This opinion will be unpublished and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

IN COURT OF APPEALS

CX-00-883

 

State of Minnesota,

Appellant,

 

vs.

 

Angel Dominguez Perez,

a/k/a Edgar Luis Ceballos,

Respondent.

 

Filed October 24, 2000

Reversed and remanded

Harten, Judge

Dissenting, Randall, Judge

 

Watonwan County District Court

File No. K4-00-110

 

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

 

Lamar T. Piper, Watonwan County Attorney, Todd L. Kosovich, Assistant County Attorney, 615 Second Avenue South, P.O. Box 109, St. James, MN 56081 (for appellant)

 

John M. Stuart, State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414; and

 

Allison Krehbiel Baskfield, 48318-160th Street, Madelia, MN 56062-9405 (for respondent)

 

††††††††††† Considered and decided by Halbrooks, Presiding Judge, Randall, Judge, and Harten, Judge.

U N P U B L I S H E D†† O P I N I O N

HARTEN, Judge

The state appeals from a pretrial order suppressing the testimony of a confidential informant in a controlled substance crime prosecution as a sanction for the prosecutorís failure to timely disclose the identity of the informant.† Because our analysis shows no discovery violation and because, even if there had been a discovery violation, testimony preclusion as a sanction was an abuse of discretion, we reverse and remand.

FACTS

††††††††††† †After a confidential informant made three controlled buys of cocaine from respondent Angel Dominguez Perez, respondent was charged with various controlled substance crimes.† Appellant State of Minnesota filed a certificate pursuant to Minn. R. Crim. P. 9.01, subd. 3(2), seeking to withhold the confidential informantís identity in order to protect the safety of the informant and the security of the investigation.

The district court eventually ordered appellant to disclose the informantís identity, but the order did not indicate a time or date for disclosure.† The district court then stayed the order at appellantís request.† Five days before trial, the district court vacated the stay and compelled disclosure of the informantís identity.† Appellant complied within two hours, disclosing the informantís identity and offering the services of the local police department to locate the informant.†

Respondent moved to suppress the informantís testimony on the ground that appellantís failure to timely disclose the informantís identity deprived respondent of adequate time to prepare for trial.† The district court precluded the informantís testimony as a sanction for appellantís violation of discovery rules.† Appellant challenges the preclusion order.

D E C I S I O N

†††† The state may appeal pretrial orders in felony cases pursuant to Minn. R. Crim. P. 28.04, subd. 1(1) provided that in suppression of evidence cases, the state must clearly and unequivocally show both that the trial courtís order will have a critical impact on the stateís ability to prosecute the defendant successfully and that the order constituted error.

 

State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (citing State v. Zanter, 535 N.W.2d 624, 630 (Minn. 1995) (quotation omitted)).† Neither party disputes that the critical impact prong is satisfied.† Appellant, however, contends that the order constituted error both because there was no discovery violation and because the district court abused its discretion by precluding the confidential informantís testimony as a sanction.

1.†††††††† Discovery Violation

The district courtís application of statutory criteria to facts is a question of law, which we review de novo.† State v. Bunde, 556 N.W.2d 917, 918 (Minn. App. 1996).† Minn. R. Crim. P. 9.01, subd. 3(2), provides:†

The information relative to the witnesses and persons described in Rules 9.01, subd. 1(1), (2) shall not be subject to disclosure if the prosecuting attorney files a written certificate with the trial court that to do so may endanger the integrity of a continuing investigation or subject such witnesses or persons or others to physical harm or coercion, provided, however, that non-disclosure under this rule shall not extend beyond the time the witnesses or persons are sworn to testify at the trial.

 

This privilege is limited by fundamental fairness:

 

Although the state is privileged to maintain channels of communication about criminal activities by shielding the identity of an informer, the privilege to withhold an informantís identity is limited by the fundamental requirements of fairness.† Thus, the public interest in protecting the flow of information must be balanced against the individualís right to prepare his defense.

State v. Houle, 257 N.W.2d 320, 323 (Minn. 1977).†

The timing of a rule 9.01 disclosure is addressed in Minn. R. Crim. P. 9.03, subd. 3, which provides that ď[a]n order of the court granting discovery shall specify the time, place and manner of making the discovery * * * .Ē† Here, the timing of the disclosure of the informantís identity was the contested issue.† Prior to its second order vacating the stay of its earlier discovery order and ordering disclosure of the informantís identity, the district court had never specified the time, place, and manner of the disclosure as required by Minn. R. Crim. P. 9.03, subd. 3.† There being no such specification in the first order, appellant cannot be found in violation of it.

In short, appellant followed the procedures in Minn. R. Crim. P. 9.01, subd. 3(2), for withholding disclosure of an informantís identity.† Because the district courtís first disclosure order (even if it had not been promptly stayed) did not specify a time or date, appellant had no duty to disclose until the district courtís second order.† And appellant immediately disclosed the identity of its confidential informant after the second order.† We conclude that appellant did not violate discovery rules.†


2. ††††††† Sanctions

The imposition of sanctions for violations of discovery rules and orders is a matter particularly suited to the judgment and discretion of the trial court. * * *† Accordingly, we will not overturn its ruling absent a clear abuse of discretion.†

 

State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979 ).†

Four factors should be considered to determine whether sanctions for discovery violations are appropriate:

(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.† Our analysis of these factors follows.

a.†††††††† Why Disclosure Was Not Made†

Appellant claims that disclosure was not made sooner because the informant was in danger and the investigation would be compromised by early disclosure of the informantís identity.† Minn. R. Crim. P. 9.01, subd. 3(2), authorizes withholding a witnessís identity before the witness is sworn to testify.† Appellant followed the proper procedures for nondisclosure by filing a certificate and setting forth reasons in a supporting affidavit.† Appellant promptly disclosed the identity of the confidential informant to respondent once the district court ordered disclosure; as a practical matter, it had no obligation to disclose earlier.

b.†††††††† Prejudice to Opposing Party†

Respondent contends that nondisclosure made it impossible for him to prepare his defense.† However, respondent was informed five days before trial of the identity and location of the informant, but he did not attempt to locate or interview the informant.† SeeState v. Myers, 413 N.W.2d 122, 125 (Minn. App. 1987), affíd (Minn. 1987) (disclosure even as late as the first day of trial can give the opposing party time to investigate a witnessís background).

c.†††††††† Feasibility of Curing Prejudice by Continuance†

Respondent contends that a continuance would have interfered with his constitutional right to a speedy trial.† But speedy trial rights are not offended so long as the delay is for good cause.† State v. Friberg, 435 N.W.2d 509, 512-13 (Minn. 1989). There is no indication that the state offered disclosure of the informant in order to delay the trial.† If five days were insufficient for respondent to prepare for trial, a continuance would have been a much less extreme alternative than suppression of the informantís testimony.

d.†††††††† Other Relevant Factors

Preclusion of the confidential informantís testimony would greatly prejudice appellant because, without the informantís testimony, this case would probably be dismissed.†

Our cases may be read to condone the preclusion of a witness only in extreme cases of violation of discovery rules by a [party], where prejudice to [the opposing party] cannot be cured by any other means.

State v. Rasinski, 472 N.W.2d 645, 649 (Minn. 1991).† ďPreclusion should be used only as a last resort and then only if preclusion will not prejudice the [other party].Ē† State v.Vaughn, 361 N.W.2d 54, 59 (Minn. 1985). Even if appellant had violated the rules of discovery, precluding the testimony of the confidential informant as a sanction was an abuse of discretion.

††††††††††† Reversed and remanded.

 

 

RANDALL, Judge (dissenting).

††††††††††† I respectfully dissent.† The simple issue in this case is whether the district court clearly and unequivocally erred in suppressing the testimony of the state's confidential informant.† Given the broad discretion afforded to the district court in pretrial evidentiary matters, I find no basis for us to determine that the district court clearly and unequivocally erred.

Discovery rules are

based on the proposition that the ends of justice will best be served by a system of liberal discovery which gives both parties the maximum possible amount of information with which to prepare their cases and thereby reduces the possibility of surprise at trial

 

and are "designed to enhance the search for truth."† State v. Lindsey, 284 N.W.2d 368, 372 (Minn. 1979) (quotations and citations omitted).† Sanctions for violation of discovery rules include ordering discovery, granting a continuance, or "enter[ing] such order as [the district court] deems just in the circumstances."† Minn. R. Crim. P. 9.03, subd. 8.

In a pretrial appeal, this court will reverse the district court only if the state can prove clearly and unequivocally both that the district court erred and that the error will have a critical impact on the trial.† State v. Joon Kyu Kim, 398 N.W.2d 544, 547 (Minn. 1987).† Even if this court would have ruled differently, we may not substitute our judgment for that of the district court.† State v. Aubid, 591 N.W.2d 472, 478 (Minn. 1999).

Here, the record indicates that the district court found the state's failure to disclose was willful or calculated.† The state repeatedly requested delays in proceedings, failed to provide the court with a memorandum supporting its position, and failed to supply respondent with his repeated requests for discovery information.† The informant was the state's material witness in this case, and the state knew that respondent had requested a speedy trial.† The state's delay tactics made it difficult for respondent to adequately prepare a defense prior to the May 17, 2000, trial date.†

The district court did not find the state's story of delay credible.† Other than the state's general argument that there have been instances in other cases where confidential informants were murdered or seriously injured, at no time did the state advance reasons for failing to provide full disclosure in this case.† Although suppression of evidence is a severe penalty, the district court is in the best position to make this determination.† See State v. Patterson, 587 N.W.2d 45, 50 (Minn. 1998) (recognizing imposition of sanctions for violation of discovery rules is matter particularly suited to district court's judgment and discretion).

If this case with these facts had come up to us in the reverse posture (assume the district court, noting the same reasons the state argues here, had allowed the informant to testify, there was a conviction, and this pretrial ruling in favor of the state had been folded into the defendant's appeal), the result would have been a quick affirmance of respondent's conviction.† It would be so easy for an appellate court on review to state that the five-day interval for respondent to investigate put the district court's decision to allow the informant to testify easily within the ambit of district court discretion.† I can only point out that due process dictates that what is sauce for the goose is sauce for the gander.† It is constitutionally impermissible to scrutinize a district court's pretrial ruling in favor of a defendant more closely and with less latitude than we scrutinize a district court's pretrial ruling in favor of the state.† In fact, the law is exactly otherwise.† In close cases, ambiguities, etc., the law mandates that penal statutes and rules be construed in favor of the defendant and against the state.† See State v. Larson, 605 N.W.2d 706, 714 (Minn. 2000) (stating "penal statutes should be strictly construed against the government * * * and in favor of persons on whom penalties are sought to be imposed" (quotation omitted)).

This is a simple case with a simple issue.† The district court, weighing the credibility of the evidence, imposed a discovery sanction.† I find nothing even remotely approaching an unequivocal error of law.† The issue is the state's claim that respondent knew the informant's name five days before trial.† There is no case, or statute, or rule of criminal procedure anywhere stating that, as a matter of law, if either the state or the defendant has 120 hours or more to contact a late-disclosed witness, the district court's hands are irrevocably tied and the sanction of not allowing that witness to testify is taken away from the district court judge.

State v. Myers, 413 N.W.2d 122, 125 (Minn. App. 1987), aff'd as modified, 416 N.W.2ed 736 (Minn. 1987), which the majority cites, is not an authority supporting the above proposition.† In Myers, the district court determined that a late-identified witness could testify for the state.† All this court did was conclude, on that record in that case, that the district court alleviated any prejudice to the defendant.† Id. at 125.† In this case, the district court determined the defendant would be prejudiced by the untimely disclosure.† The only difference is that in Myers the district court ruled for the state, and, here, the district court ruled against the state.† As I stated above, not only is the defendant entitled to the same presumption of correctness on district court discretion that the state gets, the defendant is entitled to even more; close calls and ambiguities must go to the defendant.

†The majority ends by focusing on the probability that the state would not have a case if the confidential informant was not allowed to testify and, therefore, concludes that even if the state had violated the rules of discovery, precluding the testimony of the informant was too severe a sanction.† I can only ask, "Why is this so?"† District courts have the power, and routinely use it, not just to impose sanctions or discovery violations, but to dismiss outright the state's case after the probable cause hearing, and/or the conclusion of the state's case in chief at a trial, and/or at the conclusion of all the evidence in a criminal trial.

Given the district court's great discretionary latitude in weighing evidence and credibility, and fashioning sanctions for violations of the rules, there is no basis for this court to determine that the district court's judgment call was unequivocal error.