This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-96-324

State of Minnesota,

Respondent,

vs.

Albert Anthony Luukkonen,

Appellant.

Filed October 1, 1996

Reversed

Schumacher, Judge

St. Louis County District Court

File No. K695101962

Hubert H. Humphrey III, Attorney General, Helen G. Rubenstein, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2131 (for Respondent)

Alan L. Mitchell, St. Louis County Attorney, 100 North Fifth Avenue West, No. 501, Duluth, MN 55802-1298 (for Respondent)

John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Harten, Judge.

U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

This appeal is from a judgment of conviction for driving after cancellation as inimical to public safety. See Minn. Stat. § 171.24, subd. 5 (1994). Appellant Albert Anthony Luukkonen challenges the trial court's exclusion of a defense witness, who was not disclosed until the day before trial, but who the court ordered could testify if Luukkonen paid the jury costs incurred by granting the state a continuance. We reverse.

FACTS

Luukkonen was charged with the gross misdemeanor offense of driving after his license had been cancelled as inimical to public safety. The complaint alleged that on November 28, 1995, Luukkonen drove to the Brit Lounge in Brit, Minnesota, accompanied by Amy Bozicevich. Bozicevich told police that Luukkonen had been driving, while Luukkonen claimed Bozicevich was driving. Luukkonen did not dispute that his drivers license had been cancelled as inimical to public safety. This left as the sole factual issue for trial the identity of the driver.

On the day before the scheduled January 10, 1996, trial date, Luukkonen told his public defender that a witness, Jim Vert, would testify that he was in the Brit Lounge parking lot on November 28, and saw Luukkonen in the passenger seat of his car, with a female, whom Vert could not identify, driving. Defense counsel immediately notified the prosecutor. Although police took a taped statement from Vert that evening, it could not be transcribed before the case was called for trial the following morning.

In court the next morning, Luukkonen was sworn and testified that he found out about Vert's observations around December 10 to 15. Defense counsel conceded that the late disclosure violated the discovery rules, but opposed the state's request to exclude Vert's testimony. The prosecutor argued Vert's statement would require further investigation. The prosecutor also noted that Luukkonen had committed a similar discovery violation in another case, which defense counsel conceded.

The trial court concluded that there was no justification for Luukkonen's discovery violation. The court, however, stated that it would allow Vert to testify if Luukkonen would pay the jury costs, estimated at $600 to $700, incurred by granting the state a continuance. Luukkonen's counsel stated he was unable to pay this sum and the trial proceeded without Vert's testimony. The jury found Luukkonen guilty as charged, and the trial court denied his motion for a new trial.

D E C I S I O N

The imposition of sanctions for a violation of discovery rules is particularly suited to the judgment and discretion of the trial court and will not be reversed absent a clear abuse of discretion. State v. Richards, 495 N.W.2d 187, 199 (Minn. 1992). Preclusion of evidence is a severe sanction that should not be lightly invoked. State v. Lindsey, 284 N.W.2d 368, 374 (Minn. 1979). The trial court here only conditionally precluded Vert's testimony, but on a condition that Luukkonen argues violated his right to due process and equal protection. We agree.

Conditioning the admission of defense evidence on the payment of substantial costs disadvantages an indigent defendant "solely because of his indigency." Tate v. Short, 401 U.S. 395, 397-98, 91 S. Ct. 668, 670 (1971). Luukkonen has a Sixth Amendment right to present exculpatory evidence. See Taylor v. Illinois, 484 U.S. 400, 408, 108 S. Ct. 646, 652 (1988). The trial court could bar him from presenting evidence because of a discovery violation. Id. at 410, 108 S. Ct. at 653. But in conditioning the admission of Vert's testimony on Luukkonen's payment of jury costs, the trial court created an unconstitutional distinction between Luukkonen and nonindigent defendants. An equally delinquent nonindigent defendant, who also violated discovery rules but had the money to pay the trial court's sanction, would have been able to present the evidence.

This court has held that a trial court could not condition the grant of recorded voir dire examination on defendant's paying for it because the defendant had an absolute right under the rule to recorded voir dire. State v. Jurek, 376 N.W.2d 233, 235 (Minn. App. 1985). Luukkonen did not have an absolute right to present Vert's testimony, and on this record we believe the court could have excluded that evidence. But in making Luukkonen's ability to pay substantial jury costs the determining factor in whether the evidence would be admitted, the trial court denied Luukkonen due process and equal protection.

The state argues that any error was harmless beyond a reasonable doubt because Vert's proposed testimony did not completely rebut Bozicevich's testimony that Luukkonen drove the entire evening. See generally State v. Rasinski, 472 N.W.2d 645, 649 (Minn. 1991) (error in precluding defense testimony was harmless beyond a reasonable doubt). We disagree. Vert's testimony could have significantly affected the jury's assessment of Bozicevich's credibility. Bozicevich had been drinking, although the officer could not tell whether she was intoxicated. Although she had a valid drivers license, unlike Luukkonen, she did have a reason for claiming that Luukkonen, and not she, was the driver. If her testimony that Luukkonen drove into the Brit Lounge parking lot was discredited, the jury could also have rejected her testimony that Luukkonen drove earlier in the evening. This court cannot assess the credibility of either Vert's or Bozicevich's testimony. See State v. Buchanan, 431 N.W.2d 542, 547 (Minn. 1988) (jury determines credibility to be given the testimony of witnesses).

Reversed.