This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-92

 

State of Minnesota,

Respondent,

 

vs.

 

Elio Ronnie Infante,

Appellant.

 

Filed June 8, 2004

Affirmed

Kalitowski, Judge

 

Becker County District Court

File No. KX-00-1536

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Julia E. Anderson, Assistant Attorneys General, 445 Minnesota Street, Suite 1400, St. Paul, MN 55101-2131; and

 

Joseph A. Evans, Becker County Attorney, Lincoln Professional Center, P.O. Box 476, Detroit Lakes, MN 56502-0476 (for respondent)

 

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Kalitowski, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant challenges his conviction of first-degree controlled substance crime, arguing that the district court erred by not warning him of the dangers of joint representation, failing to effectively remedy the state’s failure to disclose that a witness was the confidential reliable informant, and prohibiting a defense witness from testifying.  We affirm.

D E C I S I O N

I.

            Appellant Elio Ronnie Infante argues that he was denied effective assistance of counsel because his defense attorney represented both him and codefendant Jorge Exposito at a joint trial.  Where the same attorney represents codefendants, the district court has an affirmative duty under Minn. Const. art. 1, § 6 and the U. S. Const. amend. VI to warn the defendants of the potential dangers of dual representation.  State v. Olsen, 258 N.W.2d 898, 906-07 (Minn. 1977); Minn. R. Crim. P. 17.03, subd. 5. 

            Minn. R. Crim. P. 17.03, subd. 5(1), requires that the district court give this warning on the record and allow each defendant an opportunity to question the district court regarding the consequences of dual representation.  The rule also requires that the defendant state on the record that (1) the district court advised him of the right to effective representation; (2) the defendant understands the defense counsel’s possible conflict of interest and the dangers of such a conflict; (3) the defendant has discussed the matter with defense counsel or outside counsel; and (4) the defendant voluntarily waives the Sixth Amendment protections.   Minn. R. Crim. P. 17.03, subd. 5(2).   

            Failure to follow the above procedure is not per se reversible error.  Rather, the state has the burden of demonstrating beyond a reasonable doubt that a prejudicial conflict of interest did not exist.  Olsen, 258 N.W.2d at 907-08.  Here, it is undisputed that the district court failed to provide the required warnings.  But we agree with the state that the record indicates beyond a reasonable doubt appellant was not prejudiced by the joint representation.  Statements made by appellant and Exposito were not antagonistic; neither appellant nor Exposito was trying to place blame on the other, and there was strong evidence of appellant’s guilt.  See Mercer v. State, 290 N.W.2d 623, 626 (Minn. 1980) (finding no prejudicial conflict of interest where there was strong evidence of guilt). 

            Appellant argues that he was prejudiced by the joint representation because defense counsel had a conflict of interest in representing both defendants.  Specifically, appellant argues that had he been represented by a different attorney he may have been able to argue that he did not knowingly participate in the sale.  But substantial evidence at trial established beyond a reasonable doubt that appellant knew about the cocaine sale.  The confidential reliable informant, William Moore, testified that appellant and Exposito were at the house when the sale occurred.  Moore also testified that he knew appellant from previous cocaine sales between appellant and Michael Minderman, the individual whom the state alleged bought cocaine from appellant and codefendant on this occasion.  In addition, Minderman testified that appellant was involved in the cocaine sale on the day of the offense and that appellant had been present during previous drug sales.  Moreover, had appellant testified as to his alleged lack of knowledge, he could have been impeached by his prior conviction of first-degree controlled substance crime.  And his prior conviction would have likely cast doubt concerning the credibility of appellant’s claimed lack of knowledge.  Thus, even if appellant had a separate trial counsel who argued that appellant lacked knowledge of the sale, the state’s evidence established beyond a reasonable doubt that appellant was a knowing participant.

            Appellant also argues that he was prejudiced by the joint representation because separate trial counsel could have more effectively cross-examined Minderman.  Specifically, appellant argues that in the course of impeaching Minderman, his attorney elicited testimony that Minderman had previously told law enforcement officials that appellant had fronted him the cocaine.  Because Minderman testified at trial that Exposito fronted him the cocaine, appellant argues that this evidence, which directly links him to the crime, would not have been revealed if separate counsel had represented him.  But a thorough review of defense counsel’s cross-examination of Minderman clearly shows that defense counsel was attempting to impeach Minderman by prior inconsistent statements; he was not attempting to transfer blame from Exposito to appellant or vice versa. 

            Moreover, Minderman had already testified that appellant and his codefendant were involved in the cocaine sale, that they had both been involved in previous cocaine sales, and that he anticipated cocaine transactions with both defendants in the future.  Thus, Minderman had already linked appellant to the transaction at issue.  And other prior inconsistent statements implicating appellant were not emphasized any more than the other numerous inconsistent statements.  The thorough cross-examination of Minderman displayed his bias and capacity for truthfulness and remembering details, such that we cannot conclude that isolated statements that seemingly implicated appellant had any effect on the jury’s verdict.

            Appellant also argues that “joint representation arguably prejudiced [him] by further linking him before the jury to [his codefendant].”  Appellant argues that the jury may have inferred appellant’s guilt by the fact that he and his codefendant had the same attorney.  But there is nothing in the record to support this claim and the evidence was equally strong against both defendants.  Because the state has met its burden of showing beyond a reasonable doubt that a prejudicial conflict did not exist, we conclude that appellant was not prejudiced by the joint representation.

II.

Appellant also argues that he is entitled to a new trial because the state failed to disclose that Moore was the confidential reliable informant, an eyewitness to the alleged drug sale, and had reported that appellant previously engaged in drug sales.  In general, 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 alleviated.  State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979).  The district court has wide discretion with respect to discovery matters and will not be reversed unless it clearly abuses that discretion.  State v. Freeman, 531 N.W.2d 190, 197-98 (Minn. 1995).  But even if the district court abuses its discretion, this court should not reverse if there is no reasonable probability that, without the error, the result of the trial would have been different.  Id. at 198.

            Minn. R. Crim. P. 9.01, subd. 1, requires the state to disclose all witnesses and statements to defense counsel.  The state has an ongoing obligation to provide defense counsel access to files and inform defense counsel of additions to the files.  State v. Kaiser, 486 N.W.2d 384, 387 (Minn. 1992).  But the state may withhold disclosure of an informant witness by filing a written certificate saying disclosure may subject the witness or others to physical harm or coercion.  Minn. R. Crim. P. 9.01, subd. 3(2).  Here, the state did not file such a certificate and concedes on appeal that it violated Minn. R. Crim. P. 9.01 by failing to disclose that Moore was the informant, but argues that the error was harmless.

            In determining the appropriate sanction for a discovery violation, courts consider:  (1) the reason why timely disclosure was not made; (2) the extent of the prejudice; (3) the feasibility of rectifying that prejudice by a continuance; and (4) any other relevant factors.  Lindsey, 284 N.W.2d at 373.  Courts have awarded new trials when the failure to comply with the rules was intentional or the result of inadvertence.  See State v. Schwantes, 314 N.W.2d 243, 245 (Minn. 1982). 

Here, respondent asserts that the prosecutor believed he was entitled to withhold the information in order to honor Moore’s desire to remain anonymous.  While his belief was erroneous, we conclude that the prosecutor’s failure to disclose was not an attempt to gain a tactical advantage over appellant by withholding information. 

            Appellant cites Kaiser and other cases for the proposition that he is entitled to a new trial because of the state’s nondisclosure.  But Kaiser and the other cases are distinguishable.  In Kaiser, the court concluded that the state’s failure to comply with the discovery rules was clear where the prosecutor intentionally withheld a victim’s statement admitting that she was unsure who had assaulted her, secured the victim’s signature on a second affidavit knowingly contradicting her early affidavit, told one witness “to keep her mouth shut,” failed to provide the victim’s forwarding address to impede the defendant’s discovery, and falsely told the jury that the victim had consistently stated that defendant had assaulted her.  Kaiser, 486 N.W.2d at 387.  The other cases cited by appellant also involved extreme examples of prosecutorial misconduct and/or actual prejudice. 

But the discovery violation here did not prejudice appellant in light of the remedial measures taken by the district court.  Following appellant’s discovery of the violation, he moved for mistrial, or in the alternative, to strike Moore’s testimony.  While the district court denied these motions, it ordered Agent Johnston to be examined outside the presence of the jury regarding his conversations, notes, and reports relating to Moore and what compensation was paid to Moore in exchange for the information.  The district court also ordered the state to produce every document concerning Moore, including the cooperating individual agreement.  In addition, the district court allowed appellant to further cross-examine Moore and Agent Johnston to impeach them with the new information.  Thus, the district court’s remedial actions alleviated any prejudice to appellant caused by the state’s failure to timely disclose all information.

            Appellant also argues that he was prejudiced because had there been full disclosure, he may have pursued a plea bargain.  But there is no evidence in the record indicating that the state considered offering appellant a plea bargain or that appellant desired to pursue one.  We conclude that the district court did not abuse its discretion in denying appellant’s motion for a mistrial or his request to strike Moore’s testimony from the record, and therefore appellant is not entitled to a new trial.


III.

Finally, appellant argues that the district court erred in precluding the testimony of a defense witness as a sanction for a discovery violation.  We disagree.  Preclusion of defense evidence is a severe sanction, which should be used only as a last resort.  State v. Widell, 530 N.W.2d 566, 570 (Minn. App. 1995), review denied (Minn. May 31, 1995).  But we may consider the importance of the precluded evidence to the defense case in assessing the proper sanction for nondisclosure.  State v. Patterson, 587 N.W.2d 45, 51 (Minn. 1998).  See generally State v. Post, 512 N.W.2d 99, 102 (Minn. 1994) (stating harmless error test for exclusion of defense evidence).

Here, we conclude that any error in prohibiting the witness from testifying is harmless.  In appellant’s offer of proof, he indicated that the witness, a car salesman, would testify that he recalled seeing Exposito looking at vehicles at his car dealership.  Appellant also indicated that the witness would explain the dealership’s available inventory on the day that appellant and Exposito were arrested.  Although appellant had disclosed a car dealership representative as a potential witness, he did not identify this specific witness.  But even if the jury believed that appellant and Exposito were looking at cars on the day they were arrested, that does not preclude the possibility that they were selling drugs on the same day.  And the offer of proof did not indicate that the witness would testify that he saw appellant, only that he remembered seeing Exposito.  Moreover, the record does not indicate on which day the witness saw Exposito at the car dealership.  And finally, because appellant produced other witnesses who testified that he and Exposito were looking to purchase a vehicle, the district court’s ruling did not deny appellant the opportunity to argue his theory of defense to the jury.

Because there is substantial evidence indicating appellant’s guilt and because the witness’s testimony, as contained in appellant’s offer of proof, would be of little probative value, we conclude that there is no reasonable probability that the testimony would have changed the result of the trial.  Therefore, the district court’s refusal to preclude the witness’s testimony as a sanction for appellant’s failure to disclose the witness was not reversible error.

            Affirmed.