This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





David John Gherity,



Filed August 13, 2002


Lansing, Judge


Hennepin County District Court

File No. 00119728


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


Jay M. Heffern, Minneapolis City Attorney, Patrick A. Marzitelli, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN  55402 (for respondent)


Howard Bass, Meshbesher & Spence, LTD., 1616 Park Avenue, Minneapolis, MN  55404 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N




            A jury convicted David Gherity of disorderly conduct and fifth-degree assault of Ronald Kilgore after Kilgore intervened in a late-night struggle between Gherity and Laura Kallestad.  Gherity challenges the district court’s evidentiary rulings that allowed Kallestad to testify despite the state’s untimely notice that she would be called as a witness, limited Gherity’s cross-examination of Kallestad, and excluded evidence of Gherity’s motives for his conduct toward Kallestad on the night of the assault.  Because the district court acted within its discretion by permitting Kallestad to testify and limiting cross-examination, and because any restriction on evidence of Gherity’s motives for his conduct toward Kallestad was harmless beyond a reasonable doubt, we affirm.



            Ronald Kilgore and Laura Kallestad each rented apartments on the 26th floor of a Minneapolis apartment building.  At about midnight on October 29, 2000, Kilgore was awakened by Kallestad’s calls for help from the hallway outside his apartment.  When Kilgore opened his apartment door, he saw Kallestad lying on the hallway floor with Gherity standing over her and kicking her.  Kilgore asked Gherity what was going on.  In response, Gherity rushed at Kilgore, chased him out to the balcony of the apartment building, placed his hand around his throat, forced him against the railing of Kilgore’s 26th-floor balcony, and repeatedly punched him.  After a struggle, Kallestad helped Kilgore break free from Gherity, and they ran back into the apartment and another resident of Kilgore’s apartment called 911.

            The state charged Gherity with disorderly conduct, interference with an emergency call, and four counts of fifth-degree assault.  One month before trial, the state produced a witness list that did not include Kallestad.  The day before jury selection began, the state notified defense counsel that it planned to call Kallestad as a witness.  The district court, over defense counsel’s objection, granted the state’s motion to permit Kallestad to testify.  The court denied defense counsel’s motion for a one-week continuance to prepare for Kallestad’s cross-examination and a subsequent motion for a two-day continuance.  The court pointed out that at least two days would elapse before Kallestad would testify.

            During the in-chambers discussion, the court also made preliminary rulings on proposed evidence.  The court ruled that the defense would be permitted to cross-examine Kallestad on her prior relationship with Gherity and their current litigation only to the degree that it demonstrated bias, that cross-examination of Kallestad’s mental-health history would be admissible only if it correlated to a capacity for truthfulness, and that Kallestad’s alcohol abuse and mental-health history were not admissible as character evidence.  Reasoning that Kallestad was a witness, not a victim, in the charges for trial, the court indicated that Gherity’s motive for acting aggressively toward Kallestad was irrelevant and that he would only be permitted to explain his motivation for acting aggressively toward Kilgore.

Gherity challenges his fifth-degree assault and disorderly-conduct convictions, arguing that the district court violated (1) his due process rights to a fair trial and to present a complete defense, (2) his Sixth Amendment right to confront his accusers when it permitted Kallestad to testify despite the late disclosure that she would be called as a witness, and (3) his due process right to explain his aggressive conduct toward Kallestad.


We review a district court’s evidentiary rulings under an abuse-of-discretion standard.  In re Welfare of M.P.Y., 630 N.W.2d 411, 415 (Minn. 2001).  If an evidentiary ruling led to the violation of a defendant’s constitutional right and if the error was not harmless beyond a reasonable doubt, then the conviction should be reversed.  Id.  But reversal is not appropriate when a reasonable jury would have reached the same verdict even if the evidence had been admitted and its potential fully realized.  State v. Post, 512 N.W.2d 99, 102 (Minn. 1994).

            “In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him.”  U.S. Const. Amend. VI; see also Minn. Const. art. 1, § 6.  Embodied in the Due Process Clause of the Fourteenth Amendment is the right to a fair trial and the right to present one’s defense.  State v. Reardon, 245 Minn. 509, 513-14, 73 N.W.2d 192, 195 (1955) (noting that right to fair trial is based in Fourteenth Amendment Due Process Clause); State v. Carroll, 639 N.W.2d 623, 627 (Minn. App. 2002) (noting that Due Process and Confrontation Clauses of the federal and Minnesota Constitutions encompass the right to present one’s defense).


Gherity first argues that the district court’s decision to admit Kallestad’s testimony was an abuse of discretion that violated his constitutional rights to due process and to confront the witnesses against him.

A prosecutor is required to “disclose to defense counsel the names and addresses of the persons intended to be called as witnesses at the trial together with their prior record of convictions.”  Minn. R. Crim. P. 9.01, subd. 1(1)(a).  At the request of defense counsel, this disclosure must be made “before the date set for Omnibus Hearing [as] provided for by Rule 11.”  Minn. R. Crim. P. 9.01, subd. 1.  It is undisputed that Gherity requested a list of the state’s potential trial witnesses, the state provided a list one month before trial, Kallestad’s name was not on the list, and the state disclosed Kallestad as a potential witness one day before jury selection began.  When Gherity objected to the introduction of Kallestad’s testimony, the district court declined to impose a discovery violation sanction and admitted Kallestad’s testimony. 

A decision on whether to impose sanctions for violations of a discovery rule is particularly suited to the discretion of the district court.  M.P.Y., 630 N.W.2d at 417.  The district court should consider the reason the disclosure was not made, the extent of prejudice to the other party, the feasibility of remedying prejudice by granting a continuance, and any other relevant factors.  Id. (labeling these as Lindsey factors because they were first set out in State v. Lindsey, 284 N.W.2d 368, 372, 373 (Minn. 1979)).  

            At the hearing on the state’s motion to admit Kallestad’s testimony, the state represented that it did not disclose Kallestad as a potential witness until one day before jury selection because it had been unable to locate her.  Her name was not listed in the police report, she had been evicted from her apartment where the incident occurred, and she left no forwarding information. 

In assessing the prejudice to Gherity of the late disclosure, the district court noted that because Gherity knew she was an eyewitness to the incident, he knew she was likely to be called as a witness.  The district court also noted that because she was an eyewitness, her testimony would be important.  See Lindsey, 284 N.W.2d at 374 (stating that “[p]reclusion of evidence is a severe sanction which should not be lightly invoked”) (citation omitted).  The district court found that the extensive knowledge of Kallestad’s background, mental history, and relationship with Gherity that defense counsel displayed at the hearing on the state’s motion to introduce Kallestad’s testimony, demonstrated that defense counsel was “very well prepared” for cross-examination.

            After the court denied Gherity’s motion for a one-week continuance, Gherity requested a two-day continuance.  The district court denied this motion noting that, even without a continuance, defense counsel would have two days before Kallestad was to testify.

            The decision on whether to grant a continuance is within the district court’s discretion.  State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987).  We will not reverse a conviction for denial of a motion for a continuance, unless the denial constitutes a clear abuse of discretion and the defendant demonstrates prejudice.  Id.  When no prejudice results from a late disclosure, a continuance is unnecessary to remediate the prejudice.  Lindsey, 284 N.W.2d at 376 (Wahl, J., concurring specially). 

The district court reasonably concluded that defense counsel was already more knowledgeable than the state about Kallestad’s personal history and relationship with Gherity.  Furthermore, defense counsel vigorously cross-examined Kallestad at trial on her alleged attempt to hire a hit man to kill Gherity, her alleged attempts to convince Gherity to pay her in exchange for favorable testimony, her civil lawsuit against Gherity, allegations that she had once falsely accused someone of a crime, her consumption of alcohol on the night in question, and her two prior felony convictions for selling and conspiring to sell controlled substances.  Defense counsel also called five witnesses to testify that Kallestad had a reputation for untruthfulness.  The depth of the cross-examination and the number of character witnesses demonstrate that defense counsel was prepared to respond to Kallestad’s testimony.  The district court did not abuse its discretion by denying Gherity’s requests for a continuance in light of the centrality of the eyewitness testimony and the reason for the late disclosure.  And the record does not support Gherity’s contention that he was prejudiced by the untimely disclosure of Kallestad.


Gherity contends that the district court violated his constitutional rights by impermissibly limiting the scope of Kallestad’s cross-examination to exclude the details of Gherity and Kallestad’s prior relationship, Kallestad’s medical history, the details of Kallestad’s civil lawsuit against Gherity, and the details of Kallestad’s alcoholism and mental-health history.  Gherity argues that even if none of these errors is sufficient in itself to rise to the level of a constitutional violation, the cumulative effect of the errors is sufficient. 

            The district court has broad discretion to limit repetitive and unduly harassing interrogation on cross-examination.  State v. Lanz-Terry, 535 N.W.2d 635, 639 (Minn. 1995) (citing Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110 (1974)).  A district court may also limit the scope of cross-examination to avoid confusion of the issues and to exclude marginally relevant topics.  Lanz-Terry, 535 N.W.2d at 639. 

            The district court cautioned Gherity that the charged assaults were not against Kallestad, and cross-examination on the relationship between Kallestad and Gherity must be restricted to avoid confusing the jury.  As noted, defense counsel showed that Kallestad suffered from post-traumatic stress disorder, allegedly hired a hit man to kill Gherity, allegedly attempted to extort money from Gherity in exchange for favorable testimony, filed a civil lawsuit against Gherity, consumed alcohol on the night of the altercation, falsely accused someone of a crime, and had two prior felony convictions for selling and conspiring to sell controlled substances.  Defense counsel also called five witnesses to testify that Kallestad had a reputation for untruthfulness.  The jury had an ample basis on which to judge Kallestad’s credibility and her capacity to recall events, and the court properly exercised its discretion by denying further cross-examination.


Gherity’s final argument is that the district court violated his constitutional rights by impermissibly excluding his explanation of why he acted aggressively toward Kallestad in the hallway of her apartment building.

Criminal defendants have a fundamental due process right to explain to the jury the conduct that gave rise to the alleged criminal activity.  State v. Brechon, 352 N.W.2d 745, 750-51 (Minn. 1984).  “[A] defendant’s explanation for his presence, his actions, or his words at the scene of an alleged crime need not constitute an absolute bar to prosecution, or, if believed, rise to a level requiring an outright dismissal to be relevant and admissible.”  State v. Wiltse, 386 N.W.2d 315, 318 (Minn. App. 1986), review denied (Minn. Jun. 30, 1986).  Although the court’s restriction on Gherity’s right to provide an explanation was reasonably prompted by the continuing concern of keeping the trial focused on the issues relevant to the assault charges, a failure to permit Gherity to explain the genesis of his altercation with Kallestad could potentially impinge to some degree on Gherity’s right to explain his conduct.  The altercation with Kallestad was related to the subsequent conduct and occurred immediately before the encounter with Kilgore.  But for several reasons, we conclude that the ruling was not reversible error.

First, the record does not fully support Gherity’s claim that it was his testimony on motive that was excluded.  The court made the restrictive ruling in the context of a discussion about the scope of defense counsel’s cross-examination of Kallestad.  Gherity exercised his right not to testify, and nothing in the transcript suggests that his decision was influenced by the district court’s ruling on the relevancy of motivation evidence.  Second, to the degree Gherity was attempting to explain his motivation for the altercation with Kallestad through character witnesses, the Brechon line of cases is not directly applicable.  Finally, on the facts in this record, Gherity has not demonstrated prejudice.  See State v. Thompson, 617 N.W.2d 609, 613 (Minn. App. 2000) (citing State v. Post, 512 N.W.2d at 102 (requiring prejudice as a basis for reversal)).  The peripheral connection between Gherity’s motivation for arguing with Kallestad and his motivation for the charged assault on Kilgore would not influence a reasonable jury in determining whether Gherity was guilty or not guilty of assaulting Kilgore.