In the Matter of the Welfare of: J.D.M.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

In the Matter of the Welfare of:

J.D.M.

Filed November 4, 2003

Hennepin County District Court

File Nos. J102060174 and J702058784

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN  55414 (for appellant J.D.M.)

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

            Considered and decided by Shumaker, Presiding Judge; Willis, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant challenges her adjudication of delinquency for theft, arguing that she is entitled to a new trial because the district court erred by concluding that the state did not violate the applicable rules of discovery.  Although we agree that the district court erred, we conclude that the error does not warrant a new trial.  We affirm.

FACTS

            On March 30, 2002, appellant J.D.M., then age 17, attended a party at the home of Carolyn Markwood-Nyberg, her former foster parent.  Before J.D.M. was dropped off at the party, Joanne Palmer, her current foster parent, made certain that J.D.M. was not carrying any money with her so that she "would be less likely to want to step away from their home."

            On the day of the party, Markwood-Nyberg had $400 in cash in a dresser drawer in her bedroom.  The money belonged to F.W., Markwood-Nyberg's foster child.  Markwood-Nyberg's bedroom was adjacent to the swimming-pool area, where the party took place.  The door to the bedroom was closed but unlocked.

            The day after the party, J.D.M. telephoned Markwood-Nyberg and told her that certain persons attending the party, whom she identified, had taken money from Markwood-Nyberg's home.  Also at some point after the party, J.D.M. telephoned F.W.  F.W., apparently believing that J.D.M. had taken her money, asked J.D.M. why she had done so.  J.D.M. admitted that she had taken the money, saying that she would not have taken it if she had known it was F.W.'s.

            In June 2002, the state filed a delinquency petition charging J.D.M. with one count of theft, in violation of Minn. Stat. § 609.52, subds. 2(1), 3(4) (2000).  At trial, (1) Palmer testified that, to her knowledge, J.D.M. had no money with her when she arrived at the party; (2) a friend of J.D.M.'s who attended the party testified that he saw J.D.M. enter Markwood-Nyberg's bedroom; (3) the same friend testified that later during the party, he and J.D.M. went to a store to buy food and that J.D.M. paid cash for the food; and (4) Palmer testified that on April 5, 2002, she discovered that J.D.M. was in possession of a large amount of cash.

            The state called F.W., whose name was on its witness list, to testify at trial.  She stated that J.D.M. had telephoned her after the party and told her that she would not have taken the money had she known it was F.W.'s.  J.D.M.'s counsel objected to F.W.'s testimony, arguing that under the discovery provisions of the rules of juvenile procedure, the state should have disclosed J.D.M.'s admission to the defense.  The prosecutor countered that (1) F.W.'s name had been on the state's witness list "from the beginning," (2) F.W. had always been available to the defense for an interview, and (3) F.W. had informed the prosecutor of what J.D.M. said during the telephone call only "five minutes" before that day's proceedings began.  Relying only on Minn. R. Juv. P. 10.04, subd. 1(A), which requires disclosure of written statements or written summaries of oral statements by witnesses, the district court ruled that no discovery violation had occurred.

            The district court ultimately adjudicated J.D.M. delinquent for theft, and this appeal follows.

D E C I S I O N

Whether the district court erred by concluding that the state did not violate the discovery rules is a question of law, which we review de novo.  See State v. Nerz, 587 N.W.2d 23, 24-25 (Minn. 1998). 

            On appeal, the state concedes that it violated Minn. R. Juv. P. 10.04, subd. 1(B), which requires disclosure to defense counsel of the substance of any oral statements made by the juvenile respondent that the state intends to offer in evidence at trial.  Indeed, even if the state was unable to interview F.W. before the day of trial and only learned of J.D.M.'s statement to F.W. five minutes before the proceedings began, the state still should have disclosed the substance of J.D.M.'s statement to the defense before calling F.W. to testify.  Waiting until the last minute to interview a witness is not a basis for the state to ignore the requirements of rule 10.04, subd. 1(B).  We conclude, therefore, that the district court erred by determining that no discovery violation occurred.

The district court's admission of J.D.M.'s statement despite the state's discovery violation is subject to a harmless-error analysis.  See State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  We must be satisfied that there is no reasonable possibility that the evidence significantly affected the verdict, see id., and we are.  The testimony of Palmer and J.D.M.'s friend, which the district court found "credible and persuasive," was sufficient to support the conclusion that J.D.M. committed theft.

J.D.M. relies on State v. Kaiser, 486 N.W.2d 384 (Minn. 1992), in which the supreme court, absent a showing of prejudice, granted a new trial as a remedy for a discovery violation.  The Kaiser court cited the prosecutor's intentional discovery violations, which included (1) refusing to disclose exculpatory evidence to the defense, (2) instructing a witness whose testimony could have exonerated the defendant "to keep her mouth shut" and not talk to the defense, and (3) failing to abide by a promise to the defense attorney to provide the telephone number and address of a witness whose testimony could have exonerated the defendant.  Id. at 387.  Here, J.D.M. does not allege that the state intentionally violated the discovery rules.  And in any event, the state's failure to disclose the substance of F.W.'s testimony does not rise to the level of the violations in Kaiser.  We decline, therefore, to grant J.D.M. a new trial without a showing of prejudice.

            Affirmed.