This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


State of Minnesota,


Michael Francis Smisek,

Filed August 24, 1999
Schumacher, Judge

Scott County District Court
File No. K9715223

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Thomas J. Harbinson, Scott County Attorney, Angela M. Helseth, Assistant County Attorney, Government Center JC340, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent)

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Michael Francis Smisek appeals from his convictions of fleeing a peace officer in a motor vehicle in violation of Minn. Stat. § 609.487, subd. 3 (1996), and driving after revocation in violation of Minn. Stat. § 171.24, subd. 2 (1996). He claims the trial court erred in refusing to dismiss the jury panel and failing to give the jury curative instructions after impermissibly commenting on Smisek's possible punishment. We affirm.


Smisek was convicted by a jury of fleeing a peace officer in a motor vehicle in violation of Minn. Stat. § 609.487, subd. 3 (1996), and driving after revocation in violation of Minn. Stat. § 171.24, subd. 2 (1996). During voir dire, the trial court made a comment that the charges involved were a gross misdemeanor and a misdemeanor and distinguished them from a felony. Smisek objected to the court mentioning the level of offense and moved to have the jury panel dismissed. The court denied Smisek's motion, but stated that a curative instruction would be given during final jury instructions. After the court read the final jury instructions, which did not contain a curative instruction, the court asked if there were any objections or exclusions. Smisek's attorney replied, "No." Smisek was convicted on both counts and appeals.


Smisek appeals the trial court's denial of his motion to dismiss the jury panel, claiming he should be granted a new trial. The trial court has substantial discretion in conducting voir dire and should not be overturned absent an abuse of this discretion. State v. Chambers, 589 N.W.2d 466, 474 (Minn. 1999). Smisek argues the panel should have been dismissed because the trial court mentioned the level of the charged offense.

A party may either challenge the entire jury panel, challenge an individual juror for cause, or use a peremptory challenge against an individual juror. Minn. R. Crim. P. 26.02, subd. 7. In a criminal case, the jury may not be advised of the consequences of its verdict. State v. Carignan, 271 N.W.2d 442, 443 (Minn. 1978). The court may comment on punishment only to remind the jury they are not to consider it in their deliberations. The supreme court has held:

It is proper in criminal cases to admonish the jury that in the event of a verdict of guilty their responsibilities as triers of the facts do not extend to a consideration of the punishment.

State v. Finley, 214 Minn. 228, 232, 8 N.W.2d 217, 218 (1943) (citations omitted).

Smisek argues that by differentiating the charges against him from a felony charge, the court indirectly commented on the consequences the jury's verdict would have on his punishment. We disagree. In this case, the trial court did not comment on punishment. Rather, the court merely commented on the levels of the offense. Although the explanation of the offense level had some relationship to possible punishment, it was only an indirect relationship and therefore the comment was at most a de minimis violation of the general rule.

Smisek argues that it was error for the court not to have given a curative instruction to the jury during final jury instructions and cites State v. Brinkhaus, 34 Minn. 285, 289, 25 N.W. 642, 644 (1885), which holds that an error in commenting on punishment was not prejudicial where the court later gave curative instructions not to consider consequences of the verdict. As we have previously stated, it was not error for the trial court to advise the jury on the level of the offense. Furthermore, Smisek's counsel neither requested a curative instruction nor objected to the jury instructions.

Smisek filed a pro se supplemental brief. We have reviewed the brief and conclude the issues raised are not material to his appeal and his arguments are not supported by legal analysis or citation. See Ganguli v. University of Minnesota, 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (stating court declines to address allegations unsupported by legal analysis or citation).