In Re the Marriage of: Susan Jean Klang, petitioner, Respondent, vs. Gary Richard Klang, Appellant.

 STATE OF MINNESOTA
IN COURT OF APPEALS
C4-99-516

State of Minnesota,
Respondent,

vs.

John Robert Rooney,
Appellant.

 Filed December 14, 1999
 Affirmed
 Peterson, Judge

Stearns County District Court
File No. KX983477

Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Roger Van Heel, Stearns County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN 56303-4773 (for respondent)

Gary R. Leistico, Rinke-Noonan, Suite 700, Norwest Center, P.O. Box 1497, St. Cloud, MN 56302 (for appellant)

Considered and decided by Amundson, Presiding Judge, Lansing, Judge, and Peterson, Judge.

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

 PETERSON, Judge

John Robert Rooney appeals from his first-degree criminal sexual conduct conviction, arguing that the trial court erred by excluding the testimony of alibi witnesses because the defense failed to provide pretrial notice of the alibi defense. We affirm.

 FACTS

Rooney was charged by complaint with one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (1998) (sexual penetration with complainant under age 13 when actor is more than 36 months older than complainant). The complaint alleged that Rooney repeatedly engaged in sexual penetration with his daughter, R.B. However, R.B. was only able to identify one specific date when penetration occurred, the Saturday before Labor Day 1998, which was September 5, 1998.

Before trial, pursuant to Minn. R. Crim. P. 9.02, subd. 1(3), Rooney's attorney notified the prosecution that the defense may rely on the following defenses at trial: mental illness, mental deficiency, duress, alibi, denial, and intoxication. The notice also stated that the defense intended to call as witnesses at trial all witnesses listed by the state and Tammy Rooney, Todd Rooney, Jeff Rosenberg, Bobby Ehrlichman, Ed Ehrlichman, Debbie Ehrlichman, Kim Bercheid, and Dave Hegman. With respect to the alibi defense, the notice stated:

The Defendant currently intends to call the witnesses set forth * * * above to support his contention that he was at the following place when the offense occurred: Alibi re: Saturday before Labor Day, Defendant, Julie Rooney, & at least 2 other adults were present at the home.

Rooney's attorney also provided the prosecution with handwritten notes from the defense's interviews of Edward Ehrlichman, Debbie Ehrlichman, Robert Ehrlichman, Todd Rooney, Tammy Rooney, Darlene Rooney, Mary Rooney, and Jacinta Rooney.

On the third day of trial, the defense called Robert Ehrlichman, who was asked by Rooney's attorney on direct examination, "[W]hat were you doing on the Saturday * * * before Labor Day, this last fall?" The prosecution objected to this line of questioning, arguing that although Rooney's attorney had provided it with formal notice of an alibi defense, that notice did not indicate that the defense intended to argue that on the Saturday before Labor Day, Rooney was away from his house working and with friends at a local bar.

Rooney's attorney argued that the notes from her interviews with Edward Ehrlichman, Robert Ehrlichman, Darlene Rooney, Mary Rooney, and Jacinta Rooney were sufficient to notify the prosecution that the defense intended to argue that on the Saturday before Labor Day, Rooney spent time away from his house, working and drinking with friends at a local bar. The trial court asked Rooney's attorney why she had provided the prosecution with the specific alibi regarding Julie Rooney and two other adults being home all day. Rooney's attorney responded that that was what her client disclosed at that time. The trial court ruled that the defense was limited to calling witnesses for the purpose of establishing the alibi defense that was disclosed before trial.

The next day, the court explained that in its ruling regarding the alibi witnesses, it did not preclude the defense from calling the three adults who had been disclosed as being with Rooney at his home. The court allowed the defense to reopen to call his mother and two sisters. The defense declined the opportunity to reopen because those witnesses were "not currently available for whatever unknown reason."

 D E C I S I O N

Discovery rules are "based on the proposition that the ends of justice will be best served by a system of liberal discovery which gives both parties the maximum possible amount of information with which to prepare their cases and thereby reduces the possibility of surprise at trial" and are "designed to enhance the search for truth."

State v. Patterson, 587 N.W.2d 45, 50 (Minn. 1998) (quoting State v. Lindsey, 284 N.W.2d 368, 372 (Minn. 1979)).

The imposition of sanctions for violations of discovery rules and orders is a matter particularly suited to the judgment and discretion of the trial court. Indeed, the trial 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. Accordingly, we will not overturn its ruling absent a clear abuse of discretion.

Lindsey, 284 N.W.2d at 373 (citations omitted).

The Minnesota Rules of Criminal Procedure require a defendant to inform the prosecuting attorney in writing of any defense, other than that of not guilty, on which the defendant intends to rely at trial. Minn. R. Crim. P. 9.02, subd. 1(3)(a). If the defendant intends to offer evidence of an alibi, the defendant must

inform the prosecuting attorney of the specific place or places where the defendant contends to have been when the alleged offense occurred and shall inform the prosecuting attorney of the names and addresses of the witnesses the defendant intends to call at the trial in support of the alibi.

Id., subd. 1(3)(c).

If a party fails to comply with the discovery rules, the trial court may grant a continuance "or enter such order as it deems just in the circumstances." Minn. R. Crim. P. 9.03, subd. 8. The trial court, in its discretion, may exclude alibi testimony as a sanction for failing to comply with the discovery rules. See State v. Irwin, 379 N.W.2d 110, 113-14 (holding that trial court did not abuse discretion by precluding defendant from calling alibi witnesses where defendant did not provide written notice as required by Rule 9.02, subd. 1(3)), review denied (Minn. Jan. 23, 1986); see also State v. Wenberg, 357 N.W.2d 355, 356-57 (Minn. App. 1994) (noting that trial court could have excluded all alibi testimony as a sanction for defendant's failure to provide prosecutor with notice pursuant to Minn. R. Crim. P. 9.02, subd. 1), review denied (Minn. Feb. 6, 1985).

The alibi defense disclosed before trial was that on the Saturday before Labor Day, Rooney's wife and at least two other adults were with him at his home. The alibi defense Rooney attempted to offer at trial was that on that Saturday, he was away from home working and then went with friends to a local bar. The alibi defense offered at trial was distinctly different from the defense disclosed before trial.

Merely turning over to the prosecution handwritten notes from witness interviews, which included information that may have provided a basis for the alibi defense raised at trial, did not meet the requirements of Minn. R. Crim. P. 9.02, subd. 1(3)(c). The rule requires the defense to identify "the specific place or places where the defendant contends to have been when the alleged offense occurred." The interview notes indicate that Rooney was at work and at a bar on the Saturday before Labor Day, but they do not identify either of these places as the place where Rooney claimed to have been when the offense occurred. By themselves, the notes simply provide information about events that occurred that Saturday; they do not raise any defense.

Although trial courts have broad discretion when imposing sanctions for discovery violations, "[p]reclusion of evidence is a severe sanction which should not be lightly invoked." Lindsey, 284 N.W.2d at 374. Therefore, when exercising its discretion the trial court should consider the following factors:

(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. at 373; see also Patterson, 587 N.W.2d at 52 (reiterating importance of four factors).

The record demonstrates that the defense did not provide a reasonable explanation why disclosure was not made. Defense counsel had in her possession the interview notes that she claimed contained the information to support the alibi defense. But she offered no explanation why she did not present that information to the prosecutor in an alibi notice. The trial court also found that the prosecution was prejudiced by the failure to disclose because it could have investigated the validity of the defense before trial if the defense had been disclosed. Also, because the prosecution did not learn about the additional alibi defense until the third day of trial, it was questionable whether the prejudice to the prosecution could have been rectified by granting a continuance; and defense counsel did not request a continuance. Finally, the court allowed Rooney to testify about where he was throughout the day.

Rooney also argues that the trial court erred by excluding the testimony of Darlene, Mary, and Jacinta Rooney as a sanction for violating Minn. R. Crim. P. 9.02, subd. 1(3)(c), because their testimony was relevant for the purpose of impeaching R.B. But the trial court's ruling regarding the alibi defense witnesses precluded only testimony about Rooney being away from home on the day of the offense. The trial court did not rule that witnesses could not testify for impeachment purposes.

Even if the trial court's ruling was initially unclear, the trial court explained on the following day that its ruling did not preclude the defense from calling the three adults who had been disclosed as being with Rooney at his home. The court allowed the defense to reopen. However, the defense declined the opportunity to reopen because those witnesses were "not currently available for whatever unknown reason." Rooney has not established on appeal how the trial court's initial ruling prejudiced him when the court allowed the defense to reopen to present the impeachment testimony. See In re Welfare of D.T.N., 508 N.W.2d 790, 797 (Minn. App. 1993) (to obtain relief on appeal, party generally must establish prejudice as result of tribunal's actions), review denied (Minn. Jan. 14, 1994).

The trial court did not clearly abuse its discretion by limiting alibi evidence to the alibi defense that was disclosed before trial.

Affirmed.