This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Luther Jamaine Jones,




Filed November 4, 2003


Robert H. Schumacher, Judge


Ramsey County District Court

File No. K6021562



Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)


John M. Stuart, State Public Defender, Leslie J. Rosenberg, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Schumacher, Presiding Judge; Lansing, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N


            On direct appeal from the judgment of conviction for first-degree assault, appellant Luther Jamaine Jones argues the district court abused its discretion by precluding the defense from calling an undisclosed rebuttal witness at trial, by admitting hearsay police testimony, by refusing to grant a mistrial due to the prosecutor's misconduct during closing arguments, and by declining to depart downward.  We affirm.


On April 29, 2002, Daniel Westman was shot in the abdomen while waiting in a parked car for his friend, who was attempting to break into a car located in an apartment building parking lot.  Police determined that Jones lived in the apartment building where the incident occurred and that Westman's friend was attempting to break into a car owned by Jones.  Because of this connection, police suspected Jones was involved in the shooting and obtained a warrant to search his apartment and his car.  Police found a gun case for a small pistol in Jones's apartment, which police suspected could hold the .22 pistol used to shoot Westman.  Police also found a substance they suspected to be cocaine in Jones's vehicle. 

Jones was charged with first- and second-degree assault.  The evidence at trial consisted of 12 exhibits and testimony by four witnesses.  The jury found Jones guilty of first-degree assault (great bodily harm), and he was sentenced to 86 months in prison.


"The imposition of sanctions for violations of discovery rules and orders is a matter particularly suited to the judgment and discretion of the [district] court."  State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979).  The district court is in the best position to determine whether any harm has resulted from the particular violation and the extent to which the harm can be eliminated or alleviated.  Id.  In exercising this discretion, the district court should consider (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.  Id.  "Preclusion should be used only as a last resort and then only if preclusion will not prejudice the defendant."  State v. Vaughn, 361 N.W.2d 54, 59 (Minn. 1985)

During the trial, Jones's attorney asked the court for permission to call an undisclosed witness to refute Westman's testimony that he did not know Jones prior to the shooting. See Minn. R. Crim. P. 9.02, subd. 1(3)(a) (stating that defense is required to disclose potential witnesses to state prior to trial).   Jones's attorney stated that he did not disclose the witness because Jones said he met Westman once before the shooting, and he expected Westman to testify accordingly.  The court precluded the defense from calling the witness.  

On appeal, Jones argues the court erred in precluding him from calling the witness because he had no duty to disclose a rebuttal witness.  See State v. Yang, 627 N.W.2d 666, 677 (Minn. App. 2001) (stating disclosure rules do not apply to rebuttal evidence). In criminal cases, rebuttal evidence is generally defined as evidence that "explains, contradicts, or refutes the defendant's evidence."  State v. Swanson, 498 N.W.2d 435, 440 (Minn. 1993) (emphasis added) (citation omitted).  Assuming that evidence presented by a defendant who bears no burden of proof can be termed "rebuttal evidence," Jones's argument mischaracterizes the way he intended to use the witness's testimony.  During opening arguments, Jones's attorney implied that Westman was able to identify Jones in a photographic lineup as the shooter only because he knew Jones prior to the shooting.  Because Jones asserted his prior acquaintance with Westman as a primary element of  his defense, he needed to establish in his case-in-chief that he knew Westman prior to the shooting.  Although Jones himself could testify on that point, the undisclosed witness's testimony might also be required, and Jones, therefore, had a duty to disclose the witness to the state prior to trial.

In State v. Vaughn, the defense was precluded from calling two undisclosed witnesses as a sanction for the defendant's failure to abide by the discovery rules.  Vaughn, 361 N.W.2d at 58.  The supreme court upheld this preclusion because (1) there was no justification for the defense's failure to disclose the witnesses, (2) the state was prejudiced by the defense's failure to disclose the witnesses, (3) the precluded testimony was testimony that the defendant should have been prepared to produce during his case-in-chief, and (4) the defendant was not prejudiced by the preclusion.  Id. at 59.

In this case, Jones should have been prepared to present the undisclosed witness to establish that he knew Westman prior to the shooting.  The state would have been at a disadvantage if the court had allowed Jones to call the witness because there would have been limited opportunity to prepare a meaningful cross-examination.  We conclude the district court did not abuse its discretion by precluding Jones from calling the witness. 

Jones argues in the alternative that his constitutional right to present a defense was violated when he was precluded from calling the witness.  Every defendant has the right to present a complete defense.  State v. Richards, 495 N.W.2d 187, 191 (Minn. 1992).  Nevertheless, a defendant does not have a "right to present testimony free from the legitimate demands of the adversarial system."  Lindsey, 284 N.W.2d at 373 (quoting United States v. Nobles, 422 U.S. 225, 241, 95 S. Ct. 2160, 2171 (1975)).  Because Jones was precluded from calling the undisclosed witness as a sanction for violating the rules of discovery, the district court did not violate Jones's constitutional right to present a defense by excluding the witness.

Jones argues the district court abused its discretion by admitting hearsay testimony of a police officer who testified that lab tests determined the substance found in Jones's car was cocaine.  Jones raises the hearsay objection to this testimony for the first time on appeal.  Prior to trial, the defense moved in limine to have the cocaine evidence excluded, arguing the evidence was prejudicial and not relevant.  The state argued the evidence was relevant to show that Jones had a motive to prevent Westman and his friend from breaking into his car.  The district court denied the motion.  At trial, the defense objected to the cocaine evidence on foundational grounds not on hearsay grounds, and the court overruled that objection. 

This court will generally not consider matters not argued and considered in the district court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  An appellate court will consider only the specific grounds for challenge raised in the district court.  See State v. Rodriquez, 505 N.W.2d 373, 376 (Minn. App. 1993) (stating that defendant's objection to word "kidnapping" on grounds of "legal conclusion" could not have alerted district court to detailed hearsay and confrontation clause arguments defendant raised on appeal), review denied (Minn. Oct. 19, 1993).  Because the hearsay issue was not properly preserved for appeal, we decline to consider it.

Jones also argues the district court abused its discretion by denying his motion for a mistrial because the prosecutor committed serious prosecutorial misconduct during closing arguments.  The claimed misconduct occurred when the prosecutor commented on Jones's failure to call certain witnesses during the trial.  Generally, comments on a defendant's failure to call witnesses imply that a defendant has the burden of proving his innocence, which improperly shifts the burden of proof to the defense.  State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995) (stating prosecutor may not comment on defendant's failure to call witnesses or contradict testimony).

The determination of whether a prosecutor engaged in misconduct is largely within the discretion of the district court.  State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984).  If the claim of misconduct arises out of the closing argument, this court considers the closing argument as a whole rather than focusing on particular phrases or remarks that may be taken out of context or given undue prominence.  State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993). 

During closing arguments, the prosecutor stated that the defense "chose not to call" two witnesses.  The defense objected to this statement, and the court sustained the objection.  The prosecutor then told the jury that "[w]itnesses are equally available to both sides in criminal actions.  So you shouldn't speculate on witnesses who didn't testify.  And you shouldn't speculate on why certain people were or were not called as witnesses.  Where were the witnesses?  You heard the witnesses."  The defense moved for a mistrial, which the district court denied.

In State v. Irwin, this court determined that the prosecutor's comment during closing argument that the "defense has the same opportunity to subpoena witnesses and bring in people and adduce testimony and evidence as does the State" was improper.  Irwin, 379 N.W.2d 110, 115 (Minn. App. 1985).  Under Irwin, we conclude that the prosecutor's comments during closing arguments in this case were improper. 

If a statement is improper, its prejudicial effect is reviewed using a two-tier analysis that varies with the seriousness of the alleged improper statement.  State v. Boinott, 443 N.W.2d 527, 534 (Minn. 1989).  In cases involving serious prosecutorial misconduct, this court must determine beyond a reasonable doubt that the misconduct was harmless.  Id.  But when the improper conduct is less serious, we ask whether the misconduct played a substantial part in influencing the jury to convict.  Id.  Improperly commenting on a defendant's failure to call witnesses is less serious conduct for purposes of applying prejudicial-error analysis.  State v. Parker, 417 N.W.2d 643, 647 (Minn. 1988). 

In this case, the prosecutor's statements were improper but brief.  During closing arguments, both the state and the defense told the jury that the state had the burden of proving Jones committed the assault.  The court also instructed the jury that the state had the burden of proof.  In addition, there is more than sufficient evidence in the record to support Jones's conviction. 

Westman testified that Jones shot him with a silver handgun.  A police officer testified that Westman's friend was attempting to break into a car owned by Jones, that police found a .22 caliber bullet casing at the scene of the assault, that police found a gun case in Jones's apartment, and that the foam padding inside the gun case had an imprint the size of a small pistol, which was consistent with a .22 caliber pistol.  The officer also testified that Westman identified Jones's picture from a photographic lineup as the man who shot him.  Although the prosecutor's statements were improper, we nonetheless conclude that the district court did not abuse its discretion by denying Jones's motion for a mistrial.

Jones further argues the court erred by denying his motion for a downward departure.  The district court must order the presumptive sentence provided in the sentencing guidelines unless the case involves "substantial and compelling circumstances" to warrant a downward departure.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  The refusal to depart from the presumptive sentence will be reversed only in a "rare" case."  Id.

At the sentencing hearing, Jones's attorney argued that the court should grant Jones a downward departure due to his employment status, schooling, rough childhood, and because he is a father.  Jones's attorney also argued that Jones's lack of a significant criminal history and his remorse supported a downward departure.  The district court determined that these arguments did not constitute appropriate grounds for a downward departure and imposed the presumptive 86-month sentence.  See Minn. Sent. Guidelines IV, V (showing presumptive sentence for first-degree assault for offender with zero history score is 86 months). 

The sentencing guidelines provide that a defendant's employment and social factors, such as education, are not appropriate considerations for granting a downward departure.  Minn. Sent. Guidelines II.D.1(c), (d).  In addition, a defendant's good record does not by itself justify a downward departure "because that factor, in the form of the defendant's criminal history score, has already been taken into account by the Sentencing Guidelines in establishing the presumptive sentence."  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).  Although remorse is a factor a court may consider in granting a dispositional departure, the court in this case imposed the presumptive sentence after considering all of the testimony at trial, letters, and the impact the assault had on Westman.  See id.  Under these circumstances, the court did not abuse its discretion by denying Jones's motion for a downward departure.


            * Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.