion, and we conclude that the award was not improper.

B. Powell’s Attorney Fees

Powell maintains that her opposition to the Florida probate proceeding and her continuing litigation concerning the delayed redemption of the Anderson, Inc. stock benefited the estate and therefore support reimbursement of her attorney fees from the estate.

When after demand the personal representative refuses to prosecute or pursue a claim or asset of the estate or a claim is made against the personal representative on behalf of the estate and any interested person shall then by a separate attorney prosecute or pursue and recover such fund or asset for the benefit of the estate, or when, and to the extent that, the services of an attorney for any interested person contribute to the benefit of the estate, as such, as distinguished from the personal benefit of such person, such attorney shall be paid such compensation from the estate as the court shall deem just and reasonable and commensurate with the benefit to the estate from the recovery so made or from such services.

Minn.Stat. § 524.3-720 (emphasis added).

With respect to the Florida proceedings, the district court received expert testimony that the decision to probate the will in Florida was not unreasonable. As for litigation concerning the stock redemption, if Powell had been able to stop any drain on the trust’s assets to pay estate taxes it. would have been to her personal benefit as a beneficiary, for which section 524.3-720 does not allow reimbursement. Powell further contends that she is entitled to reimbursement because she “kept a major [estate] asset intact,” as this court concluded in In re Estate of Van Den Boom, 590 N.W.2d 350, 354 (Minn.App.1999), review denied (Minn. May 26, 1999). But in Van Den Boom a remainderman successfully blocked the sale of the family homestead to pay administration costs, while here Powell unsuccessfully attempted to maintain the liquid assets of the trust at the highest level possible. Thus, we do not conclude that the district court abused its discretion by denying Powell reimbursement for her attorney fees.

DECISION

The district court did not err or abuse its discretion by granting the trustee’s petition for allowance of the final account and for a decree of distribution.

Affirmed.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

      . Enger’s Will and Warner interpret Minn. Stat. § 501.35, the predecessor to section 501B.21. The statutes contain nearly identical language, except that the predecessor uses the phrase "final and conclusive” where the current statute uses only "final.” We do not believe the legislature intended a change in the meaning of the statute when it enacted section 501B.21.


author: ROBERT H. SCHUMACHER, Judge.

text:
    STATE of Minnesota, Respondent, v. Joen SANCHEZ-SANCHEZ, Appellant.
    No. C0-02-1044.
    Court of Appeals of Minnesota.
    Dec. 10, 2002.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, Minneapolis, MN, for respondent.
    John M. Stuart, State Public Defender, Ann B. McCaughan, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by SHUMAKER, Presiding Judge, SCHUMACHER, Judge, and KLAPHAKE, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

Appellant Joen Sanchez-Sanchez claims the district court erred in sentencing her to 54 months following her guilty plea to the crime of child endangerment, an upward departure of four-and-one-half times the presumptive sentence under the sentencing guidelines. We reverse and remand.

FACTS

On September 11, 2001, Sanchez was providing daycare for B.E. in her own home. She claims that while she was carrying B.E., she either dropped him or he hit his head on something. Soon after, B.E. began vomiting and had difficulty breathing. Sanchez picked B.E. up and shook him violently. When the child did not respond, Sanchez laid him on the bed and began mouth-to-mouth resuscitation. Sanchez eventually called 911. The emergency personnel responded and resuscitated B.E., but he suffered permanent brain damage.

Sanchez acknowledged that she knew better than to shake a child, and she admitted knowing she took a serious risk in doing so. Sanchez was charged with first-degree assault and, against the advice of her attorney, agreed to plead guilty. At the plea hearing, however, the district court rejected the assault plea after hearing Sanchez’s explanation of what happened. The court stated that Sanchez was claiming she made a grave mistake, but that she did not act with the intent to injure the child.

The state then amended the complaint, adding a charge of child endangerment. This felony charge carries a penalty of up to 60-months imprisonment. Minn.Stat. § 609.378 subd. l(b)l (2000). The amended charge alleged that Sanchez either intentionally or recklessly caused the child to be in a dangerous situation and the endangerment resulted in substantial harm to the child. The court informed Sanchez:

If you plead guilty to [child endangerment], we will have a sentencing hearing after a guilty plea in several weeks, and I will hear whatever you have to say, whatever [the state] has to offer, whatever your attorneys have to offer. And I make you no promises. You may, in fact, go to prison for 60 months, it may be less. I don’t know.

Defense counsel informed Sanchez -of the consequences of a guilty plea on the endangerment charge. After defense counsel told Sanchez she could be sentenced to between 0 and 60 months at the discretion of the court, the state interjected:

[Prosecutor]: I just have something to add at this point, since that is not correct. This is an agreement between the court and [Sanchez]. It is the position of the state that the agreement was Endangerment for 60 months. The court is exercising its discretion to accept the plea to Endangerment and to determine the exact amount of time to impose at the time of sentencing after the pre-sentence investigation. So I think that is correct, you honor.

The court then discussed the precise language of the written plea agreement:

[W]hat I’ve written in is, new Endangerment of a Child' — the question is “I’ve been told by my attorney and understand and acknowledge (a) that my attorney discussed this case with one of the prosecuting attorneys and they agreed that if I entered a plea of guilty, the prosecutor will do the following.” And what’s written in is “new Endangerment of a Child, felony, 60 months; however, the court may exercise its discretion at sentencing and impose less than 60 months.” And I’ve initialed it

The court had Sanchez acknowledge that the child suffered substantial bodily harm and that he is permanently brain-damaged. The court also had Sanchez acknowledge that her conduct in shaking the child was reckless.

On April 4, 2002, the court reconvened to sentence Sanchez. Defense counsel argued to the court that the incident was primarily an accident, and although Sanchez acted recklessly she never actually intended to injure the child but instead had attempted to save the child, even though her choice of methods was very poor.

After Sanchez stated her remorse for causing the injuries, reiterated that she did not mean to harm the child, and asked for forgiveness, the court stated:

I am aware that the presumptive sentence for a person like yourself who has no prior convictions of any kind is one year and one day, stayed, for felony Endangerment of a Child. Because of the circumstances of this negotiated plea and the reduction of the charge from Assault in the First Degree to felony Endangerment of a Child, and the very, very terrible injuries to the child, [the state] and your attorneys agreed to a 60-month sentence, with the possibility that [defense counsel] could talk me into less, and what I in fact said at your guilty plea — and I’m reading from the transcript — is, you recall we put into your guilty plea petition that you were pleading to a new Endangerment of a Child felony, 60 months; “However, the court may exercise its discretion at sentencing to impose less than 60 months.”
* * * *
I have considered it. I know this is a first offense. It is of an incredible magnitude, however, and I do accept that you are very remorseful. I appreciate that. The problem is that [the child] will spend a lifetime with, we know, very significant mental and physical deficits.
Having taken all of this into consideration, I do intend to impose a 54-month sentence, which gives the benefit of my discretion in reducing the 60-month sentence based upon the fact that I do understand your remorse, and you have no prior convictions.

(Emphases added.) The court then sentenced Sanchez to 54 months, an upward departure of four-and-one-half times the presumptive sentence.

ISSUE

1. Is a case “pending” when a sentence has already been imposed, but the time for direct appeal has not expired?

2. Did the district court err in sentencing Sanchez to 54 months for the crime of child endangerment, an upward departure of four-and-one-half times the presumptive sentence without citing severe aggravating circumstances?

ANALYSIS

1. The parties disagree as to the applicability of the supreme court’s decision in State v. Misquadace, 644 N.W.2d 65 (Minn.2002). Misquadace held that a sentencing court cannot rely on the parties’ plea agreement as the sole reason for a departure from the presumptive sentence under the guidelines. Id. at 72. Instead, the sentencing court must, on the record, cite to aggravating or mitigating circumstances justifying the departure despite the parties’ agreement as to the sentence to be imposed. Id. Misquadace specifically limited its holding and application to “pending and future cases.” Id. at 72.

The state contends that Sanchez’s appeal does not fall within the Mis-quadace purview because Sanchez had already been sentenced when the supreme court’s opinion was released. We disagree. Although Sanchez had already been sentenced, the time for a direct appeal had not yet expired when Misquadace was filed. Sanchez initiated her direct appeal soon thereafter in a timely manner and challenged the sentence. We believe that Sanchez’s appeal falls within the supreme court’s intended meaning of a “pending” case. See generally Baker v. State, 590 N.W.2d 636, 640 (Minn.1999) (holding that prospective ruling .that statute defining offense violated right to twelve-person jury did not apply to defendants already tried who had not challenged the statute). Thus, Sanchez’s sentence must be reviewed in light of Misquadace.

2. A district court’s decision to depart from the guidelines is reviewed under an abuse of discretion standard. State v. Schmit, 601 N.W.2d 896, 898 (Minn.1999). When a district court departs from the presumptive sentence, it must articulate substantial and compelling circumstances justifying the departure. Id. Generally, when deciding whether to depart, the district court must decide whether the defendant’s conduct was “significantly more or less serious than that typically involved in the commission of the crime in question.” State v. Broten, 343 N.W.2d 38, 41 (Minn.1984).

If no reasons supporting the departure are stated on the record, the departure is not allowed; if reasons are stated, but are improper or inadequate, this court will affirm the departure nonetheless if the record contains valid and sufficient reasons to support the departure. Williams v. State, 361 N.W.2d 840, 844 (Minn.1985). “Generally, when aggravating circumstances are present, the upper limit on a durational departure is double the Sentencing Guidelines maximum presumptive sentence duration.” State v. Glaraton, 425 N.W.2d 831, 834 (Minn.1988) (citation omitted). Severe aggravating circumstances, however, may justify a sentence of greater than double the presumptive. Id.

The district court referenced the presumptive sentence for child endangerment given Sanchez’s criminal history score of zero at the time of sentencing but focused on the 60-month sentence to which the parties agreed. Although the court did reference the presumptive sentence and the child’s extreme injuries, the majority of the court’s comments indicate that it would be making a determination as to whether circumstances existed warranting a downward departure from the parties’ negotiated sentence. We believe this violates the supreme court’s decisions dealing with sentencing when deciding whether to impose the presumptive sentence under the guidelines or to depart from the presumptive sentence. See, e.g., Misquadace, 644 N.W.2d at 72 (sentencing court must list reasons for departing from presumptive sentence); State v. Schmit, 601 N.W.2d 896, 898 (Minn.1999) (sentencing court “must articulate substantial and compelling reasons” justifying departure from presumptive sentence under guidelines); State v. Kindem, 313 N.W.2d 6, 7 (Minn.1981) (unless district court finds substantial and compelling circumstances warranting departure from presumptive sentence, court is to order presumptive sentence).

The sentence amounts to an upward departure of four-and-one-half times the presumptive sentence. Although such a sentence is not necessarily unreasonable, the district court must articulate not only aggravating circumstances, but severe aggravating circumstances to justify such an extraordinary departure. Glaraton, 425 N.W.2d at 834. Therefore, we reverse and remand for resentencing pursuant to the supreme court’s directive in Misquadace.

DECISION

The district court erred in sentencing Sanchez to a four-and-one-half times upward departure without citing unequivocally the severe aggravating factors on which it relied.

Reversed and remanded.