This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,





Keith Allen Carter,



Filed May 15, 2001

Affirmed in part, Reversed, and Remanded in part

Kalitowski, Judge


St. Louis County District Court

File No. K999601025


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


Alan L. Mitchell, St. Louis County Attorney, 100 North 5th Avenue West, #501, Duluth, MN 55802 (for respondent)


John M. Stuart, State Public Defender, Marie Wolf, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Schumacher, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Keith Allen Carter challenges his convictions of fleeing a police officer in a motor vehicle and driving after license revocation contending:  (1) he is entitled to a new trial because the district court erred in denying his request to test the car keys seized by the police from his home; and (2) the district court erred in ordering him to reimburse the public defender fund.  We affirm appellant’s conviction but reverse the reimbursement order and remand for a hearing to determine appellant’s ability to pay.



Appellant contends the district court committed reversible error by refusing to allow him to test car keys seized from his residence to determine whether they matched the vehicle that fled the police.  We disagree.  Appellate courts largely defer to the district court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  In particular, the decision of “[w]hether to admit evidence of experiments performed outside the jury’s view rests in the sound discretion of the [district] court.”  State v. Lindsey, 284 N.W.2d 368, 374 (Minn. 1979) (citations omitted).

In addition, the rule dealing with discovery and testing matters provides that the attorney for the prosecution

on request of defense counsel shall, before the date set for the Omnibus Hearing * * *, allow access at any reasonable time to all matters within the prosecuting attorney’s possession or control which relate to the case.


Minn. R. Crim. P. 9.01, subd. 1 (emphasis added).  The prosecuting attorney must also “disclose and permit defense counsel to inspect and reproduce any results or reports of * * * experiments or comparisons made in connection with the particular case.”  Id., subd. 1(4).  But here, appellant did not request permission to reproduce the results of respondent’s testing of the car keys until almost two months after the omnibus hearing.  Given the lateness of appellant’s request to test the Chevrolet Nova – months after respondent disclosed a report indicating that the keys matched the Nova – and appellant’s explanation for the late request – that he did not realize the keys seized by the police were actually keys to a car he once owned until he was in court and saw the evidence against him – the district court did not abuse its discretion in denying appellant’s request to test the car keys.

We reject appellant’s argument that respondent waived its right to raise the untimeliness issue because it did not make an objection on this ground in district court.  This court has discretion to address any issue as justice requires.  Minn. R. Civ. App. P. 103.04.  Moreover, the timeliness of appellant’s motion is directly related to our review of the reasonableness of the district court’s decision to deny appellant’s request.

            Appellant also contends the district court’s refusal to allow him to test the car keys violated his constitutional right to present a defense.  We disagree.  “Although a defendant has a right to present relevant evidence in his own defense,” this right is limited by the rules of evidence.  State v. Svoboda, 331 N.W.2d 772, 775 (Minn. 1983).  Accordingly, a defendant must “comply with basic rules of foundation to establish the relevance and admissibility of the evidence.”  Id.  Here, the district court concluded that any testing performed by appellant would be inadmissible because of lack of foundation.  It expressed concern that the subject of appellant’s experiment, a Chevrolet Nova, was not in the possession or control of the state and might not be in the same condition as it was when the police tested the vehicle.  Specifically, the district court was not “satisfied that, in all reasonable probability, the item offered [was] the same as the item seized and * * * substantially unchanged in condition.”  We conclude that based on these reasons, the district court did not abuse its discretion in denying appellant’s request to perform testing on the vehicle.  See State v. Johnson, 307 Minn. 501, 504-05, 239 N.W.2d 239, 242 (1976) (finding that district court did not abuse its discretion in determining that a weapon offered into evidence was the same weapon seized by police).


            Appellant contends the district court order requiring him to reimburse the public defender fund should be reversed because the district court failed to hold a hearing and determine his ability to pay.  We agree.  Under Minnesota law,

[a]ny person who is represented by a public defender * * * shall, if financially able to pay, reimburse the governmental unit chargeable with the compensation of such public defender * * * for the actual costs to the governmental unit in providing the services of the public defender * * * The court in hearing such matter shall ascertain the amount of such costs to be charged to the defendant and shall direct reimbursement over a period of not to exceed six months * * *.


Minn. Stat. § 611.35, subd. 1 (2000).  Pursuant to section 611.35, subdivision 1, “a hearing is required before a defendant can be made to reimburse the public defender.”  State v. Larson, 374 N.W.2d 329, 331-32 (Minn. App. 1985).  The purpose of this hearing is to ascertain whether a defendant is able to pay for his defense and to determine the amount of those costs.  Foster v. State, 416 N.W.2d 835, 837 (Minn. App. 1987).  A district court errs by failing to conduct a hearing prior to ordering a defendant to reimburse the public defender fund.  Larson, 374 N.W.2d at 332.  Here, at appellant’s sentencing hearing the district court determined that appellant’s public defender had spent 30 hours on his case, and that her hourly wage was $40.  But the district court erred by not specifically determining whether appellant was able to pay this fee.

We reject respondent’s argument that a hearing is not required to determine appellant’s ability to pay because the district court had access to the financial information contained in appellant’s presentence investigation report, which was reviewed by the district court at the sentencing hearing.  Although a separate hearing may not have been necessary, the district court was required to make a finding regarding appellant’s ability to pay.  Because the court did not make such a finding, we reverse the order for reimbursement of public defender’s fees and remand for a hearing on appellant’s ability to pay.

            Affirmed in part, reversed, and remanded in part.