This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Olmsted County District Court
File No. K8001097
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and
Raymond F. Schmitz, Olmsted County Attorney, Olmsted County Courthouse, 151 Fourth Street Southeast, Rochester, MN 55904-3712 (for respondent)
John M. Stuart, Minnesota Public Defender, Mark F. Anderson, Assistant Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Harten, Presiding Judge, Anderson, Judge, and Stoneburner, Judge.
Appellant argues that his conviction of first-degree assault and crime committed for benefit of a gang should be reversed because the district court abused its discretion by excluding testimony as a discovery sanction. Because we conclude that any error due to the exclusion of testimony was harmless, we affirm.
Jomari Alexander’s face was severely cut while he was a detainee at the Olmsted County Adult Detention Center. Deputy Coe, who was on the scene in an administrative area, saw Alexander come into the administrative area with his face bleeding, and saw appellant running towards Alexander in a boxing stance with clenched fists, saying “come on, come on.” Deputy Coe told appellant to settle down and escorted him back to his cell. Appellant raised his hands to make a “V” sign and hollered “Vice Lords, Vice Lords, Vice Lords.” Deputy Coe observed appellant inside his cell yell through an intercom system to another detainee something like: “I got him. * * * He wouldn’t come to Chicago so I brought Chicago to him. * * * He had snitched on me in the past.” Within five minutes of having been taken to his cell, appellant was taken to the booking area of the jail and strip-searched. No weapon was found on him or in his cell.
Alexander was taken to the hospital. He had a deep, six-inch cut from the corner of his mouth to his temple. The emergency room physician testified that the wound edges suggested that a blade or knife had caused the injury and that the cut was consistent with someone having approached Alexander from behind and cutting him from the mouth upward.
During an interview at the hospital, Alexander, who was unable to speak because bandages covered his face, indicated in writing that appellant had cut him. Alexander testified that he had been sitting in a chair when he sensed someone was coming up behind him. He tried to duck but was cut in the face. Alexander saw a razor blade in appellant’s hand. According to Alexander, appellant said: “I told you I was going to get you,” and “I’m going to kill your ass.”
Detective Wickelgren interviewed appellant who said that somebody grabbed him while he was talking on the telephone, and knocked his head against a pole. Appellant said he went to the floor, temporarily blacked out, and when he got up he struck back and saw that Alexander was the only person present. He admitted hitting Alexander with his fists but denied having any weapon and said he could only have cut Alexander with his fingernail. He said he had been warned that Alexander was “going to get [him].”
Detective Wickelgren interviewed other detainees including Steven Spaeth. Spaeth, in a taped interview, said he had been standing six to seven feet away from where Alexander was seated when he heard a noise like loud footsteps. He said when he turned he saw appellant grab Alexander’s chin with his left hand and slice his cheek with what Spaeth thought was an ID card or a key held in appellant’s right hand.
At trial, Spaeth was called to testify by the state but claimed to have no recollection as to what had occurred. He testified that a review of the transcript of his statement to Detective Wickelgren would not refresh his recollection. A recording of the interview was played for the jury over defense objection as past recorded recollection. Minn. R. Evid. 803(5).
Bennett, another detainee, testified that he was sitting next to Alexander, playing cards, when Alexander suddenly jumped up and ran to the administrative area, “and then, [appellant] was right there.” Bennett saw that Alexander was bleeding, but did not see how Alexander had been injured.
Detainee Fawcett testified for appellant that, from his cell, he saw Alexander swing at appellant as appellant used the telephone, causing appellant’s head to hit the telephone pole. He said appellant fell, got up to swing at Alexander and Alexander swung back, then Alexander ran towards the administrative area and appellant ran after him. Fawcett did not see a weapon or any bleeding. Fawcett testified that he did not tell Detective Wickelgren who had started the fight at the time of the incident because he did not want to “get involved.”
Detainee Loving testified that he saw a white detainee “Buster” in the area with a razor at the time of the assault, but did not tell Detective Wickelgren this when interviewed on the day of the incident. Detainee Pickens testified that he saw a silver reflection from an object in Alexander’s hand, that Alexander attacked appellant, and that they rolled around on the floor for awhile before Alexander stood up bleeding, but he did not reveal this information on the day of the incident. All of the detainees who testified were impeached with evidence of prior criminal activity.
Several of appellant’s letters from the jail were intercepted. One was to Fawcett, concerning his testimony, but Fawcett testified he did not receive the letter. Some were to Alexander and referenced gang affiliations.
Appellant called Steven Spaeth’s brother William Spaeth as his second-to-last witness. Appellant’s counsel had previously disclosed his intention to call William Spaeth as a witness at trial and had given notes from his first interview with William Spaeth to the prosecutor. Appellant’s counsel, however, interviewed William Spaeth again on the night before he was scheduled to testify and took notes of that interview. During that interview, William Spaeth said he and his brother, Steven Spaeth, were not in the vicinity of the incident when it occurred. Appellant’s counsel failed to give his notes of this interview to the prosecutor until William Spaeth was approaching the witness stand, despite the fact that earlier the same day the prosecutor had specifically asked defense counsel if he had any additional written statements to disclose. The prosecutor objected to the late disclosure. The district court heard arguments from counsel and ruled that, because of his failure to timely disclose the information, appellant’s counsel could not question William Spaeth about facts first revealed during the second interview. A jury convicted appellant of the charges against him. This appeal followed sentencing.
The imposition of sanctions for a discovery violation is “a matter particularly suited to the judgment and discretion of the trial court.” State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979). On appeal, a district court’s ruling will not be overturned absent a clear abuse of discretion. Id. The parties do not dispute that appellant’s counsel was obligated under the rules to disclose information he obtained from William Spaeth during the interview on the night before he was called to testify, and do not dispute that the district court has authority to impose sanctions, including preclusion of testimony, for the failure to abide by discovery rules.
The United States Supreme Court has upheld, against constitutional challenge, the preclusion of defense evidence as a sanction for non-compliance with a discovery order reasoning that “[t]he Sixth Amendment does not confer the right to present testimony free from the legitimate demands of the adversarial system.” United States v. Nobles, 422 U.S. 225, 241, 95 S. Ct. 2160, 2171 (1975). We reject appellant’s argument that evidence preclusion as a sanction for discovery violations rises to the level of a constitutional issue under either the federal or the state constitution.
The Minnesota Supreme Court articulated the factors a district court must consider before imposing a preclusion sanction to include (1) the reason the disclosure was not made; (2) the extent of the prejudice to the opposing party; (3) the feasibility of rectifying that prejudice by a continuance; and (4) any other relevant factors that might be present. Lindsey, 284 N.W.2d at 373. Here, the record does not reflect that the district court gave any consideration to the Lindsey factors.
Appellant’s counsel asserts that he forgot about the notes of the second interview prior to calling William Spaeth as a witness at trial. Defense attorneys, however, have an obligation to understand the basic rules of discovery. In re Welfare of M.P.Y., 630 N.W.2d 411, 417 (Minn. 2001). The fact that the failure to disclose was not in bad faith is not dispositive. Minnesota courts have upheld the preclusion of witness testimony “where there was not necessarily bad faith, but where there was an unjustified disregard of the discovery obligation.” Id.; see also Lindsey, 284 N.W.2d at 373-74 (upholding preclusion of witnesses’ testimony where there was an unjustified disregard of discovery obligations).
Appellant argues that the state was not prejudiced by the late disclosure. We disagree. The state was prejudiced because it was precluded from investigating William Spaeth’s anticipated impeachment of Steven Spaeth’s prior-recorded statement. Nonetheless, the district court should have considered a brief continuance or recess during which prejudice to the state presumably could have been cured fairly quickly by checking with the deputies who had been in the area of the incident and deputies and others who had been in the area where William Spaeth said he was with his brother. See State v. Rasinski, 472 N.W.2d 645, 649 (Minn. 1991) (stating that witness preclusion can be condoned only in extreme cases of violation of discovery rules where prejudice to prosecution cannot be cured by any other means).
The state argues on appeal that it was too late in the trial for a continuance, but immediately after receiving the last-minute disclosure the prosecutor asked the court “for time.” The district court did not address this request or consider any means of remedying prejudice to the prosecution prior to excluding the testimony. See In re Welfare of M.P.Y., 630 N.W.2d at 418 (stating that without “a record identifying compliance with the Lindsey factors, we cannot be confident that the sanction was not disproportionate to the purpose it was meant to serve”). We conclude that the district court’s failure to consider the Lindsey factors was a clear abuse of discretion. We further conclude, however, that this error was harmless beyond a reasonable doubt.
An error is harmless beyond a reasonable doubt if the verdict “was ‘surely unattributable’ to the error.” State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997). All witnesses agreed that Alexander’s injury occurred in an incident with appellant. Although Steven Spaeth was the only witness who, at the time, claimed to have actually seen appellant cut Alexander with an object, other witnesses saw parts of the incident. Their testimony was consistent with the medical evidence that Alexander was cut from behind. Deputy Coe testified that appellant was running after Alexander and, when he was returned to his cell yelled, “I got him.” Alexander testified that appellant was his assailant. Appellant’s attempts to influence testimony prior to trial were in evidence, including a letter from appellant to Fawcett, asking Fawcett to testify for him, stating, in part: “Steve was a witness against me, now he’s my witness.”
Had William Spaeth been allowed to testify that Steven Spaeth did not witness the incident, his testimony would have presented the jury with just one more last-minute inconsistency between what the witnesses said at the time of the incident and what was said at trial. Evidence of appellant’s guilt was strong. We conclude that the excluded testimony would not have affected the outcome of this trial and the exclusion, therefore, was harmless error.
In his pro se brief, appellant contends that he was denied effective assistance of counsel, his right to a speedy trial was violated, and he was prejudiced by having to wear a stun belt in the courtroom. Appellant cites no authority to support any of his contentions nor were any of these issues, except his objection to the stun belt, raised below. We find all of appellant’s claims without merit, but will address the issue of speedy trial and courtroom restraints.
The federal and state constitutions guarantee a criminal defendant the right to a speedy trial. U.S. Const. amend. VI; Minn. Const. art. I, § 6. Courts should balance the following four factors when determining whether a delay deprived the defendant of his right to a speedy trial: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) the resulting prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972); State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999). In Minnesota, when a defendant demands a speedy trial, the trial must commence within 60 days from the date of the demand unless good cause is shown for the delay. Minn. R. Crim. P. 11.10.
Counsel for appellant demanded speedy trials for appellant’s six criminal cases on August 17, 2000. The district court scheduled the trials, without objection by appellant, to begin in mid-October. The instant case commenced on October 24, 2000, eight days beyond the 60-day period. On October 5, 2000, appellant’s court-appointed attorney went on maternity leave and another public defender was assigned to appellant’s cases, presumably making it very impractical to accelerate the trial schedule. Given the circumstances, we conclude that good cause existed for not meeting the 60-day goal for trial of this matter. Because the delay in this case was brief and there was no showing that the delay prejudiced appellant’s case, we conclude that his constitutional right to a speedy trial was not violated.
The decision to require a criminal defendant to wear restraints in the courtroom is within the discretion of the district court. State v. Chambers, 589 N.W.2d 466, 475 (Minn. 1999). This court will not reverse a district court’s ruling regarding restraints unless there was an abuse of discretion. Id. The district court made findings on the record that appellant was a security risk. Appellant had been convicted of the crime of escape from custody, had been involved in a number of administrative violations in jail, and several Rule 20 evaluations indicated that he had problems controlling his behavior. The district court noted that the stun belt was the least restrictive alternative to provide necessary courtroom security because the restraint would be worn underneath appellant’s clothing, the restraint would not be directly visible to the jury, and appellant would not be moved in and out of the courtroom in the jury’s presence. The district court did not abuse its discretion by requiring appellant to wear a stun belt in court.