may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Steven M. Baynes,
Blue Earth County District Court
File No. T5978675
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Ross E. Arneson, Blue Earth County Attorney, Christa Van Gundy, Assistant County Attorney, 410 South Fifth Street, PO Box 3129, Mankato, MN 56002-3129 (for respondent)
John M. Stuart, State Public Defender, Lawrence Hammerling, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Wright, Judge.
In this appeal from a fifth-degree-assault conviction, appellant Steven M. Baynes argues that the district court erred when it (1) allowed the prosecution to make its closing argument after appellant made his closing argument; and (2) allowed a prosecution witness to testify at trial even though the prosecution did not disclose the witness until the morning of trial. We agree that the district court erred with respect to the order of closing arguments. But because we find the error harmless, and because we find that the district court did not abuse its discretion by permitting the undisclosed witness to testify, we affirm.
Lyle Groskreutz went to an auto shop that was located at the residence of appellant and his father, Charles Baynes. While at the shop, Groskreutz got into a dispute with Charles Baynes. Groskreutz testified that Charles Baynes started throwing things at him and tried to punch and kick him.
After the altercation, Groskreutz left the shop intending to drive home. He testified that when he reached the end of the driveway from the shop, there was a car blocking his way. Groskreutz approached the car and found appellant inside. Groskreutz testified that the two argued, and appellant kept saying that “he was going to kick my ass.” Groskreutz did not recall what happened next, except that he could remember going down and feeling himself getting kicked or punched. He awoke in the ditch next to the driveway. He drove back to the auto shop and then drove home. He was taken to the hospital where he received several stitches in his lip and learned that he had a broken nose and broken ribs.
Appellant was charged with a misdemeanor, fifth-degree assault in violation of Minn. Stat. § 609.224, subd. 1(2) (1996) (intentional infliction of or attempt to inflict bodily harm upon another).
At trial, Tim More testified that he was at the auto shop and witnessed the altercation between Groskreutz and Charles Baynes. More testified that when he left the shop, he encountered appellant in his car at the end of the driveway. Appellant approached More’s vehicle and said that he had mistaken More for Groskreutz and that he planned to beat up Groskreutz. Deputy Sheriff John Park testified that at about 6:45 p.m., he got a call to go to the hospital, where he spoke with Groskreutz, who had injuries to his head and face.
Appellant testified that he was not at the shop at the time of the altercation, and he denied assaulting Groskreutz. Shawn Buesgens testified that he saw appellant in Belle Plaine around the same time that Groskreutz testified that he was at the shop. Buesgens testified that when he arrived at his brother’s house in Belle Plaine at about 6:00 p.m., he saw appellant doing repair work on a car and that appellant left at about 8:00 p.m.
At the conclusion of the evidence, the district court gave the jury final instructions and then asked the prosecutor to make her final argument. The prosecutor replied, “Your Honor, we elect to go second.” The defense attorney did not object and made her closing argument. When the defense attorney completed her argument, the district court called on the prosecutor, and the prosecutor made an argument. The jury found Baynes guilty of fifth-degree assault.
1. Order of closing arguments
“Interpretation of the rules of criminal procedure is a question of law, which we review de novo.” State v. Whitley, 649 N.W.2d 180, 183 (Minn. App. 2002) (citations omitted). Minn. R. Crim. P. 26.03, subd. 11, provides:
The order of a jury trial shall be substantially as follows:
* * * *
h. At the conclusion of the evidence, the prosecution may make a closing argument to the jury.
i. The defendant may then make a closing argument to the jury.
j. The prosecution may then make a rebuttal argument to the defense closing argument. The rebuttal must be limited to a direct response to those matters raised in the defendant’s closing argument.
k. On the motion of the defendant, the court may permit the defendant to reply in surrebuttal if the court determines that the prosecution has made in its rebuttal argument a misstatement of law or fact or a statement that is inflammatory or prejudicial. The surrebuttal must be limited to a direct response to the misstatement of law or fact or the inflammatory or prejudicial statement.
Appellant argues that because the plain language of the rule does not permit the state to elect a different order for closing arguments, the district court erred when it allowed the prosecutor to “elect to go second” with her closing argument. The state characterizes the events at trial as a waiver of the prosecution’s closing argument followed by the defendant’s closing argument and a rebuttal argument by the prosecution, and, based on this characterization, the state argues that the order of closing arguments was proper. We disagree with the state’s characterization of events.
A “waiver is an intentional relinquishment of a known right made apparent from the disclosed facts.” State v. Champion, 594 N.W.2d 526, 528 (Minn. App. 1999) (citation omitted). Here, the disclosed facts reveal only that when the court asked the prosecuting attorney to make her final argument, the prosecutor told the court that the state elected to go second. It is not apparent from this statement that the prosecutor intended to relinquish the right to present final argument. The statement only indicates that the prosecutor wanted to present a final argument after the defense presented its final argument.
Minn. R. Crim. P. 26.03, subd. 11(h)-(k), do not simply permit the prosecutor and the defendant to make closing arguments to the jury; paragraphs h through k set forth a sequence in which closing arguments are to be made and specifically identify which party may make each argument. Neither party is required to make any of the permitted arguments. See Minn. Stat. § 645.44, subd. 15 (2002) (“‛May’ is permissive.”). But no language in the rule suggests that the parties may change the order of arguments by simply electing to do so. Therefore, the district court erred by permitting the prosecutor to elect to go second when presenting a closing argument to the jury.
Appellant argues that the district court’s failure to enforce the order of argument denied him a fair trial because he was not given any opportunity to respond to the state’s final argument. But other than making a general argument about the importance of the order of closing arguments, appellant does not explain why the trial that he received was not a fair trial. We agree that the order of closing arguments is important and that the order of arguments at appellant’s trial was incorrect. However, with one exception, the prosecutor’s closing argument directly responded to matters raised in the defendant’s closing argument as permitted for a rebuttal argument under Minn. R. Crim. P. 26.03, subd. 11 (j), and the substance of the presentation that was actually made to the jury during appellant’s trial was consistent with Minn. R. Crim. P. 26.03, subd. 11(h)-(k).
The exception occurred in the final paragraph of the argument when the prosecutor raised the issue of intent, which was not raised in appellant’s closing argument. The full extent of the prosecutor’s statement about intent was that she believed that there was intentional infliction of injury. We are convinced that this limited statement about intent could not have impacted upon the jury’s decision because appellant’s claim that he was in Belle Plaine when the assault occurred, and, therefore, he could not have assaulted Groskreutz, did not involve the intent element of the offense.
Because the arguments that were actually made to the jury could have been made in the order they were made without violating Minn. R. Crim. P. 26.03, subd. 11(h)-(k), and the order of arguments could not reasonably have impacted upon the jury’s decision, we conclude that the presentation of closing arguments in the incorrect order was harmless beyond a reasonable doubt, and appellant received a fair trial. See State v. Juarez, 572 N.W.2d 286, 291-92 (Minn. 1997) (stating that to determine whether error is harmless beyond a reasonable doubt, reviewing court must determine whether error reasonably could have impacted upon the jury’s decision); State v. Witherill, 286 Minn. 519, 174 N.W.2d 329 (1970) (trial court’s refusal to allow defendant to argue last in the final argument had no material effect on court’s decision that defendant was guilty).
2. Admitting testimony of undisclosed witness
Absent an abuse of discretion, this court will not reverse the district court with respect to discovery matters. State v. Freeman, 531 N.W.2d 190, 198 (Minn. 1995).
Minn. R. Crim. P. 7.03 provides, in part:
Before the date set for the Omnibus Hearing, in felonies and gross misdemeanor cases, the prosecution and defendant shall complete the discovery that is required by Rule 9.01 and Rule 9.02[] to be made without the necessity of an order of court.
Minn. R. Crim. P. 9.01, subd. 1(1)(a), provides, in part:
The prosecuting attorney shall 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, if any, within the prosecuting attorney’s actual knowledge.
Citing Minn. R. Crim. P. 9.01, subd. 1(1)(a), appellant argues that the district court abused its discretion by permitting More to testify even though the prosecution did not disclose More as a witness until the day of trial. But under the plain language of Minn. R. Crim. P. 7.03, the disclosure requirements of Minn. R. Crim. P. 9.01, subd. 1(1)(a), apply in felony and gross-misdemeanor cases. Appellant was charged with a misdemeanor. Therefore, the disclosure requirements of Minn. R. Crim. P. 9.01, subd. 1(1)(a), are not applicable.
Minn. R. Crim. P. 7.03 (2002) provides:
In misdemeanor cases, without order of the court the prosecuting attorney on request of the defendant or defense counsel shall, prior to arraignment or at any time before trial, permit the defendant or defense counsel to inspect the police investigatory reports. Any other discovery shall be by consent of the parties or by motion to the court.
Because appellant was charged with a misdemeanor, the prosecution was not required by the rules of criminal procedure to disclose More as a witness before the day of trial. Therefore, the district court did not abuse its discretion by permitting More to testify.
 Minn. R. Crim. P. 9.01 governs disclosure by the prosecution, and Minn. R. Crim. P. 9.02 governs disclosure by the defendant.