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`Filed: February 18, 2010
`Office of Appellate Courts
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`STATE OF MINNESOTA
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`IN SUPREME COURT
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`A08-1879
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`Respondent,
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`Appellant.
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`________________________
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`Anoka County
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`State of Minnesota,
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`vs.
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`Gary H. Tomassoni,
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`Lori Swanson, Attorney General, St. Paul, Minnesota; and
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`Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant Anoka County
`Attorney, Anoka, Minnesota, for respondent.
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`Roy G. Spurbeck, Assistant State Public Defender, St. Paul, Minnesota, for appellant.
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`________________________
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`S Y L L A B U S
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`The State’s improper use of evidence admitted solely for impeachment purposes
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`did not affect appellant’s substantial rights.
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`Affirmed.
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`1
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`MAGNUSON, Chief Justice.
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`O P I N I O N
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`On July 21, 2007, appellant Gary Tomassoni shot and killed his wife of 24 years.
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`A grand jury indicted him for first-degree premeditated murder, in violation of Minn.
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`Stat. § 609.185(a)(1) (2008). Tomassoni admitted killing his wife, and his sole defense
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`was that the killing was not premeditated. The jury found him guilty of first-degree
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`premeditated murder, and he received a sentence of life imprisonment without the
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`possibility of release. He now appeals, arguing that his conviction should be overturned
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`because during closing argument, the prosecutor used evidence that had been admitted
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`solely to impeach Tomassoni’s credibility for the substantive purpose of proving
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`premeditation. Tomassoni also raises several arguments in a pro se supplemental brief.
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`We affirm.
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`Gary Tomassoni and his wife were married in 1983. At the time of the events
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`leading up to the homicide that is at issue in this case, Tomassoni and his wife resided in
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`Blaine, Minnesota, with the younger of their two sons. The Tomassonis’ marriage
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`appeared to be happy to their sons and others who knew them. Nothing in the record
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`suggests any history of violence or conflict between them.
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`On the afternoon of July 20, 2007, Tomassoni and his 14-year-old son went for a
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`bike ride. Later in the evening, Tomassoni went biking again, this time with his wife.
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`The couple returned after dark and Tomassoni’s wife went to bed. Their son was in his
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`2
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`bedroom watching television until after midnight, when Tomassoni told him to go to
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`sleep.
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`At about five o’clock on the morning of July 21, the Tomassonis’ son was
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`awakened by a loud noise. He walked from his bedroom in the lower level of the
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`Tomassoni family’s split-level home to the upper level to use the bathroom. When he left
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`the bathroom, his father told him to call 911 because an intruder had entered the house.
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`Tomassoni’s son made the phone call, and both Tomassoni and his son spoke to the 911
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`dispatcher. Tomassoni said that his wife may be dead, and that the intruder may have left
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`the house through an open downstairs window.
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`Police officers quickly arrived at the house, where they found Tomassoni’s wife
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`dead, lying face down on her bed. She had sustained two gunshot wounds to the head.
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`Tomassoni and his son were both visibly upset. Tomassoni was sweating and had a cut
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`on his right index finger. He told police that he had been sleeping on the couch in the
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`living room when he was awakened by a sound like a firecracker or a single gunshot. He
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`said that he heard his wife say, “What was that?”, and then he went to the bedroom,
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`where he saw her lying face down holding the back of her head.
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`During their initial sweep of the house in search of an intruder, the police observed
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`blood stains in various locations around the house. There was blood on the bed and on
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`the bedroom floor, on the bathroom sink, on the bathroom floor, on the bath mat, in the
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`kitchen on the telephone and the trashcan, on the stair railings leading to the lower level,
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`and on a light switch downstairs. A window in the lower level of the house was partially
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`3
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`open. The screen had been removed, and was found bent and damaged inside the room.
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`No footprints were observed in the grass outside the window, which was wet with
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`morning dew.
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`After obtaining a warrant, the police performed a comprehensive search of the
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`home. They recovered a bullet from the headboard near the body, a cartridge casing from
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`the bedroom floor, and four small pieces of blue rubbery material from the floor in the
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`bedroom, bathroom and the lower level of the house.
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`In a lower-level room, the police found a locked file cabinet and broke it open to
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`examine its contents. Inside, a folder with a blood drop on it contained insurance
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`documents. The same drawer of the cabinet contained a small fire safe with duct tape on
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`the inside of its lid. The safe held a .32 caliber handgun, a pair of blue rubber gloves that
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`had been torn in places, and a second spent bullet casing. A small piece of blue rubbery
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`material was embedded in the slide of the gun.
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`The police also found a black coat, a shirt, and a pair of shorts in the washing
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`machine. All of the clothing had blood on it and had not been washed. In the pocket of
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`the shorts, police found a set of keys that included the key to the filing cabinet where the
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`gun had been located. A box of blue rubber gloves and a partial roll of duct tape were
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`found in the garage.
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`The police interviewed Tomassoni at the police station on the morning of the
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`murder, while the search of his home was taking place. Tomassoni told the same story he
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`had told earlier at the house—that he was awakened by someone saying, “Where’s the
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`4
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`money” or “Give me the money,” and then a noise like a firecracker. He believed an
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`intruder had been in the house. After learning about the gun and the gloves in the
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`downstairs filing cabinet and the blood spots found throughout the house, the
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`interviewing officer confronted Tomassoni with this information. Tomassoni appeared
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`nervous and started sweating, but did not admit killing his wife. He was ultimately
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`arrested and charged with the murder.
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`The following day, Tomassoni spoke with his sister by phone. He told her to help
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`his older son with the life insurance policy in the filing cabinet, and to use the money to
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`pay off debts that Tomassoni owed. Tomassoni also told his sister that he thought he was
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`going crazy. A day or two after that phone call, Tomassoni spoke with an Anoka County
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`child protection worker regarding the placement of his younger son. Tomassoni told the
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`child protection worker that he had shot his wife. The parties agreed before trial that
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`Tomassoni’s statement to the child protection worker could not be used in the State’s
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`case in chief because it was taken in violation of his Fifth Amendment rights under
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`Miranda v. Arizona, 384 U.S. 436 (1966).
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`The State presented extensive forensic evidence at trial. The medical examiner
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`who performed the autopsy testified that Tomassoni’s wife sustained two gunshot
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`wounds to the head. One shot grazed the top of her skull and lodged in the headboard.
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`According to the medical examiner, the grazing shot likely occurred first, and the victim
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`then raised her hands to her head in response. This scenario would place the victim’s
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`hands near her head when the second shot was fired, explaining the gun powder abrasions
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`5
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`on the backs of her hands and arms. The second shot entered the victim’s brain and was
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`immediately fatal. That bullet was recovered during the autopsy, and the parties
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`stipulated that the gun found in the filing cabinet had fired both bullets. Similarly, the
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`parties stipulated that forensic testing connected the gun with the casing found on the
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`bedroom floor and the one found in the cabinet with the gun.
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`A technician from the Minnesota Bureau of Criminal Apprehension testified about
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`the duct tape and the rubber pieces found around the house. The technician concluded
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`that three out of the four small blue rubber pieces had been ripped from the pair of gloves
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`found in the safe with the gun. In addition, he concluded that the duct tape in the fire safe
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`had been torn from the roll of tape found in the garage.
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`The parties stipulated to the results of DNA tests from various blood samples.
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`Blood on the washing machine, the shorts and jacket inside the washing machine, the
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`gun, and the rubber gloves matched Tomassoni’s DNA profile. Blood on the pair of
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`shorts also matched the victim’s DNA profile.
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`M.M., the Tomassonis’ neighbor, testified that she returned home from work at
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`3:06 a.m. on the morning of July 21. She spent the next hour talking with her teenage
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`daughter and two other girls who were at the house for a sleepover. The group was in the
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`daughter’s bedroom, which faced the backyard on the upper level of their house. That
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`night, the windows in the bedroom were slightly open. M.M. testified that sometime
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`between 4:00 and 4:10 a.m., the three girls jumped or flinched because they heard a
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`noise.
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`6
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`M.M’s daughter testified that she heard “two unusual sounds” that were “a lot like
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`metal being pushed down and then popping back up.” She stated that the second sound
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`was fainter than the first. Both of the daughter’s friends testified that they heard only one
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`sound.
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`A prisoner who had been housed with Tomassoni at the Anoka County jail also
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`testified as an informant on behalf of the State. The informant acknowledged that he was
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`testifying in hopes of receiving a reduced sentence on a federal drug conviction. He
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`testified that he overheard Tomassoni telling the story of the murder to another person.
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`Tomassoni purportedly told the person that he got a gun, put on gloves, shouted at “the
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`lady” to give him the money, and shot her. The informant testified that “the lady” then
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`woke up, said her head hurt, and Tomassoni shot her again. When asked which lady
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`Tomassoni was referring to, the informant testified that it was Tomassoni’s wife. The
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`informant went on to recount Tomassoni’s alleged statements that he went to the
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`basement, hid the gun and gloves, opened a window and ripped its screen, spoke to his
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`son, and put his clothes in the washing machine.
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`Several witnesses testified that Tomassoni owed them large amounts of money. In
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`2006, Tomassoni began borrowing significant sums from friends and former coworkers.
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`He used the money to purchase and rehabilitate homes. Initially, his efforts were
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`successful and he repaid the money along with profits to the lenders. But his ventures
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`eventually failed. Tomassoni owed $38,500 to a neighbor, $120,400 to a former
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`coworker and his wife, $25,000 and $80,000 to two other former coworkers, and $16,500
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`7
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`to a friend. Tomassoni had promised to pay back $70,000 of the largest of these debts on
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`the evening of July 21, 2007—the day of the murder. In addition, Tomassoni had lost a
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`total of $432,939 gambling at two local casinos between 2004 and the date of the murder.
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`Tomassoni’s wife was covered by two life insurance policies. The first, through
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`her employer, was worth $147,000. Tomassoni was a 50% beneficiary under that policy.
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`The second policy was for $500,000, and Tomassoni was the sole beneficiary.
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`Tomassoni testified in his own defense. He stated that he had not planned to kill
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`his wife, that he loved her, and that the day he killed her was the worst day of his life. He
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`recounted the evening’s events, including the bike ride with his wife. Tomassoni testified
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`that because of the heat, he planned to sleep that night on the living room couch. After
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`his wife and son were asleep, Tomassoni testified that he sat on the couch and started
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`thinking about his parents and his family and wondering whether he had failed to be there
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`for them. He testified that he decided to end his life, and went to get the gun from the
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`filing cabinet downstairs for that purpose. Tomassoni testified that he had attempted
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`suicide once before, by taking a large dose of sleeping pills.
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`After retrieving the gun from the lower level of the house, Tomassoni stated that
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`he went into the garage and continued thinking. He testified that he then went to his son
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`and kissed him on the head, went to his wife and kissed her on the cheek, and then
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`returned to the couch. Tomassoni stated that the next thing he remembered, he was
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`standing in the hallway outside his wife’s bedroom, dripping with sweat and wearing
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`gloves, with the gun in his hands, and his wife was dead.
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`8
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`The State used Tomassoni’s statement to a child protection worker to impeach his
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`credibility regarding his version of events. Tomassoni acknowledged on cross-
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`examination that he had told the child protection worker that he recalled standing over his
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`wife’s bed wearing gloves and a coat, holding the gun. He recounted watching a digital
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`clock count down to one and pulling the trigger twice. Tomassoni also stated that after
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`the first shot, his wife was holding her head and she said something to him.
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`Closing arguments in the trial focused exclusively on the issue of premeditation.
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`Tomassoni’s counsel urged the jury to believe Tomassoni’s version of events—that he
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`did not plan to kill his wife and performed the shooting in a desperate, suicidal, panicked
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`state. In contrast, the State highlighted Tomassoni’s extensive debt and gambling losses,
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`his promise to repay $70,000 to a former coworker on the day of the murder, and his
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`wife’s sizable life insurance policies. The State also noted that Tomassoni put on a coat
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`and gloves, and argued further that the forensic evidence showed at least a brief passage
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`of time between the two shots, when the victim raised her hands to her head. In addition,
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`the State reminded the jury of Tomassoni’s extensive attempts to cover up the killing by
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`hiding evidence and concocting a story about an intruder.
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`The jury found Tomassoni guilty of first-degree premeditated murder under Minn.
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`Stat. § 609.185(a)(1). The court then imposed a sentence of life imprisonment without
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`the possibility of release. Tomassoni appealed his conviction to our court.
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`9
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`I.
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`Tomassoni’s appeal focuses primarily on one statement by the State that
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`Tomassoni argues constituted prosecutorial misconduct. Near the end of closing
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`argument, the prosecutor stated: “[Tomassoni] admitted that he told the social
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`worker . . . that he shot his wife once, there was a pause, and he shot her a second time.
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`That’s premeditated. He planned to kill his wife.” Tomassoni asks this court to reverse
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`his conviction because the statement from the social worker was admitted at trial only for
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`the purpose of impeachment, not as substantive evidence of premeditation.
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`Tomassoni’s counsel did not object to the prosecutor’s statement during the trial.
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`The issue is therefore subject to plain-error review on appeal. State v. Ramey, 721
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`N.W.2d 294, 299 (Minn. 2006). If Tomassoni can establish that an error was made and it
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`was plain, the burden then shifts to the State to demonstrate that the error did not affect
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`his substantial rights. Id. at 302. An error is plain if it “contravenes case law, a rule, or a
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`standard of conduct.” Id. An error affects a defendant’s substantial rights unless the state
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`can “show that there is no reasonable likelihood that the absence of the misconduct in
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`question would have had a significant effect on the verdict of the jury.” Id. (internal
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`quotation marks omitted). In determining whether the State has met this burden, we
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`consider “the strength of the evidence against the defendant, the pervasiveness of the
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`improper suggestions, and whether the defendant had an opportunity to (or made efforts
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`to) rebut the improper suggestions.” State v. Davis, 735 N.W.2d 674, 682 (Minn. 2007).
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`10
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`A statement made by a defendant in custody is inadmissible unless the suspect is
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`given a Miranda warning and he voluntarily, knowingly and intelligently waives the
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`constitutional rights to counsel and right against self-incrimination. Miranda v. Arizona,
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`384 U.S. 436, 444 (1966); State v. Thieman, 439 N.W.2d 1, 5 (Minn. 1989). Here, the
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`parties agree that admission of Tomassoni’s statement to the child protection worker as
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`substantive evidence against him would violate this rule. The parties also agree that
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`despite the Miranda violation, the statement was voluntarily given and is thus admissible
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`for the purpose of impeaching Tomassoni’s conflicting testimony at trial. See Oregon v.
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`Hass, 420 U.S. 714, 722-24 (1975); State v. Slowinski, 450 N.W.2d 107, 111 (Minn.
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`1990) (“A confession obtained in violation of [a] defendant’s constitutional right to
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`counsel may be used for the purposes of impeachment, but only if voluntary.”).
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`Relying on these principles, the parties agree that the State’s substantive use of
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`Tomassoni’s statement as evidence of premeditation was error. Tomassoni argues that
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`the error was plain. The State counters that the error was not plain because Tomassoni
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`“cites no authority for the proposition that it is prosecutorial error to use properly
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`admitted impeachment evidence substantively in closing argument.”
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`Here we need not decide whether the error was plain, because the State has met its
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`burden of establishing that any error in the use of the statement did not affect
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`Tomassoni’s substantial rights. See, e.g., State v. Jackson, 714 N.W.2d 681, 697 (Minn.
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`2006) (declining to address the plain error prong of the standard because the substantial
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`rights question was dispositive). The State presented extensive evidence of premeditation
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`11
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`in addition to Tomassoni’s statement to the child protection worker. This included strong
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`evidence of a motive—Tomassoni’s need for his wife’s life insurance money—and
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`evidence that he went to great lengths to cover up his act. The State also presented
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`independent evidence in the form of forensic evidence, the informant’s testimony, and the
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`testimony of the teenage neighbor that a short amount of time elapsed between the two
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`shots. The prosecutor’s brief substantive argument based on evidence admitted only for
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`impeachment thus did not have “significant evidentiary value to the state.” Cf. State v.
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`Ray, 659 N.W.2d 736, 743 (Minn. 2003) (holding that the erroneous admission of an
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`illegally obtained statement was not harmless in part because of its evidentiary value).
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`We hold that the State has met its burden of showing that the error did not affect
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`Tomassoni’s substantial rights because there is no reasonable likelihood that the jury’s
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`verdict would have been different if the prosecutor had not made the argument. See
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`Ramey, 721 N.W.2d at 302.
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`Tomassoni also argues that the State’s use of his statement to the child protection
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`worker was exacerbated by corresponding jury instruction. The district court instructed
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`the jury that: “Evidence of any prior inconsistent statement or conduct should be
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`considered only to test [the] believability and weight of the witness’s testimony. In the
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`case of the defendant, however, evidence of any statement he may have made may be
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`considered by you for all purposes.” See 10 Minn. Dist. Judges Ass’n, Minn. Practice—
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`Jury Instruction Guides, Criminal, CRIMJIG 3.15 (5th ed. 2008). The final line of this
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`instruction correctly describes the rule of evidence that a statement made by a defendant
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`12
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`is not hearsay and is therefore admissible when it is offered against the defendant. See
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`Minn. R. Evid. 801(d)(2). However, the issue in this case relates to a Miranda violation,
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`not a hearsay problem. The State thus concedes that the court erred when it included the
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`final line of the jury instruction. Tomassoni did not object to the instruction at trial, and
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`plain-error review therefore applies. Ramey, 721 N.W.2d at 299-300.
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`We conclude that the error in the jury instructions did not affect Tomassoni’s
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`substantial rights for the same reasons that the prosecutor’s statement did not. Although
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`the jury might have followed the erroneous instruction and used the child protection
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`worker’s statement for the substantive purpose of deciding whether Tomassoni acted with
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`premeditation, the evidence was one small piece of the otherwise extensive evidence of
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`premeditation. Accordingly, we conclude that there is no reasonable likelihood that the
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`jury’s possible substantive use of the statement to the child protection worker had a
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`significant effect on the verdict, and hold that any error in the jury instruction did not
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`affect Tomassoni’s substantial rights.
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`II.
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`Tomassoni raises several additional arguments in a supplemental pro se brief. He
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`argues: (1) that he was denied effective assistance of counsel, (2) that the State erred in
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`its examination of the informant witness, (3) that the district court made an improper
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`comment to the jury and gave an incorrect jury instruction, (4) that the jury selection was
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`unfair, and (5) that he was prejudiced by the involvement of too many women in his trial.
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`We address each of these arguments in turn.
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`13
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`A.
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`Tomassoni argues that the pregnancy and heavy workload of one of his defense
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`attorneys rendered her ineffective. Although the attorney did experience a pregnancy-
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`related health problem during the trial that resulted in a 1-day delay, the record reflects
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`that she was not ineffective in representing the defendant. In addition, Tomassoni argues
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`that his counsel was ineffective in failing to seek a mental illness evaluation under Minn.
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`R. Crim. P. 20.01. But he provides no factual support for this argument, and the record
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`contains no evidence that he would have been eligible for such an evaluation. See State
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`v. Bartylla, 755 N.W.2d 8, 22-23 (Minn. 2008) (noting that this court does not consider
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`pro se claims on appeal that are not supported by argument or citation to legal authority).
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`B.
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`Tomassoni next argues that the State acted improperly in the direct examination of
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`the informant witness. A portion of the testimony proceeded as follows:
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`Q:
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`And what else did [Tomassoni] say he was doing?
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`A:
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`He said that he walked into the lady’s room and shot her once.
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`Q: What did he shout?
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`A:
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`He said that he was yelling, “Give me the money,” or something like
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`that.
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`Q:
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`I’m sorry. I might have misunderstood you. Did you say he shouted
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`or--
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`A:
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`Shouted.
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`14
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`Q:
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`So he walked in the bedroom. And what did he do?
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`A:
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`He shouted “Give me the money,” and then--
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`Q:
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`Then what?
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`A:
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`And then he shot the lady once.
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`According to Tomassoni, the prosecutor’s question, “What did he shout?”, was an
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`attempt to feed information to the witness and guide his testimony. But the transcript
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`reflects instead that the prosecutor likely heard the word “shout” when the witness said
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`“shot.” The prosecutor thereafter quickly corrected the misunderstanding.
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`In any case, the witness’s testimony that Tomassoni allegedly shouted something
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`about money before shooting his wife was not consistent with the State’s theory of the
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`case. The testimony was instead consistent with Tomassoni’s invented intruder story, a
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`fact that undercut the informant’s credibility. The testimony was not helpful to the State.
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`Therefore, any error here could not have prejudiced Tomassoni. See Ramey, 721 N.W.2d
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`at 299 (holding that where an error does not draw an objection at trial, the court will not
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`reverse unless the error affected the defendant’s substantial rights).
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`Tomassoni also argues that the informant’s testimony improperly suggested to the
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`jury that Tomassoni was incarcerated at the time the informant allegedly heard him
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`telling another person about the murder. Indeed, the jury might have inferred from the
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`statement that the informant “was going to be transported to another place” that both
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`Tomassoni and the informant were incarcerated when the conversation occurred. But
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`there is no “general rule that it is prejudicial for the jury to learn that a defendant is in
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`15
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`jail” before or during a trial. State v. Manthey, 711 N.W.2d 498, 506 (Minn. 2006). The
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`district court properly instructed the jurors on the presumption of innocence, and
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`Tomassoni was not prejudiced by any potential inference of incarceration drawn from the
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`informant’s statement.
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`C.
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`Tomassoni next argues that the district court erred when it instructed the jury,
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`“Once the facts are decided, you must follow the law. You must follow the law, even if
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`you do not agree with it.” Tomassoni cites United States v. Norton, 846 F.2d 521 (8th
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`Cir. 1988), to support his assertion that the jury instruction was erroneous. In Norton, the
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`Eighth Circuit affirmed a conviction despite the district court’s omission of a model jury
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`instruction. Id. at 524. The court noted that the instruction was only a model and not a
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`requirement. Id. at 525. Here, by contrast, the instruction at issue is a standard
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`instruction that correctly states the jury’s duty to apply the law to the facts. See 10 Minn.
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`Dist. Judges Ass’n, Minn. Practice—Jury Instruction Guides, Criminal, CRIMJIG 1.02B
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`(5th ed. 2008).
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`Tomassoni also objects to a statement made by the district court to the jurors
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`before the start of proceedings one morning during the trial. A newspaper had incorrectly
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`reported that the judge stated that Tomassoni’s trial would last 6 weeks, and the judge
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`assured the jury that the trial was expected to last only about 2 weeks. The record
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`clarifies that the judge made this statement simply to assist the jury with work and family
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`arrangements, in case someone had relayed the false information from the newspaper to a
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`16
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`juror. This statement did not amount to a time limit on Tomassoni’s trial, and no time
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`restrictions were placed on Tomassoni’s presentation of his defense.
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`D.
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`Both prosecutors, both defense attorneys, the judge, and nine of the jurors in
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`Tomassoni’s trial were women. Tomassoni argues that because the victim was also a
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`woman, he was prejudiced by the fact that many of the people involved in his case were
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`female. This novel argument, advanced without any citations to the record or legal
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`authority, essentially amounts to an assertion that women are inherently biased in favor of
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`other women and against men. We find no merit in Tomassoni’s argument. After
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`thoroughly reviewing the record, we agree with the State’s assertion that the attorneys
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`and the judge in this case “ensured that Tomassoni received a vigorous defense, a fair
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`prosecution and a just result.”
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`E.
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`Tomassoni finally argues that he was prejudiced by the jury selection procedures,
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`which he asserts excluded lower income people from jury service. To make a prima facie
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`case that the jury does not represent a fair cross section of the community, a defendant
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`must show that the allegedly excluded group is “distinctive,” that the group “was not
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`fairly represented in the jury venire,” and that the underrepresentation resulted from
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`systematic exclusion of the group in question. State v. Willis, 559 N.W.2d 693, 700
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`(Minn. 1997). Tomassoni has not made such a showing.
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`Affirmed.
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`17