This opinion will be unpublished and may

not be cited except as provided by

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






State of Minnesota,





Richard George Ice,



Filed September 12, 2000


Lansing, Judge


Ramsey County District Court

File No. K991320


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55155 (for respondent)


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


John M. Stuart, State Public Defender, D. Adrian Bryan, Special Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)


††††††††††† Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Parker, Judge.*

U N P U B L I S H E D†† O P I N I O N


Richard Ice appeals from conviction of a first-degree controlled-substance crime.† Ice argues that the district court erred by denying his motion for a continuance based on the prosecutionís delayed disclosure of a witness and by instructing the jury that they should draw no inference from his decision not to testify.† Because we find no reversible error, we affirm.†


††††††††††† St. Paul police seized 72.8 grams of methamphetamine from Richard Iceís car in a search that stemmed from a traffic stop.† The state charged Ice with possession with intent to sell methamphetamine, a first-degree controlled-substance crime under Minn. Stat. ßß 152.01, subd. 15, 152.021, subd. 1(1) (1998).† The state disclosed its witness list to Ice on June 2, 1999, and the court conducted an omnibus hearing on June 14.† At a June 30 trial-management conference, the district court directed the parties to disclose all witnesses by July 7.

During pretrial motions on July 12, the court granted the prosecutorís request to call police officer Janet Dunnom, a previously undisclosed witness.† The prosecution requested that Dunnom be allowed to testify as an expert on how methamphetamine is packaged for sale.† The district court denied Iceís motion to exclude Dunnomís testimony as an impermissibly late disclosure.† The court also denied Iceís request for a continuance to locate an expert to counter Dunnomís testimony.†

††††††††††† At trial, Dunnom testified that the methamphetamine was packaged in ďstreet level amountsĒ of one ounce, 1/2 ounce, 1/4 ounce, and 1/8 ounce, also known as an 8-ball.† She testified that this was the way that methamphetamine was customarily packaged and distributed and, that in her opinion, 72.8 grams was a dealer amount, not a user amount.† Ice did not testify or call any witnesses in his defense.†

††††††††††† The courtís final instructions to the jury included CRIMJIG 3.17, which instructs the jury to draw no inference from the defendantís failure to testify.† Both parties acknowledge that Ice asked that the instruction not be read and that it was mistakenly included as part of the juryís final instructions.

††††††††††† The jury found Ice guilty of possession with intent to sell methamphetamine, and Ice appeals, challenging the courtís (1) denial of his request for a continuance to prepare a response to Dunnomís testimony and (2) instruction on drawing no inference from Iceís decision not to testify.†



Minnesota Rule of Criminal Procedure 9.01 requires prosecutors to disclose to a defendant prior to the omnibus hearing the witnesses that the state intends to call.† Minn. R. Crim. P. 9.01, subd. 1(1)(a).† The prosecutionís failure to disclose until the day prior to trial its intention to call Dunnom as a witness violated rule 9.01.† But district courts exercise broad discretion in procedural rulings, including whether to impose sanctions for violations of discovery rules.† State v. Patterson, 587 N.W.2d 45, 50 (Minn. 1998); State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979).† This court will not disturb a district courtís ruling absent a clear abuse of that discretion.† Lindsey, 284 N.W.2d at 373.† When determining whether and what sanctions are appropriate, the district court should consider (1) the reason disclosure was not made; (2) the extent of prejudice to the opposing party; (3) the feasibility of rectifying that prejudice with a continuance; and (4) any other relevant factors.† Id.

The district court did not abuse its discretion by concluding that the delayed disclosure of Dunnomís testimony did not require a continuance.† The court recognized that the reason for the delayed disclosure was that the prosecutor did not realize a need for Dunnomís testimony until July 7, when Ice requested an instruction on possession of methamphetamine, a lesser-included offense.† The court also reasoned that Ice was not prejudiced because in many cases the arresting officer would be expected to testify to the manner in which methamphetamine is packaged for street sales.† See State v. Freeman, 531 N.W.2d 190, 198 (Minn. 1995) (explaining that objective of pretrial discovery is to avoid surprise).† The court emphasized that Iceís attorney would have the opportunity to cross-examine Dunnom in the same manner that he would have been able to cross-examine an arresting officer who provided similar expert testimony.† Finding good cause for the delayed disclosure and no prejudice to Ice, the district court properly allowed Dunnomís testimony.

Even if the district courtís refusal to grant a continuance could be considered an abuse of discretion, the error was harmless beyond a reasonable doubt.† See Freeman, 531 at 198 (applying harmless-error standard of review to discovery violation).† Ice argues that timely disclosure or a continuance would have allowed him to find an expert to counter Dunnomís testimony on how methamphetamine is packaged for sale and that 72.8 grams is a dealer rather than a user amount.† But Ice gave no indication that there is such an expert, or what that expert would say.† Iceís attorney competently cross-examined Dunnom, and there is no reasonable probability that the result of the trial would have been different if the court had granted Iceís request for a continuance.†


††††††††††† The district court generally should not instruct on CRIMJIG 3.17 (no-inference instruction) unless the defendant requests the instruction.† State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988).† Ice initially requested the instruction in his written proposed jury instructions, but later changed his mind and orally requested that the instruction not be read.† Although the district courtís including CRIMJIG 3.17 in the juryís final instructions was apparently inadvertent, the court nonetheless erred by giving the no-inference instruction.†

Erroneous no-inference instructions are subject to harmless-error review to determine whether a defendant is entitled to a new trial.† See Thompson, 430 N.W.2d at 153 (approving court of appealsí conclusion that any error in giving no-inference instruction did not affect verdict); see also State v. Shoop, 441 N.W.2d 475, 480 (Minn. 1989) (applying harmless-error analysis to trial courtís erroneous refusal to instruct on accomplice testimony); State v. Sandve, 279 Minn. 229, 234, 156 N.W.2d 230, 234 (1968) (applying harmless-error analysis to adverse-inference instruction).† Under the harmless-error analysis, a new trial is required if an error is prejudicial but is not required if the error is harmless.† Shoop, 441 N.W.2d at 480-81.†

In Iceís trial, the no-inference instruction was harmless.† The instruction did not unduly focus the juryís attention on Iceís failure to testify because the jury had already heard Iceís version of events through a tape-recorded interview offered by the state.† The jury could reasonably have concluded that there was no need for Ice to testify and repeat the contents of the tape.† Taking into account the tape-recorded testimony, we conclude that the courtís error in giving the no-inference instruction was harmless.†


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