This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).








State of Minnesota,


Jon Lester Morrison,



Filed October 25, 2005


Wright, Judge



Hubbard County District Court

File No. K5-04-985



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


Gregory D. Larson, Hubbard County Attorney, Hubbard County Courthouse, Second Floor, 301 Court Avenue, Park Rapids, MN  56470 (for appellant)


Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, MN  55113-3724 (for respondent)



            Considered and decided by Wright, Presiding Judge; Toussaint, Chief Judge; and Hudson, Judge.


U N P U B L I S H E D  O P I N I O N




After delays by the state in a prosecution for refusal to submit to an alcohol-concentration test under Minn. Stat. §§ 169A.20, subd. 2, .25, subd. 1(b) (2004), the district court dismissed the complaint.  Appellant State of Minnesota now challenges the dismissal.  We affirm.



On October 8, 2004, Officer Tony Petrie of the Cass Lake Police Department (CLPD) stopped respondent Jon Morrison on the suspicion that he was driving while impaired.  Morrison was arrested and charged with one count of second-degree refusal to submit to an alcohol-concentration test, in violation of Minn. Stat. §§ 169A.20, subd. 2, .25, subd 1(b) (2004).  By a discovery request dated November 24, 2004, Morrison demanded that the state preserve all physical evidence and procure any videotape evidence.

            The parties appeared for an omnibus hearing on November 30, 2004.  Defense counsel claimed that officers from the Minnesota State Patrol (state patrol), the Hubbard County Sheriff’s Department (sheriff’s department), and the CLPD were present during the stop.  Asserting that squad cars from the sheriff’s department were equipped with video recorders, Morrison inquired whether the state had a videotape of the stop.  The state agreed to investigate, and the district court continued the hearing until December 27, 2004.

            At the omnibus hearing on December 27, the state acknowledged that it had contacted the CLPD and the state patrol about acquiring a videotape of the stop but stated that neither had responded.  The state agreed to continue pursuing videotape evidence from these agencies, and the district court continued the omnibus hearing until January 24, 2005.

            At the omnibus hearing in January, the state asserted that it had written two letters each to the CLPD and the state patrol but still had not received a response.  The district court orally ordered the state to turn over this correspondence by January 31 or the case would be dismissed.

            By a letter to the district court dated February 1, 2005, the state asserted that the CLPD did not have videotape recorders in their squad cars and thus videotape evidence did not exist.  The district court scheduled an omnibus hearing for February 28, 2005.  In a subpoena obtained by Morrison, Officer Petrie was ordered to appear at this hearing with any correspondence the CLPD had received from the state regarding videotape evidence.  Officer Petrie did not appear at this hearing, and the state explained:

I connected with [Officer Petrie] Friday, and he said if there was a tape they can’t find it. . . .  He made this stop, and he went into Cass County, and he said if there was a tape it got mixed up with the Cass County Sheriff’s file.  The Cass County Sheriff looked for the tape again. . . .  And [the sheriff] said that if there is a tape we can’t find it.  The Cass County Sheriff was unable to find it, find the tape if it existed.

[Officer Petrie] asked if he had to be here.  And . . . I was unaware he’d been subpoenaed by the defendant.  So I told
him no, there was nothing to contest.  I . . . did not require him to be here, so I told him not to be here.


The district court found Officer Petrie in contempt for failing to respond to the subpoena, ordered the issuance of a warrant for his arrest, and stayed the warrant subject to his appearance at a hearing on March 14, 2005.

            Officer Petrie appeared at the hearing on March 14 and was examined on the whereabouts of any videotape evidence.  After admitting that his squad car was equipped with a videotape recorder, Officer Petrie stated that the stop of Morrison was recorded and that the videotape was turned over to the county attorney’s office in November 2004 for a different case.  He did not know whether the state had requested the videotape prior to February 2004 in connection with the prosecution of Morrison.  The state countered by proffering two letters to the CLPD from December 2004 in which it made this request.  Officer Petrie added that, in preparation for the March 14 hearing, he and other CLPD officers searched for the tape but did not locate it.

            Morrison moved to dismiss, arguing that the state had not complied with its discovery obligations.  By a written order dated April 22, 2004, the district court granted Morrison’s motion and concluded:

[T]he status of the case at the conclusion of the hearing on March 14, 2004 was that the charges were still pending and the Defendant was still entitled to disclosure of the video which was nowhere to be found.


            The Rules of Court provide that a Defendant is entitled to a fair and a SPEEDY trial on the charges.  Clearly, the facts indicate that the Defendant has not been granted a speedy resolution of these issues due to the failure of the prosecution to make disclosure to Defendant’s counsel.  Defendant therefore is clearly entitled to a dismissal of the complaint pending against him, and the Court thusly does dismiss the complaint.


This appeal followed.



The district court did not expressly cite the legal basis for its dismissal of the complaint, but it emphasized that the rules of criminal procedure provide for the speedy and efficient resolution of criminal proceedings.  This proposition comports with Minn. R. Crim. P. 30.02, which states that, when “there is unnecessary delay by the prosecution in bringing a defendant to trial, the court may dismiss the complaint[.]”  Because district courts have broad discretion to administer criminal proceedings, we review such a dismissal for an abuse of discretion.  See State v. Brooke, 381 N.W.2d 885, 889 (Minn. App. 1986) (acknowledging that district courts should be allowed to control proceedings through appropriate sanctions including dismissals).

Here, the state failed to diligently obtain, preserve, and disclose discoverable evidence.  And the arresting officer failed to appear for a hearing on the advice of the prosecutor, notwithstanding a subpoena ordering him to do so.  As a result of these actions, the case had not yet proceeded to trial approximately six months after the complaint was filed.  We concluded in State v. Haugen that a district court did not err in dismissing a reckless-driving prosecution under Rule 30.02 when the “case was almost six months old through no fault of the defendant.”  382 N.W.2d 297, 299 (Minn. App. 1986).  Consistent with that analysis, we hold that the district court did not abuse its discretion by dismissing the complaint in the instant case.