                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-1666

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                             Charles Jacob Whitcup, Jr.,
                                     Appellant.

                               Filed August 24, 2015
                              Reversed and remanded
                                   Stauber, Judge

                             Swift County District Court
                              File No. 76-CR-13-337

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

Danielle H. Olson, Swift County Attorney, Benson, Minnesota (for respondent)

Julie Loftus Nelson, Nelson Criminal Defense & Appeals, P.L.L.C., Minneapolis,
Minnesota (for appellant)

      Considered and decided by Peterson, Presiding Judge; Stauber, Judge; and

Klaphake, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

STAUBER, Judge

       Appellant Charles Jacob Whitcup, Jr., challenges his convictions of two counts of

third-degree controlled-substance crime, arguing that he was denied his right to a fair trial

because of prosecutorial misconduct. We reverse and remand for a new trial.

                                          FACTS

       A.A. was arrested by Pope County sheriff’s deputies on a controlled-substance

charge. Pope County offered to drop the charges after she agreed to make controlled-

drug purchases for the CEE-VI Drug Task Force. The drug task force asked her to

contact Mark Whitcup (Whitcup), appellant’s brother, to purchase methamphetamine

(meth), but Whitcup appeared at A.A.’s apartment before the controlled-purchase

procedures could be implemented. The following day, June 19, 2013, A.A. attempted to

arrange another controlled buy with Whitcup, but he told her to contact appellant instead.

After the drug task force implemented the controlled-purchase procedures, A.A. went to

appellant’s girlfriend’s home. The girlfriend, N.L., opened the door, and A.A. went to

the basement where she handed appellant $50, and he threw a pink baggie with meth on

top of a laptop computer. A.A. gave drug task force members a pink baggie with a

substance later identified as meth. At trial, A.A. testified that appellant was the only

person in the basement when she purchased the meth.

       The state called other witnesses, including Deputy Don Schmidt, who described

the controlled-purchase procedures; BCA analyst Robert Lind, who confirmed that the

substance was meth; Deputy Anthony Cruzo, a member of the drug task force, who


                                              2
conducted surveillance of A.A. during the purchase; Shelly Lottman, an employee of the

sheriff’s department who pat searched A.A. after the controlled purchase; and Benson

police officer Benjamin Badowich, who stopped appellant for a traffic offense on June

19, and found the recorded purchase money on appellant’s person. Whitcup, who

testified on behalf of the state and confirmed A.A.’s testimony, said that he wanted to

collect the money for the purchase A.A. had made from him the day before and instructed

appellant to either sell her drugs or get her high until he returned.

       N.L. testified on behalf of appellant. N.L. stated that Whitcup and appellant had

talked by telephone about money that Whitcup owed to appellant, and she was upset

because she was insuring a car on Whitcup’s behalf. N.L. said that she could hear the

conversation because appellant always had his phone’s speaker on. N.L. testified that she

let A.A. into the house but then realized that she could be delivering money to appellant

from Whitcup; therefore, N.L. went to the basement, where appellant and a friend, M.J.,

were playing a video game. N.L. said she saw A.A. drop some money on a table but saw

no drugs and heard no discussion about drugs. During cross-examination, N.L. stated

that she had very little contact with appellant but admitted that she received some

jailhouse letters from him. The prosecutor then produced three letters that appellant had

written N.L., which appeared to instruct or remind her about the events of June 19, and

which contained some veiled threats toward A.A. and the prosecutor.

       Appellant wrote several letters to N.L. and to others, which were monitored

according to jail policy; the prosecutor collected these letters as evidence for a possible

witness-tampering charge. In all, the prosecutor had collected about “half a ream” of


                                              3
copies of letters written by appellant and mailed to various people. The prosecutor did

not produce the letters during discovery, however, and appellant’s counsel was unaware

of their existence until the state began impeaching N.L. with their contents. The letters

were marked but not offered into evidence, and the prosecutor read aloud portions of

three letters. Appellant’s counsel did not initially object to use of the letters during

N.L.’s examination. After an extensive cross-examination, the district court inquired in a

bench conference about how many letters the prosecutor intended to use because of time

constraints; at this point, appellant’s counsel objected, arguing that the prosecutor had

violated discovery rules by failing to produce the letters in response to his discovery

requests.

       The prosecutor argued that she had not disclosed the letters because the state was

investigating whether appellant should be charged with witness tampering, and the state

was not obligated to provide them to appellant because he knew about them. She

characterized her use of the letters as “rebuttal” evidence, based on N.L.’s testimony that

she only infrequently heard from appellant. Appellant’s counsel moved for a mistrial or,

in the alternative, for limitations on the use of the letters. The district court offered to

strike N.L.’s testimony, but appellant rejected the offer. After considering and declining

to grant a continuance, the district court decided that the prosecutor could not continue

her examination of the witness with the letters or use the letters in any way.

       The jury convicted appellant of both charges. Appellant moved for a new trial

because of the discovery violations. The district court denied appellant’s motion,

concluding that the state had committed a discovery violation but appellant was not


                                               4
entitled to a new trial because appellant was not prejudiced by the state’s actions and

there was not a reasonable probability that the outcome of the trial would be different.

This appeal followed.

                                      DECISION

       Appellant challenges the district court’s order denying his motion for a new trial,

arguing that the prosecutor’s deliberate decision not to produce discoverable material

deprived him of his fair trial rights. We review the district court’s denial of a new trial

motion for an abuse of discretion. State v. Brown, 815 N.W.2d 609, 621 (Minn. 2012).

Whether the state has committed a discovery violation is a question of law subject to de

novo review. State v. Miller, 754 N.W.2d 686, 705 (Minn. 2008).1

       Minn. R. Crim. P. 9.01 directs the prosecutor to “allow access [to the defense] at

any reasonable time to all matters within the prosecutor’s possession or control that relate

to the case,” with the exception of work product, work product reports, and certain

protected witnesses. Minn. R. Crim. P. 9.01, subds. 1, 3. The duty to disclose includes

all documents related to the case and all materials in the possession and control of any

person working with the prosecution. Id., subds. 1(3)(a); 1a(1). The language of the rule

is more expansive than that in Brady, under which the prosecution is obligated to disclose

“evidence favorable to an accused” that is “material either to guilt or to punishment,”



1
  Appellant has not asserted a Brady violation. See Brady v. Maryland, 373 U.S. 83, 87,
83 S. Ct. 1194, 1196-97 (1963) (holding that “suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution”).

                                              5
including impeachment evidence. 373 U.S. at 87; 83 S. Ct. at 1196-97; Brown, 815

N.W.2d at 622.

       Rule 9.01 does not limit the prosecutor’s duty to disclose exculpatory evidence

favorable to the accused or impeachment evidence. Rather, the rule imposes a broad duty

on the prosecutor to turn over all materials requested by a defendant that relate to the

case. Minn. R. Crim. P. 9.01, subd. 1. It is clear from the record that appellant made a

blanket discovery request, the prosecution had letters collected from his jail

correspondence that related to the case, and the prosecutor deliberately did not provide

appellant with copies of the letters. The rule states that the prosecutor “must” make the

disclosure and it includes “any” documents that relate to the case. Id.; see also State v.

Palubicki, 700 N.W.2d 476, 490 (Minn. 2005) (noting mandatory language of rule

directives). Nothing in the rule limits the prosecutor’s duty to disclose when a defendant

is the source of the materials.

       The state argues that the letters were rebuttal evidence that it is not obligated to

disclose, relying on State v. Yang, 627 N.W.2d 666, 677 (Minn. App. 2001), review

denied (Minn. July 24, 2001), in which this court stated that “[d]isclosure rules do not

apply to rebuttal evidence.” The district court has discretion to determine “what

constitutes proper rebuttal evidence.” State v. Williams, 586 N.W.2d 123, 126 (Minn.

1998) (quotation omitted). The district court here concluded that the evidence used by

the prosecution cannot be classified as rebuttal evidence not subject to disclosure, and

determined that the prosecutor violated the discovery rules. We agree.




                                              6
       “[I]n general, rebuttal evidence consists of that which explains, contradicts, or

refutes the defendant’s evidence.” State v. Swaney, 787 N.W.2d 541, 563 (Minn. 2010)

(quotation omitted). This court relied on this very general definition of rebuttal evidence

in Yang. 627 N.W.2d at 677. Minn. R. Crim. P. 26.03, subd. 12(g) provides that “[t]he

prosecutor may rebut the defense evidence, and the defense may rebut the prosecutor’s

evidence.” See also Swaney, 787 N.W.2d at 562-64 (analyzing rebuttal evidence as

evidence introduced after close of defendant’s case-in-chief to rebut defense testimony).

“Rebuttal” is defined as “[i]n-court contradiction of an adverse party’s evidence.”

Black’s Law Dictionary 1381 (9th ed. 2009). “Impeachment,” on the other hand, is “[t]he

discrediting of a witness’s testimony by confronting the witness with his or her specific

untruthful acts, prior convictions, prior inconsistent statements, or the like.” Id. at 821.

Here, the prosecutor did not rebut N.L.’s testimony; she impeached N.L.’s credibility

with the letters. Impeachment evidence must be provided during discovery. See Miller,

754 N.W.2d at 706 (concluding that state has obligation to disclose exculpatory evidence,

including impeachment evidence, based on Brady).

       We review the district court’s decision “on whether to impose sanctions for

discovery violations for an abuse of discretion.” Palubicki, 700 N.W.2d at 489.

              Generally, without a showing of prejudice to the defendant,
              the state’s violation of a discovery rule will not result in a
              new trial. . . . A [district] court’s determination should be
              reversed on appeal only when the prosecutor’s misconduct,
              viewed in the light of the whole record, appears to be
              inexcusable and so serious and prejudicial that the
              defendant’s right to a fair trial was denied. But the
              misconduct is harmless beyond a reasonable doubt if the
              verdict rendered was surely unattributable to the error.


                                              7
Id. (citations and quotations omitted). The district court concluded that appellant was not

prejudiced by the discovery violation because the evidence against appellant was strong,

and the verdict could not be attributed to the discovery violation. We disagree.

       On this record, we are presented with a deliberate and inexcusable violation of a

prosecutor’s clear duty to disclose “all matters within the prosecutor’s possession or

control that relate to a case.” Minn. R. Crim. P. 9.01, subd. 1. Although the record

evidence could establish appellant’s guilt,

              even the strongest evidence of guilt does not eliminate a
              defendant’s right to a fair trial. The role of the prosecutor and
              [district] court is not simply to convict the guilty[;] they are
              also responsible for providing a procedurally fair trial. The
              state has an overriding obligation, shared by the court, to see
              that the defendant receives a fair trial, regardless of the
              defendant’s culpability.

State v. Mayhorn, 720 N.W.2d 776, 791 (Minn. 2006) (quotations and citations omitted).

The prosecutor’s actions here were not the result of an inadvertent mistake in the heat of

trial, but were part of a deliberate and knowing plan to withhold requested discovery

materials in order to gain the advantage of surprise. We cannot ignore such a blatant

violation of the prosecutor’s “obligation . . . to guard the rights of the accused as well as

to enforce the rights of the public.” Id. at 790 (quotation omitted). We therefore reverse

appellant’s convictions and remand this matter for a new trial.

       Reversed and remanded.




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