Terri Ann Ristow, et al., Respondents, vs. Catherine O'Brien Hewitt, Appellant.

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This opinion will be unpublished and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
C7-97-1686

State of Minnesota,
Respondent,

vs.

Raymond Leon Semler,
Appellant.

Filed July 28, 1998
Affirmed
Schumacher, Judge

Crow Wing County District Court
File No. K1961530

Hubert H. Humphrey III, Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Donald F. Ryan, Crow Wing County Attorney, Lower Level, County Service Building, 322 Laurel Street, Brainerd, MN 56401 (for respondent)

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N

SCHUMACHER, Judge

Appellant Raymond Leon Semler argues that he is entitled to a new trial as a result of the state's discovery violations and that the trial court abused its discretion by ordering him to submit to polygraph examinations at his own expense as a condition of probation. We affirm.

FACTS

On July 25, 1996, M.N. was biking up a hill when she noticed a blue truck pass her in the opposite direction. As M.N. started her descent, the truck began circling her and then appeared to drive away. When M.N. reached the bottom of the hill, she noticed a man standing in the middle of the road whom she later identified as the driver of the truck. She tried to swerve around him, but he stepped in front of her and pulled her off the bike. The man put his arm around her waist and grabbed her breast.

Seconds later, Michael Strey came riding along on a three-wheeler. When the driver saw Strey, he released M.N. and walked away. M.N. immediately ran up to Strey and told him that she needed help. Strey asked her if she knew the man who attacked her, and she said she did not. Strey said he had known the man from church and identified him as Semler.

When M.N. arrived at the police station, she reported the license plate number of the truck, which was registered to Semler. The next day, M.N. identified Semler from a photographic line-up. Crosby Police Department Investigator Richard Koop then faxed this information to the Crow Wing County court administrator's office because the county attorney's office did not have a fax machine. The county attorney's office never received the fax, however, or any other information pertaining to the photographic line-up.

During opening statements at trial, defense counsel argued that M.N. never identified Semler and was never asked to pick him out of a line-up. On direct examination, M.N. made an in-court identification of Semler as her attacker. On cross-examination, defense counsel questioned M.N. about what occurred at the police station. M.N. indicated that she was asked by Koop to identify her attacker from a photographic line-up. Defense counsel then moved for a mistrial based on the state's failure to disclose M.N.'s pretrial identification. The prosecution was also unaware that M.N. had made a pretrial identification and agreed not use the line-up as evidence.

The trial court denied the motion for a mistrial, finding that the evidence of the photograph line-up was not exculpatory, but rather inculpatory, and that there was enough evidence, apart from the pretrial identification, to identify Semler as M.N.'s attacker. Furthermore, the trial court gave a cautionary instruction that defense counsel drafted.

The jury convicted Semler of criminal sexual assault in the fourth degree and kidnapping. The trial court stayed execution of Semler's prison sentence. As a condition of his probation, the trial court ordered Semler to serve two consecutive one-year jail terms and submit to periodic polygraph examinations at his own expense. Semler appeals his conviction as well as his sentence.

D E C I S I O N

1. Sanctions imposed by the trial court for discovery violations are reviewed under an abuse of discretion standard. State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979). When exercising its discretion, the trial court should consider the following factors: 1) the reason for the failure to disclose; 2) the extent to which the other party was prejudiced; 3) whether it is feasible to remedy the prejudice by a continuance; and 4) any other relevant factors. Id.

The trial court's finding that Semler was not entitled to a new trial was based largely on the fact that the evidence was not exculpatory, but rather inculpatory. While we are affirming the trial court's decision, we want to make it clear that this finding, standing alone, does not decide the issue. Simply because the pretrial identification would have hurt Semler's case and not the state's case is no reason to find that the error was harmless. Minnesota Rules of Criminal Procedure do not limit discovery to exculpatory information. Rather, discovery is required for all material within the prosecutor's possession or control that relates to the case at hand. Minn. R. Crim. P. 9.01, subd. 1.

There is no dispute here that a discovery violation occurred. Ordinarily, a defendant is entitled to a new trial if he was prejudiced by the state's failure to comply with discovery rules. State v. Ramos, 492 N.W.2d 557, 560 (Minn. App. 1992), review denied (Minn. Jan. 15, 1993). In certain circumstances, however, a new trial may be granted without a showing of prejudice. State v. Kaiser, 486 N.W.2d 384, 386 (Minn. 1992). In Kaiser, the court clarified that, in the interest of enforcing open discovery procedures, it has on occasion awarded a new trial even in cases where prejudice was not shown. Id.Kaiser and its progeny, however, all have a common thread: the prosecutor intentionally withheld evidence. Id. at 386-87 (granting new trial where prosecutor, after discovering new details about attack from witness several days before trial, failed to disclose this information to defense counsel, and told witness to "keep her mouth shut.")

In this case, the prosecutor's failure to disclose was unintentional and inadvertent. The reason the pretrial identification was not disclosed to Semler is that the prosecuting attorney was also unaware that an identification had occurred prior to trial. Koop faxed the report regarding the photo identification to the court administrator's office because at the time the county attorney's office did not have one. The prosecuting attorney, however, never received the fax. The fact that the prosecuting attorney was unaware of the pretrial identification weighs heavily in this court's decision not to find an abuse of discretion by the trial court. Ramos, 492 N.W.2d at 560 (upholding trial court's decision to deny new trial, deeming it "significant" that prosecutor was not aware of exculpatory statement.)

The record also contains substantial evidence to support Semler's conviction: the vehicle driven by M.N.'s attacker was registered to Semler; M.N. and Strey were able to positively identify Semler in court; and Strey identified Semler as M.N.'s attacker immediately after the incident occurred. Strey told the police that he and Semler went to the same church and he had known him for approximately 10 years.

Finally, the trial court gave a cautionary instruction in an attempt to cure any possible error resulting from M.N.'s testimony. See Lindsey, 284 N.W.2d at 375 (affirming conviction where trial court gave jury instructions that cured any possible error arising from cross-examination). "A trial judge's * * * careful instructions may be sufficient, in light of all the circumstances, to support a finding of no prejudice." State v.Cox, 322 N.W.2d 555, 559 (Minn. 1982). The trial court here advised the jury to "disregard any testimony by [M.N.] suggesting that there was an attempt to obtain a photographic identification of the defendant, Raymond Leon Semler."

2. Semler also argues that the trial court abused its discretion by ordering him to submit to polygraph examinations at his own expense as a condition of probation. Trial courts are afforded broad discretion in imposing a sentence; we cannot substitute our judgment absent an abuse of discretion. State v. Friberg, 435 N.W.2d 509, 515 (Minn. 1989).

In executing a sentence, a trial court may place a defendant on probation and prescribe terms that include intermediate sanctions. Minn. Stat. § 609.135, subd. 1 (1996). Although ordering a defendant to submit to polygraph testing may not be specifically spelled out in the statute, the wording of the statute indicates that the list of intermediate sanctions is not exhaustive. Id. In fact, this court has approved polygraph testing as a condition of probation. State v. Sejnoha, 512 N.W.2d 597, 601 (Minn. App. 1994) (permitting polygraph examinations during probation to assure avoidance of contact with young persons), review denied (Minn. Apr. 21, 1994). In addition, a sentencing judge is under no obligation to find the defendant has the ability to pay a fine before imposing a sentence. Perkins v. State, 559 N.W.2d 678, 693 (Minn. 1997). Trial courts have the power to impose a fine as part of a sentence and to impose conditions of probation, including, but not limited to, restitution to the victim, surcharges, and the like. Minn. Stat § 609.135, subds. 1, 1(a). The trial court, therefore, was within its discretion to order Semler to submit to regular polygraph examinations at his own expense.

Affirmed.