State v. Harris

• Decision Date: 10 April 2017
• Docket Number: A16-0865
• Citation: State v. Harris, A16-0865 (Minn. App. Apr 10, 2017)
• Parties: State of Minnesota, Respondent, v. Quincy Darnell Harris, Appellant.
• Court: Minnesota Court of Appeals

State of Minnesota, Respondent, v. Quincy Darnell Harris, Appellant.

A16-0865

STATE OF MINNESOTA IN COURT OF APPEALS

April 10, 2017

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3(2016).

Affirmed

Bratvold, Judge

Hennepin County District Court

FileNo. 27-CR-15-5125

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Kelly O'Neill Moller, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Kirk, Presiding Judge; Reilly, Judge; and Bratvold, Judge.

UNPUBLISHED OPINION

BRATVOLD, Judge

Appellant requests a new trial and reversal of his convictions of possession of controlled substances with intent to sell.Appellant argues that the district court abused its discretion in denying his motion to exclude the state's expert testimony, which was not disclosed until the first day of trial, in violation of the rules of criminal procedure.Because appellant fails to demonstrate prejudicial error, we affirm.

FACTS

Testimony from trial established that on February 21, 2015, while on patrol in a marked SUV squad car, two police officers saw appellantQuincy Harris drive his car across an intersection and pull over to the side of the road without signaling.After stopping at the curb, Harris quickly exited the car.Without activating the emergency lights, the officers pulled up next to Harris and told him that they were stopping him because he did not signal.The officer on the passenger side of the squad car asked Harris for identification, but Harris said that he did not have any.Harris also said that his name was Warren Virgil Harris.The officer ran a computer search for Warren Virgil Harris, found an active arrest warrant, and arrested Harris.The officers searched Harris's pockets and found a photo identification card for Quincy Harris.Harris confirmed this was his true identity.Harris also had an active arrest warrant, so the officers placed him in the back of the squad car.

An officer testified that, before placing Harris in the squad car, he checked the seat, floor, and surrounding area of the back seat but found nothing.During the ten-minute car ride to the jail, the officers heard Harris "moving around a lot, scooting back and forth with his behind" and heard Harris's handcuffs rattling against the plastic seat.Officer testimonyestablished that it is typical to hear movement in the back seat of the squad car when an arrestee is trying to hide or dispose of incriminating evidence.¹

After Harris exited the squad car at the jail, the officers found two plastic baggies containing suspected controlled substances on the floorboard underneath the seat on which Harris had been sitting.One baggie contained eight smaller individually-packaged bindles of suspected controlled substances, each weighing between .368 and .393 grams.The second baggie contained ten smaller individually-packaged bindles, each weighing between .161 and .204 grams.The Bureau of Criminal Apprehension analyzed 9 of the 18 bindles; all 9 tested bindles were positive for heroin.²

The state charged Harris with second-degree sale of heroin and third-degree possession of heroin.³Harris served the state with a discovery demand, requesting "all disclosures required by Rule [of Criminal Procedure] 9.01," including the names andaddresses of all potential witnesses, including expert witnesses.The state responded by disclosing the names and addresses of five potential witnesses.

On the morning of the first day of trial, the state notified defense counsel that it would call Sergeant Thomas Peterson as an expert witness who would testify that Harris possessed the drugs with the intent to sell.The state had not previously disclosed the sergeant's name on its pretrial witness lists or provided any expert disclosures.

Harris moved to exclude the sergeant's expert testimony, in part, as a sanction for the untimely disclosure.In response, the state acknowledged that it had not received "the specifics" related to the sergeant's qualifications until that morning and that it had not "written down this information and passed it or disclosed it to the defense."But the state contended that its late disclosure did not require exclusion of the sergeant's testimony because the case had "been charged as possession with intent to sell since day one" and "it's not particularly unfamiliar" to have expert narcotics testimony when "dealing with a case like this."

The district court denied Harris's motion to exclude the sergeant's testimony because narcotics expert testimony "is very standard and typical type of testimony in these cases where it has been charged and there has been notice provided by virtue of the charge that it's a possession with intent to distribute."The parties proceeded through voir dire during the remainder of the first day and then recessed.

On the second day of trial, the state filed a second amended witness list, disclosing the sergeant as a potential witness, and began presenting evidence.The sergeant testified that the value of one gram of heroin is roughly $100; a typical heroin user purchasesbetween 0.1 and 0.3 grams of heroin; and heroin users often employ implements to consume the drug, including heating devices, lighters, tin foil, cotton swabs, spoons, pipes, and needles.

The sergeant also testified that, in his opinion, there was a pattern in the packaging of the heroin found in the squad car; all of the heavier bindles were packaged together in one baggie and all of the lighter bindles were packaged together in a second baggie.The sergeant testified that it is common for drug sellers to divide bindles by weight to accommodate purchasers.Based on the packaging, the sergeant concluded that possession of 18 similarly weighted bindles of heroin was consistent with intent to sell heroin and inconsistent with personal use of heroin.

The jury found Harris guilty of all charged counts, and the district court sentenced him to 67 months in prison on the drug-sale conviction.This appeal follows.

DECISION

I.The state violated the discovery rules.

Whether a party has violated the discovery rules is a legal issue which this court reviews de novo.State v. Palubicki, 700 N.W.2d 476, 489(Minn.2005).Minnesota has an "open-file" policy in criminal proceedings.State v. Kaiser, 486 N.W.2d 384, 387(Minn.1992)."The rules are intended to give the parties complete discovery subject to constitutional limitations."Minn. R. Crim. P. 9.05, cmt.

Minnesota Rule of Criminal Procedure 9.01 sets out the state's discovery obligations.Relevant to this appeal, the state must disclose "[t]he names and addresses of witnesses who may be called at trial, along with their record of convictions, if any, withinthe prosecutor's actual knowledge."Minn. R. Crim. P. 9.01, subd. 1(1)(a).Additionally, if the state intends to have "[a] person who will testify as an expert but who created no results or reports in connection with the case," it must disclose "a written summary of the subject matter of the expert's testimony, along with any findings, opinions, or conclusions the expert will give, the basis for them, and the expert's qualifications."Id., subd. 1(4)(c).

The state's initial rule 9.01 disclosures must be made upon the defense's request, without court order, and before the Rule 11 omnibus hearing.Id., subd. 1.The state has a "continuing duty of disclosure before and during trial."Minn. R. Crim. P. 9.03, subd. 2(c).If a party learns of additional discoverable information after initial compliance with any discovery rules or orders, it must "promptly" disclose the information to the other party.Id., subd. 2(b).All discoverable information "must be disclosed in time to afford counsel the opportunity to make beneficial use of it."Id., subd. 2(a).⁴

In Harris's case, the state violated rule 9.01 when it failed to disclose the sergeant as a potential expert witness before trial and did not provide expert disclosures.While we recognize that the state is not required to disclose information it does not possess, the recordestablishes that the state knew the sergeant was a potential witness before trial.Cf.State v. Carlson, 328 N.W.2d 690, 695(Minn.1982)(holding that the state did not violate rule 9.01 by supplementing its witness disclosures as soon as it discovered a new witness, whose identity the state did not discover until after trial began).According to the state's memorandum opposing Harris's pretrial motions, the sergeant's name appeared on a police report in relation to the chain of custody.⁵At the very least, the state should have identified the sergeant as a chain-of-custody witness.Also, narcotics expert "testimony is 'typical' in cases involving possession with intent to sell," as the state acknowledges.Presumably, the state was also cognizant that the arresting officers did not witness an actual sale.The state therefore should have anticipated well before trial that it would call an expert witness regarding the intent element of the state's case.

At trial, the state claimed that it did not disclose its expert earlier because it did not know the sergeant's "specific" qualifications until the morning of trial.The state explained that "the way we do things in Hennepin County" is to "elicit" information about a narcotics expert's qualifications "when we learn a case is actually going to go to trial."This does not justify the state's discovery violation.Under the applicable rules, the state should have identified its expert witness before the morning of trial, especially because this trial was continued once, giving the state extra time to complete its discovery obligations.⁶Moreover, the state cannot circumvent the discovery rules by failing to apprise itself of...