Richard Allen Lory, petitioner, Appellant, vs. State of Minnesota, Respondent.

 STATE OF MINNESOTA
 IN COURT OF APPEALS
 C9-98-906

Richard Allen Lory, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 Filed November 10, 1998
Affirmed
Short, Judge,
Concurring Specially, Randall, Judge

Beltrami County District Court
File No. KX931198, K1931199

John G. Westrick, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101,

Charles Amdahl, 119 North Fourth Street, Suite 206, Minneapolis, MN 55401, and

Robert D. Miller, Robert D. Miller & Associates, 101 Whitney Square Building, 210 North Second Street, Minneapolis, MN 55401 (for appellant)

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

Timothy R. Faver, Beltrami County Attorney, 207 Fourth Street, N.W., Bemidji, MN 56601 (for respondent)

Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Short, Judge.

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

 SHORT, Judge

Richard Allen Lory was tried three times for shooting and killing Bruce Bradach, Jr., and was ultimately convicted of murder in the second degree. Officer Ron Peterson served as a rebuttal witness for the state in Lory's third trial and impeached Heather Lory's statement that police coerced previous testimony. However, the prosecution failed to disclose that the Beltrami County Sheriff suspended Peterson four days before his testimony pending an investigation of improper use of law enforcement resources. On appeal from a denial of postconviction relief, Lory argues the postconviction court erred in: (1) finding the state's failure to disclose Peterson's suspension to be immaterial; and (2) determining Peterson's testimony was not "false." We affirm.

 D E C I S I O N

In reviewing the order of a postconviction court, our function is to determine whether the record sustains the findings and whether the decision constitutes an abuse of discretion. Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997). In postconviction proceedings, the defendant bears the burden of establishing the facts by a preponderance of the evidence. Minn. Stat. § 590.04, subd. 3 (1996); State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994).

I.

Lory argues the state's suppression of Peterson's suspension violated his due process rights and thus the postconviction court abused its discretion in denying Lory a new trial. See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963) (mandating disclosure of all material evidence before trial); see also State v. Hathaway, 379 N.W.2d 498, 506-07 (Minn. 1985) (noting Minn. R. Crim. P. 9.01, subd. 1(6) "provides for the disclosure of * * * exculpatory material before trial, in accordance with * * * Brady"). However, failure to disclose evidence favorable to an accused violates due process rights only when the evidence is material to guilt or punishment. Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97; see also Kyles v. Whitley, 514 U.S. 419, 434-35, 115 S. Ct. 1555, 1566 (1995) (concluding question of materiality is whether, in absence of evidence, defendant received verdict worthy of confidence).

In this case, disclosure of Peterson's suspension and pending charges of misdemeanor theft would have assisted the defense in discrediting him as a rebuttal witness. See Minn. R. Evid. 608(b) (permitting use of specific instances of conduct during cross-examination if probative of untruthfulness); see also State v. Clark, 296 N.W.2d 359, 368 (Minn. 1980) (characterizing auto theft as crime of dishonesty admissible under Minn. R. Evid. 608(b)); State v. Volk, 421 N.W.2d 360, 363 (Minn. App. 1988) (holding forgery relevant to veracity and admissible for impeachment purposes under Minn. R. Evid. 608(b)), review denied (Minn. May 18, 1988). However, Peterson's testimony comprised only a fraction of the evidence linking Lory to the murder of Bradach, Jr. See State v. Clobes, 422 N.W.2d 252, 255 (Minn. 1988) (concluding requested disclosure may have helped impeach witness about past steroid use but would not have caused jury to reject testimony about assault).

Other evidence supporting Lory's conviction includes: (1) Bradach, Sr. also witnessed Lory shoot and kill Bradach, Jr.; (2) tests traced lead and slugs found after the incident to Lory's gun; (3) after the incident, Lory admitted to police he fired his gun at a man walking toward him at the Bradach residence; and (4) although Lory claimed he shot Bradach, Jr. in self-defense, no evidence indicates his actions were in proportion to Bradach, Jr.'s alleged impending assault. Furthermore, Heather Lory's sexual assault advocate corroborated Peterson's testimony that he did not force Heather into previous admissions. See, e.g., Kopycinski v. Scott, 64 F.3d 223, 226 (5th Cir. 1995) (stating witness's testimony essentially unimpeachable, despite withheld information, because of strong corroborating evidence). Under these circumstances, the state's failure to notify Lory of Peterson's suspension would not have altered the outcome of his trial. See United States v. Agurs, 427 U.S. 97, 112, 96 S. Ct. 2392, 2401 (1976) (holding verdict not set aside if nondisclosure did not influence jury or had only slight effect). Thus, although the state acted unprofessionally in failing to honor Lory's Brady request by withholding Peterson's suspension, the postconviction court did not abuse its discretion in denying relief on this ground.

II.

Lory also argues the state's knowing failure to correct Peterson's false testimony that he was an experienced peace officer at the time of trial violated Lory's due process rights. See, e.g., Miller v. Pate, 386 U.S. 1, 6-7, 87 S. Ct. 785, 787-88 (1967) (holding prosecution's deliberate misrepresentation of truth violated Fourteenth Amendment). However, evidence of false testimony is only a ground for a new trial when: (1) the court is reasonably well satisfied the testimony given by a material witness is false; (2) without it the jury might have reached a different conclusion; and (3) defendant did not know of the testimony's falsity at the time of trial. State v. Caldwell, 322 N.W.2d 574, 584-85 (Minn. 1982) (quoting Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928)) (emphasis in original). Here, Peterson was suspended, not terminated, from the Beltrami Sheriff's Department at the time of trial and thus was still, as represented, a peace officer when he testified. Moreover, even if Peterson created a false impression, the trial did not turn on the veracity of his testimony. See, e.g., Dye v. State, 411 N.W.2d 897, 900 (Minn. App. 1987) (upholding postconviction court's decision because false or inconsistent evidence did not override evidence of defendant's guilt), review denied (Minn. Oct. 28, 1987). Therefore, the postconviction court did not abuse its discretion in denying Lory a new trial on this ground. Because we affirm the postconviction court's denial of relief, we need not reach the state's procedural argument.

Affirmed.

 RANDALL, Judge (concurring specially).

I concur in the result. Like the trial court, I see the prosecution's failure to disclose as clear error, unprofessional conduct, but simply falling short, on the totality of the circumstances, of being reversible error.

In its memorandum, the trial court listed the state's argument as to why the failure to disclose was not error. The state asserted that it had no obligation to inform the defense about Peterson's suspension because Peterson was merely a rebuttal witness and not one the state "intended" to call at trial. The state then claims that the suspension of Peterson could not be considered material exculpatory evidence.

As to those arguments of the state, the trial court found as follows:

It is clear, especially when considering that the State called Peterson to testify in the two prior trials and there was actual disclosure of Peterson to the defense as a possible witness, that the State intended to call him as a witness, albeit a rebuttal witness. This Court finds that Peterson's role as a rebuttal witness, does not relieve the State of its disclosure obligations under Brady. Evidence affecting credibility and impeachment evidence comes within the scope of Brady. Giglio v. United States, 92 S. Ct. 763, 766 (1972).

The State's narrow interpretation of their disclosure obligations appears to thwart the very purpose of the discovery rules. "The rules are intended to give the defendant and prosecution as complete discovery as is possible under constitutional limitations."

(Emphasis added) (quoting Minn. R. Crim. P. 9.01 cmt).

The trial court further found:

It is likely that information concerning Peterson's suspension would have assisted the Defense. However, the burden placed on a defendant seeking post-conviction relief is far greater.

In the instant matter, Defendant has failed to show that if Peterson's suspension had been disclosed, there is a reasonable probability that the outcome of the proceeding would have been different. The magnitude of Peterson's suspension and its impeachment value is seriously eroded by the presence of another witness that corroborates Peterson's testimony. While the State's failure to disclose Peterson's suspension may be regrettable it has not undermined this Court's confidence in the outcome of the Defendant's last trial.

I agree with the trial court's analysis. The disclosure of Peterson's suspension to the defense would have been proper, was ethically called for, and would have assisted the defense. The state erred, but the error fell just short of reversible error.

The state argued in its brief that the fact of Officer Peterson's suspension had no bearing on his ability to testify and, therefore, not only was the error, if any, harmless error, there was not error at all in the failure to disclose. I strongly disagree with that

analysis. When a defendant has criminal convictions or is subject to Spreigl evidence, defense attorneys would love the argument,

Your Honor, neither the Spreigl evidence nor the felony convictions of record should come into the trial because they are all about past acts and, thus, they have no bearing on the case at hand.

The response of the prosecution, which state and federal courts generally tend to accept, is that the jury is entitled to see a defendant's past in order to judge whether he can tell the truth about the present. Spreigl evidence is never limited to past crimes. In fact, Spreigl is not even limited to bad conduct that could have been charged criminally and was not; it can include any "bad conduct."

In this case, the fact that Peterson was only suspended on a pending charge of misdemeanor theft is not the issue. The defense attorney was not claiming that the charge was the same as a conviction, nor was the defense attorney arguing that a conviction for misdemeanor theft was as admissible as felony theft. Rather, the defense, as the majority opinion properly points out, was correctly arguing that Minn. R. Evid. 608(b) does not require any conviction and is an exception to Minn. R. Evid. 609, which the majority cites. Rule 608(b) states simply that in the discretion of the trial judge, conduct of a witness can be brought out if it is probative of truthfulness or untruthfulness.

The defense had made a specific written request of the county attorney to provide to the defense "any past instances of misconduct or traits which reflect adversely upon the character of any witness the state intends to call at trial." The county attorney knew of investigator Ron Peterson's suspension from duty for theft of county property and other improper conduct three days before trial. At oral argument, the state claimed the county attorney "only learned of it" three days before trial. Taking the government at its word, that means the county attorney had three days to contact the judge and the defense attorney in person or by telephone to advise them. The county attorney could well have moved in chambers on the day of the trial to keep that information from going to the jury and could have made all of its arguments that it was only a suspension, not a guilty verdict, and that it was only for a misdemeanor at worst, and so on and so forth. Conceivably, a trial judge might have kept it from the jury, but very conceivably a trial judge might have found that Officer Peterson's acts were indicative of untruthfulness and could have allowed the defense some limited cross- examination under Rule 608(b). The point is, the trial judge never had the chance to rule. The prosecuting attorney failed to disclose.

Any peace officer, deputy sheriff, policeman, state highway trooper, etc. is clothed with instant credibility the minute he takes the stand. The minute he tells the jury "my name is Officer , and I have been a police officer/county sheriff/ Minnesota highway trooper for years," a common-sense lay jury immediately gives that witness a certain amount of credibility that Joe or Jane Doe subpoenaed off the street as witness to a crime does not have. We are a people, we are a community, we are a state that has legitimate concerns about crime and public safety, has legitimate desires for safe streets and safe playgrounds. We look up to police officers because that is precisely the job they are sworn to do, i.e., help keep our homes, our streets, our schools, and our playgrounds safe

Thus, when Officer Peterson took the stand and testified under oath that he was an investigator with the Beltrami County Sheriff's Department, the state took advantage of that instant credibility. It would have been perfectly appropriate for the trial court to allow the defense attorney on cross-examination to start his cross with this question:

Officer Peterson, you have testified before this jury that you are a licensed peace officer with Beltrami County and have been for a certain length of time. You were just suspended from duty on charges of theft of public property and other conduct unbecoming to a police officer, isn't that true?

In other words, the state cannot have it both ways. They cannot put a police officer on the stand and take advantage of that instant credibility without risking legitimate cross-examination on that very issue. The state has now "opened the door." And opening the door is one of the oldest rules of evidence and trumps just about everything else. Witness the harsh penalties visited by the United States Supreme Court on criminal defendants when it decreed with finality that if a defendant took the stand and testified on his own behalf, all prior inconsistent statements, previously suppressed from admission because the taking violated the defendant's constitutional rights, can now come into evidence to impeach the defendant on any inconsistent statement. See Mincey v. Arizona, 437 U.S. 385, 397-98, 98 S. Ct. 2408, 2416 (1978) ("statements made by a defendant in circumstances violating the strictures of Miranda * * * are admissible for impeachment if their 'trustworthiness * * * satisfies legal standards.'" (quoting Harris v. New York, 401 U.S. 222, 224, 91 S. Ct. 643, 645 (1971))).

I do not state that the trial judge would have had to allow the defense attorney to use that question on cross-examination. I do state that it would have been well within trial court discretion and Minn. R. Evid. 608(b) to allow it. That opportunity was denied this defendant and his attorney by the state's nondisclosure.

I agree with the majority on the result and the analysis that there was error, but not reversible error. I concur specially to point out that I give no credence to the state's alternative argument that it was not error at all.