A05-763

State of Minnesota,

Respondent,

vs.

Larry James Walker,

Appellant.

Filed April 18, 2006

Affirmed

Worke, Judge

Hennepin County District Court

File No. 04056248

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

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

John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Worke, Presiding Judge; Wright, Judge; and Dietzen, Judge.

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

WORKE, Judge

On appeal from a conviction of felon in possession of a firearm and second-degree assault, appellant Larry James Walker argues that the district court abused its discretion in denying his motion for a mistrial after a police officer offered a prejudicial hearsay statement concerning the disposal of the gun. We affirm.

D E C I S I O N

Appellant argues that the district court violated his right to a fair trial by denying his motion for a mistrial. When reviewing a denial of a motion for a mistrial, this court applies an abuse-of-discretion standard. State v. Long, 562 N.W.2d 292, 296 (Minn. 1997). “[T]he [district] court is in the best position to determine whether any harm has resulted from the particular violation and the extent to which this harm can be eliminated or otherwise alleviated.” State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979). “In exercising this discretion the [district court] should take into account: (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.” Id. Here, appellant moved for a mistrial after objecting to testimony by a police officer that a neighbor “directed [him] to the location where [appellant] had threw [sic] the gun,” as being hearsay. The statements had not been disclosed prior to trial or contained in the police reports. The district court ruled that the testimony was inadmissible hearsay and instructed the jury to disregard the evidence. The district court denied appellant’s motion for a mistrial.

Appellant is not entitled to relief. First, there was no prosecutorial misconduct. While prosecutors should be aware of the testimony their witnesses intend to present, there is no evidence that the prosecutor here knew that the statements which the officer testified to had been made. Second, the officer’s testimony did not prejudice appellant. After an objection was made, the evidence was suppressed, and the jury was directed to disregard the testimony. Third, a continuance was not requested by appellant’s trial counsel. Rather, appellant chose to move forward with a curative instruction from the district court. Finally, two other witnesses who were at the scene also testified that appellant had a gun. Based on these reasons, the district court did not abuse its discretion in denying appellant’s motion for a mistrial.

Affirmed.