This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-97-1880

State of Minnesota,

Respondent,

vs.

Judy Gail Dick,

Appellant.

Filed July 7, 1998

Affirmed

Harten, Judge

Ramsey County District Court

File No. K5-96-3924

Joseph S. Friedberg, Attorney at Law, 205 Commerce at Crossings, 250 Second Avenue South, Minneapolis, MN 55401; and

Lisa D. Lodin, Attorney at Law, W-1260 First National Bank, 332 Minnesota Street, St. Paul, MN 55101 (for appellant)

Susan E. Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

Considered and decided by Davies, 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

HARTEN, Judge

Appellant Judy Gail Dick challenges the district court's denial of her alternative motions for a new trial or dismissal and judgment of acquittal by reason of governmental misconduct during the investigation and prosecution of felony charges against her. We affirm.

FACTS

The state's evidence established that on November 29, 1996, Gregory Thomas was caught shoplifting at Dayton's department store in Roseville. Thomas informed police that he was a seller of stolen merchandise and had sold to the Dick family in the past. He agreed to participate with the Roseville police and Dayton's security personnel in a sting operation targeting the Dick family.

Thomas called appellant and told her that he had some merchandise. Appellant invited Thomas to bring it to her house. Thomas and Carla Schrom, a Dayton's investigator, brought to appellant's home a piece of Baccarat crystal, a Coach briefcase, and three men's suits from Dayton's. Appellant's husband, Gerald Dick, her son, James Dick, and her daughter, Stacy Zehran, were all at home, but appellant was absent. Thomas introduced Schrom as a Dayton's cleaning person who could steal anything the Dicks wanted. One of the family members telephoned appellant to see if she wanted to buy any of the items. Appellant asked that Schrom steal some Armani suits. James Dick paid Schrom $150 for the crystal piece and the briefcase. Thomas and Schrom then left.

Later that evening, Schrom returned to the Dick residence with five Armani suits and six Polo sweaters that she had obtained from Dayton's inventory. Gerald Dick, James Dick, Zehran, and appellant were present. Appellant and Gerald Dick started removing the anti-theft tags on the garments with a small torch. James Dick paid Schrom for the clothing. Each family member named items that he or she would like Schrom to steal for them in the future.

After Schrom left the residence, acting without a warrant, the police entered and searched the home and seized over 100 items. Appellant, Gerald Dick, James Dick, and Stacy Zehran were charged with attempting to receive stolen property and conspiracy to receive stolen property.

The defendants pleaded not guilty and moved to suppress the property seized in the search of the residence and also appellant's comment to police that they were caught "red-handed." The prosecutor conceded that the warrantless search was illegal, and the district court suppressed the evidence.

From July 2 to 10, 1997, a joint trial was held. On July 3, 1997, the defendants moved to dismiss all charges based on governmental misconduct. After an evidentiary hearing, the district court denied the motion as to appellant, Zehran, and Gerald Dick, but dismissed the charges against James Dick. On July 9, 1997, the district court denied the remaining defendants' motion for a judgment of acquittal. The jury found appellant guilty of attempt to receive stolen property and not guilty of conspiracy to receive stolen property. The jury also acquitted Gerald Dick and Zehran of both charges.

Appellant moved for a new trial or dismissal and judgment of acquittal, based on prosecutorial misconduct. The district court found that the misconduct was not significant and did not prejudice appellant, as evidenced by the acquittals. The district court denied appellant's motions, and a judgment of conviction was entered.

D E C I S I O N

Appellant argues that pervasive throughout the investigation and trial of the case is governmental misconduct, such as unlawful search and seizure, inappropriate comments to the media, inaccurate information given to defense counsel about evidence, instructions to a witness to not cooperate with the defense, violations of witness sequestration, and violations of discovery rules. Appellant acknowledges that the incidents of misconduct did not prejudice her case, but urges that the conduct was so outrageous and incurable that we should dismiss the charges regardless of prejudice.

1. Alleged Misconduct

A. The Search and Seizure

Appellant argues that the unlawful warrantless search of the Dick residence is a prime example of the misconduct. The prosecutor conceded that the search was illegal, and the seized evidence was suppressed.

B. Publicity

Evidence that was eventually suppressed was presented to the media, and police officers and prosecutors commented to the media about the case. Appellant argues that the media attention magnified the search and seizure violations and violated guidelines that were designed to ensure a fair trial.

The A.B.A. Standards caution that lawyers should not make statements to the media that are substantially likely to prejudice the case. A.B.A. Standard 8-1.1. Examples of lawyers' statements that are presumed likely to prejudice the case include the lawyer's opinions on guilt or the merits and any admissions of the accused. Id. This standard applies equally to law enforcement officers. A.B.A. Standard 8-2.1.

Appellant argues that the publicity violated those standards because law enforcement officers and prosecutors expressed opinions and because appellant's statement that she was caught "red-handed" was replayed several times. For example, officer Sommerdorf was quoted as saying, "In my opinion, they are totally guilty," and a prosecutor stated, "We have good, solid evidence to support a conviction" and "It appears that they would request certain items and these persons or this person would go out and quote-unquote purchase it but basically by stealing it." Numerous other statements were quoted to the media as well. We agree that the statements to the media were inappropriate.

C. Hawley's Comment to Appellant's Attorney About the Tape

Within a few days of charging, appellant's attorney, Paul Applebaum, had a telephone conversation with police officer Hawley, in which Hawley claimed that Schrom was wearing a tape recorder during the sting operation. Incredibly, Hawley himself believed this information was untrue. He testified at trial that he mentioned the tape to appellant's attorney to make him believe that there had been a tape and that his statement may have been deception.

Appellant argues that the deception violates A.B.A. Standards and the Minnesota Rules of Professional Conduct. "A prosecutor should not knowingly make false statements or representations as to fact or law in the course of plea discussions with defense counsel or the accused." A.B.A. Standards for Criminal Justice 3-4.1(c). Here, the misstatement was by a police officer and not the prosecutor. The A.B.A. Standards and the rules of professional conduct do not apply, but it was governmental misconduct nonetheless.

D. Instructions to Thomas not to Cooperate

Prior to trial, officers Sommerdorf and Hawley met with Thomas at the county workhouse. Parts of their conversation were taped, and the tape was introduced as evidence at trial. Sommerdorf testified that the tape included a comment about Thomas's refusal to speak with a defense investigator, to-wit, Thomas stated, "You guys told me that I would botch up the case if I would talk."

The rules of criminal procedure require that

[n]either the counsel for the parties nor other prosecution or defense personnel shall advise persons having relevant material or information (except the accused) to refrain from discussing the case with opposing counsel or from showing opposing counsel any relevant materials, nor shall they otherwise impede opposing counsel's investigation of the case.

Minn. R. Crim. P. 9.03, subd. 1. Because witnesses do not "belong" to either party, it is improper for anyone acting on behalf of either party to suggest to a witness not to submit to an interview by opposing counsel. State v. Mussehl, 408 N.W.2d 844, 847 (Minn. 1987). A statement by the officers to Thomas warning him not to speak with defense investigators would be misconduct.

E. Witness Sequestration Violations

Appellant argues that the district court's witness sequestration directive was violated several times during the trial. First, during a break in Officer Sommerdorf's testimony on July 2, the prosecutor, Sommerdorf, and Schrom discussed the case. Schrom had not yet testified. Second, during a break in Sommerdorf's testimony on July 3, there was a meeting of Schrom, Hawley, Sommerdorf, and the prosecutor. Schrom testified during the evidentiary hearing on the motion to dismiss that the four discussed the tape of the sting incident, the tape of Thomas at the workhouse, and a police officer's report. Third, on July 3, during Sommerdorf's testimony, Sommerdorf's friend was seated in the gallery and was seen by the judge making gestures. The friend had been in the courtroom before Sommerdorf testified. The district court could not discern whether the friend was signaling Sommerdorf. Fourth, witnesses had various other contacts outside the courtroom during the trial. Schrom admitted during the evidentiary hearing that she, Sommerdorf, and Hawley had spoken about the case.

"Witnesses may be sequestered or excluded from the courtroom, prior to their appearance, in the discretion of the court." Minn. R. Crim. P. 26.03, subd. 7. The purpose of sequestering witnesses is

to remove any possibility that a witness waiting to testify may be influenced consciously or subconsciously by the testimony of other witnesses and "to afford opposing counsel the opportunity of bringing out in cross-examination any discrepancies in the testimony of the various witnesses."

State v. Miller, 396 N.W.2d 903, 906 (Minn. App. 1986) (quoting State v. Ellis, 271 Minn. 345, 364, 136 N.W.2d 384, 396 (1965)).

Here, the witnesses were not present in the courtroom prior to testifying. The discussions did not violate the purpose of sequestration, and appellant has not argued that her case was prejudiced by the witnesses' contacts. The district court's conclusion that the sequestration order had not been violated is not erroneous.

F. Discovery Violations

Appellant argues that several items of evidence either were not disclosed to the defense or were destroyed before trial. The imposition of sanctions for discovery violations is within the sound discretion of the district court. State v. Ramos, 492 N.W.2d 557, 559 (Minn. App. 1992), review denied (Minn. Jan. 15, 1993). We will not overturn the district court absent a clear abuse of discretion. State v. Moore, 493 N.W.2d 606, 608 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993). The rules of criminal procedure provide:

The prosecuting attorney shall disclose and permit defense counsel to inspect and reproduce * * * law enforcement officer reports, * * * papers, documents, photographs and tangible objects which relate to the case.

* * * *

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.

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

The defects in discovery alleged by appellant include: (1) failure to disclose the tape recorder and tape from the sting incident; (2) destruction of the contents of the tape recording from the sting incident; (3) failure to disclose the tape of Thomas and the officers at the workhouse; (4) recording of only a portion of the conversation with Thomas at the workhouse; (5) failure to provide notes and reports, including the top page of Schrom's report, Sommerdorf's supplemental report, and Sommerdorf's original notes; and (6) failure to inform the defense of a cellular phone used in the sting operation.

First, the prosecution did not disclose that Thomas wore a tape recorder during the sting or that the tape was in existence. Tape recordings are producible. State v. Grunau, 273 Minn. 315, 328, 141 N.W.2d 815, 825 (1966); see Minn. R. Crim. P. 9.01, subd. 1(3) (requiring the production of tangible objects related to the case). The existence of the tape recorder, and the tape itself should have been disclosed to the defense before trial.

Second, appellant argues that the tape recording was destroyed deliberately. Unless appellant can show bad faith by the police, failure to preserve evidence does not constitute a denial of due process. State v. Schmid, 487 N.W.2d 539, 541 (Minn. App. 1992), review denied (Minn. Sept. 15, 1992). There are three factors to weigh in considering the destruction of evidence: (1) whether the destruction was intentional; (2) the strength of the state's case even if the evidence were available; and (3) the possible exculpatory value of the evidence. Id. When police intentionally destroy evidence, there is an inference that it was destroyed because it was exculpatory. Id. at 542. Here, it is not even clear that police destroyed the tape. The defense presented expert testimony to show that something had been recorded and then was erased on the tape from the sting incident. But prosecution witnesses testified that the tape either did not work or was not turned on. Therefore, the absence of a recording from the sting does not constitute clear misconduct.

Third, the prosecution did not disclose a second audio tape, consisting of a pre-trial discussion between Thomas and officers Hawley and Sommerdorf. Production of the tape was required by Minn. R. Crim. P. 9.01, subd. 1(3).

Fourth, appellant argues that because the tape of Thomas at the workhouse consisted of only a partial conversation, this court should infer a discovery violation. The rules do not state that an entire conversation must be recorded, and the record does not clearly show that portions of the tape were erased.

Fifth, appellant alleges that the prosecution failed to produce copies of certain reports. The missing front page of Schrom's report violates discovery rules, although the violation was likely inadvertent. Reports made by an officer, who is called as a witness by the prosecution, to another officer or his department, are producible. Grunau, 273 Minn. at 328, 141 N.W.2d at 825. Sommerdorf's supplemental report and original notes are not necessarily producible under that rule because he did not make them for another officer or his department and never filed them with the department. Moreover, an officer's notes or memoranda that contain the officer's statements, impressions, or observations ordinarily are not producible. Id. at 328-29, 141 N.W.2d at 825.

Finally, appellant argues that the failure to disclose information about a cellular telephone carried by Schrom during the sting violated discovery rules. Appellant is correct that the lack of disclosure violated Minn. R. Crim. P. 9.01, subd. 1(3). The prosecutor's failure to produce the tapes, the cellular phone, and Schrom's entire report violated the rules of discovery.

2. Cumulative Effect of the Misconduct

When considering whether governmental misconduct is so outrageous that it bars prosecution, this court applies a de novo standard of review and examines the totality of the circumstances. State v. Roers, 520 N.W.2d 752, 756 (Minn. App. 1994), review denied (Minn. Oct. 14, 1994). In Roers, an indictment was dismissed due to prosecutorial misconduct; then the state attempted to cure the defects and charge the defendant again. We held that prosecutorial misconduct during the original grand jury proceedings constituted a curable defect, and therefore prosecution was not barred. On the other hand, in State v. Grose, 396 N.W.2d 874 (Minn. App. 1986), review dismissed (Minn. Jan. 16, 1987), we held that the prosecutorial misconduct was not curable and barred further prosecution after dismissal of a grand jury indictment.

The Roers and Grose standard does not control this case. The instant case does not involve misconduct during grand jury proceedings or the issue of whether the misconduct was curable. Rather, this case deals with several claims of prosecutorial and police misconduct that were revealed at trial.

The fact that prosecutorial misconduct occurred does not require that we grant relief in all cases. State v. Scruggs, 421 N.W.2d 707, 715-16 (Minn. 1988). Whether relief should be granted because of misconduct is not governed by any fixed rules but is within the discretion of the trial judge, who is in the best position to appraise its effect. State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980). The district court's decision should be disturbed only where the misconduct, in light of the entire record, appears to be inexcusable and so serious and prejudicial that appellant's right to a fair trial was denied. Id.

Appellant argues that the actions of the prosecution are so outrageous that the case should be dismissed even though appellant claims no prejudice. In State v. VanWagner, 504 N.W.2d 746 (Minn. 1993), the supreme court concluded that whether the prosecutorial misconduct was harmless was a close question, and the defendant was entitled to a new trial for prophylactic reasons. Id. at 750; see State v. Salitros, 499 N.W.2d 815, 820 (Minn. 1993) (new trial granted prophylactically based on inappropriate remarks during the prosecutor's closing argument); State v. Kaiser, 486 N.W.2d 384 (Minn. 1992) (new trial granted prophylactically based on discovery violations).

But Van Wagner, Salitros, and Kaiser were decided under the supreme court's "power to supervise the trial courts." Salitros, 499 N.W.2d at 820. As an intermediate appellate court, we have declined to exercise the supervisory powers reserved to the supreme court. State v. Gilmartin, 535 N.W.2d 650, 653 (Minn. App. 1995), review denied (Minn. Sept. 20, 1995). Accordingly, to show entitlement to relief in this court, appellant must demonstrate prejudice.

We agree with appellant that there was substantial misconduct in the search and seizure, comments to the media, instructions to a witness not to cooperate, and failure to provide discoverable information. The entire episode presents a dismal portrayal of our traditional regard for the rule of law. Nonetheless, appellant concedes that she was not prejudiced by the misconduct. The illegal search was remedied by suppression of the seized evidence. Absent a claim of prejudice by appellant, and lacking authority to supervise the trial courts, there is little effective relief this court can give appellant. We therefore affirm the district court's denial of her motions for new trial or dismissal and judgment of acquittal.

Affirmed.