may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Adam Michael Sasse,
Filed May 4, 1999
Reversed and remanded
Kandiyohi County District Court
File No. K59874
Boyd Beccue, Kandiyohi County Attorney, 316 Southwest Fourth Street, Willmar, MN 56201 (for respondent)
John E. Mack, Mack & Daby, PLLP, 26 Main Street, P.O. Box 302, New London, MN 56273 (for appellant)
Considered and decided by Anderson, Presiding Judge, Crippen, Judge, and Amundson, Judge.
Adam Sasse appeals from a pretrial order, arguing that the trial court erred by precluding the testimony of defense witness Dennis Murphy as a sanction for failure to disclose the witness prior to trial, as required by Minn. R. Crim. P. 9.02. Because evidence has surfaced showing that this witness was disclosed prior to trial, we reverse and remand for further consideration.
On May 1, 1998, a pretrial conference was held. Ralph Daby appeared on behalf of Sasse, and Connie Crowell appeared on behalf of the state. The trial judge inquired as to whether more than one day would be needed for the trial. In response, Daby stated:
I -- don't think so. I think the only witnesses that we would have that I am aware of right now is we would probably call the Buboltz's son, and the father, and our investigator Dennis Murphy, and Mr. Sasse, would be our only witnesses * * *.
On June 1, 1998, the matter came on for trial, with Crowell representing the state and John Mack (Daby's partner) representing Sasse. Prior to trial, a pretrial hearing was held, at which time the state objected to any testimony by Dennis Murphy on the grounds that the defense had failed to disclose him as a witness pursuant to the dictates of Minn. R. Crim. P. 9.02. In opposing the objection, Mack, who had not been at the pretrial conference and was unaware of all its nuances, did not inform the district court that Murphy had been previously disclosed on the record at the pretrial conference.
The trial court held that the defense's failure to disclose the witness prior to trial was contrary to the spirit of Rule 9.02 and precluded Murphy's testimony. The jury convicted Sasse of first degree burglary. Thereafter, Sasse brought a motion for a new trial, arguing the witness preclusion was in error. The trial court denied the motion and this appeal followed.
Notwithstanding the broad discretion allowed trial courts in imposing sanctions for discovery violations, "[p]reclusion of evidence is a severe sanction which should not be lightly invoked." Id. at 374 (citations omitted); see also State v. Rasinski, 472 N.W.2d 645, 649 (Minn. 1991) (condoning preclusion of a witness "only in extreme cases of violation of discovery rules * * * where prejudice * * * cannot be cured by any other means"). In exercising its discretion the trial court should take the following factors into consideration:
(1) the reason why disclosure was not made; (2) the extent of prejudice to the opposing party; (3) the feasibility of rectifying that prejudice by a continuance; and (4) any other relevant factors.
Lindsay, 284 N.W.2d at 373; See also State v. Patterson, (C8-97-1759) 587 N.W.2d 45, 52 (Minn. 1998) (recent supreme court case reiterating importance of four factors). Unfortunately, in ruling on the admissibility of Murphy's testimony, the trial court could not even consider the reason disclosure was not made because it was unaware at the time that disclosure had been made.
At both the time the trial court was presented with the state's objection to Murphy's testimony and at the time of the post trial motions alleging error in the preclusion of the testimony, it is clear that the court was unaware of the disclosure that was made on the record at the pretrial conference. It is clear that the prosecution also failed to recall this disclosure. No doubt Mack was unaware of Daby's comments at the pretrial conference, having failed to assert that those statements constituted his disclosure in response to the state's objection.
Indeed, this case serves to illustrate how important written disclosure is, not only to opposing counsel, but often to the trial judge and defense counsel as well. Nevertheless, Minn. R. Crim. P. 9.02 does not require written disclosure and it appears that Sasse did disclose his intent to call Murphy as a defense witness prior to trial. This disclosure was not ideal. However, there is an important constitutional right at stake in this matter, the right of a criminal defendant to call witnesses on his or her behalf. We necessarily closely scrutinize the preclusion of this witness. See Minn. Const. art. I, § 6 (setting forth right of accused to call witnesses in criminal proceedings).
In ruling on the state's objection to Murphy's testimony at the pretrial hearing, the court commented that
the discovery rules exist for the sole purpose of requiring that both parties have knowledge of what the other side will be providing at trial. The purpose of this is to eliminate surprise and allow the proper administration of justice.
In the spirit of that rule the Court finds that the failure to disclose this witness * * * which is specifically required, is error and the Court, therefore, will not allow Dennis Murphy to be called as a witness during the course of the trial, and I say that with my apologies to all the parties.
It is obvious that in making its well-reasoned and careful decision, the trial court was unaware of the witness disclosure that occurred in this matter. Defense counsel should have brought this to the court's attention. We do not deem it reasonable to punish a criminal defendant for his counsel's serious oversight in this matter. Because the trial court did not have this crucial information brought to its attention at the time of its evidentiary ruling or at the time of Sasse's post trial motion, we believe this matter must be reversed and remanded to the trial court for further consideration in light of the evidence indicating that disclosure of the witness was made prior to trial.
Reversed and remanded.
 Although the trial court judge was in attendance at the relevant pretrial conference, we are aware of the large criminal case load facing trial courts and believe it impossible for a trial judge, even as able as here, to recall every disclosure and every comment made on the record at a pretrial conference.