This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
State of Minnesota,
Tony Darnell Moore,
Filed October 9, 2007
Hennepin County District Court
File No. CR-01-102808
Lori Swanson, Attorney General, 1800
Michael O. Freeman, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent)
Considered and decided by Randall, Presiding Judge; Halbrooks,
Judge; and Parker, Judge.*
Appellant Tony Darnell Moore was on probation for a 2002 conviction of second-degree possession and third-degree sale of controlled substances. On March 3, 2004, the Minneapolis Police Department drug squad executed a daytime knock-and-announce search warrant for the upper unit at 1900 Portland Avenue, a duplex with a common front door.
was charged on October 4, 2004, with first-degree sale of controlled substance,
which resulted in an arrest-and-detention order for probation violation. A few days before the Rasmussen hearing, the state moved to proceed with a
hearing instead of trial. The district
court granted the motion. Appellant
moved that the state take the new charge to trial before the Morrissey hearing or that the Morrissey hearing be decided by a jury. The district court denied those motions. Appellant sought to have the district court
judge, who presided over the Rasmussen
hearing, removed under Minn. R. Crim. P. 26.03, subd. 13(4). That motion was denied. Appellant then petitioned this court for a
writ of prohibition and a writ of mandamus.
In re Moore, A05-1501, at *1 (
The Morrissey hearing was held over several days, concluding with submission of written closing arguments. The district court revoked appellant’s probation on March 20, 2006. On April 28, the state moved to dismiss the new felony charge because any potential sentence arising out of a conviction would run concurrently with appellant’s sentence on the first conviction. Appellant argued a series of post-revocation motions, seeking to vacate the probation revocation on the grounds that he was denied a jury trial and was deprived of due process and equal protection and that secret rules were utilized by the district court. The district court denied appellant’s motions. This appeal follows.
argues that he was denied a jury trial because the district court granted the
state’s motion to proceed with a probation-revocation hearing on a 2002 conviction
before the charges stemming from a 2004 arrest could be determined in a jury
trial. The district court has broad
discretion in determining whether sufficient evidence exists for a probation revocation
and will be reversed “‘only if there is a clear abuse of that discretion.’” State v. Modtland, 695 N.W.2d 602, 605
may be revoked if the district court finds upon clear and convincing evidence
that probation has been violated.
the probationer has allegedly violated a condition of probation by commission
of a crime, the court may postpone the revocation hearing pending
disposition of the criminal case whether or not the probationer is in
Here, appellant had a seven-day Rasmussen hearing. The district court denied most of appellant’s suppression motions and granted the state’s request to proceed with a Morrissey hearing instead of waiting for trial on the 2004 charge. In its June 13, 2005 Rasmussen hearing memorandum, the district court noted its discretion under Minn. R. Crim. P. 27.04, subd. 2(4), and then explained that the decision to proceed with the Morrissey hearing was appropriate.
The [c]ourt in this case feels it would be best to immediately go to a revocation hearing before trial. The standard of law and process is different between a revocation hearing and a trial. The standard of proof for a probation violation is clear and convincing. Finally, the [c]ourt has already spent so much time on this case that it would only make sense to take a little more time and proceed directly to the probation revocation hearing and not delay, waiting for a trial to conclude. Most of the evidence and testimony needed for the probation revocation hearing has already been presented in this proceeding.
raised the issue again before and after the Morrissey hearing. The district court recognized, in memoranda attached
to its December 7, 2005 and July 17, 2006 orders, the similarity between this
case and the argument presented in Phabsomphou. In Phabsomphou, the defendant was on
probation with the condition that he obey all federal, state, and local laws
when he was subsequently charged with gross-misdemeanor domestic assault. 530 N.W.2d at 877. The arrest and detention order also indicated
violation of other chemical-dependency probation conditions that were
appeal, this court noted that the use of “may” in Minn. R. Crim. P. 27.04,
subd. 2(4), “indicates that the drafters intended to leave the district court
with discretion to decide when revocation hearings would be held.”
Appellant’s claim that his strategy at the Rasmussen hearing would have been different had he known that the Morrissey hearing was to follow is inconsistent with the transcript in which appellant’s attorney said on the first day of the Rasmussen hearing that she learned of the state’s motion “a couple days ago.” The district court, likewise, found:
There is no question that [appellant] as well as everyone else participating in [appellant’s] case understood that after the Rasmussen hearing on [appellant’s] new charge that the [s]tate would be moving for an immediate probation revocation hearing on [appellant’s] old charge. Regardless, even if [appellant] and his attorney did not understand the way [appellant’s] two cases would proceed (something this [c]ourt does not believe), this [is] not a violation of [appellant’s] constitutional rights and [appellant] has not been shown to be prejudiced by this in any way.
The district court expressed its willingness to grant appellant limited-use immunity to neutralize any potential prejudice from his Rasmussen hearing testimony. In its December 7, 2005 memorandum, the district court said that it “is prepared to . . . offer [appellant] limited use immunity for all statements made at the revocation hearing in order to protect [appellant’s] due process and jury trial rights.” Similarly, the district court noted its offer in its July 17, 2006 memorandum. The district court’s memorandum to its March 20, 2006 Morrissey order, likewise, responds to appellant’s rearguing
that his right not to self-incrimination has been violated. This issue has been already decided by the [c]ourt and the [c]ourt has ruled that [appellant] may request that his Rasmussen hearing testimony be excluded from consideration in this probation revocation hearing. However, this issue is moot because the [c]ourt does not need to consider [appellant’s] testimony at the Rasmussen hearing to decide whether or not to revoke [appellant’s] probation.
conditions of appellant’s probation required that he “must not be charged with any misdemeanors, gross misdemeanors or
felonies.” Although a probation
violation may not be based on a charge on which a defendant is acquitted at
trial, “[t]his is not an inevitable result, however, or even a necessarily
logical one” because of the different burdens of a criminal trial and probation
revocation. 9 Henry W. McCarr & Jack
Appellant claims that his due-process rights were violated at the Morrissey hearing because he was denied “fundamental fairness.” Without briefing the issues, appellant asserts several bases for his claim that he was denied fundamental fairness in the proceedings, including: (1) he was in essence held without bail because his bail was so high; (2) he was denied his right to a speedy hearing; (3) the district court considered evidence at the Morrissey hearing that was outside the record; (4) his closing argument was “essentially ignored”; (5) the district court’s obligation to require police to obey the law was not fulfilled; (6) the district court did not give appellant the presumption of innocence or consider evidence favorable to him; and (7) the delay in processing this case caused evidence to disappear. Issues not briefed on appeal are waived. State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997). Assignment of error in a brief based on “mere assertion” and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection. State v. Modern Recycling, Inc.,558 N.W.2d 770, 772 (Minn. App. 1997) (quoting Schoepke v. Alexander Smith & Sons Carpet Co.,290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971)).
In addition, we have examined appellant’s contentions, which in most cases amount to the reassertion of arguments that were made and rejected by the district court at the Rasmussen hearing, and find no merit in them. It is clear from our review of the record that the district court devoted considerable time and effort to this matter to provide appellant with his right to due process. In each instance, the district court issued detailed, well-reasoned orders and memoranda. The Rasmussen hearing encompassed seven days and resulted in a 31-page order and memorandum, with the district court ultimately deciding to grant the state’s motion to proceed directly to a probation-revocation hearing. Appellant subsequently sought a writ of prohibition before this court. That was denied.
The district court then heard appellant’s multiple motions in preparation for the Morrissey hearing. Appellant asserted 22 issues on which the district court ruled before conducting the probation-revocation hearing.
argues that the Fourth Judicial District has judicial policies that affect
substantive law that are “copied to public but not private attorneys.” “Determination of procedural matters is a
function of the judiciary. This
authority arises from the court’s inherent judicial powers, and has been
acknowledged by the legislature.” State
v. Nerz, 587 N.W.2d 23, 24 (
this court considered appellant’s writ of prohibition, we held that appellant
“has not shown that there are ‘unwritten rules’ in the Fourth Judicial District
governing the removal of judges.” In
response to appellant’s argument, the district court informed appellant that a
colleague, Judge Oleisky, published an article about the general operation of
the executive committee in a
This [c]ourt is not
aware of any secret, clandestine or unpublished rules that affect this case or
any other cases. Furthermore, this court
is not aware of any private cabal of judges in
No evidence has been presented to the contrary.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.