                        This opinion will be unpublished and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
                                   A14-1988

                         Brandon Oneil Sturdivant, petitioner,
                                    Appellant,

                                          vs.

                                 State of Minnesota,
                                    Respondent.

                                 Filed July 20, 2015
                                      Affirmed
                                Stoneburner, Judge

                           Hennepin County District Court
                             File No. 27-CR-11-10023


Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)


      Considered and decided by Worke, Presiding Judge; Reilly, Judge; and

Stoneburner, Judge.




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                         UNPUBLISHED OPINION

STONEBURNER, Judge

       Appellant challenges the postconviction court’s decision on remand that

respondent state’s failure to disclose a potential witness’s address prior to appellant’s trial

on charges of aiding and abetting first-degree aggravated robbery was not prejudicial and

that appellant is therefore not entitled to a new trial. We affirm.

                                           FACTS

       Appellant Brandon Oneil Sturdivant was convicted of aiding and abetting first-

degree aggravated robbery and sentenced to 88 months in prison. Sturdivant’s appeal

from the verdict and from the denial of two motions for a new trial was stayed to permit

him to petition for postconviction relief on several grounds, including an alleged

discovery violation by the state. The postconviction court denied the petition, and the

appeal was reinstated. This court affirmed denial of relief on all grounds except the

discovery violation. State v. Sturdivant, No. A12-0402, 2013 WL 6569914 (Minn. App.

Dec. 16, 2013). We held that the state’s failure to disclose the address of a potential

witness violated Minn. R. Crim. P. 9.01, subd. 1(1)(a), (b),1 and remanded to the

postconviction court for an evidentiary hearing on whether the rule 9 violation prejudiced

Sturdivant, entitling him to a new trial. See id. at *9 (stating that on remand the district

court, in “assessing the prejudicial impact of the discovery violation” could “properly

consider whether it is ‘questionable’ that [the undisclosed witness] was telling the truth in


1
 Minn. R. Crim. P. 9.01, subd. 1(1)(a), (b), requires the prosecutor to provide names and
addresses of witnesses and anyone who has information relating to the case.

                                              2
her posttrial statement,” as well as whether the witness “is currently available and willing

to testify, and if so, whether her testimony would significantly aid appellant”).

           At trial, Sturdivant was identified by two eyewitnesses to the robbery, Bobby

Lee Mosley and Rashad Gilbert, both of whom knew Sturdivant as “Slim” prior to the

robbery.    Mosley testified that Sturdivant was at a gathering at Michael Northern’s

apartment in January 2011, where he observed Mosley with a large amount of cash.

Sturdivant left, saying that he would return. He returned with another man who had a

gun, and the two robbed Mosley and others. Gilbert testified that he was at Northern’s

apartment that evening to obtain money for drugs.           He saw Sturdivant leave the

apartment and not long afterward heard Northern tell a woman “to let Slim in the back

door.” Sturdivant then entered with another man who had a gun, and they robbed Mosley

and others. During cross-examination of Mosley and Gilbert, the jury was made aware of

several inconsistencies in their testimony, and both were impeached: Mosley with

evidence that he was present for a drug deal and Gilbert, who admitted he was previously

there to use drugs, with three prior convictions of giving false information to the police.

       The state’s discovery violation consisted of failing to provide an address for Katie

Rogstad, who was present in Northern’s apartment at the time of the robbery. After

Sturdivant was convicted, he learned that Rogstad, a homeless person, was the woman

who let the two robbers into the apartment. At the time of Sturdivant’s trial, the state

failed to disclose to Sturdivant that Rogstad was located at the Hennepin County

workhouse. The state did not call Rogstad as a witness.




                                              3
       A defense investigator interviewed Rogstad at the workhouse shortly after

Sturdivant’s trial. She stated that she let the men who committed the robbery into

Northern’s apartment. Rogstad stated that she did not know Sturdivant and she was not

able to identify Sturdivant from the photo lineup used by defense investigators. When

she was shown Sturdivant’s photograph, she stated that he was not one of the men that

she let into the apartment building. She later signed an affidavit to that effect, and at the

evidentiary hearing on remand, Rogstad testified that she does not know Sturdivant and

that he is not one of the men she let into the apartment building.

       Rogstad agreed that when she was interviewed at the scene of the robbery she told

an officer that she had fallen asleep on the couch at Northern’s apartment; that she woke

up and saw other people in the apartment and went into a bedroom, where she later heard

yelling and someone shouting “get on the ground.” She told the officer that she opened

the bedroom door and peeked but didn’t see much because she was “pulled back into the

bedroom.” Rogstad admitted that she was under the influence of drugs at the time of the

robbery. She recalled telling the officer that the men were “bigger men, pretty heavy,

both of them had a lot of hair.” She did not tell the officer that one man was wearing a

hat or was thin in the face. Rogstad identified still photographs from a surveillance

camera as depicting her letting the men into the apartment building; one of the

photographs shows one man wearing a close-fitted hat.

       Rogstad’s description of the robbers differed significantly from descriptions given

to the 911 operator at the time of the robbery by Mosley and Northern and the

descriptions given by Mosley and Gilbert at Sturdivant’s trial. Mosley described Slim as


                                             4
a tall, slim male with a little hair on his face and a goatee, with short cropped hair, and

wearing a hat or “dew-rag.” This description is consistent with the surveillance photo.

Gilbert also testified that Slim was wearing a cap or skull-cap. The postconviction court

found that Rogstad’s testimony was not credible, noting (1) that her description of the

men differed substantially from the descriptions of other witnesses to the robbery and the

photo from the surveillance camera and (2) the significant inconsistencies in her account

of the events given at the scene and in her affidavit and testimony. The district court also

noted that Rogstad “freely admitted that she does not remember the [day] well and that

she was under the influence.” The postconviction court denied Sturdivant’s petition for a

new trial “because there is not a reasonable probability that [Rogstad’s] testimony would

have changed the outcome of his 2011 trial.” This appeal follows.

                                     DECISION

       We review a postconviction court’s decision for an abuse of discretion. Davis v.

State, 784 N.W.2d 387, 390 (Minn. 2010).               A postconviction court’s factual

determinations are reviewed for clear error, and legal conclusions are reviewed de novo.

Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012).

       To obtain a new trial for a violation of Minn. R. Crim. P. 9, a defendant must

generally establish prejudice resulting from the violation. State v. Boldman, 813 N.W.2d

102, 109 (Minn. 2012). To establish prejudice a defendant must show that “a reasonable

probability exists that the outcome of the trial would have been different if the evidence

. . . had been produced.” State v. Jackson, 770 N.W.2d 470, 479 (Minn. 2009) (quotation

omitted). This court will reverse a district court’s determination on this issue only if the


                                             5
violation, viewed in the light of the whole record, appears inexcusable and so prejudicial

that it denied the defendant the right to a fair trial. Id.

       In determining whether a rule 9 violation prejudiced a defendant, Minnesota

appellate courts have considered: (1) whether the defense had an adequate opportunity to

attack the credibility of the state’s witnesses without the undisclosed evidence and the

strength of the state’s evidence, see, e.g., id. at 480-81 (concluding that failure to produce

unredacted transcript of police interview with one witness did not warrant a new trial

when the defense was able to impeach that witness without the transcript, and the state’s

evidence against the defendant was strong); (2) whether the new evidence would have

changed the state’s theory of the case, see, e.g., State v. Colbert, 716 N.W.2d 647, 656

(Minn. 2006) (rejecting the argument that defendant was prejudiced by a change in a

forensic video analyst’s opinion as changing the state’s theory of the case, when the

record showed that the state had previously argued that theory); and (3) the probable

ability to locate an undisclosed witness and the credibility and availability of that

witness’s likely testimony, see, e.g., State v. Holmes, 325 N.W.2d 33, 34-35 (Minn. 1982)

(concluding that a defendant failed to establish prejudice from the state’s failure to

disclose a potential witness when the witness might have been difficult to locate and his

credibility, his willingness to testify, and the exculpatory value of his testimony were

questionable).

       Sturdivant asserts that Rogstad is a credible witness who is willing to testify and

that her testimony would significantly aid the defense because she did not identify

Sturdivant in the photo lineup and stated in her affidavit and in testimony at the


                                                6
postconviction evidentiary hearing that Sturdivant was not one of the men she admitted

into the apartment building. Sturdivant argues that the district court erred by failing to

make findings on each of the factors that may be considered in assessing the prejudicial

impact of a discovery violation, maintaining that many of these factors weigh in favor of

finding prejudice. We disagree. We have been provided with no authority for the

proposition that once the postconviction court concludes that a witness’s testimony is so

lacking in credibility that it would not have affected the outcome of a trial, the

postconviction court must nonetheless make findings on other factors that could be

considered in weighing the prejudicial impact of a discovery violation. And from our

own painstaking review of the record, we conclude that any factors weighing in

Sturdivant’s favor do not overcome Rogstad’s lack of credibility.

        Plainly, Rogstad is available and willing to testify, but the district court found her

not credible, and we give considerable deference to a postconviction court’s credibility

determinations. McDonough v. State, 827 N.W.2d 423, 426 (Minn. 2013). Sturdivant

argues that the credibility determination is for the jury, but this court specifically required

the postconviction court to assess Rogstad’s credibility and whether her testimony would

significantly aid Sturdivant. We conclude that the district court did not clearly err in

determining that Rogstad’s non-credible testimony would not significantly aid Sturdivant

at trial.

        Sturdivant, based on his critique of eyewitness testimony in general and the

impeachment evidence against Mosley and Gilbert, argues that the state’s evidence was

not strong, a factor that weighs in favor of finding that he was prejudiced by the lack of


                                              7
Rogstad’s testimony. But given that (1) Mosley and Gilbert knew Sturdivant prior to the

robbery; (2) their 911-call and trial-testimony descriptions of Sturdivant are consistent;

and (3) their descriptions are consistent with the security photo, it is difficult to describe

the state’s case as “not strong.” And the general criticism of eyewitness testimony

weighs heavily against Rogstad, who admits that she was under the influence of drugs,

had been sleeping, did not witness the robbery, has only a vague memory of the event,

and does not know Sturdivant. Although Sturdivant did not have any opportunity to

review Rogstad’s statement before or during the trial, he was able to challenge the

credibility of the state’s witnesses without Rogstad’s testimony, and there is nothing to

suggest that the state’s theory of the case would have been affected by Rogstad’s

testimony. On this record we conclude that the postconviction court did not abuse its

discretion by concluding that the state’s rule 9 violation did not significantly prejudice

Sturdivant and that he is therefore not entitled to a new trial based on the violation.

       Sturdivant argues that even if he failed to establish prejudice, he should be granted

a new trial in the interests of justice. In some cases, a discovery violation by the state has

been held to entitle a defendant to a new trial in the interests of justice, even absent

prejudice. See, e.g., State v. Schwantes, 314 N.W.2d 243, 245 (Minn. 1982) (granting a

new trial for the state’s failure to notify the defense of evidence that bore on his decision

to waive marital privilege); State v. Zeimet, 310 N.W.2d 552, 553 (Minn. 1981) (granting

a new trial in the interests of justice for the state’s failure to disclose information

concerning culpability of a third party, which might have led the defense to other useful

information); State v. Kaiser, 486 N.W.2d 384, 386-87 (Minn. 1992) (granting a new


                                              8
trial for failure to disclose the victim’s statement that cast doubt on identification of the

defendant, coupled with the prosecutor’s assertion in closing that the victim “never once

backed away” from the identification).

        In the opinion remanding this matter to the postconviction court, we noted a lack

of evidence that the state acted in bad faith and concluded that the state did not suppress

favorable exculpatory evidence. Sturdivant, 2013 WL 6569914, at *5, *7. By remanding

this case to the postconviction court for an evidentiary hearing on the issue of prejudice,

we implicitly rejected an argument that a new trial is required in the interests of justice.

We now explicitly hold that Sturdivant has failed to establish that the interests of justice

require a new trial in this case.

       Affirmed.




                                             9
