This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Richard Michael Quigley,


Filed December 30, 1997


Schumacher, Judge

Meeker County District Court

File No. K1-96-613

Hubert H. Humphrey III, Minnesota Attorney General, John B. Galus, Assistant Attorney General, Suite 1400, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; Michael J. Thompson, Meeker County Attorney, Meeker County Courthouse, 325 Sibley Avenue North, Litchfield, MN 55355 (for respondent)

Steven P. Russett, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for appellant)

Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and Amundson, Judge.



Appellant Richard Michael Quigley was convicted of first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(a) (1996). Quigley appeals, claiming that the trial court erred by failing to suppress evidence as a sanction for the prosecutor's failure to disclose the evidence before trial. He also alleges that he was denied a fair trial because of several instances of prosecutorial misconduct. We affirm.


On August 9, 1996, Jesse Smith reported a burglary at his apartment. Smith told responding officers that three men had forced their way into his apartment, damaging the door. One of the men, who Smith recognized as Jose Franco, had entered his bedroom. Smith struck Jose Franco with a crowbar. Jose Franco retreated to the living room of the apartment and Smith followed him. In the living room, Smith observed a man he recognized as Hadrian Franco and a third man he believed to be Hadrian's cousin "Rick" or "Ricky," who Smith described to the officers. The three men fled from Smith's apartment.

The officers proceeded to Jose Franco's house. Less than one hour after Smith reported the burglary, Hadrian Franco and Quigley arrived at the house and were arrested. Quigley matched the description of the third man Smith described to police.

Quigley was charged with one count of first-degree burglary. After a two-day jury trial, the jury returned a verdict of guilty. Quigley appeals, alleging errors committed during the trial entitle him to a new trial.


1. Quigley argues the trial court committed prejudicial error by admitting in evidence crime scene photographs that the prosecution failed to disclose to the defense before trial. The photographs, taken by police, depicted the damage to the door of Smith's apartment. Several weeks before trial, the trial court ordered the prosecution to disclose the photographs to defense counsel at defense counsel's request. The prosecution did not comply with the court's order. At trial, Quigley objected to the admission of the photographs and the trial court admitted the photographs over this objection.

The trial court has wide discretion in deciding whether to impose sanctions for violations of discovery rules. State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979). Absent a clear abuse of discretion, we will not disturb the trial court's decision concerning sanctions. Id. Generally, a new trial will be granted only if a defendant was prejudiced by a violation of discovery rules. State v. Ramos, 492 N.W.2d 557, 560 (Minn. App. 1992), review denied (Minn. Jan. 15, 1993). Only in exceptional cases where the prosecutor's misconduct is egregious will we order a new trial absent a showing of prejudice. Id. When there is no reasonable probability that the outcome of the trial would have been different had the evidence been disclosed, a conviction should stand. State v. Clobes, 422 N.W.2d 252, 255 (Minn. 1988).

While we in no way condone the state's failure to comply with discovery rules, which the state asserts was the result of an oversight, we cannot agree with Quigley that the trial court abused its discretion by admitting the photographs in evidence. The photographs merely were cumulative evidence of the forced entry into Smith's apartment. Prior to the admission of the photographs, the officer who photographed the door testified about the condition of the door, noting the molding was damaged and there were signs of a fresh disturbance. In addition, Smith testified that he locked the door before the men entered his apartment and he did not invite their entrance. Quigley argues his defense counsel would not have argued during opening statement that Smith fabricated his report of burglary had the photographs been disclosed before trial. Other materials disclosed during discovery, however, provided defense counsel notice that the state would present evidence of forced entry. In a police report provided to the defense, a responding officer indicated that based on his observations, "somebody had forcibly opened the door." Because the trial court did not abuse its discretion in admitting the photographs and Quigley has not shown any prejudice resulting from the admission of the evidence, we will not disturb Quigley's conviction on this ground.

2. Quigley argues the prosecutor engaged in several instances of misconduct during the trial that justify reversal of his conviction. Prosecutorial misconduct requires reversal unless it is harmless beyond a reasonable doubt. State v. VanWagner, 504 N.W.2d 746, 749 (Minn. 1993). Misconduct is harmful if

it played a significant or substantial role in persuading the jury to convict. The more serious the misconduct, the more likely the misconduct was harmful.


Quigley claims the prosecutor engaged in misconduct in questioning a police officer about the hearsay statements of Sarah Mullesch, who drove Quigley and the Francos to Smith's apartment and later drove Quigley and Hadrian Franco to Jose Franco's house. Mullesch told the officer that she "knew [Quigley and his associates] did something wrong." Defense counsel objected to the prosecutor's questions as hearsay and the trial court overruled the objections.

This is an evidentiary challenge and not a claim of misconduct. We will sustain a trial court's evidentiary rulings unless the trial court abused its discretion. State v. Hofmann, 549 N.W.2d 372, 375 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996). Even if the trial court erred in admitting evidence at trial, we will affirm the conviction unless there is a reasonable probability that the evidence significantly affected the verdict. State v. Bolte, 530 N.W.2d 191, 198 (Minn. 1995).

Although we disagree with the prosecutor's proffered justification for the testimony[1], we conclude there is no reasonable probability that the testimony affected the verdict in this case. The defense had the opportunity to cross-examine Mullesch about her statement to the officer, and declined. Further, there was substantial evidence supporting the guilty verdict, including the testimony of Smith, the police officers, and Mullesch.

Quigley also challenges as prosecutorial misconduct the trial court's admission of Smith's statements to a responding officer. Because Smith's statements to the officer were admissible under Minn. R. Evid. 803(2) as excited utterances, and Quigley has shown no prejudice resulting from the statements, this claim lacks merit.

Quigley claims he was prejudiced by the prosecutor's comments to the trial court, made in the presence of the jury, regarding evidentiary rulings. The prosecutor twice argued to the trial court that flight was "strong evidence of guilt." The prosecutor attempted to argue this a third time, but the trial court intervened. Defense counsel, however, failed to object to the prosecutor's comments and did not request a curative instruction. A defendant forfeits his right to challenge prosecutorial misconduct on appeal if he fails to object or seek a cautionary instruction at trial. State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980). Therefore, we do not address this argument. Further, the prosecutor's comments did not prejudice Quigley because evidence of the "flight"--Jose's Franco's apprehension in another jurisdiction--was admitted through the testimony of another witness.

Finally, Quigley argues the prosecutor committed misconduct in eliciting testimony from officers that they were familiar with Quigley's appearance. Because defense counsel did not object to the prosecutor's questions, however, Quigley may not challenge this conduct on appeal. Id.


[ ]1 The prosecutor responded to defense counsel's hearsay objections by arguing Mullesch's extrajudicial statements were admissible as prior consistent statements. After hearing the prosecutor's justification for the evidence, the trial court permitted the testimony. Prior consistent statements are admissible as nonhearsay when they "bolster the witness' credibility with respect to that aspect of the witness' credibility that was challenged." State v. Nunn, 562 N.W.2d 902, 909 (Minn. 1997). The prosecutor, however, elicited the statement for its truth and not to bolster Mullesch's credibility.