This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Glenn Lee Figaro, Jr.,
File No. K200600483
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, #500, St. Paul, MN 55103; and
Alan Mitchell, St. Louis County Attorney, 100 North Fifth Avenue West, #501, Duluth, MN 55802 (for respondent)
Mark D. Kelly, 400 Exchange Building, 26 East Exchange Street, St. Paul, MN 55101-2264 (for appellant)
Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Foley, Judge.*
GORDON W. SHUMAKER, Judge
Appealing from several controlled-substance convictions, appellant alleges the district court abused its discretion in refusing to allow an undisclosed defense witness to testify, in requiring appellant to testify to authenticate a tape-recording, and in denying appellant’s motion for a new trial. Appellant also alleges ineffective assistance of counsel. Because we find that the district court did not abuse its discretion and that appellant has not met his burden of showing that the ineffectiveness of his attorney affected the outcome of the trial, we affirm.
Robert Jackley agreed to serve as an informant for the Duluth police department and to make “controlled buys” of narcotics from appellant Glenn Lee Figaro, Jr., who is also known as “Daddy.” Jackley had known Figaro for a few years and had seen him once or twice a week during that time.
Jackley made three purchases of crack cocaine from a person whom he identified as Figaro. Each transaction was tape-recorded, and each contains conversations between Jackley and a person he refers to as “Daddy.”
Although only Jackley actually saw the seller, the evidence showed that during one of the sales the seller drove a car registered to Figaro’s mother; another sale was arranged through cell-phone contact and the owner of the phone gave the bills to Figaro to be paid; and two of the sales took place near Figaro’s mother’s house and Figaro had been seen in the vicinity of the house on those occasions.
Figaro pleaded not guilty to controlled-substance charges, and the matter was tried to a jury. Jackley testified and identified Figaro as the seller of the drugs. The jury also heard the tape-recorded conversations between Jackley and “Daddy.” During pretrial proceedings, Figaro suggested that his cousin, Michael Hill, was the seller of the drugs and that it is Hill’s voice, rather than Figaro’s, on the tape-recordings. Jackley testified that he is also acquainted with Michael Hill, that Hill and Figaro do not look alike, that none of the purchases was from Hill, and that it was Figaro who made all the sales.
After the state rested its case-in-chief, Figaro moved to be allowed to call Hill as a defense witness, claiming that Hill would admit that he made the drug sales to Jackley. The state objected because Hill’s name had not been listed in required pretrial disclosures. The district court noted that Figaro filed two pretrial witness disclosures and Hill’s name did not appear on either one. The court also pointed out that Figaro’s position at the omnibus hearing was that Hill made the drug sales, that he was using Figaro’s name, and that defense witnesses would identify the seller’s voice on the tape-recordings as being that of Hill. Because of the untimely disclosure, the likely prejudice to the state, and the impracticality of a continuance at that stage, the court denied Figaro’s motion to allow Hill to testify.
Figaro also made a pretrial motion to be permitted to play a tape-recording of a telephone conversation between himself and Hill. Two defense investigators were present during the conversation, but they did not know Hill and could not authenticate his voice on the tape. Only Figaro could identify Hill as the other party to the conversation. The district court ruled that Figaro would have to testify to lay the foundation for the tape. Figaro did testify.
The jury found Figaro guilty of all charges. Thereafter, Figaro moved for a new trial on the ground that newly discovered evidence exonerated him. The evidence was a tape-recording made by someone named Allison Pellegrino on which Michael Hill allegedly confesses to the crimes of which Figaro had been convicted.
The district court denied Figaro’s motion for a new trial, ruling that the evidence of Hill’s alleged confession was not newly discovered because, in his motion to allow Hill to testify, Figaro represented that Hill would confess in court to the drug sales. The court noted that the evidence alleged as newly discovered could have been procured through diligence prior to trial.
In this appeal, Figaro alleges that the district court erred in excluding Hill’s testimony, requiring Figaro to testify to authenticate his tape-recorded conversation with Hill, and in denying his motion for a new trial. Figaro also alleges ineffective assistance of defense counsel.
Figaro argues that the district court abused its discretion by refusing to let Michael Hill testify because defense counsel failed to disclose Hill as a potential witness during pretrial discovery, as required by the Minnesota Rules of Criminal Procedure. See Minn. R. Crim. P. 9.02, subd. 1(3)(a) (requiring the defendant to provide the prosecutor with the names and addresses of persons whom the defendant intends to call as witnesses at the trial); Minn. R. Crim. P. 9.03, subd. 2(a) (imposing a continuing duty to promptly notify the other party of the existence of additional witnesses subject to disclosure).
The preclusion of evidence is a severe sanction, which should not be invoked lightly. State v. Lindsey, 284 N.W.2d 368, 374 (Minn. 1979); State v. Hatton, 389 N.W.2d 229, 235-36 (Minn. App. 1986) (characterizing the sanction as “extremely harsh”), review denied (Minn. Aug. 13, 1986). However, the district court is in the best position to determine what harm is caused by discovery violations and whether such harm can be eliminated or diminished. Lindsey, 284 N.W.2d at 373. Therefore, it is the district court that decides whether to impose sanctions for violations of discovery rules and orders. Id.; see also Minn. R. Crim. P. 9.03, subd. 8 (permitting the district court to sanction for discovery violations). The appellate court will overturn such decisions only if the district court abused its discretion. Lindsey, 284 N.W.2d at 373. The district court should take into consideration:
(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.
Six months prior to trial, Figaro asserted at a pretrial hearing that it was actually Michael Hill who committed these crimes. Figaro’s attorney argues that there was no way to know before trial that Hill would admit his guilt and thus counsel did not list him as a potential trial witness.
Because the mere listing of a witness in a pretrial disclosure does not obligate counsel to call that witness at trial, and because there is nothing on this record to suggest that counsel could not at least have subpoenaed Hill to testify, it is inexplicable that a witness presented as central to the defense and potentially dispositive of the case would not be disclosed in pretrial discovery. We agree with the district court that Figaro’s reason for not disclosing Hill as a possible trial witness was not compelling.
In some cases, a short continuance is believed sufficient to cure the prejudice caused by nondisclosure of a witness. See, e.g., State v. Rasinski, 472 N.W.2d 645, 648-49 (Minn. 1991) (witness called to impeach, nature of witness allowed the state to prepare to examine witness if given continuance); Hatton, 389 N.W.2d at 236 (a continuance would provide the state an opportunity to prepare for a meaningful cross-examination). However, where the disclosure is made on the day trial is set or later, Minnesota courts have found the prejudice to the other side is great and a continuance will not provide the other side enough time to investigate the new witness. See, e.g., Lindsey, 284 N.W.2d at 373-74 (giving notice of a new witness after the close of the state’s case is too late); State v. Widell, 530 N.W. 566, 570 (Minn. App. 1995) (giving notice of new witness on the first day of trial is too late for state to investigate), review denied (Minn. May 31, 1995).
Figaro argues that his counsel promptly disclosed Hill as a witness as soon as counsel became aware that Hill was willing to confess. The district court noted, however, that defense counsel waited until after the state rested its case to request that Hill be allowed to testify. Therefore, the district court determined that it was too far into trial for a continuance to cure the prejudice caused by the nondisclosure because the state would not have the time needed to do a full investigation. Although precluding Hill’s testimony is a harsh sanction, because appellant presents no adequate reason for the nondisclosure and because the state had rested its case before the disclosure was made and would be prejudiced if Hill were allowed to testify, and because a continuance at that stage would have been impractical, the district court did not abuse its discretion by denying Figaro’s request to allow Hill’s testimony.
2. Ineffective Assistance of Counsel
Figaro next argues that he is entitled to a new trial because defense counsel’s failure to list Hill as a witness constituted ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a defendant must prove two elements: (1) the attorney’s representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for the attorney’s errors, the proceeding’s outcome would have been different. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987). When determining whether counsel’s representation fell below an objective standard of reasonableness, a strong presumption exists that counsel’s performance fell within a broad range of reasonableness. State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998).
Figaro’s attorney knew long before trial that Michael Hill would play a prominent role in Figaro’s defense, either as a witness or as someone who would be accused by other defense witnesses. Although defense counsel was not certain that Hill would admit that he committed the crimes of which Figaro was accused, the better judgment and prudent course would have been to list Hill as a possible witness and thereby obviate the risk of preclusion for nondisclosure. Defense counsel’s omission served no legitimate purpose, was unreasonable, and caused the legal representation of Figaro to fall below the standard of reasonableness for the defense of a criminal case.
Although Figaro has shown that his attorney’s representation fell below an objective standard of reasonableness, he is also required to show that there is a reasonable probability that, but for his attorney’s error, the outcome of the trial would have been different. Gates, 398 N.W.2d at 561. This is a heavy burden. Hennepin County v. Perry, 561 N.W.2d 889, 894-95 (Minn. 1997).
In assessing whether or not Figaro has met his burden, we consider the totality of the evidence presented to the jury. Id. at 562. We are not permitted to speculate as to the possible effect of the testimony Hill allegedly would have given. Id. at 563. Rather, Figaro has the affirmative burden of demonstrating that Hill’s testimony would have made a difference in the outcome of the case. Id.
We note that defense counsel did not make an offer of proof outlining what Hill’s testimony would be and showing how Hill was linked to the crimes. Rather, defense counsel requested that Hill be allowed to testify and suggested that Hill would admit that he committed the crimes. Thus, there was no reliable showing either that Hill would testify or that, if he did testify, the jury would believe him despite Jackley’s identification of Figaro and the circumstantial links of Figaro to each drug sale. Furthermore, the jury heard the tape-recorded conversations between Jackley and Figaro and they heard Figaro testify. The jury could have concluded that the speaker called “Daddy” was not Figaro if that voice was different from Figaro’s. Considering the totality of the evidence, Figaro has not satisfied his burden of showing that but for his attorney’s error the likely outcome of the trial would have been different.
3. Constitutional Right Not to Testify
Figaro argues that the district court violated his constitutional rights by refusing to admit an alleged tape-recorded conversation that he had with Hill unless he testified to the authenticity of the recording, thereby forcing him to testify in violation of his right against self-incrimination. However, the district court did not force Figaro to take the stand. Rather, the court required that foundation be laid to admit the tape-recording and apparently only Figaro could lay that foundation. Figaro chose to waive his right not to testify in order to have the evidence admitted. Cf. State v. Gassler, 505 N.W.2d 62, 67-68 (Minn. 1993) (stating that where the district court did not abuse its discretion by determining that defendant’s prior convictions could be admitted to impeach defendant, the district court did not infringe on the defendant’s right to take the stand in his own defense). Although a defendant has a right to present relevant evidence in his own defense, he must comply with the rules regarding the admissibility of the evidence. State v. Svoboda, 331 N.W.2d 772, 775 (Minn. 1983) (stating that the district court did not err by excluding defendant’s evidence for lack of foundation); Widell, 530 N.W.2d at 570; State v. Alowonle, 356 N.W.2d 385, 387 (Minn. App. 1984), review denied (Minn. Jan. 14, 1985).
The tape-recorded telephone conversation required identification of the speakers in order to satisfy the requirement of authentication under Minn. R. Evid. 901. Figaro was the only person who knew what number he dialed, and was the only person who spoke with the other party to the conversation, and he proposed no other proper way to authenticate the recording than through his own testimony. Therefore, the district court did not abuse its discretion or violate Figaro’s constitutional rights by requiring Figaro to authenticate the tape if he wanted it admitted in evidence.
4. Motion for New Trial
Figaro contends that the district court abused its discretion by denying Figaro’s motion for new trial based on newly discovered evidence. A new trial based upon newly discovered evidence may be granted when a defendant proves
(1) that the evidence was not known to the defendant or [defendant’s] counsel at the time of trial; (2) that the evidence could not have been discovered through due diligence before trial; (3) that the evidence is not cumulative, impeaching, or doubtful; and (4) that the evidence would probably produce an acquittal or a more favorable result.
Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997) (citations omitted). The new evidence must also be credible and material. Race v. State, 504 N.W.2d 214, 217 (Minn. 1993).
The district court correctly determined that the information in the taped conversation in which Hill purportedly confesses to the crimes for which Figaro was convicted is not evidence that was unknown at the time of trial, even though the recording was made after the trial. Figaro argued at a pretrial hearing that it was Hill who committed the crimes. During the trial, defense counsel stated that Hill would testify and would admit that he committed the crimes. Figaro was aware of Hill’s willingness to confess during trial and moved to be allowed to call Hill as a witness. See Johnson v. State, 486 N.W.2d 825, 828 (Minn. App. 1992) (finding the evidence was not new when the defense knew of the witness and tried to call the witness at trial), review denied (Minn. Aug. 27, 1992). Therefore, the district court did not abuse its discretion by denying appellant’s motion for new trial.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.