Opinion
No. C1-99-2000.
Filed September 12, 2000.
Appeal from the District Court, Ramsey County, File No. K991320.
Mike Hatch, Attorney General, (for respondent)
Susan E. Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, D. Adrian Bryan, Special Assistant Public Defender, (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Richard Ice appeals from conviction of a first-degree controlled-substance crime. Ice argues that the district court erred by denying his motion for a continuance based on the prosecution's delayed disclosure of a witness and by instructing the jury that they should draw no inference from his decision not to testify. Because we find no reversible error, we affirm.
FACTS
St. Paul police seized 72.8 grams of methamphetamine from Richard Ice's car in a search that stemmed from a traffic stop. The state charged Ice with possession with intent to sell methamphetamine, a first-degree controlled-substance crime under Minn. Stat. §§ 152.01, subd. 15, 152.021, subd. 1(1) (1998). The state disclosed its witness list to Ice on June 2, 1999, and the court conducted an omnibus hearing on June 14. At a June 30 trial-management conference, the district court directed the parties to disclose all witnesses by July 7.
During pretrial motions on July 12, the court granted the prosecutor's request to call police officer Janet Dunnom, a previously undisclosed witness. The prosecution requested that Dunnom be allowed to testify as an expert on how methamphetamine is packaged for sale. The district court denied Ice's motion to exclude Dunnom's testimony as an impermissibly late disclosure. The court also denied Ice's request for a continuance to locate an expert to counter Dunnom's testimony.
At trial, Dunnom testified that the methamphetamine was packaged in "street level amounts" of one ounce, 1/2 ounce, 1/4 ounce, and 1/8 ounce, also known as an 8-ball. She testified that this was the way that methamphetamine was customarily packaged and distributed and, that in her opinion, 72.8 grams was a dealer amount, not a user amount. Ice did not testify or call any witnesses in his defense.
The court's final instructions to the jury included CRIMJIG 3.17, which instructs the jury to draw no inference from the defendant's failure to testify. Both parties acknowledge that Ice asked that the instruction not be read and that it was mistakenly included as part of the jury's final instructions.
The jury found Ice guilty of possession with intent to sell methamphetamine, and Ice appeals, challenging the court's (1) denial of his request for a continuance to prepare a response to Dunnom's testimony and (2) instruction on drawing no inference from Ice's decision not to testify.
DECISION I
Minnesota Rule of Criminal Procedure 9.01 requires prosecutors to disclose to a defendant prior to the omnibus hearing the witnesses that the state intends to call. Minn.R.Crim.P. 9.01, subd. 1(1)(a). The prosecution's failure to disclose until the day prior to trial its intention to call Dunnom as a witness violated rule 9.01. But district courts exercise broad discretion in procedural rulings, including whether to impose sanctions for violations of discovery rules. State v. Patterson, 587 N.W.2d 45, 50 (Minn. 1998); State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979). This court will not disturb a district court's ruling absent a clear abuse of that discretion. Lindsey, 284 N.W.2d at 373. When determining whether and what sanctions are appropriate, the district court should consider (1) the reason disclosure was not made; (2) the extent of prejudice to the opposing party; (3) the feasibility of rectifying that prejudice with a continuance; and (4) any other relevant factors. Id.
The district court did not abuse its discretion by concluding that the delayed disclosure of Dunnom's testimony did not require a continuance. The court recognized that the reason for the delayed disclosure was that the prosecutor did not realize a need for Dunnom's testimony until July 7, when Ice requested an instruction on possession of methamphetamine, a lesser-included offense. The court also reasoned that Ice was not prejudiced because in many cases the arresting officer would be expected to testify to the manner in which methamphetamine is packaged for street sales. See State v. Freeman, 531 N.W.2d 190, 198 (Minn. 1995) (explaining that objective of pretrial discovery is to avoid surprise). The court emphasized that Ice's attorney would have the opportunity to cross-examine Dunnom in the same manner that he would have been able to cross-examine an arresting officer who provided similar expert testimony. Finding good cause for the delayed disclosure and no prejudice to Ice, the district court properly allowed Dunnom's testimony.
Even if the district court's refusal to grant a continuance could be considered an abuse of discretion, the error was harmless beyond a reasonable doubt. See Freeman, 531 at 198 (applying harmless-error standard of review to discovery violation). Ice argues that timely disclosure or a continuance would have allowed him to find an expert to counter Dunnom's testimony on how methamphetamine is packaged for sale and that 72.8 grams is a dealer rather than a user amount. But Ice gave no indication that there is such an expert, or what that expert would say. Ice's attorney competently cross-examined Dunnom, and there is no reasonable probability that the result of the trial would have been different if the court had granted Ice's request for a continuance.
II
The district court generally should not instruct on CRIMJIG 3.17 (no-inference instruction) unless the defendant requests the instruction. State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988). Ice initially requested the instruction in his written proposed jury instructions, but later changed his mind and orally requested that the instruction not be read. Although the district court's including CRIMJIG 3.17 in the jury's final instructions was apparently inadvertent, the court nonetheless erred by giving the no-inference instruction.
Erroneous no-inference instructions are subject to harmless-error review to determine whether a defendant is entitled to a new trial. See Thompson, 430 N.W.2d at 153 (approving court of appeals' conclusion that any error in giving no-inference instruction did not affect verdict); see also State v. Shoop, 441 N.W.2d 475, 480 (Minn. 1989) (applying harmless-error analysis to trial court's erroneous refusal to instruct on accomplice testimony); State v. Sandve, 279 Minn. 229, 234, 156 N.W.2d 230, 234 (1968) (applying harmless-error analysis to adverse-inference instruction). Under the harmless-error analysis, a new trial is required if an error is prejudicial but is not required if the error is harmless. Shoop, 441 N.W.2d at 480-81.
In Ice's trial, the no-inference instruction was harmless. The instruction did not unduly focus the jury's attention on Ice's failure to testify because the jury had already heard Ice's version of events through a tape-recorded interview offered by the state. The jury could reasonably have concluded that there was no need for Ice to testify and repeat the contents of the tape. Taking into account the tape-recorded testimony, we conclude that the court's error in giving the no-inference instruction was harmless.