This opinion will be unpublished and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

STATE OF MINNESOTA
IN COURT OF APPEALS
C5-99-539

State of Minnesota,
Respondent,

vs.

Robert D. Williams, Jr.,
Appellant.

Filed January 18, 2000
Remanded
Holtan, Judge[*]

Hennepin County District Court
File No. 98060060

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

Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Paul R. Scoggin, Assistant County Attorneys, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Robert D. Miller, Robert D. Miller & Associates, 101 Whitney Building, 210 North Second Street, Minneapolis, MN 55401; and

John G. Westrick, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellant)

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Holtan, Judge.

U N P U B L I S H E D   O P I N I O N

HOLTAN, Judge

Appellant Robert D. Williams, Jr. challenges his convictions for kidnapping and first-degree criminal sexual conduct, arguing that his convictions should be vacated because respondent state failed to disclose an audiotaped interview the police had with the victim. We remand for the trial court to determine whether the inaudible portion of the audiotaped interview with the victim can be enhanced, and if so, for the trial court to consider whether that portion contains evidence exculpatory or favorable to Williams.

FACTS

Williams was arrested and charged by complaint with one count of first-degree criminal sexual conduct in violation of Minn. Stat. ß 609.342, subd. 1(c) (1996), and one count of kidnapping in violation of Minn. Stat. ß 609.25, subd. 1(2) (1996).

Prior to trial, Williamsís attorney served on the prosecution the defenseís discovery requests, including a specific request for an opportunity to inspect and reproduce any relevant written or recorded statements made by witnesses to agents of the prosecution.

During Williamsís jury trial, victim J.S. testified that she was introduced to Williams while working as a prostitute for Derrick Lamon Johnson. J.S. also testified that during the early hours of June 12, 1998, she was kidnapped by Williams and Johnson and taken to a motel in Crystal, where she was ordered to remove her clothes, threatened, and beaten. Additionally, J.S. testified that while at the motel, Williams forcibly penetrated her vagina with his fingers and that Johnson forced her to perform oral sex on him.

After Williamsís attorney finished cross-examining J.S., the prosecutor informed him that an audiotape existed of an interview of J.S. by police. Although Williamsís attorney had been provided with written notes from this interview, he had not been previously notified that an audiotape existed. Arguing a violation of due process, Williamsís attorney moved for a dismissal or, alternatively, a three-week continuance so that the defense investigators could look into any leads.

The trial court was able to understand only about 20 minutes of the one-hour audiotape, which had been recorded at two different speeds. The trial court denied Williamsís motion to dismiss, as well as his motion for a three-week continuance, but granted Williamsís attorney the weekend to locate a tape machine that could play two different speeds. On Monday morning, Williamsís attorney renewed the motion to dismiss, arguing that he had been able to understand all but about four and one-half minutes of the audiotape, which was inaudible, and believed that the audiotape contained exculpatory information. The trial court denied Williamsís motion to dismiss, but allowed his attorney to cross-examine J.S. again.

Following the jury trial, Williams was convicted on both counts and sentenced to a prison term of 134 months.

D E C I S I O N

Williams argues that the trial court erred in denying his motion for a mistrial or a three-week continuance because the state violated the Brady rule by failing to disclose the existence of the audiotape of the interview of J.S. by police. Williams contends that this tape contains exculpatory evidence, asserting that (1) the audiotape reveals that J.S. was biased because of the extent of her disgust and dislike for him; (2) the audiotape reveals that J.S. lied when she claimed that she had never been to that motel before the night of the alleged kidnapping and sexual assault; and (3) approximately four and one-half minutes of the audiotape are still inaudible.

"We may not overturn a trial courtís ruling on an alleged violation of discovery rules absent a clear abuse of discretion." State v. Adams, 555 N.W.2d 310, 311 (Minn. App. 1996) (citing State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979)).

The Due Process Clause of the Fourteenth Amendment imposes upon the government a duty to deliver "exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system." California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532 (1984).

In Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963), the United States Supreme Court held

that the suppression by the prosecution of evidence favorable to an accused * * * violates due process where the evidence is material either to guilt or to punishment, irrespective of the good or bad faith of the prosecution.

In Minnesota, the Brady rule is embodied in Minn. R. Crim. P. 9.01, subd. 1(6). State v. Hathaway, 379 N.W.2d 498, 506-07 (Minn. 1985). Under rule 9.01, the prosecutor must disclose evidence "that tends to negate or reduce the guilt of the accused as to the offense charged." Minn. R. Crim. P. 9.01, subd. 1(6). Specifically, in criminal cases, Brady imposes on the state an affirmative duty to disclose all evidence that is both favorable to the accused and material to the defense. Kyles v. Whitley, 514 U.S. 419, 432, 115 S. Ct. 1555, 1565 (1995).

In the present case, Williamsís attorney made a specific request for an opportunity to inspect and reproduce any relevant written or recorded statements made by witnesses to agents of the prosecution. Although the prosecution did provide Williamsís attorney with the written notes from the policeís interview with J.S., it never disclosed the existence of an audiotape because the prosecutor asserts that he did not know of the tape until it turned up during the trial. Regardless of whether or not the prosecutor actually knew of the audiotape, a "prosecutor has a duty to learn of any favorable evidence known to the others acting on the governmentís behalf in the case, including the police." Kyles, 514 U.S. at 438, 115 S. Ct. at 1567-68 (rejecting stateís argument that prosecutor should not be held accountable under Bagley and Brady for evidence known only to police investigators and not to the prosecutor). Accepting Williamsís characterization of the audible portion of the audiotape as exculpatory, the prosecution did not discharge its affirmative duty to disclose evidence.

Even if Williams had the right to examine the audiotape under Minn. R. Crim. P. 9.01, subd. 1(6), as to the audible portion of the audiotape, we cannot say that the prosecutionís failure to disclose the existence of this potential evidence by the time of trial rises to the level of a constitutional violation under Brady. To prevail under Brady, the evidence contained on the audiotape must not only be favorable to Williams, but also material to Williamsís guilt or punishment. The United States Supreme Court has held that

evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.

United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383 (1985). If there is no reasonable probability that the trial outcome would have been different had the evidence been disclosed, a new trial is not required. State v. Clobes, 422 N.W.2d 252, 255 (Minn. 1988); see also State v. Kaiser, 486 N.W.2d 384, 386-87 (Minn. 1992) (recognizing that although a new trial may occasionally be justified when prejudice is unclear, a new trial is not required when no prejudice is shown).

We cannot conclude that the failure to make the audible portion of the audiotape available by the time of trial is material. The record reflects that Williamsís attorney was afforded an opportunity to attempt to impeach J.S. on cross-examination and during closing arguments using information contained in the audible portion of the audiotape. Therefore, considering only the failure to disclose by the time of trial the evidence in the audible portion of the audiotape, we cannot conclude that there is a reasonable probability that the outcome of the trial would have been different if the disclosure had been timely.

Nevertheless, we are concerned about the inaudible portion of audiotape. We are unable to say whether or not more timely disclosure would have allowed counsel to obtain enhancement and to discover what else is on the audiotape. Because we are concerned about the impact of the delay in disclosing the audiotape, we remand to the trial court for consideration of the feasibility of enhancing the inaudible portion of the audiotape by technical means. If the inaudible portions of the audiotape can be enhanced, the trial court shall determine whether the new information is both favorable to Williams and material to his defense. If the information is favorable and material, the trial court should order a new trial. However, if the information is not favorable or is not material, the court should make specific findings accordingly. Because the prosecution failed to comply with the discovery request, making it impossible for the defense to conduct an analysis of the audiotape and contributing substantially to the expenses incurred in this appeal, we direct that the state pay the reasonable costs incurred in enhancing the inaudible portion of the audiotape.

Remanded.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ß 10.