This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1996).




State of Minnesota,



Mark Stephen Thomasson,


Filed April 29, 1997


Harten, Judge

St. Louis County District Court

File No. K0-95-600112

Hubert H. Humphrey, III, Attorney General, Catherine M. Keane, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Alan L. Mitchell, St. Louis County Attorney, 501 Courthouse, 100 North Fifth Avenue West, Duluth, MN 55802 (for respondent)

Lawrence W. Pry, Assistant State Public Defender, LEC 304, 875 Summit Avenue, St. Paul, MN 55105 (for appellant)

Considered and decided by Harten, Presiding Judge, Toussaint, Chief Judge, and Mansur, Judge.[*]



Appellant Mark Stephen Thomasson challenges the district court's decision (1) declining to award him a new trial after the prosecutor violated Minnesota Rule of Criminal Procedure 9.01 and (2) admitting for impeachment purposes evidence of appellant's six prior felony convictions. We affirm.


On February 7, 1995, appellant and a friend, John D'Auria, were traveling in appellant's car with a recent female acquaintance, Dianne Olson, when they stopped on a secluded hilltop. Olson got out of appellant's car; the events that followed are disputed. Appellant contends that D'Auria shot Olson in the head and D'Auria asserts appellant did the shooting. Whoever pulled the trigger, the shot that killed Olson came from a rifle that appellant had stolen a week before.

D'Auria testified that both he and appellant moved Olson's body, hiding it behind a building. Appellant testified that he began to help D'Auria move the body, but when it slipped from his grasp, he refused to pick it up again; D'Auria alone then dragged the body behind a building. They left the murder scene, but later returned to remove Olson's clothing and shoes to prevent discovery of their fingerprints. Both men participated in disrobing Olson's body and discarding her clothing.

The next day, Olson's body was found. D'Auria's girlfriend found the stolen rifle and gave it to the police. Appellant was arrested and charged with first-and second-degree murder, theft of a firearm, and receiving stolen property. He was tried and found guilty of theft of a firearm and receiving stolen property. The district court declared a mistrial on the murder charges, which were later amended to include aiding and abetting. The state re-filed the indictment.

Before the jury trial, the state asked leave of the district court to introduce impeachment evidence of appellant's six prior convictions if appellant decided to testify. The convictions included 1988 and 1989 unauthorized use of a motor vehicle convictions, a 1990 motor vehicle theft conviction, a 1992 third-degree burglary conviction, a 1992 second-degree assault conviction, and a 1995 firearm theft conviction. The district court determined that evidence of the prior convictions was admissible.

On the second day of trial, the prosecutor met with the St. Louis County medical examiner, Dr. Donald Kundel, and police crime scene investigation supervisor, Sgt. Barry Brooks. Kundel informed the prosecutor that he intended to change part of his testimony to reflect his revised conclusion that Olson's body had not been dragged, but instead carried, when moved at the crime scene. Defense counsel discovered that the prosecutor had met with these officials and demanded to know the details of the meeting. The prosecutor refused to disclose the substance of any oral statements. After Brooks testified, but before Kundel testified, defense counsel informed the district court of the prosecution's failure to disclose the information and moved for a mistrial. The district court agreed that the prosecutor should have disclosed the information, but rather than declaring a mistrial, it granted a continuance to enable defense counsel to interview both Brooks and Kundel and prepare for cross-examination of Kundel.

On March 9, 1996, the jury found appellant guilty of second-degree murder. This appeal follows.


1. Failure to Disclose--Sanctions

Regarding statements in the possession and control of the prosecution, Minn. R. Crim. P. 9.01, subd. 1(2) states in part:

The prosecuting attorney * * * shall provide defense counsel with the substance of any oral statements which relate to the case.

If a prosecutor violates rule 9.01, subd. 1(2), the district court is obliged to analyze four factors in deciding whether to impose sanctions: (1) the prosecutor's reason for non- disclosure; (2) the degree of prejudice to the opposing party; (3) the feasibility of rectifying the prejudice by granting a continuance; and (4) any other relevant factors. State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979). The district court is particularly well-situated to decide whether to impose sanctions. Id. We will not disturb a district court's decision regarding discovery sanctions absent a clear abuse of discretion. See State v. Daniels, 332 N.W.2d 172, 179 (Minn. 1983).

Appellant asserts that the district court abused its discretion by failing to sanction the prosecutor after the prosecutor breached the duty to disclose the substance of oral statements given by Brooks and Kundel. Appellant contends that the district court should have declared a mistrial and that the prejudice created by non-disclosure could not be cured by a continuance alone because (1) whether Olson's body was dragged or carried reflects ultimately upon whether appellant's or D'Auria's testimony was credible and (2) the defense lost its opportunity to contest through the testimony of Brooks, Kundel's conclusion as to whether the body was dragged or carried. The degree of prejudice resulting from Kundel's revised conclusion was minimal, however, and appellant was free to call Brooks as a witness in his case to clarify the issue of how the body was moved. We conclude that the continuance granted by the district court was sufficient to dissipate any prejudicial effects of surprise in Kundel's testimony. The district court did not abuse its discretion in declining to order a mistrial.

2. Impeachment of Appellant

Minn. R. Evid. 609(a) provides:

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.

We will not disturb a district court's decision regarding admission of evidence of prior convictions absent a clear abuse of discretion. State v. Bias, 419 N.W.2d 480, 487 (Minn. 1988) (citing State v. Graham, 371 N.W.2d 204, 209 (Minn. 1985)). The parties agree that the prior convictions did not involve dishonesty or false statement, that the crimes were punishable by over a year of incarceration, and that they occurred within the prior 10 years. We must determine whether the prejudicial effect of admitting the convictions for impeachment purposes outweighed their probative value. To do so, we analyze the factors set forth in State v. Jones, 271 N.W.2d 534 (Minn. 1978), to-wit: (1) the impeachment value of each prior conviction; (2) the date of the conviction and the defendant's subsequent history; (3) the similarity of the past crime with the charged crime; (4) the importance of the defendant's testimony; and (5) the centrality of the credibility issue. Id. at 537-38.

(a) Impeachment Value of Prior Convictions

Appellant asserts that the impeachment value of his prior convictions was de minimis because nothing about the convictions reflected upon appellant's credibility. But the purpose of allowing prior conviction evidence is to allow the jury "to see 'the whole person' and thus to judge better the truth of his testimony." City of St. Paul v. DiBucci, 304 Minn. 97, 100, 229 N.W.2d 507, 508 (1975). We agree with the statement of the district court that "all of those enumerated [crimes] have impeachment value."

(b) Date of Appellant's Prior Convictions and Subsequent History

Appellant maintains that the unauthorized use of a motor vehicle and auto theft convictions were too stale to have any probative value. The district court indicated

I am swayed in part by the fact that the convictions all are within an eight-year period, that the particular convictions that were in question, the unauthorized use of a motor vehicle were not isolated convictions, but, in fact, were among the first in a series of convictions occurring within a relatively brief period of time.

Taken together, all six convictions portray a much clearer "whole picture" of appellant than would the last few convictions alone. The timeline of appellant's continuous criminal activity could be helpful to a jury in assessing the truth of certain aspects of his testimony.

(c) Similarity of Impeachment Offenses to Charged Offense

Appellant contends that the crime of assault is virtually indistinguishable from the crime of murder because they both address the capacity of appellant to commit a violent crime against a person. The state replies that it is highly unlikely that a jury would infer from a 1992 assault that appellant committed the murder as charged unless the jury otherwise believed appellant committed the murder. We agree.

(d) Importance of Appellant's Testimony and Centrality of the Credibility Issue

Both parties recognize that the district court was correct in finding that credibility was a key issue in the case.

We conclude the district court did not clearly abuse its discretion in its analysis of the Jones factors.

3. Harmless Error

Finally, we note that even had the district court abused its discretion in handling the disclosure or impeachment issues, any such error would have been harmless. Appellant testified that he put the rifle in the car, drove the victim and D'Auria to the murder site, handed the bullets to D'Auria, and took the gun out of the car. Appellant thereby tacitly admitted aiding the commission of second-degree murder.[1]


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

[ ]1Aiding (and abetting) is not a separate charge in itself. See Minn. Stat. § 609.05 (1996) (person liable for crime committed by another). One who intentionally aids, advises, or conspires with another to commit a crime is criminally liable for, and may be charged with, that crime. See id.