author: PAGE, Justice.

text:
    In the Matter of the Welfare of R.J.E., child.
    No. C4-00-2189.
    Supreme Court of Minnesota.
    April 25, 2002.

      John M. Stuart, State Public Defender, Charlann E. Winking, Asst. State Public Defender, Minneapolis, for appellants.
    Michael A. Hatch, Atty. General, St. Paul, Roger S. Van Heel, Stearns Cty. Atty., Michael J. Lieberg, Asst. Stearns Cty. Atty., St. Cloud, for respondent.
   OPINION

PAGE, Justice.

Fifteen-year-old R.J.E. was charged with criminal sexual conduct in the fifth degree. Following the denial of a motion to suppress statements that he contended were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), R.J.E. pled not guilty and agreed to a delinquency hearing on stipulated facts, in accordance with State v. Lothenbach, 296 N.W.2d 854 (Minn.1980). The district court adjudicated R.J.E. delinquent based on the stipulated facts. On appeal, the court of appeals held that, while the district court’s denial of the motion to suppress R.J.E.’s statements was error, the error was harmless beyond a reasonable doubt and, therefore, affirmed the delinquency. In re Welfare of R.J.E., 630 N.W.2d 457, 461-63 (Minn.App.2001). We reverse and remand for further proceedings.

The facts relevant to our review are as follows. On October 7, 1999, A.G., a female student at the same high school attended by R.J.E., reported to school authorities that R.J.E. had inappropriately touched her breasts and crotch and made inappropriate comments about having sex with her. As a result of A.G.’s report, a uniformed police officer who worked at the school as a liaison officer had a uniformed school security guard escort R.J.E. from his classroom to the school security office to be interviewed. Upon entering the office, another security officer searched R.J.E. According to the police officer, R.J.E. was a suspect in a criminal investigation at the time of the interview. In addition to the police officer and the two security guards, a school social worker was present during the interview.

The taped interview began with the police officer stating, “This will be in to [sic] case 99034645. The date is 10/07/99. The time is 1503 hours. This is Officer Wele-ski. This is in reference to a sexual assault that occurred * * * on this date.” During the interview, R.J.E. made a number of incriminating statements. The police officer did not give R.J.E. a Miranda warning, did not inform him that he was free to leave, and did not tell him that he could decline to answer the officer’s questions. R.J.E. believed that he was not free to leave, although, according to the officer, he would have been allowed to leave had he asked. R.J.E. was not informed that he could speak to his mother and his mother was not notified about the interview before it began. After the interview, R.J.E. was turned over to the school’s vice principal, who questioned R.J.E. further. R.J.E. was eventually released to his mother.

R.J.E. was charged with criminal sexual conduct in the fifth degree, in violation of Minn.Stat. § 609.3451, subd. 1(1) (2000), and disorderly conduct, in violation of Minn.Stat. § 609.72, subd. 1(3) (2000). Before RJ.E.’s delinquency hearing, R.J.E. moved to suppress the statements he made in response to the police officer’s questions, arguing that the statements were obtained without a proper Miranda warning and that they were involuntary. The district court denied his motion, concluding that R.J.E. was not “in custody” during the interrogation and that R.J.E.’s statements were voluntary.

Seeking to preserve the suppression issue for appeal, R.J.E. agreed to waive his right to a contested delinquency hearing and submitted the case to the district court on stipulated facts, according to the procedures approved by this court in Lothen-bach. Based on the stipulated facts, the district court found R.J.E. guilty of criminal sexual conduct in the fifth degree and adjudicated him delinquent. The disorderly conduct charge was dismissed without prejudice.

R.J.E. appealed and the court of appeals held that the district court’s denial of R.J.E.’s suppression motion was error. R.J.E., 630 N.W.2d at 458-59. The court of appeals concluded that R.J.E. was enti-tied to a Miranda warning when the police officer interviewed him because he was in custody at the time. R.J.E., 630 N.W.2d at 463. The court of appeals also concluded that the error was harmless beyond a reasonable doubt and affirmed R.J.E.’s delinquency adjudication. Id. at 462-63. In concluding that the admission of R.J.E.’s statements was harmless error, the court of appeals reasoned that the “record [did] not contain any exculpatory evidence” and that the “victim’s statements demonstrate[d] beyond a reasonable doubt that R.J.E. committed criminal sexual conduct in the fifth degree, which supported] R.J.E.’s delinquency adjudication.” Id. at 462.

In his appeal to this court, R.J.E. requests that the court reverse his delinquency adjudication and remand the case for a full hearing on the merits. R.J.E. contends that review for harmless error is inappropriate when a criminal defendant has waived constitutional rights and stipulated to the state’s evidence for the purpose of obtaining review of pretrial issues. R.J.E. further contends that, if review for harmless error is appropriate, the admission of his statements was not harmless beyond a reasonable doubt. He also argues that he did not knowingly and intelligently waive his constitutional rights because he believed that he would receive a new trial if the appellate court concluded that the admission of his statements was error.

We first address the legal question of whether matters tried on stipulated facts for the purpose of preserving pretrial issues for appeal are subject to review for harmless error. We review questions of law de novo. Kliniski v. Southdale Manor, Inc., 518 N.W.2d 7, 9 (Minn.1994).

The procedure for trials on stipulated facts, which we approved in Lothen-bach, permits a criminal defendant, in the absence of an interlocutory appeal, to obtain review of pretrial issues without going through a contested trial. 296 N.W.2d at 857. The rationale for allowing such trials is to prevent the inefficient use of judicial resources that occurs when a contested trial, which is otherwise unnecessary because of a lack of disputed facts, is necessary for a defendant to appeal pretrial rulings. State v. Verschelde, 595 N.W.2d 192, 194-95 (Minn.1999).

Regarding review for harmless error, a finding of constitutional error does not require a new trial if the state can show that the verdict actually rendered was “surely unattributable to the error”'— that is, “harmless beyond a reasonable doubt.” State v. Day, 619 N.W.2d 745, 750 (Minn.2000); State v. Juarez, 572 N.W.2d 286, 291-92 (Minn.1997). The purpose of review for harmless error is to relieve the courts and the public of the needless expense of retrying cases “in which the result would be the same after the error had been corrected.” Philip J. Mause, Harmless Constitutional Error: The Implications of Chapman v. California, 53 Minn.L.Rev. 519, 519 (1969); see also Kotteakos v. United States, 328 U.S. 750, 759-60, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); State v. Link, 289 N.W.2d 102, 106 (Minn.1979) (“[I]f there is ever to be finality in the criminal justice system, a harmless error doctrine is essential.”).

R.J.E. argues that reviewing trials on stipulated facts for harmless error fails to satisfy the philosophical justification of the harmless error rule, which presumes that a contested trial has occurred. R.J.E. asserts that the court lacks the ability to assess the “underlying fairness” of a proceeding when no contested trial has occurred. In support of that assertion, R.J.E. calls our attention to Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), where the United States Supreme Court stated:

The harmless-error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.

Id. at 577, 106 S.Ct. 3101 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (citations omitted)).

According to R.J.E., the minimum constitutional standards, such as allowing the defendant to subpoena witnesses and having the state’s witnesses testify under oath in open court and be subject to cross-examination in the defendant’s presence, are not met when a defendant is tried on stipulated facts. R.J.E. argues that, because these minimum constitutional standards are not met, it is not possible on review for an appellate court to assess whether or not a particular error was harmless in light of the record as a whole. R.J.E. also argues that reviewing trials on stipulated facts for harmless error does not serve the purpose of judicial economy because defendants will have no incentive to agree to such trials if the constitutional errors can be found harmless.

The state contends that, because contested trials and trials on stipulated facts are both “trials,” they should be subject to the same standard of review, including review for harmless error. The state argues that the properly admitted evidence in the present case is sufficient to sustain RJ.E.’s adjudication as a juvenile delinquent and, therefore, the trial court’s verdict would be the same if the error were corrected. The state also warns against creating “unlimited interlocutory review of pretrial evidentiary rulings.”

While we have not had occasion to rule on whether to apply harmless error review to trials on stipulated facts, we have expressed doubt, on at least two occasions, about the soundness of doing so. In State v. Miller, 316 N.W.2d 23 (Minn.1982), we stated:

Even taking into account the fact that the United States Supreme Court in recent cases appears to have endorsed a “practical, less-than-literal application of the [harmless error] rule,” we have doubts about the soundness of such a ruling in this case because the case was tried on stipulated facts, without any testimony by the victims identifying defendant or any of the objects found in his apartment, and it seems highly likely that the confession played a significant role in influencing the court to find defendant guilty.

Id. at 31 n. 3 (emphasis added) (citations omitted). In State v. Munson, 694 N.W.2d 128 (Minn.1999), we noted similar concerns:

[W]e are hesitant to apply a harmless error analysis where an appellant has stipulated to the state’s facts only to preserve the evidentiary issues for appeal and has not had a chance to challenge the state’s evidence or present evidence of his own.

Id. at 143-44 (emphasis added).

In Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), the United States Supreme Court noted its misgivings about the application of harmless error review to an appeal from a conviction arising from a plea of no contest. Id. at 444, 104 S.Ct. 3138. The Court recognized that the defendant’s lack of opportunity to impeach the state’s evidence and to present evidence of his or her own and the resulting lack of a complete trial record made “the use of harmless error analysis especially difficult.” Id. The Court stated, “Without the benefit of such a record in this case, we decline to rule that the trial court’s refusal to suppress respondent’s postarrest statements ‘was harmless beyond a reasonable doubt.’” Id. at 444-45, 104 S.Ct. 3138.

When reviewing for harmless error, the reviewing court must conduct a “thorough examination of the evidence” before it can determine whether the verdict was surely unattributable to the error. Juarez, 572 N.W.2d at 292. This requirement presumes that the evidence was thoroughly developed and contested in the first instance. Yet, when a case is tried on stipulated facts, that development of the evidence does not occur. In such trials, witness statements are generally not made under oath. Thus, the defendant does not have the opportunity to impeach witness statements or present evidence of his or her own. Given the absence of a developed record, we find unpersuasive the state’s argument that trials on stipulated facts and contested trials should be treated the same for purposes of harmless error review.

We also find unpersuasive the argument that the evidence properly admitted in R.J.E.’s hearing was sufficient by itself to sustain R.J.E.’s adjudication of delinquency. The mere fact that the properly admitted evidence is or may be sufficient to sustain an adjudication for delinquency or a conviction does not signify necessarily that the verdict rendered was surely unattributable to the error. Id. at 291 (stating that, although the court of appeals had examined all the evidence and concluded that the defendant’s conviction was supported by the evidence, its conclusion, albeit accurate, did not establish by itself that the erroneous admission was harmless).

Further, as discussed above, the problem with applying harmless error review to trials on stipulated facts is that the evidence goes unchallenged. The otherwise properly admitted evidence in this case underscores this problem. Here, the evidence consisted primarily of the complainant’s statement taken from police reports, which we have traditionally considered to be inherently unreliable, see State v. Greenleaf, 591 N.W.2d 488, 503 (Minn. 1999) (stating that “unsworn, ex parte statements made during police questioning have traditionally been considered inherently untrustworthy”). The complainant’s statement was not made under oath and was not subject to cross-examination. Nor did R.J.E. otherwise impeach the statement or have an opportunity to present witnesses on his behalf.

Based on the concerns that we noted in Miller and Munson, the rationale for permitting trials on stipulated facts, and the rationale underlying review for harmless error, we conclude that harmless error review should not be applied to trials on stipulated facts. Consequently, we reverse R.J.E.’s adjudication of delinquency and remand for a new hearing. Because we reverse and remand for a new hearing, it is unnecessary for us to reach R.J.E.’s alternative arguments.

Reversed and remanded for further proceedings.

      . Defendants wishing to obtain appellate review of pretrial decisions to suppress evidence may enter a plea of not guilty, waive the right to a jury trial, and then stipulate to the prosecution’s case. State v. Lothenbach, 296 N.W.2d 854, 857 (Minn.1980).

      . The state did not petition for cross-review regarding whether the court of appeals was correct when it held that R.J.E.'s statements should have been suppressed. Therefore, that issue is not before the court in this appeal.

      . With respect to the state's concerns regarding unlimited interlocutory review of pretrial rulings, we caution prosecutors, in the exercise of their discretion, to agree to proceed with trials on stipulated facts only when the purposes underlying such trials are served. We also caution trial courts to consider carefully whether the pretrial ruling would indeed be dispositive of the entire case, thereby ensuring that a trial on stipulated facts will serve the interest of judicial economy.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Andrew Joseph KROSCH, Appellant.
    No. C7-01-995.
    Supreme Court of Minnesota.
    May 2, 2002.

      Mary M. McMahon, Special Asst. State Public Defender, McMahon & Associates Criminal Defense, Ltd., Roseville, for Appellant.
    Mike A. Hatch, Atty. General, St. Paul, Amy J. Klobuchar, Hennepin Cty. Atty. Linda M. Freyer, Asst. Hennepin Cty. Atty., Minneapolis, for Respondent.
   OPINION

PAGE, Justice.

Andrew Krosch was convicted of first-degree murder in violation of Minn.Stat. § 609.185(1) (2000) for the killing of Andrea Applebee and first-degree felony murder in violation of Minn.Stat. § 609.185(3) for the killing of Daniel Kab-tyiraer. In this direct appeal, Krosch claims that the state deprived him of due process of law by failing to test his alcohol concentration at the time of his arrest and that prejudicial error resulted from the trial court’s refusal to instruct the jury that, had an alcohol-concentration test been conducted, it would have produced evidence unfavorable to the state. In his pro se brief, Krosch alleges that trial counsel and the trial court made a number , of additional errors. We affirm.

The facts giving rise to Krosch’s convictions are straightforward. At approximately 5:30 p.m. on April 6, 2000, Krosch bought a one-liter bottle of vodka and a half-gallon bottle of vodka at a liquor store. Krosch immediately mixed some of the vodka with soda in a soda bottle and consumed an unknown amount of the vodka over the next several hours. At some point during the evening, Krosch went to a bar in a van assigned to him by his employer. Although Krosch did not remember exactly how much alcohol he consumed at the bar, he testified that he probably had his vodka and soda with him and that he probably had a “couple of glasses of beer” there as well. A waitress testified that when she asked Krosch to leave the bar at closing time he “just stood there” and did not leave until approximately 10 minutes later. Krosch re-entered the bar within five minutes through a service door in the kitchen. At that point, another employee asked Krosch to leave and Krosch complied. The waitress testified that Krosch’s speech was not slurred and that he did not stumble or engage in aggressive behavior while he was at the bar.

Meanwhile, Andrea Applebee, the only passenger on a Metro Transit bus traveling north on Nicollet Avenue in Minneapolis, Minnesota, got off the bus some time after 2:38 a.m. on April 7, 2000, at the intersection of Franklin Avenue and Nicol-let. The bus driver testified that he did not observe anyone else in the area.

At approximately 3:00 a.m., Robert Blaisdell saw what was later identified as Applebee’s body lying in a pool of blood near the curb on 10th Avenue between 23rd and 24th Streets in Minneapolis. Blaisdell called 911 and the emergency medical services team that responded to the scene determined that Applebee was dead. The autopsy performed on Apple-bee’s body revealed eight gunshot wounds, all to the left side of her head and face. The autopsy also revealed that the barrel of the gun was no further than approximately eight inches from Applebee’s skin when the shots were fired and that two of the shots were fired with the barrel of the gun either in contact or almost in contact with her skin.

A videotape recorded by a surveillance camera at the Minneapolis St. Paul International Airport showed Krosch’s van in a ramp parked at 3:40 a.m. on April 7. A second videotape recorded by a surveillance camera in the ramp depicted Krosch riding an elevator to the ground level at 4:58 a.m. A police officer who recovered the van from the airport ramp observed that its front passenger window was bloody and broken and that there was blood dripping down the exterior of the van. A later, more thorough examination of the van revealed five bullet casings, two fired bullets, a bullet hole in the interior trim on the front passenger door, a large amount of blood on the floor in the front passenger-seat area, an empty cola can, and a one-liter bottle of vodka that was approximately one-quarter to one-third fuH.

Airport records indicate that Kabtyimer left the airport driving Blue & White cab number 503 at 6:08 a.m. on April 7. At approximately 6:20 a.m., Susanne Dunn heard a crash outside of her house at 32nd Street and 20th Avenue in Minneapolis. Dunn went outside and saw that a Blue & White cab had run into a van parked on 32nd Street. Dunn saw a man trying to pull something out of the cab and heard the man say “come on, come on, son of a— come on.” Eventually, she saw something fall out of the front door on the driver’s side. The man then got into the driver’s seat and backed the cab over the object he had pulled from it. At that point, Dunn realized that the object pulled from the cab was a human body. After backing up, the cab headed east on 32nd Street, pushing the body down the street approximately 50 feet. When the police arrived, they found Kabtyimer’s body lying on 32nd Street near the alley between 20th and 21st Avenues.

The autopsy performed on Kabtyimer’s body indicated that he was shot eight times with a small-caliber weapon from a distance of two feet or less. The autopsy also indicated that Kabtyimer suffered a number of blunt-force injuries to his scalp, face, hands, and buttocks that were consistent with his body having been pushed or dragged along a road. Based on the small amount of blood associated with the blunt-force injuries, the medical examiner concluded that Kabtyimer was probably dead at the time they occurred.

Later in the morning of April 7, a police officer with the Alexandria, Minnesota, Police Department heard a report that a Blue & White cab wanted in connection with a Minneapolis homicide was traveling west on Interstate 94. Soon afterward, the officer observed a Blue & White cab heading west on I 94 and followed it. That officer was eventually joined by two Minnesota State Patrol Troopers. After following the cab for a while, the officers turned on their emergency lights and the driver of the cab — later identified as Krosch — immediately moved to the right shoulder of the highway and stopped. According to their testimony, the officers did not observe any erratic driving behavior, other than speeding, as they followed the cab. One of the officers ordered Krosch to throw the cab’s keys out the window. Krosch did not initially follow the order, but after it was repeated a number of times he complied. Krosch also complied with the officers’ order to get out of the cab, and the officers testified that Krosch did not stagger, fall, or appear to be unbalanced as he did so. When ordered to turn around, put his hands up, and walk backward toward the officers, Krosch did so, covering “roughly 20, 25 feet” without staggering or showing any other sign of difficulty.

During a search of Krosch’s person, the officers found a .22 caliber handgun containing an empty clip and an empty shell in Krosch’s right front pants pocket, a loaded clip and a large folding knife in his left front pants pocket, and a loaded clip in his left rear pants pocket.

After conducting the search, one of the officers read Krosch the implied consent advisory provided in Minn.Stat. § 169.123, subd. 2(b) (1998). The officer had smelled alcohol on Krosch’s breath and observed a half-gallon bottle of vodka in the cab. The officer testified that he read the advisory because he thought that Krosch killed someone by hitting them with the cab and that “there was a criminal negligence charge going to be coming out of this, and we would want to know what alcohol level is on a charge of that type.” Before an alcohol-concentration test could be conducted, however, the officer received word from the Minneapolis Police Department that an alcohol-concentration test was unnecessary. As a result, none was conducted. The record is silent as to why the Minneapolis police told the officer not to conduct an alcohol-concentration test.

In a tape-recorded conversation with one of the officers after his arrest, Krosch stated that, given his “watermelon size liver,” he was probably not under the influence of alcohol. He also stated, however, that there was a bottle of alcohol in the cab and that he had been “drinking little ■sips here and there” as he was driving.

A search of the cab revealed nine shell casings and a bloody duffel bag containing a .45 caliber handgun, a Glock nine-millimeter handgun, and an array of .22 caliber, .45 caliber, and nine-millimeter ammunition. A bottle of cola, a half-gallon bottle of vodka, and a receipt from a gas station were also found in the cab. Blood was found on the underside of the cab.

DNA analysis of the blood samples taken from the van, the .22 caliber handgun Krosch was carrying at the time of his arrest, and his shirt, jeans, duffel bag, and left boot indicated a match with a DNA sample taken from Applebee. A sample of DNA found on Kroseh’s T-shirt contained a mixture of DNA from Krosch and Apple-bee. DNA analysis of blood samples recovered from the underside of the cab indicated a match with a DNA sample taken from Kabtyimer. In addition, a forensic scientist testified that shell casings recovered from Applebee’s hair, the van, and the cab were all fired from Krosch’s .22 caliber handgun.

Krosch presented a voluntary intoxication defense at trial. Testifying in his own defense, Krosch did not dispute that he killed Applebee and Kabtyimer. He also stated, however, that he did not remember killing them and that he did not intend or plan to kill anyone. Krosch stated that he was unable to recall anything that happened between the time he spoke with a fellow bar patron in Cottage Grove, Minnesota, and the moment at which he was pulled over on 1-94. He testified that he thought he was being pulled over for speeding, that he knew he had been drinking in the cab, and that it did not make sense to him when he realized he was driving a cab.

Krosch also testified with respect to his drinking habits, stating that he generally drank between three-fourths of a liter and a liter of alcohol every day. According to Krosch, he often drank while he was working, but was able to perform his job duties without “any troubles.” He further testified that he had experienced episodes of forgetfulness in the past and that he would generally forget things whenever he drank more than one-half liter of alcohol.

Before closing arguments, Krosch’s counsel requested a jury instruction providing that the failure of the police to test Krosch’s alcohol concentration at the time of his arrest should give rise to an inference that, had the test been conducted, it would have resulted in evidence unfavorable to the state. The trial court refused to give the instruction on the grounds that the arresting officers had testified that Krosch did not appear to be intoxicated at the time of his arrest, that the decision not to administer an alcohol-concentration test was made after the officers learned that Kabtyimer was shot to death, and that there was no legal support for the instruction under the circumstances of the ease.

I.

Krosch claims the state deprived him of due process of law by failing to conduct an alcohol-concentration test at the time of his arrest. Specifically, Krosch asserts that the state’s failure to conduct the test resulted in a violation of its constitutional duty to preserve potentially exculpatory evidence.

A criminal defendant’s right to due process of law is implicated when the state loses, destroys, or otherwise fails to preserve material evidence. See Arizona v. Youngblood, 488 U.S. 51, 56-58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); California v. Trombetta, 467 U.S. 479, 486-91, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). The state’s duty to preserve evidence exists only with respect to evidence it collects during the investigation of a crime. State v. Steffes, 500 N.W.2d 608, 612-13 (N.D.1993); State v. Ware, 118 N.M. 319, 881 P.2d 679, 682 (1994). The reason for this is obvious, as it would be illogical to impose an obligation on the state to preserve evidence that it does not possess.

In support of his claim that the state had a constitutional duty to preserve evidence of his alcohol concentration, Krosch argues that the state began to collect the evidence when one of the arresting officers recited the implied consent advisory and that the state’s duty to preserve the evidence attached at that time. According to Krosch, the state then lost or destroyed the evidence when it failed to conduct an alcohol-concentration test.

In State v. Rivera, 152 Ariz. 507, 733 P.2d 1090 (1987), the Arizona Supreme Court considered an argument essentially identical to the one Krosch makes here. In Rivera, the defendant claimed the state deprived him of due process of law by failing to test his blood-alcohol content at the time of his arrest. Id. at 1094. Like Krosch, the defendant in Rivera presented a voluntary intoxication defense at his trial for first-degree murder. Id. at 1095. Also, like Krosch, the defendant contended that the state’s failure to conduct a test was tantamount to the loss or destruction of potentially exculpatory evidence. Id. at 1094. The Arizona Supreme Court rejected the defendant’s attempt to equate the state’s failure to conduct a test with a violation of its duty to preserve evidence, reasoning that the state “did not suppress, destroy or fail to preserve evidence. Rather, the State chose not to gather evidence of defendant’s blood alcohol level to prove its case.” Id. We find that the reasoning of the Arizona Supreme Court in Rivera is sound.

There is a fundamental distinction between those cases in which the state loses, destroys, or otherwise fails to preserve evidence it has collected and those in which the state fails to collect evidence in the first instance. Ware, 881 P.2d at 683; see Steffes, 500 N.W.2d at 612-13. As in Rivera, the record here demonstrates that the arresting officers chose not to collect evidence of Krosch’s alcohol concentration and did not lose, destroy, or otherwise fail to preserve the evidence. Because the state did not collect the evidence at issue, it could not possibly have had a duty to preserve it. We therefore reject Krosch’s argument that this case involves the state’s constitutional duty to preserve evidence.

We now move on to address the question of whether the state’s failure to conduct an alcohol-concentration test deprived Kroseh of due process of law. Our decision on this issue is guided by that of the United States Supreme Court in Youngblood. In Youngblood, a case that dealt principally with the state’s failure to preserve semen samples in a prosecution for child molestation, sexual assault, and kidnapping, the Court also discussed the state’s failure to perform a particular kind of test on the samples. 488 U.S. at 58, 109 S.Ct. 333. Responding to the lower court’s somewhat oblique reference to the state’s “inability to quantitatively test” the samples, the Court stated:

If the [lower] court meant by this statement that the Due Process Clause is violated when the police fail to use a particular investigatory tool, we strongly disagree. The situation here is no different than a prosecution for drunken driving that rests on police observation alone; the defendant is free to argue to the finder of fact that a breathalyzer test might have been exculpatory, but the police do not have a constitutional duty to perform any particular tests.

Youngblood, 488 U.S. at 58-59, 109 S.Ct. 333.

As in the example offered by the Court in Youngblood, Kroseh was free to and, in fact, did present evidence with respect to his drinking habits, the amount of alcohol he consumed before he killed Applebee and Kabtyimer, and the effects of his alcohol consumption on his mental state. The police did not, however, have a constitutional duty to perform an alcohol-concentration test. See id. at 59, 109 S.Ct. 333. Thus, we conclude that Kroseh has not established a due process violation.

II.

Kroseh also claims that the trial court improperly denied his request for a jury instruction to the effect that, had the arresting officers tested his alcohol concentration, the test would have produced evidence unfavorable to the state. Kroseh requested the instruction on the ground that it was an appropriate sanction for the state’s failure to conduct the test.

A refusal to give a requested jury instruction lies within the discretion of the trial court and no error results unless an abuse of discretion is shown. State v. Broulik, 606 N.W.2d 64, 68 (Minn.2000); State v. Blasus, 445 N.W.2d 535, 542 (Minn.1989). Given our holding that the state was under no obligation to conduct an alcohol-concentration test in this case, we conclude that the trial court’s refusal to give the proposed jury instruction was not an abuse of discretion.

III.

Finally, we turn to Krosch’s pro se supplemental brief, which sets forth nine separate allegations of wrongdoing by trial counsel and the trial court. The brief contains no argument or citation to legal authority in support of the allegations and we therefore deem them waived. See State v. Ture, 632 N.W.2d 621, 632 (Minn.2001); McKenzie v. State, 583 N.W.2d 744, 746 n. 1 (Minn.1998); Louden v. Louden, 221 Minn. 338, 339, 22 N.W.2d 164, 166 (1946) (“An assignment of error based on mere assertion and not supported by any argument or authorities in appellant’s brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection.”).

Affirmed.

      . Section 169.123, subdivision 2(b), is now codified at Minn.Stat. § 169A.51, subd. 2 (2000).

      . The receipt, dated April 7, 2000, at 6:39 a.m., is for the purchase of 41.071 gallons of gasoline from a gas station in Minneapolis.

      . Minnesota Statutes § 609.075 (2000) provides:
      An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.

      .Krosch testified that he would typically start work at approximately 8:00 or 9:00 a.m. and would begin to drink sometime between 10:00 a.m. and noon. Krosch stated that he would drink "pretty much” straight through the day until the end of his shift at approximately 4:00 or 5:00 p.m., and that one-half to two-thirds of a liter of alcohol would be gone by then. Krosch would then continue to drink after work until he either passed out or all available alcohol was gone.


author: GILBERT, Justice.

text:
    STATE of Minnesota, Respondent, v. Mitchell Jay LANDA, Petitioner, Appellant.
    No. C4-00-1673.
    Supreme Court of Minnesota.
    May 2, 2002.

      Steven P. Russett, Asst. State Public Defender, Minneapolis, for Appellant.
    Mike Hatch, State Atty. General, Susan Gaertner, Ramsey Cty. Atty., Jeanne L. Schleh, Asst. Ramsey Cty. Atty., St. Paul, for Respondent.
   OPINION

GILBERT, Justice.

On May 11, 2000, Mitchell Jay Landa was convicted of first-degree aggravated robbery. Landa appealed his conviction and argued, among other things, that (1) there was insufficient evidence to support the conviction because the eyewitness identifications were inaccurate and unreliable and (2) the district court abused its discretion in refusing to give an alibi instruction to the jury. In an unpublished opinion, the court of appeals rejected all of Landa’s arguments and affirmed the conviction. We affirm.

On December 31,1999, around 3:00 p.m., a man wearing an aviator-style cap entered the Minnehaha Tavern in St. Paul. The bartender, the pull-tab operator, and five other patrons were in the bar. The man purchased a beer from Elmer Poirer, the bartender, and sat at a table by himself.

Sometime later, the bartender dropped a $20 bill behind the bar and a customer helped him retrieve it. At the same time, the man wearing the cap approached Rita Boyles, the pull-tab operator, and said, “Hand it over.” Boyles, realizing that she was about to be robbed, said, ‘You don’t want to do that.” The man again said, “Hand it over,” and lifted up his shirt to show Boyles that he had a gun. Fearing that she would be shot, Boyles pushed her booth forward and the man then took the cash from the drawers. Sharon Engevik, a patron, felt Boyles push the pull-tab booth toward her. Engevik turned around, saw the man taking the money from the drawers, and yelled, “Call 911!” The man ran to the back door. Boyles said, “I have been robbed and he has got a gun.” Terry Leis, a patron, called 911. Jerald Engevik, Sharon Engevik’s husband, followed the man out the back door. He observed the man get into the driver’s side of a blue four-door car with license number 327-HFA and drive off. He saw no one else in the car. It was later determined that the man had taken $414.

The St. Paul police interviewed all seven witnesses. The witnesses described the robber as a white male who was approximately 5 feet 10 inches tall and weighed between 150 and 170 pounds. They stated that the robber was in his thirties, had some facial hair (stubble), and was wearing an aviator cap and a blue jacket. Boyles said that the robber had brown eyes.

The police determined that the car was registered to Robert Allbee. Because All-bee was in jail at the time of the crime, the police focused their attention on Allbee’s associates. Officer Kevin Moore assembled three photo lineups and included photos of some of Allbee’s associates in the lineups. The photo lineups did not contain a photo of appellant. Boyles, Poirer, and Leis separately examined the three lineups. Boyles stated that the robber was not there. Poirer made no positive identification, but believed that the robber “kind of looked like” one of Allbee’s associates. Leis made no positive identification, but believed that the robber “kind of looked like” one of AJlbee’s associates and another fill-in.

On January 5, 2000, Moore drove by the home of Ronald Class, an associate of AJl-bee’s, and observed the car used by the robber in the driveway. He then saw a female drive off in the car. Another officer stopped the car and Moore identified the driver as Mitchell Landa’s girlfriend, Nicole Walters. According to Moore, Walters said that the car belonged to Landa and that Landa had been gone for a few hours during the afternoon of December 31 to visit a friend. Based on this information, Moore returned to Class’s home and obtained permission from Michelle Lee, a resident, to enter the house to arrest Landa. The officers used a police dog and arrested Landa, who was hiding under a bed. The officers recovered a blue jacket belonging to Class. Boyles later stated that the jacket found by the police was not the jacket worn by the robber.

On January 6, the police prepared two photo lineups, one of which contained Lan-da’s picture. They again separately showed the lineups to Boyles, Leis, Poirer, and the Engeviks. Boyles, Leis, Poirer, and Sharon Engevik identified Landa as the robber. Jerald Engevik said that he was not sure, but believed that the robber was either Landa or one of the fill-ins.

Landa was charged with first-degree aggravated robbery in violation of Minn.Stat. § 609.245, subd. 1 (2000). At Landa’s trial, Boyles, Leis, and the Engeviks identified Landa as the robber. Poirer testified that the person he identified in an out-of-court photo lineup on January 6 was the robber. At that time, Poirer had identified Landa as the robber. At Landa’s trial, Poirer testified that Landa looked similar to the robber, but that he could not be sure.

In his defense, Landa called his friend Roger Blahowski to testify. Blahowski testified that in the spring and summer of 1999, he and Landa had frequently patronized the Tavern, played pull-tabs, and occasionally won. The records of the Tavern’s pull-tab winners indicated that Bla-howski won 15 pull-tabs in the spring and summer of 1999, but there was no evidence regarding wins by Landa. Blahow-ski also testified that he arrived at the Class home on December 31, 1999 between 4 and 6 p.m. and woke Landa up. On cross-examination, Blahowski acknowledged that he knew Landa had been arrested for the robbery, but had not contacted police about the alibi. Blahowski also acknowledged his own four prior felony convictions. The Tavern’s patrons and employees who identified Landa as the robber in court did not corroborate Bla-howski’s testimony that Landa had frequently patronized the Tavern in the spring and summer of 1999.

Landa testified on his own behalf and denied robbing the Tavern. Landa claimed that he was sleeping all day on December 31 until Blahowski woke him up. Landa testified that Albee had sold the car used in the robbery to Chad Campeau and that Landa borrowed the car from Cam-peau’s girlfriend on January 4 and let Walters use the car on January 5. Landa also testified that he bought the car on January 4. According to Landa, he and Blahowski had frequently patronized the Tavern during the spring and summer of 1999, had played pull-tabs, and had won a few times. Landa acknowledged that he had been convicted of unauthorized use of a motor vehicle, felony theft, auto theft, burglary, possession of a controlled substance, simple robbery, possession of tear gas by a felon, and escape from custody.

Landa called his friend Rachel Rolfer to testify. Rolfer testified that on December 31, 1999, she visited someone who lived with Landa and that Landa was present the entire afternoon. Rolfer also testified that she knew that Landa had been arrested for the robbery, but had not told police about Landa’s alibi.

Nicole Walters also testified on behalf of Landa. According to Walters, Landa was with her on December 31 and slept until about 6:00 p.m. Walters testified that she had not seen Landa driving the ear used in the robbery until January 4. Walters said that when the officers stopped her on January 5, she told them that she got the car from Landa and that Landa had been with her on December 31. On cross-examination, Walters denied telling the police that the car belonged to Landa. She also denied telling the police that Landa had been with her all day on December 31 except for a few hours in the afternoon when he used the car to visit a friend.

Following Walter’s testimony, Moore testified that when he stopped Walters on January 5, Walters said that the car belonged to Landa. Moore also testified that Walters told him that Landa went to see a friend in the afternoon of December 31.

After Moore’s testimony, the court heard arguments from counsel outside the presence of the jury regarding the propriety of giving an alibi instruction. Landa requested an alibi instruction, arguing that it was permissible even though the criminal jury instruction guidelines do not recommend that it be given and even though he had not provided the court with a proposed jury instruction on alibi. The state opposed an alibi instruction, noting that Landa had not proposed a specific alibi instruction. The court then stated that in the proposed eyewitness instructions submitted by Landa, there was a footnote referencing a federal case and that this case indicated that if a judge gives an alibi instruction, the judge should also instruct the jurors on the possible bias in the testimony by the defendant’s family or friends. The court said that the alibi instruction is “one of those instructions that, I think, can cut both ways and is, potentially, dangerous.” The court went on to say that because the instruction could be “dangerous,” the jury instruction guideline committee recommended that no instruction on alibi be given. The court noted that a second reason why the committee recommended against giving an alibi instruction is that an alibi is proof that a necessary element of the state’s case does not exist rather than a defense. The court then announced that it would follow the committee’s recommendation and would not give an alibi instruction.

The court then brought the jurors back into the courtroom and instructed them on the law that they had to apply in Landa’s case. With respect to the identification issue, the court told the jury that testimony had been introduced tending to identify Landa as the person observed at the time of the alleged offense. The court cautioned the jury to carefully evaluate that testimony and consider factors such as (1) the opportunity of the witness to see the person at the time of the alleged offense, (2) the length of time the person was in the witness’s view, (3) the circumstances under which the witness viewed the person, including lighting conditions and the distance involved, (4) the stress the witness was under at the time the witness observed the person, and (5) the lapse of time between the alleged offense and the identification.

After the court instructed the jury, the state presented its closing argument. Landa then gave his closing argument and contended that he was somewhere else when the robbery occurred. Nevertheless, the jury found Landa guilty of first-degree aggravated robbery.

Landa appealed and argued, among other things, that (1) there was insufficient evidence to support the conviction because the eyewitness identifications were inaccurate and unreliable and (2) the district court abused its discretion in refusing to give an alibi instruction to the jury. In an unpublished opinion, the court of appeals rejected all of Landa’s arguments and affirmed the conviction. With respect to the sufficiency of the evidence issue, the court concluded that the jury could have believed the state’s witnesses and disbelieved all contrary evidence or alleged inconsistencies, Accordingly, the court held that there was sufficient evidence for the jury to determine that Landa robbed the Tavern. With respect to the alibi instruction, the court of appeals agreed with the district court that it is not always wise for judges to give requested alibi instructions because such instructions can be “dangerous.” The court noted that the district court instructed the jury that the state has the burden of proving that Landa was guilty and that the state necessarily had to prove that Landa was actually at the Tavern on the day of the robbery and was not sleeping, as purported by Landa’s alibi. The court also observed that Landa’s attorney thoroughly presented Landa’s alibi contention in his closing argument. For all these reasons, the court concluded that the district court did not abuse its discretion in declining to issue an alibi jury instruction.

We granted review to determine whether (1) the evidence was sufficient to support Landa’s conviction and (2) whether the district court committed reversible error in denying Landa’s request for an alibi instruction.

I.

Landa first contends that the state failed to prove beyond a reasonable doubt that he was the person who robbed the Tavern because his conviction was based almost exclusively on inaccurate and uncorroborated eyewitness identification testimony. According to Landa, the accuracy of the eyewitnesses’ identifications are suspect for several reasons. First, the robber’s facial features were obscured because he was wearing an aviator cap that covered his head and much of his face. Second, Boyles observed the robber while she was being robbed, an extremely stressful situation that was not conducive to accurate identification. Third, there were disparities between certain physical characteristics of the robber identified by the witnesses and Landa’s actual features. Some witnesses told the police that the robber had dark, wavy brown hair, and brown eyes. Poirer and Leis selected photos of men with these features and said that they resembled the robber. However, Landa has sandy-blond hair and blue eyes. Fourth, the fact that the police showed the full set of photo spreads to the witnesses rather than one photo at a time created a greater risk of misidentification. Fifth, the possibility of misidentification was enhanced by the fact that Landa had previously been to the Tavern on several occasions prior to the robbery. Finally, Landa’s alibi evidence created doubts about the accuracy of the witness identifications. In light of all of these problems regarding the accuracy of the witness identifications, Landa argues that the state needed corroborating evidence to meet its burden of proof. According to Landa, however, the record is “devoid of any meaningful evidence corroborating the eyewitness testimony.”

In reviewing a claim of insufficiency of the evidence in a criminal matter, this court determines whether a jury could reasonably conclude that the defendant was guilty of the offense charged. State v. Johnson, 568 N.W.2d 426, 435 (Minn.1997) (citing State v. Merrill, 274 N.W.2d 99, 111 (Minn.1978)). In doing so, the court views the evidence in the light most favorable to the verdict and assumes that the jury disbelieved any testimony in conflict with the result it reached. State v. Daniels, 361 N.W.2d 819, 826 (Minn.1985). An identification need not be positive and certain to support a conviction — it is sufficient if a witness testifies that in his belief, opinion, and judgment the defendant is the one he saw commit the crime. Johnson, 568 N.W.2d at 435. Weighing the credibility of witnesses is the province of the jury. Id. The jury is free to accept part and reject part of a witness’s testimony. Id. at 436. Inconsistencies or conflicts between one state witness and another do not necessarily constitute false testimony or the basis for reversal. Daniels, 361 N.W.2d at 826-27.

Eyewitness testimony, standing alone, can support a guilty verdict. State v. Gluff, 285 Minn. 148, 150-51, 172 N.W.2d 63, 64 (1969). Here, the jury could have reasonably believed the testimony of the five witnesses who identified Landa as the robber. At Landa’s trial, Boyles, Leis, and the Engeviks identified Landa as the robber. In addition, Poirer testified that the person he identified in the photo lineup was the robber and that Landa looked similar to the robber, but he could not be sure. Six days after the robbery, Boyles, Leis, Poirer, and Sharon Engevik identified Landa as the robber from the photo lineups and Jerald Engevik said that he believed that the robber was Landa or one of the fill-ins. Even excluding the identifications by Jerald Engevik and Poirer, the identifications of Landa as the robber by Sharon Engevik, Boyles, and Leis are consistent with their prior identifications of Landa in the photo lineups. Their identifications are also consistent with each other.

The jury could have accepted these witnesses’ identification of Landa as the robber. They could have disbelieved contradictory testimony and arguments that it was difficult to identify the robber because the cap obscured most of the robber’s facial features. The jury also could have disbelieved Landa’s argument that Boyles’ identification was suspect because she was under stress while she was being robbed. Finally, the jury could have disbelieved the testimony by Rolfer, Blahowski, and Walters regarding Landa’s alibi and Blahow-ski’s testimony that Landa had previously patronized the Tavern. See State v. Gray, 456 N.W.2d 251, 259-60 (Minn.1990) (explaining that the jury is not obligated to believe the defendant’s story; rather, the court assumes that the jury believed the state’s witnesses and no contrary evidence).

The jury, as the judge of credibility, is free to disregard part of a witness’s testimony and accept another part. Johnson, 568 N.W.2d at 436. The jury could have believed testimony by Boyles, Leis, and Sharon Engevik that Landa was the robber and disregarded evidence that these witnesses’ descriptions of the robber varied from Landa’s actual features. Each of these witnesses was subject to cross-examination and the inconsistencies and discrepancies in their testimony were presented to the jury.

Furthermore, there is corroborating evidence to support the reliability of these identifications. For example, it was not just one witness who identified Landa as the robber — several witnesses identified Landa as the robber. Second, there is some evidence indicating that Landa may have owned or at least had access to the car used as the getaway car by the robber at the time of the robbery. Third, Landa hid under a bed to avoid arrest.

We hold that the evidence was sufficient to support Landa’s conviction. The robbery occurred in the afternoon. The person who committed the robbery purchased a beer from the bartender, sat at a table for some time before committing the robbery, and did not wear a mask. The robber drew attention to himself by wearing an unusual cap. The robber conversed briefly with the pull-tab operator while demanding the money. One patron witnessed the robber taking money from the pull-tab operator’s drawers and yelled, “Call 911,” thereby drawing attention to the robber before he fled the scene and giving other patrons the opportunity to observe the robber. Three witnesses identified Landa as the robber and those identifications were consistent with their prior identifications of Landa as the robber from the photo lineups. Also, these identifications were corroborated by additional evidence at trial. Accordingly, the jury could reasonably have concluded that Landa was guilty of robbing the Minnehaha Tavern on December 31,1999.

II.

Landa’s second argument is that the district court erred in not giving an alibi instruction. Landa contends that the court should have given such an instruction because there was evidence supporting the alibi defense.

The refusal to give a requested jury instruction lies within the broad discretion of the district court and will not be reversed absent an abuse of discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn.1996). We have never prohibited alibi instructions. See, e.g., State v. Kluck, 299 Minn. 161, 169, 217 N.W.2d 202, 208 (1974). However, when the defendant objects to an alibi instruction, we have cautioned against giving certain alibi instructions and have recommended that such instructions, if given, should be “carefully phrased to make clear to the jury that defendant had only to create a reasonable doubt through the alibi defense.” Id. See also State v. Wilson, 238 Minn. 447, 452, 57 N.W.2d 412, 415 (1953) (stating that alibi instruction, “if given at all, must be given with extreme care to the end that evidence tending to prove an alibi is given proper consideration by the jury”).

Here, the question before us is whether the district court abused its discretion in refusing to give an alibi instruction when requested by the defendant. In evaluating this question, we examine the whole of the instructions and the context in which the decision was made. Kluck, 299 Minn. at 170, 217 N.W.2d at 208.

In Landa’s case, the district court declined to provide an alibi instruction and followed the recommendation of CRIMJIG 7.09. Minnesota’s jury instruction guidelines recommend against giving an alibi instruction because:

An alibi is not a defense. It is proof that a necessary element of the State’s case does not exist. The burden of proof is on the State. In keeping with the general position that the instructions should not comment on the effect of particular evidence, the Committee recommends no instruction on alibi.

10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 7.09 cmt. (4th ed.1999). The district court denied Landa’s request for an alibi instruction on the grounds that (1) an alibi instruction, coupled with an instruction regarding the possible bias of defendant’s family and friends, might harm the defendant and (2) such an instruction was not necessary because an alibi argument posits that a necessary element of the state’s case does not exist and that the state has not met its burden of proof.

We conclude that the district court did not abuse its discretion in declining Lan-da’s request for an alibi instruction. First, the district court’s concern that providing an alibi instruction and an instruction cautioning the jury regarding the possible bias of the defendant’s friends and family was particularly compelling in light of the fact that all three witnesses who provided alibi testimony were Landa’s friends. Second, Landa failed to provide the district court with an alibi instruction and therefore gave no guidance to the district court. See State v. Wipper, 512 N.W.2d 92, 94 (Minn.1994) (holding that the district court did not abuse its discretion in failing to instruct the jury that the alleged accomplice to the crime had invoked his Fifth Amendment privilege when the defendant requested that the jury should “somehow be informed as to the reason for” the witness’s nonappearance and did not specifically request that the district court instruct the jury that it could not draw an adverse inference against either side from the assertion of the privilege).

Landa asserts that he was entitled to an alibi instruction because alibi was his theory of defense. However, if evidence exists to support the defendant’s theory of defense, a court is not required to give the requested instruction if the substance of the particular instruction is already contained in the court’s instruction to the jury. State v. Mitchell, 577 N.W.2d 481, 493 (Minn.1998). In Mitchell, we held that the district court’s instructions to the jury that (a) the state has the burden of proving all elements of the crime beyond a reasonable doubt and (b) the jury must find that the defendant caused the death of the victim and find that he acted with the intent to kill the victim, supported the conclusion that the district court did not abuse its discretion in declining to issue an instruction regarding the defendant’s theory of the case. Id. at 493-94. In Landa’s case, the court instructed the jury that the state had the burden of proof throughout the trial, Landa did not have to present any evidence, Landa never had any burden to prove his innocence, and the state had to prove each element of the alleged crime beyond a reasonable doubt. The court also told the jury that testimony had been introduced regarding the identity of the robber and cautioned the jury to carefully evaluate that testimony. Therefore, the district court did not abuse its discretion in failing to provide an alibi instruction, even though alibi was Landa’s theory of defense.

In light of the reasons provided by the district court for denying Landa’s request for an alibi instruction, coupled with the fact that Landa did not provide the court with an alibi instruction, we conclude that the district court did not abuse its discretion in declining to provide an alibi instruction at Landa’s trial. This conclusion is further supported by the fact that defense counsel was free to and did argue the alibi evidentiary issue in his closing statement and that the court gave instructions on burden of proof and reasonable doubt, thereby providing some protection and leeway to insure that the jury gave the alibi issue proper consideration without invading the province of the jury.

Affirmed.

      . Although Landa argues that the manner in which the photo lineups were shown to the witnesses increased the chances of misidenti-fication, he does not explain the nature of the misidentification. Nor does Landa argue that the photo lineups were so suggestive that they created a " 'very substantial likelihood of irreparable misidentification’ " in violation of the due process clause. State v. Lindahl, 309 N.W.2d 763, 765 (Minn.1981) (quoting Manson v. Brathwaite, 432 U.S. 98, 107, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) and citing Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)).

      . In his brief to this court, Landa submitted an alibi instruction based on the Ninth Circuit’s model jury instructions. See Ninth Circuit Manual of Model Jury Instructions, Criminal, § 6.1 (2000). In his brief to the court of appeals, Landa proposed an alibi instruction based on the general federal jury instruction. See 1A Kevin F. O'Malley et al., Federal Jury Practice and Instructions § 19.07 (5 th ed.2000). These alternate submissions do not negate the fact that Landa failed to submit an alibi instruction to the district court. In addition, these alternative submissions make it difficult to review Landa’s claim on appeal. More importantly, the federal scheme is very different from our own. For example, federal judges are permitted to comment on the evidence, but we have cautioned our judges that instructions that single out a particular category of evidence should be avoided. Compare Quercia v. United States, 289 U.S. 466, 469-70, 53 S.Ct. 698, 77 L.Ed. 1321 (1933) with State v. Olson, 482 N.W.2d 212, 215 (Minn.1992). Because the federal scheme differs from our own, the fact that the federal system requires an alibi instruction under certain circumstances does not mean that such a rule is appropriate for Minnesota. Finally, we note that Landa did not provide written notice to the state that he intended to use the alibi defense. Although it is not an issue on appeal, written notice is mandated by Minn. R.Crim. P. 9.02, subd. 1(3)(a) and (c).