St. Louis County District Court File No. 69DU-CR-11-1511.
Lori Swanson, Attorney General, St. Paul, Minnesota; and Gunnar B. Johnson, Duluth City Attorney, Joanne R. Piper-Maurer, Assistant City Attorney, Duluth, Minnesota (for respondent).
Andrew T. Poole, Poole Law Office PLLC, Duluth, Minnesota (for appellant).
Considered and decided by Hudson, Presiding Judge; Schellhas, Judge; and Stauber, Judge.
Appellant challenges his conviction of fifth-degree assault, arguing that the district court abused its discretion by declining to order a new trial after the state committed a discovery violation by failing to provide the defense with the narrative police report of the incident before trial. Because appellant has failed to show that, had the narrative report been admitted, a reasonable probability exists that the result of the trial would have been different, we affirm.
The state charged appellant Jason Curtis Keim with fifth-degree assault and disorderly conduct after an incident in which he attempted to block G.I., the landlord, from entering a residential unit rented by appellant's girlfriend. Before appellant's jury trial, the defense requested all police reports of the incident from the prosecutor, who then requested them from the City of Duluth. The city informed both parties that no police report existed other than the two-page CAD printout report, which is a computer screen printout generated by the officer in the squad car. The prosecutor furnished the CAD report to the defense, but the defense did not obtain a narrative police report before trial.
At appellant's jury trial, G.I., who owns a duplex in Duluth, testified that, for about five months, appellant had stayed with the tenant of the upper unit in the duplex. G.I. testified that after giving 24-hour advance notice to the tenant, he arrived to show the unit to prospective renters and found appellant sitting on the front steps. G.I. testified that appellant told him that he could not show the apartment and stood in front of the door, and that when he attempted to open the door, he was pushed, with his back shoved up against the door jamb; he then yelled for help and was knocked down. G.I. testified that he was shocked, he thought appellant might have a gun, and he was worried that appellant would come after him again. G.I. testified that he had cracked lips from appellant's punch; the state introduced photos consistent with those injuries.
Duluth police officer Dan Neitzel testified that he responded to the incident and found G.I. lying on the grass, conscious but upset. Officer Neitzel testified that appellant admitted that his girlfriend had notice of G.I.'s visit and made no claims of self-defense or defense of property, but stated that he did not believe G.I. had the right to enter the unit and had elbowed G.I. He testified that when appellant was told he was being cited for fifth-degree assault, appellant stated that he had done nothing wrong and "would do it again if he had to."
On cross-examination, defense counsel asked Officer Neitzel whether he had filed a separate report, besides the two-page CAD printout. The officer stated that he had filed an additional report, which he had while testifying. At a bench conference, defense counsel indicated that she had never received the separate narrative police report and asked for a mistrial. The prosecutor stated that she had also requested the narrative report from the city, but did not learn of its existence until Officer Neitzel brought it to court that day.
The district court heard arguments on excluding Officer Neitzel's testimony as a proposed remedy for the discovery violation. Defense counsel argued that this remedy was inadequate because Officer Neitzel was the only person to testify about appellant's statement to law enforcement, and the jurors would be unable to disregard that testimony. The prosecutor argued that the narrative report was brief and did not convey significant additional information beyond that contained in the CAD printout. The district court declined to declare a mistrial, but gave the defense the option of allowing some of the officer's testimony to come in with a cautionary instruction, receiving a brief continuance, or excluding all of the testimony. Defense counsel chose the last option, and the district court instructed the jury to disregard all of the officer's testimony.
Appellant testified on his own behalf that he had received a voicemail that G.I. wished to show the apartment, and he was there when G.I. arrived. Appellant testified that G.I.'s house was in foreclosure, and G.I. had been angry with his girlfriend after she mentioned that the mortgage company was willing to pay them to stay in the house. He testified that he had no intention of letting G.I. into the unit because his girlfriend had paid the rent, and she had a right to a court trial on an eviction. Appellant testified that he told G.I., who was reaching for the door handle, that "[t]his is a civil matter, you don't get to just come in here"; that G.I. then threatened to call the police; and that appellant told him to do so. He testified that G.I. grabbed him and "tried to wrestle [him] back and forth and [he] was assuming [G.I. was] trying to throw [him] to the ground." He stated that, because G.I. was screaming that appellant was threatening him and had a gun, ...