This opinion will be unpublished and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
C2-99-1695

 

State of Minnesota,

Respondent,

 

vs.

 

Randall Lee Smith,

Appellant.

 

Filed July 3, 2000

Affirmed

Shumaker, Judge

 

McLeod County District Court

File No. K298315

 

Mike Hatch, Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, and

 

Michael K. Junge, McLeod County Attorney, 830 East Eleventh Street, Suite 214, Glencoe, MN 55336 (for respondent)

 

John M. Stuart, State Public Defender, Mark F. Anderson, Assistant Public Defender, 2829 University Avenue SE, No. 600, Minneapolis, MN 55414 (for appellant)

 

Considered and decided by Toussaint, Chief Judge, Schumacher, Judge, and Shumaker, Judge.

U N P U B L I S H E D O P I N I O N

SHUMAKER, Judge

In this appeal, appellant Randall Lee Smith claims that (1) the trial court abused its discretion in ruling that a rebuttal witness disclosed mid-trial would be allowed to testify; and (2) the prosecutor committed misconduct in closing argument by implying appellant had a burden to do scientific testing. He contends these were cumulative errors that denied him due process and a fair trial. We affirm.

FACTS

Gilberto Hernandez and Tracy Benage were sitting in a parked car when Randall Lee Smith approached them. Smith spoke to Hernandez and then pulled out a handgun and said, "I'll smoke you." Smith put the gun to Hernandez's head and pulled the trigger. Hernandez moved as the gun went off. The bullet missed Hernandez and went through the windshield. Hernandez struck Smith's arm and knocked the gun into the car. Smith tried to retrieve it, but Hernandez drove away.

In Smith's jury trial on a charge of second-degree assault, Smith's attorney indicated in his opening statement that the defense would show that Hernandez, and not Smith, had the gun:

Basically, we have [state's witnesses] saying my client held the gun and that's what they saw; and my client and his girlfriend Stephanie Riebe are going to say, no, Mr. Hernandez is the one with the gun. So that's where the credibility issue comes in if you just go by who is telling the truth.

 

After the defense disclosed that Smith and Stephanie Riebe would testify that Hernandez had the gun, the police investigated further and learned that a woman had complained two weeks prior to this incident that Smith had threatened her with a similar gun.

The state moved to add the woman to its witness list as a rebuttal witness. The court granted the motion, ruling that if Smith denied on cross‑examination that he previously possessed a gun, the woman could be called to impeach him. Smith decided not to testify. But Riebe did testify and indicated that Hernandez had the gun.

During his cross-examinations of police officers involved in the case, defense counsel assailed them for their failure to do gunshot-residue testing. The prosecutor commented on this issue in his closing argument:

Either side in a criminal trial has the right to subpoena witnesses and to get their attendance here if they can be found, but you can't speculate as to what those people would have said. You also can't speculate about the paraffin test. Mogard says that they don't get one because both of them are going to have gunshot residue on their hands because they are both in proximity to the gun. But the fact that a paraffin test wasn't given isn't something that you should consider. What you have to consider and only what you can consider is the evidence, what's presented here. Both sides have the right to conduct any investigation they want. If the defense wanted to do a pressure test on the gun * * * they could have had an expert do that. The State could have had an expert do that. Both sides have a right to conduct an investigation. Both sides have the right to present evidence to you. All that you can consider, though, is what comes in through the witness stand. You can't consider what's not there.

 

The jury found Smith guilty of assault in the second degree. Smith argues on appeal that the cumulative effect of the trial court's abuse of discretion in allowing an undisclosed rebuttal witness to testify and the prosecutor's misconduct in implying that Smith had a duty to test the gun deprived him of a fair trial.

 

D E C I S I O N

This court will not overturn a trial court's ruling on a criminal discovery issue absent a clear abuse of discretion. State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979).

In exercising this discretion the trial judge should take into account: (1) the reason why disclosure was not made; (2) the extent of prejudice to the opposing party; (3) the feasibility of rectifying that prejudice by a continuance; and (4) any other relevant factors.

 

Id.

Upon request by defense counsel, the state must disclose the names and addresses of witnesses it intends to call at trial. Minn. R. Crim. P. 9.01, subd. 1(1)(a). The disclosure must be made before the omnibus hearing. Minn. R. Crim. P. 9.01, subd. 1. The state has a continuing duty to promptly disclose the identity of any trial witness it discovers after the initial disclosure. Minn. R. Crim. P. 9.03, subd. 2.

Here the state contends that it did not know of the rebuttal witness or of the need to call her until it became clear that Smith and his girlfriend would testify that Hernandez had the gun. The state then made prompt disclosure.

Smith does not claim that the state intentionally withheld the witness's identity or was even aware of her identity prior to trial. Rather, Smith argues that her identity was not known because the police had delayed their investigation of her complaint. He contends that he was prejudiced by the late disclosure because his attorney had already implied in his opening statement that Smith would testify. Because of the possibility of impeachment by the rebuttal witness, he chose not to testify.

The state did not violate the discovery rules. It made the disclosure promptly after learning of the witness's identity and what her testimony would be. Smith was not unduly prejudiced by the disclosure. He was still able to present his theory through his eyewitness, Stephanie Riebe. Furthermore, the state offered not to oppose a mistrial motion to rectify any possible prejudice from the late disclosure. Smith declined the offer, suggesting that even Smith did not think there would be undue prejudice from the late disclosure. The court did not abuse its discretion allowing the rebuttal witness to testify.

Smith next contends that the prosecutor committed misconduct in his closing argument. Smith argues that when the prosecutor commented that the defense could have had pressure testing performed on the gun, it may have given the jury the impression that Smith had a burden of proof regarding the gun.

A prosecutor may not comment in such a way that implies that a criminal defendant has a burden of proof at trial. State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995).

The prosecutor told the jury that both parties had a right to conduct an investigation and to do relevant testing. These statements did not imply that either party was required to do anything in particular in investigating the case. Urging the jury not to speculate on or consider a test that was not conducted by either party, the prosecutor stated: "You can't consider what's not there." This argument was not improper.

Affirmed.