This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Michael Anthony Lindsey,


Filed May 23, 2006


Peterson, Judge


Rice County District Court

File No. K4-04-238


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


G. Paul Beaumaster, Rice County Attorney, Nathaniel J. Reitz, Assistant County Attorney, Rice Court Courthouse, 218 Northwest Third Street, Faribault, MN  55021 (for respondent)


Bradford W. Colbert, Legal Assistance to Minnesota Prisoners, 875 Summit Avenue, Room 254, St. Paul, MN  55105 (for appellant)


            Considered and decided by Hudson, Presiding Judge; Klaphake, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from his conviction following a Lothenbach stipulation, appellant Michael Lindsey argues that the district court abused its discretion in denying his request for a continuance after the state failed to disclose a witness statement until the day of trial.  We affirm.


            In February 2004, Lindsey was charged by complaint with two counts of felony check forgery, in violation of Minn. Stat. § 609.631, subds. 2(1), 4(2) (2002).  Lindsey appeared in district court on February 11, 2004, and bail was set.  Lindsey failed to attend his next court appearance on February 23, 2004.  The complaint was amended to include six counts of felony check forgery, in violation of Minn. Stat. § 609.631, subds. 3, 4(1), and 4(2) (2002), and one count of failure to appear, in violation of Minn. Stat. § 609.49, subd. 1 (2002).  Ryan Smith and Dana Broin were also charged in connection with the check forgeries.  According to the complaint, Lindsey provided checks and was present in the bank when some of the checks were passed, and Smith and Broin passed the checks.

            On August 10, 2004, Lindsey served his demand for discovery on the state.  On August 17, 2004, Lindsey appeared in district court, and it was determined that because he had filed a demand under the Uniform Mandatory Disposition of Detainers Act, trial should commence no later than November 24, 2004.  The district court scheduled a jury trial to begin on September 28, 2004. 

            On September 21, 2004, Smith appeared in district court and entered a guilty plea.  Part of Smith’s plea agreement was that he would testify against Lindsey, and pursuant to the agreement, following his court appearance on September 21, Smith gave a taped statement to Sgt. Daniel Collins. 

            At a settlement conference on September 22, 2004, Lindsey requested a continuance, and after he waived his demand for a speedy trial and for disposition of his detainer, the district court granted the request and continued the settlement-conference and jury-trial dates.  A jury trial was scheduled to begin on November 2, 2004.  On that date, Lindsey informed the district court that the state had just that morning disclosed the statement given on September 21 by Smith, who was to be a witness for the state.  Lindsey argued that because of the late disclosure, Smith’s testimony should be excluded; or, in the alternative, Lindsey should be granted a continuance to allow time to prepare for Smith’s testimony. 

            The district court denied the motions to exclude testimony and for a continuance and indicated that the trial would proceed that day.  Following negotiations with the state, Lindsey agreed to submit two counts of felony check forgery and the failure-to-appear charge to the district court for a trial on stipulated facts.  See State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn. 1980) (defendant may plead not guilty, stipulate to the state’s case, and be found guilty while preserving pretrial issues for appeal).  Under the agreement, Lindsey retained the right to appeal the district court’s denial of his motions to exclude Smith’s testimony and for a continuance.  The district court found Lindsey guilty of all three counts.  Lindsey was sentenced, and this appeal followed. 


            At the request of defense counsel, the prosecution must “allow access at any reasonable time to all matters within the prosecuting attorney’s possession or control which relate to the case[,]” including relevant written or recorded statements and any material tending to exculpate the accused.  Minn. R. Crim. P. 9.01, subd. 1(1), (2), (6).   The prosecution’s obligation to disclose extends to any material in the possession of those who have participated in the investigation and who report to the prosecutor.  Minn. R. Crim. P. 9.01, subd. 1(7).  If, after complying with a discovery request, a party discovers additional material subject to disclosure, “that party shall promptly notify the other party of the existence of the additional material[.]”  Minn. R. Crim. P. 9.03, subd. 2; see State v. Kaiser, 486 N.W.2d 384, 387 (Minn. 1992) (stating that prosecutor has continuing obligation to disclose when new things are added to the file and cannot avoid that obligation by failing to put things in the file that belong in it).

            If a party fails to comply with a discovery rule or order, the district court “may upon motion and notice order such party to permit the discovery or inspection, grant a continuance, or enter such order as it deems just in the circumstances.”  Minn. R. Crim. P. 9.03, subd. 8.  The district court is particularly suited to determine the appropriate remedy for a discovery violation and has discretion in deciding whether to impose sanctions.  State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979).  When determining the remedy, the district court should consider the reason disclosure was not made, the extent of prejudice to the opposing party, the feasibility of rectifying such prejudice with a continuance, and any other relevant factors.  Id.      

            The preferred remedy for a discovery violation is a continuance.  State v. Hatton, 389 N.W.2d 229, 236 (Minn. App. 1986), review denied (Minn. Aug. 13, 1986).  “Ruling on a request for a continuance is within the trial court’s discretion and a conviction will not be reversed for denial of a motion for a continuance except when such denial is a clear abuse of discretion.  A defendant must show prejudice to justify reversal.”  State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987) (citations omitted).  “The reviewing court must examine the circumstances before the trial court at the time the motion was made to determine whether the trial court’s decision prejudiced defendant by materially affecting the outcome of the trial.”  State v. Turnipseed, 297 N.W.2d 308, 311 (Minn. 1980).    

            It is not disputed that Lindsey made a demand for discovery by letter on August 10, 2004.  The state filed its disclosures, including witness lists, with the district court on July 20, 2004, and October 29, 2004.  Collins took the taped statement at issue on September 21, 2004.  Under the discovery rules, the state had a continuing duty to disclose the statement.  But the state did not disclose the statement until November 2, 2004, the day the trial was scheduled to begin.  Lindsey argues on appeal that the state violated the discovery rules, the district court abused its discretion in denying his motion for a continuance, and he was prejudiced because he needed additional time to investigate the claims.  We disagree.

            In response to Lindsey’s motion to exclude Smith’s testimony, the state explained to the district court that it did not know why the statement was not disclosed before November 2.  The state explained that although Smith gave the statement after he pleaded guilty on September 21, Collins did not prepare a report or forward a transcript of the statement to the prosecutor, and the state was not sure when the transcript was prepared.  After realizing on November 1 that the statement and report had not been completed, Collins worked late to finish the report and sent an e-mail to the prosecutor asking if the prosecutor wanted a copy, but the prosecutor had already left for the evening.  On the morning of trial, Collins brought copies of his report and the transcript to the prosecutor’s office, and someone brought them to court.

            When the district court asked how the defense was prejudiced by the late disclosure, Lindsey’s counsel argued that the state had a duty to provide the transcripts of Smith’s statement and guilty plea and that Smith’s claims in his statement regarding how he knew Lindsey and where the checks came from were new information that affected trial preparation.  The district court asked why the defense could not simply cross-examine Smith on these issues, and defense counsel replied that he could, but that it would not be “intelligent and prepared cross-examination.”  The district court then asked what else defense counsel could have done or how the late disclosure changed how he would try the case, and defense counsel again explained his need to seek out certain individuals and question them regarding Smith’s claims and to obtain booking photos to compare with Smith’s description of Lindsey.  The district court asked defense counsel if he wanted an opportunity to talk with Smith before he testified, and defense counsel indicated that he did.  At this point, the prosecutor informed the district court that Smith would be present for sentencing later that day, and Lindsey moved for a continuance. 

            In support of the motion for a continuance, Lindsey argued that potentially impeaching evidence had been either willfully or inadvertently suppressed by the state, which caused prejudice because the defense lost the opportunity to locate and speak with certain individuals to investigate Smith’s claims.  The district court asked why the defense could not talk to these people, since the trial was going to last several days, and then denied the motions to exclude Smith’s testimony and for a continuance. 

            The district court reasoned:

[T]here’s no showing that there’s been any intentional nondisclosure of the information.  First of all, it wouldn’t have been available until Mr. Smith pled guilty and then subsequently made that statement, which was fairly recent.  And defendant has not shown how he’s prejudiced and how it would affect trying this case, considering he still has an opportunity to – I’m going to give him an opportunity to talk with Mr. Smith or Ms. Broin if they are available.  It seems to me the information that you wish to investigate goes solely to credibility or impeachment, not to substance in this case[.]


            Lindsey argues that although he could cross-examine Smith, he would not have the benefit of looking into the details of the report before conducting the cross-examination.  Lindsey also cites several items in the statement that he needed to investigate.  But Lindsey does not explain why the district court’s offer to give him an opportunity to talk with Smith and Broin was insufficient to complete the investigation or why a continuance was needed to complete the investigation. 

            Because the district court was willing to allow Lindsey time to speak with Smith and Broin, and Lindsey has not explained why this was not sufficient to prepare to cross-examine Smith, Lindsey has not shown that he was prejudiced.  On this record, Lindsey has not shown that the district court abused its discretion in denying the motion for a continuance.