IN COURT OF APPEALS

CX-99-2125

State of Minnesota,

Respondent,

vs.

Christopher James Dawson,

Appellant.

Filed September 19, 2000

Affirmed

Shumaker, Judge

Hennepin County District Court

File No. 98096955

Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103-2106; and

Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Mark F. Anderson, Assistant Public Defender, 2829 University Avenue S.E., No. 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Shumaker, Judge, and Anderson, Judge.

U N P U B L I S H E D O P I N I O N

SHUMAKER, Judge

After his assault conviction, appellant moved for a new trial on grounds that the prosecutor failed to disclose favorable evidence and that newly discovered evidence supported an acquittal. The trial court denied the motion and appellant challenges the denial. We affirm.

FACTS

Daniel Hurlbert was physically assaulted at a bar on August 21, 1998. Appellant Christopher Dawson was tried for the assault. Dawson's defense was that his father committed the crime.

In a bench trial, Hurlbert testified that he and his friend were playing a video game when two men came into the room and began to shoot pool at an adjacent table. As Hurlbert stood near the video machine, one of the pool players jabbed him with his pool cue from time to time. That prompted Hurlbert to state to his friend that if the player jabbed him with his cue again, he would "stuff it up his ass."

After this remark, Hurlbert went into the restroom. One of the pool players followed him in. The player said he had heard Hurlbert's comment and wondered if there was a problem. Hurlbert said there was none, and the man left. The second pool player then came in and swore at Hurlbert. As Hurlbert turned toward him, the man thrust a glass into his face, seriously injuring Hurlbert's eye.

Hurlbert testified that he was not able to identify either man with certainty. He acknowledged making a statement to the police two weeks after the incident in which he described his assailant as the older of the two men, "more toward his late 30’s," with light brown hair and a receding hair line.

Three bar patrons who were sitting in a booth near the pool tables testified. Lisa Morrissette saw Dawson playing pool by himself. She heard an unfriendly exchange of words between Dawson and a man near the video game. She saw the pool player gesture to someone near the bar as if to indicate that the player was having a problem with someone. At one point she noticed Dawson come out of the restroom, shoot the rest of the balls on the pool table, and leave the bar. A few minutes later, she saw Hurlbert come out of the restroom, bleeding.

Jason Howard heard someone talking about moving out of the way so that a pool player could take a shot. He noticed that Dawson was playing pool and that, at one point, he saw two men come out of the restroom. One was Dawson, who shot the pool balls very hard, threw the cue down, and left. Howard then saw Hurlbert come out of the restroom with his hands over his face and blood streaming through his fingers.

Stacy Gables testified that Dawson was shooting pool. At one point, she saw Dawson come out of the restroom, shoot the pool balls hard, and leave. Then she saw Hurlbert, covered with blood, come out of the restroom.

An investigating Hopkins police officer testified that he showed photo displays to Hurlbert, Howard, and Morrissette on two occasions. One display contained Dawson's photograph. Everyone identified Dawson as being a person who came out of the restroom before Hurlbert. The other display contained Dawson's father's photograph. No one recognized the father.

The officer testified that he interviewed Dawson, who admitted that he had had words with Hurlbert and followed him into the restroom. Dawson then left the restroom and said Scott Nelson entered. Nelson then came out and said to Dawson, "Let's go."

Suzanne Clifford, a woman Dawson had dated, testified. Dawson was supposed to meet her on the night of this incident to pay some money he owed her. He did not appear and did not call her. He called her the next day and said that he had gotten into an altercation with a man at a bar. He said he followed the man into the restroom, broke his beer glass, and shoved it into the man's face. Dawson indicated that he was accompanied by another person but did not say the person was his father.

Dawson testified in his own defense. He stated that he and his father went to the bar. He played pool alone while his father stayed in the bar area. He testified that Hurlbert was very intoxicated and was stumbling around. When Hurlbert went into the restroom, Dawson followed and spoke to him but did not touch him. As Dawson was leaving the restroom, his father walked in. Dawson left. His father came out and said, "Let's go." Outside, according to Dawson, his father said, "I messed that guy up bad * * * . The glass slipped out of my hand." Dawson testified that he told Suzanne Clifford that he was the assailant because he wanted to show off. He testified that he told the police that Scott Nelson was the person with him because he wanted to divert attention from himself.

Finally, Dawson's mother testified that Dawson told her about the fight but denied the assault. His mother guessed that her former husband, Dawson's father, was the assailant. She testified that she spoke with Dawson's father, who ranted, raved, and cried and said that Dawson would "only get about a year and I would get several years."

At the end of the trial, the court found Dawson guilty of Assault in the First Degree. Several days later, the prosecutor produced a police report that had been prepared during the investigation but not previously disclosed to the defense. The report summarized the investigator’s interview of Dawson's father, who said he could hear an exchange of words between Dawson and Hurlbert. The report stated that the father

denies going to the bathroom area, but stated that his son, Christopher, had gone into the bathroom area and he was in there only a very short time.

Dawson moved for a new trial because of the prosecutor's failure to produce the report, and because of newly discovered evidence, consisting of his father’s admissions. He supported his motion with two affidavits by his father. In the first affidavit, the father admitted going into the restroom after Dawson went in, but stated that, when he left, Hurlbert was "standing at the urinal and was suffering from no physical harm." In the second affidavit, the father admitted exchanging words with Hurlbert in the bathroom and throwing his drink in Hurlbert's face. Because the glass was wet, it left his hand and hit Hurlbert in the face.

Dawson also offered an affidavit from his father's mother. She stated that the father told her that "he had carried a glass into the restroom with him and had smashed the glass into the sink area." She also stated that she had previously talked to Dawson's attorney about her knowledge of the case.

The court denied Dawson's motion and imposed the presumptive executed sentence of 122 months. Dawson appealed.

D E C I S I O N

The trial court ruled that the undisclosed police report had not been intentionally withheld and that it was not exculpatory. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963), held that a prosecutor violates due process by withholding evidence favorable to the accused if the evidence is material to guilt or punishment. Minnesota has codified that principle, requiring the disclosure of evidence "that tends to negate or reduce the guilt of the accused as to the offense charged." Minn. R. Crim. P. 9.01, subd. 1(b).

Dawson's defense was that his father committed the assault. The undisclosed statement does not implicate Dawson's father. Rather, it contains the father's clear denial that he ever went into the restroom. The statement was not favorable to Dawson nor did it tend to negate or reduce his guilt.

Dawson argues that the statement might have been useful in cross‑examination and, thus, must be considered as favorable evidence. See United States v. Bagley, 473 U.S. 667, 678, 105 S. Ct. 3375, 3381 (1985) (holding that nondisclosure of evidence is unconstitutional “only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial.”). Dawson suggests that the statement could have been used to discredit the police investigation of the case. At best, the statement shows that Dawson's father was at the bar. That fact was already established through Dawson's testimony. Although the report provided some corroboration, the dispositive issue concerned the identity of the assailant in the restroom. The statement added nothing to that inquiry. Although the better practice is for prosecutors to be scrupulous about disclosing evidence that might be helpful to the defense, this case does not warrant the grant of a new trial for nondisclosure.

Dawson argues also that the newly discovered admission of his father's culpability warrants a new trial. Two of the requirements for a retrial on newly discovered evidence are (1) neither the accused nor his attorney knew of the evidence at the time of trial, and (2) the accused's failure to learn of the evidence was not due to lack of diligence. State v. Warren, 592 N.W.2d 440, 450 (Minn. 1999).

Dawson knew of his father's alleged involvement in the assault before trial. In her opening statement, Dawson's attorney referred to inculpatory statements by Dawson's father. And Dawson himself testified that his father admitted cutting Hurlbert with a glass. The so-called newly discovered evidence was in existence and known to Dawson from the outset. He cannot now rely on it to obtain a new trial.

Finally, in his pro se supplemental brief, consisting of a letter to his attorney, Dawson seeks to preserve for consideration on appeal a litany of constitutional and procedural issues. He makes no specific factual or legal argument as to any of the issues. We will not consider issues not briefed and argued on appeal. State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997).

Affirmed.