This opinion will be unpublished and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


State of Minnesota,


Brian Keith Jones,

Filed September 14, 1999
Amundson, Judge

Ramsey County District Court
No. K6-98-1443

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant challenges the district court's conviction and sentence, arguing that his right to testify on his own behalf was "chilled" by the district court's statement that perjury could result in a harsher sentence. We affirm.


Appellant Brian Keith Jones was charged with a second-degree violation of the controlled substance law under Minn. Stat. § 152.022, subd. 2(1) (1998). After a Rasmussen hearing the district court found that Jones's version of events was not credible and denied his motion to suppress evidence. The trial was to begin the next morning with jury selection. Prior to jury selection, a discussion was held between the district court and the attorneys regarding whether prior convictions could be used to impeach witnesses. The district court ruled that for the purposes of impeachment both sides could use prior convictions.

The district court also told Jones's attorney to inform Jones that the court had the discretion at sentencing to take into consideration perjury at trial. Jones's attorney asked the judge to explain to Jones directly and on the record how perjury might influence sentencing. But that conversation did not take place because upon learning that he could be confronted with his past convictions if he testified, Jones fired his attorney and asked to proceed pro se. Jones was allowed to proceed pro se and the trial continued. Jones later waived his right to testify before the jury. Jones now claims that his right to testify was "chilled" because the district court threatened to consider perjury at sentencing.


The state argues that this case fails to present an issue for review and that Jones failed to preserve the issue before the district court. Ordinarily, we will not consider issues that have not been decided below. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). An appellate court may, however, review any matter "as the interest of justice may require." Minn. R. Crim. P. 28.02, subd. 11.

Generally, this court must limit its review to those issues actually raised before the district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). In addition to the argument that this issue was not presented before the district court, the state argues that Jones failed to prove that he had knowledge of the district court's statement regarding the consideration of perjury at sentencing. In either case, the state argues that Jones never preserved the issue for appeal because he failed to comment on the record, obtain an affidavit, or by move for a new trial.

Appellant's failure to make a proper record may preclude the issue from being raised on appeal. Del Hayes & Sons, Inc. v. Mitchell, 304 Minn. 275, 288, 230 N.W.2d 588, 596 (1975); see also Republic Nat'l Life Ins. Co. v. Lorraine Realty Corp., 279 N.W.2d 349, 355 n.2 (Minn. 1979). The Minnesota Supreme Court stated:

A court cannot assume the materiality of evidence not included in the record nor in any way disclosed, and in the absence of any showing of the nature and substance of such evidence, this court cannot determine whether it was erroneously excluded or if plaintiff was prejudiced by such exclusion.

State v. Wolkoff, 250 Minn. 504, 519-20, 85 N.W.2d 401, 412 (1957) (footnote omitted); see also Garey v. Michelsen, 227 Minn. 468, 476, 35 N.W.2d 750, 755 (1949) (trial court's exclusion of testimony in absence of offer of proof and any other evidence in the record from which materiality could be determined cannot constitute reversible error); In re Estate of Olsen, 357 N.W.2d 407, 413 (Minn. App. 1984) (any prejudice from exclusion of expert testimony "difficult to assess without an offer of proof"), review denied (Minn. Feb. 27, 1985).

The issue of the district court's statement regarding perjury and sentencing was not properly preserved because appellant failed to: (1) prove that the statement was communicated to him before he decided to waive his right to testify; (2) prove that the statement actually affected his decision to testify; and (3) make a complaint on the record before the district court.

The jury found Jones guilty under Minn. Stat. § 152.022, subd. 2(1), and the district court sentenced him to the presumptive sentence according to the Minnesota Sentencing Guidelines. A district court has broad discretion in sentencing, and will not be reversed absent a clear abuse of discretion. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). But a defendant must not be punished for exercising rights that are constitutionally guaranteed; to chill the right to exercise such rights is tantamount to being deprived of them. State v. Pickett, 375 N.W.2d 105, 108 (Minn. App. 1985), review denied (Minn. Dec. 19, 1985). Nevertheless, before Jones can make the argument that his right to testify was chilled, he must prove that the statement effected his decision not to testify. In order to preserve this issue, Jones should have included an affidavit from his dismissed attorney explaining that he shared the judge's statement with Jones. No such affidavit was filed in this case. Jones has failed to present an issue for review by both failing to preserve his allegations on the record and by failing to bring a motion for a new trial.