This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







State of Minnesota,





Sherrow Chris Harris,




Filed May 9, 2000

Klaphake, Judge


Dakota County District Court

File No. K3-98-2952



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


James C. Backstrom, Dakota County Attorney, Phillip D. Prokopowicz, Assistant Dakota County Attorney, Dakota County Judicial Center, 1560 W. Highway 55, Hastings, MN  55033 (for respondent)


John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, 2829 University Ave. S.E., Ste. 600, Minneapolis, MN  55414-3230 (for appellant)


            Considered and decided by Shumaker, Presiding Judge, Crippen, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Sherrow Chris Harris was charged with false imprisonment and kidnapping of his estranged girlfriend, L.W., under Minn. Stat. §§ 609.255, subd. 2; 609.25, subds. 1(3), 2(2) (1998).  On the morning of trial, the court granted the state’s motion to amend the complaint to add a charge of second-degree assault based on L.W.’s claim that Harris threatened her with a knife in her apartment immediately before he was arrested on the charged offenses.  Minn. Stat. § 609.222 (1998).

            The jury acquitted Harris on the kidnapping and second-degree assault charges, but found him guilty of false imprisonment.  Harris was sentenced to 18 months imprisonment, stayed, and is currently on probation.

On appeal, Harris argues that the trial court erred in denying his requests for a mistrial based on L.W.’s improper references to his alleged drug use and on the prosecutor’s failure to disclose material evidence regarding L.W.’s claim that Harris had threatened her with a screwdriver while they were sitting in his parked car.  Although the actions of the prosecutor constituted misconduct, we nevertheless affirm because we conclude that Harris was not prejudiced and received a fair trial.


            To succeed on a claim of prosecutorial misconduct, a defendant must show that “misconduct occurred and that the misconduct was prejudicial.”  State v. Voorhees, 596 N.W.2d 241, 253 (Minn. 1999) (citation omitted).  The decision to grant or deny a mistrial on the basis of prosecutorial misconduct generally lies in the sound discretion of the trial court.  Id.  On appeal, we will reverse only if the misconduct is “‘so serious and prejudicial that a defendant’s right to a fair trial is denied.’”  Id. (quotation omitted).

            Harris first argues that the prosecutor violated discovery rules by failing to disclose a new allegation made by L.W. a week before trial.  L.W. claimed that Harris had threatened her with a screwdriver while they were sitting in his parked car.  Minn. R. Crim. P. 9.03 places a continuing duty on the state to disclose any “additional material[] information or witnesses subject to disclosure.”  Failure to disclose an oral statement made by a complainant before trial violates this continuing duty.  State v. Moore, 493 N.W.2d 606, 608 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).  Thus, the prosecutor violated discovery rules by failing to disclose L.W.’s claim that Harris had threatened her with a screwdriver.

            A trial court generally has wide discretion to impose appropriate sanctions.  State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979) (court considers reason for failure to disclose, extent of prejudice to opposing party, feasibility of rectifying prejudice by continuance, and any other relevant factors).  A reviewing court should not order a new trial to remedy a discovery violation unless “there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the trial would have been different.”  State v. Clobes, 422 N.W.2d 252, 255 (Minn. 1988) (citations omitted).  Nevertheless, the supreme court has ordered a new trial in the exercise of its supervisory powers and in the interests of justice, where “the prosecution’s failure to comply with the discovery rules is clear.”  State v. Kaiser, 486 N.W.2d 384, 386-87 (Minn. 1992).

            Here, the information regarding the screwdriver was subject to disclosure because it was material and relevant to help explain why L.W. did not flee or attempt to get anyone’s attention while she and Harris were sitting in his parked car.  Although defense counsel was surprised by L.W.’s testimony regarding the screwdriver, she was able to minimize any adverse effect by challenging L.W.’s credibility during cross examination by asking L.W. why she failed to tell anyone about the screwdriver until just a few days before trial.  The trial court further minimized any prejudice by instructing the jury that it could not consider Harris’s alleged use of the screwdriver as a basis to convict him of second-degree assault.  That the jury acquitted Harris of kidnapping and second-degree assault demonstrates that it heeded the court’s cautionary instruction and tended to disbelieve much of L.W.’s testimony, including her claim that Harris was holding her against her will in his car.

            Harris next argues that the prosecutor failed to properly prepare L.W. to testify because she repeatedly violated the trial court’s rulings prohibiting any reference to Harris’ alleged drug use on the day of the incidents and during their relationship.  A prosecutor has a duty to properly prepare a witness prior to trial to avoid eliciting improper testimony.  State v. Underwood, 281 N.W.2d 337, 342 (Minn. 1979).  A trial court is in the best position to evaluate the effects of any prosecutorial misconduct.  State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984). Misconduct forms the basis for a new trial only when it appears so inexcusable and prejudicial that the defendant’s right to a fair trial was denied.  State v. Scruggs, 421 N.W.2d 707, 716 (Minn. 1988).

            Here, we cannot conclude that L.W.’s references, which were fairly vague and indirect, substantially prejudiced Harris.  The trial court struck L.W.’s testimony from the record and instructed the jury to disregard that testimony and not consider it during deliberations.  Again, the jury was able to follow the court’s cautionary instructions and not consider these comments when it evaluated the evidence, as demonstrated by its acquitting Harris on the two more serious charges and finding him guilty only of false imprisonment.  The false imprisonment conviction was likely based on testimony by L.W. and two police officers regarding Harris’s actions in restraining L.W. in her apartment immediately before his arrest.  It is highly unlikely that inferences of appellant’s drug use affected the jury’s evaluation of this testimony.

            Finally, we reiterate that a prosecutor may not seek a conviction at any price and must “guard the rights of the accused as well as * * * enforce the rights of the public.”  State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993).  The supreme court has “made it clear to prosecutors who persist” in engaging in misconduct that the court may reverse prophylactically or in the interests of justice.  Id. at 820.