This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,





Joey Leigh Lyke,



Filed February 6, 2007


Halbrooks, Judge



Olmsted County District Court

File No. K2-04-3243



Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and


Mark A. Ostrem, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, Government Center, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)


John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414  (for appellant)



            Considered and decided by Halbrooks, Presiding Judge; Stoneburner, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his conviction of felon in possession of a firearm, arguing that the district court abused its discretion by allowing the state to introduce at trial an audio recording of appellant’s interview with law-enforcement officials.  We affirm. 


            At approximately 2:30 a.m. on May 29, 2004, law-enforcement officers Bradley Green and Mark Maitland responded separately to the Oxbow Park camping area in Olmsted County after receiving a complaint of an intoxicated and disorderly person in the camping area.  Appellant Joey Lyke was subsequently arrested for disorderly conduct, taken into custody, and transported by Officer Maitland to the Crisis Receiving Unit.  While investigating the complaint, the officers saw an overturned Ford Ranger pickup truck lying in a ditch roughly one-quarter to one-half mile outside the campsite area.  Officer Green contacted Byron Auto Repair and Towing to remove the vehicle and other items scattered throughout the ditch.  Officer Green also ran the license-plate number and determined that the truck was registered to Mary Fuhrmeister.[1] 

Byron Auto towed the truck to an impound lot near its main store, but later moved the truck to a second impound lot that the business owned.  At approximately 6:00 p.m. on June 16, 2004, Jeffrey Kasten, co-owner of Byron Auto, saw a car pull into the driveway of the second impound lot.  The driver of the car told Kasten that his friend had “some stuff” in the Ford Ranger pickup truck and that he wanted to grab it.  But the driver left after Kasten told him that he could not have the items back until the tow bill was paid.  Kasten was suspicious of the driver, so he wrote down the license-plate number of the car and decided to search the truck.  Inside, Kasten found a duffle bag containing a disassembled shotgun.  Kasten called law enforcement, and on June 25, 2004, gave the shotgun to Deputy Scott Behrns. 

On July 6, 2004, Detective William Sornberger searched the pickup truck and found a title card with appellant’s printed name that was signed by appellant, along with a registration renewal form.  Detective Sornberger spoke with appellant, and appellant admitted that he had purchased the pickup truck from the Fuhrmeisters.  Appellant also admitted both driving the truck to Oxbow Park on May 29, 2004, and going to the impound lot in an effort to get into the truck.  Appellant further claimed that he had accompanied his uncle, Paul Adams, to a garage sale where his uncle purchased the shotgun and left it in appellant’s truck.  But Adams subsequently told Detective Sornberger, and later testified, that his sister, Lynn Ylvisaker, and not appellant, went with him to a garage sale in Pine Island in late April 2004, where he purchased the disassembled shotgun.  According to Adams, he traded appellant the disassembled shotgun for a car stereo for his son, Kenny Adams.  Lynn Ylvisaker confirmed that she was with Adams at the garage sale.  And Kenny Adams informed Detective Sornberger and later testified that he was present at the time of the trade, although he did not actually see it take place. 

Detective Sornberger interviewed appellant a second time on August 5, 2004.  This conversation was recorded on an audio recorder, and at one point during the conversation appellant stated, “All’s I want at the end, dude, is either my car stereo or my gun.  That’s all I’m going to tell you.  Because I want the evidence back.”

Appellant was charged with being a felon in possession of a firearm in violation of Minn. Stat. § 624.713 (2004).  The state filed a notice of evidence and identification procedures pursuant to Minn. R. Crim. P. 7.01, indicating that it possessed “[c]onfessions, admissions, or statements in the nature of confessions made by the defendant.”  The state also served appellant’s attorney with the relevant incident reports, which included a written synopsis of Detective Sornberger’s interview with appellant.

At appellant’s trial, before calling its last witness, the state moved to introduce the edited audio recording of appellant’s second interview with Detective Sornberger.  Appellant’s counsel objected, arguing that the state had failed to disclose or notify appellant’s counsel of the tape despite the fact that they had previously requested copies of any audiotapes, videotapes, and photographs.  Appellant’s counsel also argued that they were not given a transcript of the recording, to which the prosecutor countered:

Your Honor, it was not transcribed.  I don’t have a transcript.  I didn’t have a copy until this edited copy was handed to me by Detective Sornberger this morning.  But the fact of the matter is it’s clearly referenced in the reports.  There’s a very lengthy synopsis of the statement.  It almost goes line by line on the topics that are discussed.  Furthermore, the fact that it was recorded is noted and it’s noted -- it’s called the taped interview in the reports.  [Appellant’s attorney] never, other than the initial boilerplate discovery motion, she never asked for copies of it.  Even after yesterday I told her that I was thinking of playing some of those but I didn’t have copies yet, she made no comment about that. . . .  Your Honor, there simply has been no discovery violation.  It’s clearly noted in the reports and [appellant’s attorney] really made no effort to try and listen to it and furthermore the contents of it are no different than what’s in the synopsis in Detective Sornberger’s report. 


The district court asked appellant’s counsel whether the tape, which she had listened to during a break in the proceedings, was “consistent with the summations or the summaries provided by the detective?”  Appellant’s counsel responded, “It is.”  When the state sought to introduce the audio tape recording during the examination of Detective Sornberger, appellant’s counsel stated that they had “[n]o objection other than those already noted.”  The district court received the audio recording and allowed the state to play the tape to the jury “subject to objection by the defense previously noted in the record.”  Appellant was convicted by the jury of being a felon in possession of a firearm and was sentenced to 60 months in prison.   


            Appellant argues that the district court abused its discretion by allowing the state to introduce the audio recording of his interview with Detective Sornberger when the state allegedly did not disclose the recording until the final day of trial.  “Evidentiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the [district] court abused its discretion and that appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted).

            The first issue is whether the district court abused its discretion when it received and allowed the state to play the recording of appellant’s second interview with law enforcement to the jury.  Appellant argues that if the state intended to play the tape at trial, it should have given appellant notice of such intent before trial began so that appellant could prepare accordingly.   

Minn. R. Crim. P. 9.01, subd. 1, provides that

[w]ithout order of court and except as provided in Rule 9.01, subd. 3, the prosecuting attorney on request of defense counsel shall, before the date set for Omnibus Hearing provided for by Rule 11, allow access at any reasonable time to all matters within the prosecuting attorney’s possession or control which relate to the case and make the following disclosures:

                        . . . .

(2) Statements.  The prosecuting attorney shall disclose and permit defense counsel to inspect and reproduce any relevant written or recorded statements which relate to the case within the possession or control of the prosecution, the existence of which is known by the prosecuting attorney, and shall provide defense counsel with the substance of any oral statements which relate to the case.

. . . .

(7)  Scope of Prosecutor’s Obligations.  The prosecuting attorney’s obligations under this rule extend to material and information in the possession or control of members of the prosecution staff and of any others who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported to the prosecuting attorney’s office. 


Further, Minn. Stat. § 611.033 (2004) states that

[a] statement, confession, or admission in writing shall not be received in evidence in any criminal proceeding against any defendant unless within a reasonable time of the taking thereof the defendant is furnished with a copy thereof and which statement, confession, or admission shall have endorsed thereon or attached thereto the receipt of the accused or certification of a peace officer which shall state that a copy thereof has been received by or made available to the accused.  Nothing in this section requires that a videotape, audiotape, or transcript of a tape be given to the defendant at the time the statement, confession, or admission is made or within a reasonable time thereafter, provided that the videotape or audiotape is available to the defendant or the defendant’s attorney for review within a reasonable time of the defendant’s arrest, as well as in discovery pursuant to the Rules of Criminal Procedure. 


If the prosecutor fails to comply with discovery rules, the district court may allow discovery, “grant a continuance, or enter such order as it deems just in the circumstances.”[2]  Minn. R. Crim. P. 9.03, subd. 8.  The court in State v. Kaiser noted that “[t]hese discovery provisions are broader than those of either the ABA Standards [for Discovery and Procedure Before Trial] or the Federal Rules of Criminal Procedure.”  486 N.W.2d 384, 386 (Minn. 1992) (second alteration in original) (quotation omitted).  Thus, the discovery rules “formalize the pre-rules practice of some prosecutors . . . of completely opening their files to defense counsel” and the “obligation to make continuing disclosure when new things are added to the file after defense counsel has looked at it.”  Id. at 387 (citing State v. Schwantes, 314 N.W.2d 243, 244-45 (Minn. 1982)).  

Here, the state filed with the district court and later served on appellant a notice of evidence and identification procedures pursuant to rule 7.01.  This document expressly stated that the state possessed “[c]onfessions, admissions, or statements in the nature of confessions made by the defendant.”  The document stated that “[t]he relevant written and/or recorded statements, if any, and the substance of any oral statements made by the defendant and/or any accomplices, are on file in our office, on file with the Olmsted County Sheriff’s Department, or attached to this disclosure” and that appellant could obtain more specific information by contacting the prosecuting attorney.  The state also served appellant’s attorney with the incident reports, which included a written summary of appellant’s statements to Detective Sornberger during his interview.

Appellant cites Schwantes and Kaiser for the proposition that the state did not comply with the discovery rules when it failed to notify appellant that it would be offering the tape and that, as a result, appellant should be accorded a new trial.  But Schwantes and Kaiser are distinguishable.  See Kaiser, 486 N.W.2d at 385-87 (requiring new trial after prosecutor committed discovery violations by deliberately telling a witness “‘to keep her mouth shut’ and not talk with anyone,” by failing to provide defense counsel with the victim’s new telephone number and address in an attempt to prevent a defense investigator from talking with her before trial, and by failing to disclose details to defense counsel of a statement made by the victim days before trial); Schwantes, 314 N.W.2d at 244-45 (requiring new trial after prosecutor failed to tell defense counsel of an oral report both after defense counsel requested disclosure and when defense counsel copied the file, and after failing to notify defense counsel of a subsequent written report that was placed in file after defense counsel copied file, despite defense counsel’s continuing demand for discovery). 

We conclude that the state sufficiently disclosed “the substance of [appellant’s] oral statements” under rule 9.01, subd. 1(2), by serving appellant’s attorney with the relevant incident reports which included a synopsis of appellant’s tape-recorded statement to law enforcement.  Therefore, the district court did not abuse its discretion in determining that the state sufficiently disclosed the tape-recorded statement.  Because we conclude that the district court did not abuse its discretion, we need not conduct a harmless-error impact analysis.


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

[1] Lee Fuhrmeister, Mary Fuhrmeister’s husband, testified that the pickup truck was sold to appellant sometime in early May 2004 and that there was no shotgun inside the truck when it was sold. 

[2] Appellant’s counsel did not seek a continuance after learning during trial that the state sought to introduce and play appellant’s recorded statement to the jury.