This opinion will be unpublished and

may not be cited except as provided by

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






Steven Anthony Graffie,


Patrick Gowan Ryan,


Filed October 3, 2000


Crippen, Judge


Hennepin County District Court

File No. PI989852



Peter J. Horejsi, Robert D. Boedigheimer, McCloud & Boedigheimer, P.A., Suite 201, 5001 West 80th Street, Bloomington, MN 55437 (for respondent)


Lee L. LaBore, LaBore, Giuliani, Cosgriff & Viltoft, Ltd., P.O. Box 70, Hopkins, MN 55343-0070 (for appellant)


            Considered and decided by Crippen, Presiding Judge, Peterson, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N




            Appellant Patrick Ryan claims that the trial court abused its discretion in excluding the testimony of a witness and prohibiting appellant from impeaching another witness about information furnished for a police accident report.  Finding no abuse of discretion, we affirm.



            In 1993, appellant was driving on 12th Avenue in Minneapolis when he collided with respondent Steven Graffie, who was bicycling on Nicollet Mall.  Respondent suffered injuries and sued appellant.  Both parties claimed that the other party had entered the intersection against a red light.  Approximately a week and a half after the accident, a witness named Brian Johnson gave a recorded statement to an insurance representative.  During pre-trial discovery, appellant gave respondent a transcript of Johnson’s recorded statement but did not provide the actual audiotape.

During trial, several years after the collision, the trial court refused to admit the tape recording of Johnson’s testimony.  Later, the court granted respondent’s motion to exclude Johnson’s testimony and instructed the jury to disregard the testimony in its entirety. 

When respondent testified at trial, appellant’s counsel attempted to impeach him with respondent’s written notation on his earlier application for no-fault insurance benefits.  In that application, in the space requesting a brief description of the accident, respondent wrote “see police report.”  Appellant argued that because the police accident report contained a witness’s statement that respondent entered the intersection against a red light, respondent had adopted this statement when he referred to the report.  The trial court refused to allow appellant to impeach respondent’s testimony in this fashion. 

            In a special-verdict form, the jury found respondent 9% at fault for the accident and appellant 91% at fault and found that respondent suffered damages of $375,948.  The trial court denied appellant’s motions for judgment notwithstanding the verdict and for a new trial, and this appeal followed.



            The trial court’s denial of a judgment notwithstanding the verdict must be affirmed on appellate review if, in the record, “there is any competent evidence reasonably tending to sustain the verdict.” Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998) (quotation omitted). This court views the evidence in the light most favorable to the prevailing party.  Id.  The decision whether to grant a new trial lies within the sound discretion of the trial court and is not reversed absent a clear abuse of that discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990). On appeal from the denial of a motion for a new trial, the verdict must stand unless it is “manifestly and palpably” contrary to the evidence, which must be viewed in a light most favorable to the verdict.  Zumberge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992) (citation omitted), review denied (Minn. Apr. 29, 1992).

1.         Brian Johnson’s testimony

            The trial court has broad discretion in admitting or excluding evidence, and its ruling will not be disturbed unless it is based on an erroneous view of the law or constitutes an abuse of discretion.  Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).  Absent some indication that the trial court exercised its discretion “arbitrarily, capriciously, or contrary to legal usage,” this court is bound by the result.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 46 (Minn. 1997) (citation omitted).  And appellant is entitled to a new trial based upon improper evidentiary rulings only if he demonstrates prejudicial error.  Uselman, 464 N.W.2d at 138.  

            The trial court excluded all of Johnson’s testimony, as a sanction for appellant’s failure to timely identify or produce Johnson’s audiotaped statement for respondent.  See Minn. R. Civ. P. 26.05(b) (stating that party has a duty to amend a prior discovery response when party knows the response, though correct when made, is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment); see also Minn. R. Civ. P. 37.02(b) (providing that if party fails to obey an order to provide or permit discovery, “the court in which the action is pending may make such orders in regard to the failure as are just”).  Respondent’s counsel claimed that he requested the tape of Johnson’s statement the week before trial but appellant never provided the tape or made available.  It is evident that the trial court rejected appellant’s conflicting claim that he had provided respondent with access to the tape, and we must defer to the trial court’s assessment of these facts. 

Moreover, the concern of the trial court rose above a mere technicality.  Contrary to appellant’s argument, providing the transcript alone was not necessarily sufficient.  The tape was significant:  it concerned the statement of an eyewitness who offered conflicting versions of the collision.  In such a circumstance, respondent might rightfully wish to verify that the transcript was what it was represented to be—a record of the complete statement made by this witness.  The presentation of a transcript alone will not permit this verification. 

            Appellant contends that the trial court should have imposed a less-severe remedy than exclusion of Johnson’s testimony.  See Cornfeldt v. Tongen, 262 N.W.2d 684, 697 (Minn. 1977) (providing that where failure to disclose was inadvertent or not willful, courts should consider alternative methods short of exclusion, such as granting a continuance and assessing costs against the offending party, or limiting the subject matter of testimony to matters already disclosed).  But there is no cause to find that the trial court abused its discretion where it is unclear whether the failure to disclose was inadvertent or not.

            Appellant suggests that the tape and transcript could be properly considered under Minn. R. Evid. 803(5) (permitting evidence of forgotten observations).  But Rule 803(5) does not supersede the ability of the trial court to exercise its discretion in preventing the admission of evidence suppressed for other reasons.  See State v. Aubid, 591 N.W.2d 472, 478 (Minn. 1999) (recognizing evidentiary rulings as an area of the law where the trial court is accorded a significant amount of discretion).  Also, under Rule 803(5), recorded recollections of a witness may not be received as an exhibit unless offered by the adverse party.  In this case, appellant was attempting to introduce the recorded recollection.

Finally, there is no evidence that Johnson’s testimony would have been more than marginally helpful to appellant, as Johnson had contradicted himself several times in prior statements. Furthermore, Johnson’s testimony was cumulative to that of other witnesses.  For these reasons, the trial court did not abuse its discretion in excluding Johnson’s testimony as a result of appellant’s failure to produce the tape.

2.         The accident report

            Appellant claims that the trial court abused its discretion in refusing to permit him to impeach respondent’s testimony that appellant had the green light, based on a general reference to information in the police accident report.  Minnesota law provides that accident reports shall not “be used as evidence in any trial, civil or criminal, arising out of an accident.”  Minn. Stat. § 169.09, subd. 13(b) (1998).  The statute is intended “to render privileged the reports required, but it is not intended to prohibit proof of the facts to which the reports relate.”  Id., subd. 13(c) (1998).

In some circumstances, otherwise inadmissible evidence may be admissible to impeach a person’s testimony.  See, e.g., Kroning, 567 N.W.2d at 46 (admitting otherwise inadmissible evidence of collateral source benefits to impeach testimony of wife who gave impression of financial destitution).  Appellant argues that the trial court abused its discretion in refusing to allow him to impeach respondent’s testimony with his insurance benefits application and the accident report.

Appellant argues that the privilege contained in Minn. Stat. § 169.09, subd. 13(b) can be disregarded in this case, either because respondent did not contribute to the content of the report or because respondent had waived the privilege.  These assertions are flawed.  The report is privileged by a declaration of the legislature, regardless of who contributed to the report’s content, and respondent could testify about the contents of the report or make reference to the report without waiving his privilege.  See, e.g.,Minn. Stat. § 169.09, subd. 13(c) (stating that statute does not prohibit a person who has made a report from testifying as to facts within that person’s knowledge in a trial arising out of the accident).  Use of the report outside the court is not relevant to the privilege represented by the statute.

The trial court excluded the offered testimony of the police officer who wrote the accident report, as well as the accident report itself.  Under Minnesota law, police officers may use accident reports to refresh their memory while testifying to facts within their knowledge, even though the report itself is inadmissible. Minn. Stat. § 169.09, subd. 13(c); State v. Schultz, 392 N.W.2d 305, 307 (Minn. App. 1986).  But because the officer had no independent recollection of the collision, there were no facts about the accident that were within his knowledge—the officer had no memory that he could refresh.  For this reason, the trial court did not abuse its discretion in excluding the officer’s testimony.

When the evidence is viewed in a light most favorable to the verdict, there is ample evidence sustaining the verdict and the trial court did not abuse its discretion in refusing to grant appellant’s post-trial motions.