This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat § 480A.08, subd. 3 (1996)




State of Minnesota,



Hugo Lautaro Montero,


Filed April 7, 1998


Lansing, Judge

Goodhue County District Court

File No. T0971163

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

Stephen A. Baker, Assistant Red Wing City Attorney, Hoff, Barry & Kuderer, P.A., 7901 Flying Cloud Drive, Suite 260, Eden Prairie, MN 55344-7914 (for respondent)

Arthur R. Martinez, 425 South Third Street, Minneapolis, MN 55415 (for appellant)

Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Mulally, Judge.*

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



In a petty misdemeanor trial on a charge of failure to yield to a pedestrian in a crosswalk, the district court allowed the pedestrian to testify over defense objection. We conclude that the district court acted within its discretion in ruling that the prosecutor had not violated his disclosure obligation, and we affirm.


State Highway Patrol Officer Scott Reps issued a traffic citation to Hugo Montero after he observed Montero's van drive through a marked crosswalk on Highway 61. Reps testified that a pedestrian who was in the Highway 61 crosswalk, approaching the center line, had to stop and step back to avoid being hit. The only recorded information on the infraction was on the reverse side of the uniform traffic citation. Reps did not refer to the pedestrian by name in the citation information.

Defense counsel did not know the pedestrian's name or the prosecutor's intention to call him to testify until the day of trial. Reps knew the pedestrian, Jim Mann, from Mann's employment at a Red Wing car dealership. The dealership was adjacent to the Highway 61 crosswalk. The prosecutor obtained Mann's name from Reps just before the trial began. Mann was on a lunch break at work when Reps called and asked him to come to court and testify.

The defense attorney objected to Mann's testimony because he had not been notified before the day of trial that Mann would be called as a witness. The district court offered defense counsel an opportunity for a recess to interview the witness. The court indicated that it would order the witness to provide whatever information the defense attorney required before allowing Mann to be called as a witness. The district court also inquired whether defense counsel had made a demand for names of witnesses. Defense counsel responded that the prosecutor did not have the name because it was not disclosed by the police officer.

Montero appeals from the petty misdemeanor conviction. He asserts that the prosecutor's failure to comply with disclosure requirements mandates reversal and a new trial.


Discovery in criminal and petty misdemeanor cases is governed by the Minnesota Rules of Criminal Procedure. Minn. R. Crim. P. 7.03 (misdemeanor), 9.01 (felony and gross misdemeanor), 23.05 (petty misdemeanor). The interpretation of a rule of criminal procedure is a question of law this court reviews de novo. State v. Pettee, 511 N.W.2d 43, 45 (Minn. App. 1994), aff'd, 538 N.W.2d 126 (Minn. 1995). But the district court has considerable discretion when applying a discovery rule to determine sanctions. State v. Berg, 326 N.W.2d 14, 16 (Minn. 1982).

In misdemeanor cases, the prosecuting attorney must, upon defense counsel's request and without order of the court, permit defense counsel to inspect all police reports. Minn. R. Crim. P. 7.03. All other discovery "shall be by consent of the parties or by motion to the court." Id. In petty misdemeanor cases, the same procedure applies. Minn. R. Crim. P. 23.05, subd. 3.

Montero asserts the prosecution failed to comply with Minn. R. Crim. P. 9.01, which requires the prosecutor, upon request of defense counsel, to provide the defense with a list of all witnesses the prosecution intends to call at trial. Rule 9 is entitled "Discovery in Felony and Gross Misdemeanor Cases" and does not apply in misdemeanor or petty misdemeanor cases. Under rule 7.03, governing discovery for misdemeanors and petty misdemeanors, Montero was entitled to inspect all police reports. Defense counsel does not claim that he was denied access to the original citation or the notes contained on the reverse side. Thus, the district court did not err in concluding that the prosecutor had complied with discovery requirements.

We note that even under the more rigorous discovery requirements of Minn. R. Crim. P. 9.01, Montero has not established that the district court prejudicially erred by allowing Mann to testify. A reviewing court may not order a new trial "if there is no reasonable probability that the outcome of the trial would have been different had the evidence been disclosed." State v. Clobes, 422 N.W.2d 252, 255 (Minn. 1988). Reps' testimony alone, without any contradictory evidence, was sufficient to sustain Montero's conviction. See State v. White, 349 N.W.2d 603 (Minn. App. 1984) (eyewitness testimony by state trooper sufficient to support finding that defendant was driving vehicle).

Montero suggests that Reps' failure to provide the name of the witness in the citation notes was not an oversight but a common police practice to place defense at a disadvantage in presenting its case. We agree with the district court's response that in those circumstances the testimony of the unnamed witness should be suppressed. The district court, however, stated that he had not observed any similar instance, and the evidence did not establish that the trooper knew Mann's name at the time of the incident, only that he was able to determine his name by the time of trial. No other evidence supports the claim of improper police practice. Because defense counsel did not request the disclosure of the witnesses' names and because the district court offered defense counsel an opportunity to interview the witness before the witness testified, we conclude that the district court acted well within its discretion in allowing Mann to testify.