State of Minnesota, Respondent,

This opinion will be unpublished and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

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1556

State of Minnesota,
Respondent,

vs.

Chris Scott,
Appellant.

Filed September 10, 2018
Affirmed
Florey, Judge

Hennepin County District Court
File No. 27-CR-16-16488

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

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Florey , Presiding Judge; Halbrooks, Judge; and
Kalitowski, Judge.
*

* Retired judge of the Minnesota Court of Appeals, serving by ap pointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
FLOREY, Judge
In this direct appeal from convic tions of second-degree murder and unlawful
possession of a firearm, appellant argues that he is entitled to a new trial because the district
court (1) erred by allowing a biased juror to be seated for tri al; (2) erred by denying a
mistrial motion following impr oper expert testimony; and (3) de prived appellant of his
right to be absent during trial.
We conclude that the district court did not abuse its discretio n by seating the juror
because, although she expressed actual bias, she was rehabilita ted. The district court did
not abuse its discretion by denying appellant’s mistrial motion because it is not reasonably
probable that the improper testimony and related discovery violations affected the verdict.
Lastly, the district court di d not err by requiring appellant t o be present for identification
testimony because criminal defendants do not have an absolute right to absent themselves
from trial. For the aforementioned reasons, we affirm.
FACTS
On June 16, 2016, T.W. was shot ten times and killed around 11: 00 p.m. at his
residence on Knox Avenue in Minneapolis. The events leading to T.W.’s death started
earlier at a gathering on Bryant Avenue. There, T.W. socialized and drank alcohol with a
number of individuals, including his friend, M.W., her boyfrien d, J.D., and someone that
T.W. had never met, appellant Chris Scott. Appellant and J.D. were friends; both men are
black, but J.D. has lighter skin and wore dreadlocks at that time.

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According to J.D., at some point during the gathering, appellant and T.W. discussed
obtaining cocaine, specifically crack cocaine. T.W. said that he could get the cocaine, but
it would not be “rocked up” in crack form. Appellant, with T.W.’s assistance, obtained the
cocaine, which was contained in a paper bag. Appellant asked T .W. to cook the cocaine
to make crack, and T.W. agreed.
Appellant, J.D., and T.W. left th e gathering and drove to T.W.’ s residence in
appellant’s maroon Cadillac. The car was parked down the stree t from T.W.’s house.
According to J.D., after arriving at the house, appellant and T .W. went into the kitchen.
T.W. refused to cook the cocaine. Appellant then pulled a gun from his waistband and shot
T.W. Appellant grabbed the drugs, and he and J.D. left out the front door.
S.S. lived across the street from T.W.’s house. On June 16, he was sitting on his
stoop smoking a cigarette when he heard the sound of gunfire coming from T.W.’s house.
He saw two black men “running out of the place,” and he called 911. According to S.S.,
one of the men was wearing red and carried a paper bag, and the other was wearing all
black. According to S.S., the man in red had dreadlocks. P.N., another neighbor, also saw
two black men exit the house; one was darker skinned, wore all black, and carried a paper
bag, and the other was lighter skinned and wore a red shirt. According to P.N., the man in
red had longer hair, which was br aided or in dreadlocks. Both neighbors effectively
testified that the man wearing red was nervous and moved faster, and the man in black was
calmer.
Two days after the shooting, J.D. walked into a police station and said that appellant
was the shooter. J.D. diagrammed the crime scene and indicated that he and appellant were

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in the kitchen and T.W. was in the adjoining dining room at the threshold of the kitchen
when the shooting occurred. J.D. said that he was wearing a re d shirt that day, and
appellant was wearing black. He provided his clothing to police.
Appellant was arrested and charge d with one count of second-deg ree murder and
one count of unlawful possession of a firearm. He told investi gators that he drove T.W.
home, went inside the house, T.W. did a line of cocaine, and then he left sometime between
8:00 and 9:00 p.m. Appellant could not recall what he was wear ing that night. Street
cameras captured footage of a veh icle matching appellant’s in t he area of T.W.’s house
around 11:16 p.m. The murder weapon was never recovered.
An individual named C.K. said that appellant made statements ab out the killing
while the two were in jail together. According to C.K., appellant stated that he and another
individual “took a guy home” and “tried to get the guy to cook up some work,” but things
“got out of control” and appellant “had to dump on the guy.” The matter proceeded to trial.
Juror J.P.
One of the prospective jurors, J.P., indicated in her jury que stionnaire that she would
find police officers more credible than other witnesses “if they were wearing a camera and
an incident was recorded.” The d istrict court asked J.P., “[I] f you were given the
instruction by me as to how to assess a credible witness, do yo u think you’d give—you’d
be able to follow those instructions and apply the same kinds o f characteristics of how to
do that with each witness and treat them each equally?” J.P. responded, “Yes.” The district
court asked J.P. why she referenced officers “wearing a camera” in her questionnaire
answer. J.P. explained:

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I don’t know. I think I was just confused by the question
and I think I just—I feel like th ere’s more of a legitimacy to
police officers because they are required by law to tell the truth.
I don’t know. I just—I just picture a police officer and I just—
I have a lot of faith in their integrity. I don’t know.

The district court asked, “Do you think that there would be—you ’d be willing to listen to
another witness and give them the same equal—analysis as you wo uld a police officer?”
J.P. responded, “Yes.” The district court asked, “A police officer wouldn’t automatically
be believed no matter what?” J.P. responded, “Yes, I think that I could do that.” Appellant
moved to strike J.P. for cause. The district court denied the motion. J.P. was selected for
the jury.
The Stricken Testimony of E.D.
A homicide investigator, E.D., testified about her investigatio n into T.W.’s death.
Towards the end of E.D.’s testimony, the prosecutor questioned E.D. about the crime scene.
A portion of that testimony concer ned E.D.’s interpretation of physical evidence and
whether that evidence corroborated J.D.’s account.
During E.D.’s crime-scene testimony, appellant raised three objections to improper
expert testimony. One of those objections was overruled by the district court. The
following exchange occurred prior to that overruled objection:
PROSECUTOR:
  Are you aware of the location where
[T.W.’s] tooth was found at the scene?
E . D . : Y e s .
PROSECUTOR:
  Based on the—did the location of the
tooth aid you in your ability to assess how everything happened
that day—that night?
E . D . : Y e s .
PROSECUTOR: And where was the tooth?
E.D.: It was—it was at the—at his feet.

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PROSECUTOR: I’m going to show you Exhibit 34, the
scene sketch. If you would, [E.D.], with the pointer—can you
point on the scene sketch the location that you believe [T.W.]
was when he was shot?
E.D.: (Indicating.)
. . . .
E.D.: This is—this is where [T.W.] was
. . . .
E.D.: Oh. I believe [T.W.] was here when he
was shot (indicating). And his tooth is here
 (indicating). So he
was shot in the left side of the face, and the tooth came out and
fell. He turned, he tried to run, and he fell and continued to get
shot.
PROSECUTOR: And so you’re referring to the area sort of
in between the two—would have been southern chairs; is that
right?
E.D.: That’s right.
PROSECUTOR: And you think he was standing
somewhere in that area, but you can’t be certain where?
E . D . : N o .
PROSECUTOR: And part of why you think that is because
the tooth was over to—would have been his right?
E.D.:
       Correct.

Appellant objected, arguing “leading; cumulative.” The object ion was sustained.
The prosecutor then asked, “What aided you in determining that that was where he was?”
E.D. replied, “Because he was shot in the left side of his face , and his tooth landed here
(indicating).” The prosecutor asked, “And given the location of the [discharged cartridge
casings], do you have an opinion as to where the defendant was standing when he shot
him?” Appellant objected, arguing improper expert opinion. The objection was overruled.
E.D. answered, “The casings are located here (indicating), and when the casings eject from
the handgun, they go to the right and to the back, so he was standing over here (indicating).”

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The testimony continued:

PROSECUTOR: On the other side of the table?
E.D.: On the other side of the table.
PROSECUTOR: Where did [J.D.] indicate where he was
standing?
E.D.: Over here (indicating).
PROSECUTOR: On the other side of the table?
E.D.: Correct.
PROSECUTOR: What are the tw o points of exit that [T.W.]
would have had available to him at that time?
E.D.:
       The front door and the kitchen.
PROSECUTOR: Which was closer?
E.D.: The kitchen.

Following E.D.’s testimony, appe llant moved for a mistrial, arguing that E.D. gave
improper expert opinion and that t he state never disclosed that E.D. would testify as an
expert. The district court reviewed the transcript and stated as follows:
So in retrospect, upon review of my transcript, keeping
in mind this revision to [r]ul e 702, where expert testimony
can’t come in under the guise of a lay witness, I do have one of
my rulings where I believe should have—or wish I did sustain,
which I now believe I should have overruled. There’s a portion
of the testimony where [the prosecutor] asked, “What aided
you in determining that that was where he was?” The answer
was, “Because he was shot in the left side of his face, and his
tooth landed here (indicating).”

The next question was, “And given the location of the
[discharged cartridge casings], do you have an opinion as to
where the defendant was standing when he shot him?”

[Defense counsel] then objected for lack of foundation
and improper expert opinion, and I overruled that objection.

Next the answer went on to i nclude, “The casings are
loaded—located here (indicating), and when the casings eject
from the handgun, they go to the right and to the back, so he
was standing over here (indicating).”

8
[The prosecutor] then asked, “On the other side of the
table?”

So after reviewing [rule] 701’s addition, I now believe
the correct ruling on that objection would have been to sustain
that objection as to improper e xpert opinion. I think that was
expert opinion testimony, and the [s]tate did not follow the
[r]ule regarding notice to the defense, or a summary of the
expert’s opinion on that specific question. So I do not believe
that rises to the level of manifest injustice—or manifest
necessity that’s required for a mistrial. So I’m not granting the
mistrial motion at this time, because I feel there are less drastic
measures that can be employed.

Appellant requested a two-week continuance to obtain an expert . The district court
was disinclined to provide a two-week continuance given the limited amount of improperly
admitted expert testimony. The pr osecution offered the remedy of striking E.D.’s
“testimony as it related to the c rime scene,” and providing a c autionary instruction to the
jury. Appellant objected to this remedy. The district court a djourned for the day to
consider a proper remedy.
The following day, the state retracted its offer of striking E. D.’s crime-scene
testimony and suggested that appellant simply cross-examine E.D. Appellant argued that
the only proper remedy was a mistrial and directed the court to an email received from the
prosecutor the previous day. The email disclosed that a conver sation between the
prosecutor and E.D. occurred prior to E.D.’s testimony. Appell ant argued that the email
showed that all of the crime-scene testimony from E.D. was new information that should
have been disclosed prior to E.D.’s testimony. The prosecutor disagreed.
The district court determined that all of the crime-scene testimony from E.D. should
be stricken, “not because of the evidentiary concerns, but, again, because of any potential

9
discovery concerns.” The district court determined that a cura tive instruction to the jury
was sufficient to rectify the issue. The following curative instruction was given:
So with that, before we get started again with the cross-
examination of [E.D.], during [E.D.’s] testimony yesterday,
during the last portion of the morning, she was asked by the
[s]tate an entire series of questions that were inadmissible
regarding her different examina tion of items collected at the
crime scene and her opinion on what those might have meant
in relation to the crime itself.

She was also asked about h er theories regarding the
placement of [T.W.’s] body in relation to where the evidence
items were located. Additionally, she was asked about how a
body would react when shot and if she was able to conclude
what happened on June l6, 2016. She was referred to a scene
sketch, [T.W.’s] tooth, and the placement of the [discharged
cartridge casings]. Ultimately, she was asked questions
eliciting her opinion on where [T.W.] was shot and her theory
on what had occurred.

At this time, I’m informing you all to disregard all of
those portions of [E.D.’s] testimony. You are to proceed as if
none of these statements were ever made. [E.D.] has not been
qualified as an expert to render such opinions. [E.D.] made no
mention of any theories or conclusions like those in her police
reports, and those opinions a re not based on scientific,
technical, or other specialized knowledge. None of the
answers she gave you in those ar eas are, then, admissible as
evidence in this case.

A t t h i s t i m e , I ’ m o r d e r i n g t h a t y o u d i s r e g a r d t h o s e
specific portions of her direct testimony, and as I instructed you
earlier, you must follow when I give you an order to disregard
certain testimony.

Earlier, I instructed you how to disregard statements.
And just to remind you what that would mean is, at the end of
the trial, back in the jury room, you may likely tally up or
summarize all the evidence that y ou’ve received in this case.
From that evidence alone, you’re deciding on your verdict, and

10
from that evidence alone, you’ll determine whether or not the
[s]tate has proven their case and met their burden of proof.

Everything here that I’ve told you to disregard about
[E.D.’s] later testimony will simply not be included in the
evidence on which you’ll place your verdict—or base your
verdict. It will not be any part of any of your discussions, and
you cannot use it in any way. It will be as if none of it ever
occurred. Then, in that sense, you’ve disregarded it and
followed my instructions exactly.

Appellant’s Presence during S.S.’s Testimony

S.S. testified about his observations on June 16. After his te stimony, he exited the
courtroom and told a victim advocate that appellant looked like one of the men he saw
leaving T.W.’s residence on June 16. The state requested that S.S. be recalled to give
further testimony. Appellant asked that he be excused from the courtroom during S.S.’s
testimony. The district court or dered that appellant be presen t for S.S.’s testimony. S.S.
testified that appellant was the man wearing black that he had seen on the night of the
shooting.
Appellant was ultimately convicted of both charges and sentence d to 415 months’
imprisonment. This appeal followed.
D E C I S I O N
I. The district court did not abuse its discretion by seating J.P. as a juror because,
although she expressed actual bias, she was rehabilitated.

Appellant first argues that the district court abused its discr etion by denying his
motion to strike J.P. for cause. Appellant asserts that J.P. e xpressed actual bias and was
not rehabilitated. The state cont ends that, for three reasons, appellant’s argument is not
properly before us. We first address the state’s threshold arguments.

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First, the state asserts that appellant did not challenge J.P. for cause. A challenge
for cause preserves a biased-juror argument for purposes of appeal. State v. Geleneau, 873
N.W.2d 373, 380 (Minn. App. 2015), review denied (Minn. Mar. 29, 2016). Challenges
for cause must be made by motion. State v. Gillespie, 710 N.W.2d 289, 296 (Minn. App.
2006), review denied (Minn. May 16, 2006). Such motions may be oral, but the ground s
must be stated. Id.
Prior to J.P. coming in for individual questioning, defense cou nsel stated that he
“support[ed] letting [J.P.] go no w,” and following J.P.’s indiv idual questioning, defense
counsel renewed his “previous request” based upon “everything t h a t [ J . P . ] s a i d . ” T h e
prosecutor objected “to striking [J.P.] for cause,” and the dis trict court ultimately denied
defense counsel’s “motion” to dismiss J.P. “for cause.”
Defense counsel’s request that J.P. be let go, considered in context, was a motion to
strike J.P. for cause. While the motion certainly could have b een stated more clearly and
directly, the record reflects that both the prosecutor and the district court understood that
appellant moved to strike J.P. for cause. The basis for appell ant’s motion was J.P.’s
statements to the court, including her statements regarding the credibility of police-officer
testimony. Appellant properly moved to strike J.P. for cause.
Second, the state argues that appellant waived any biased-juror challenge by passing
the jury for cause. The state points to Geleneau, in which this court stated that we “will
not consider whether a district court erred by not striking a juror for cause sua sponte if the
appellant expressly waived the right to challenge the juror for cause.” 873 N.W.2d at 376.
But, Geleneau is distinguishable because, in that case, there was no motion t o strike for

12
cause. Id. at 379. Here, appellant moved to strike J.P. for cause and thereby preserved his
biased-juror argument for appeal.
Lastly, the state asserts that a ppellant waived his juror-bias argument because he
failed to strike J.P. using a pree mptory strike. The state ack nowledges that this court
“rejected this argument . . . but the issue is currently before the Minnesota Supreme Court.”
In Ries v. State , this court held that “[a] defendant is not required to use a peremptory
challenge to strike a juror who should have been removed for ca use in order to preserve
the claim that the for-cause denial impaired the defendant’s ri ght to a fair trial.” 889
N.W.2d 308, 310 (Minn. App. 2016), review granted (Minn. Mar. 14. 2017). Although
review has been granted in Ries, we decline to deviate.
Having resolved the threshold arguments, we next address the merits of appellant’s
challenge. Criminal defendants have a constitutional right to an impartial jury, and the bias
of a single juror violates that right. State v. Fraga, 864 N.W.2d 615, 623 (Minn. 2015).
“Permitting a biased juror to serve is structural error requiring automatic reversal.” Id. A
party may challenge a prospective juror for cause if “[t]he jur o r ’ s s t a t e o f m i n d — i n
reference to the case or to either party—satisfies the court that the juror cannot try the case
impartially and without prejudice to the substantial rights of the challenging party.” Minn.
R. Crim. P. 26.02, subd. 5(1)(1).
We review a district court’s denial of a challenge for cause using a two-step process.
Fraga, 864 N.W.2d at 623. We first determine whether J.P. expressed actual bias, which
requires us to view J.P.’s voir dire answers in context. Id. Here, J.P. indicated in her
questionnaire that she would find officers more credible than other witnesses. She echoed

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that sentiment during voir dire and stated, in regard to her qu estionnaire answer, that she
felt that “there’s more of a le gitimacy to police officers because they are required by law
to tell the truth.” In State v. Logan, the supreme court effectively found actual bias where
a juror stated during voir dire that he was inclined to give gr eater credence to officer
testimony than to other testimony. 535 N.W.2d 320, 324 (Minn. 1995). Like the juror in
Logan, J.P. expressed actual bias concerning the credibility of officer testimony.
Having determined that J.P. expre ssed actual bias, we next dete rmine whether she
was properly rehabilitated. State v. Prtine , 784 N.W.2d 303, 310 (Minn. 2010). We
consider a juror to be rehabilita ted if he or she “states unequ ivocally that he or she will
follow the district court’s instructions and will set aside any preconceived notions and fairly
evaluate the evidence.” Id. J.P stated unequivocally that, if given instructions on how to
assess witness credibility, she w ould follow those instructions . She then gave an
explanation for her questionnaire answer and indicated that off icers are more credible
because they are required by law to tell the truth. But, this statement was in regard to the
reasoning behind her questionnair e answer and did not necessari ly detract from her
rehabilitation. She subsequently indicated unequivocally that she would analyze officer
testimony the same as other testimony. When the district court asked, “A police officer
wouldn’t automatically be believed no matter what?” J.P. replied, “Yes, I think that I could
do that.”
We defer to the district court’s ruling on challenges for cause because the district
court is “in the best position to observe and judge the demeano r of the prospective juror.”
State v. Graham , 371 N.W.2d 204, 206 (Minn. 1985). Here, the district court w as best

14
positioned to evaluate J.P.’s responses. J.P. indicated unequivocally that she would follow
instructions and consider officer testimony the same as other w itness testimony. The
district court did not abuse its discretion by declining to remove J.P. for cause.
II. The district court did not abuse its discretion by denying appe llant’s mistrial
motion because it is not reasonably probable that the improper expert
testimony from E.D., a related discovery violation, and a poten tial second
discovery violation affected the verdict.

Appellant next argues that the district court erred by refusing to grant a mistrial. We
review the denial of a mistrial motion for an abuse of discreti on. State v. Manthey, 711
N.W.2d 498, 506 (Minn. 2006). “A mistrial should not be grante d unless there is a
reasonable probability that the outcome of the trial would be d ifferent if the event that
prompted the motion had not occurred.” Id. (quotation omitted). A ppellant’s mistrial
motion was based upon both the improper expert testimony of E.D . and a discovery
violation stemming from the state’s failure to disclose E.D. as an expert. Appellant also
argued to the district court that oral statements made by E.D. to the prosecutor prior to
E.D.’s testimony should have been disclosed. We address these issues individually. We
first address the improper expert testimony, and we begin that analysis by addressing
appellant’s threshold argument th at the district court applied an improper standard when
determining if a mistrial was warranted.
The district court denied the mistrial motion because E.D.’s te stimony did not rise
“to the level of manifest injus tice—or manifest necessity.” Th e manifest-necessity
s t a n d a r d i s a p p l i c a b l e i n c a s e s w h e r e t h e s t a t e s e e k s a m i s t r i al without the defendant’s
consent. State v. Long, 562 N.W.2d 292, 296 (Minn. 1997). But in cases like the present,

15
where a defendant moves for a mistrial, the proper standard is whether “there is a
reasonable probability that the outcome of the trial would be d ifferent if the event that
prompted the motion had not occurred.” Manthey, 711 N.W.2d at 506 (quotation omitted).
The district court applied the wrong standard. However, this d oes not require
automatic reversal. If under the proper standard the district court’s ruling was warranted,
no prejudice resulted and reversal is not required. See State v. Fox, 868 N.W.2d 206, 215
n.1 (Minn. 2015) (“[O]ur precedent has made clear that even if the district court applied an
incorrect standard, such an error is not reversible if the facts support the same result under
the correct standard.”). We ther efore examine if, under the pr oper standard, the district
court abused its discretion by denying appellant’s motion.
The district court did not abuse its discretion because it is n ot reasonably probable
that the outcome of the trial would have been different if the improper expert testimony
was not admitted. The objected-t o improper expert testimony co nstituted approximately
one page in the over 1,300 pages o f t r i a l t r a n s c r i p t s . T h e t e stimony concerned the
positioning of appellant, T.W. and J.D. at the time of the shooting. This was the subject of
some inconsistent evidence. For example, J.D.’s diagram of the crime scene indicated that
he and appellant were in the kitchen when appellant shot T.W., but shell casings were
recovered from the dining room, suggesting that the shooter was in the dining room.
Despite these inconsistencies on how individuals were situated, the state’s overall case
against appellant was strong. See State v. Bahtuoh, 840 N.W.2d 804, 819-20 (Minn. 2013)
(considering the strength of the s tate’s evidence when determin ing whether the district
court abused its discretion by denying a motion for a mistrial).

16
J.D. was consistent in his asse rtion that appellant shot T.W. J.D.’s eyewitness
testimony was corroborated by oth er evidence, such as the testi mony of C.K., which
indicated that appellant was the shooter. S.S. identified appellant as the man wearing black
who exited T.W.’s residence after the shooting. Both S.S. and P.N. testified that two black
men exited T.W.’s house after the shooting, one wearing red and the other wearing black.
This is consistent with J.D.’s account. Although S.S. and P.N. were inconsistent on who
held the paper bag, the fact that both testified about a paper bag supports J.D.’s version of
events. Video evidence showed a vehicle matching appellant’s vehicle leaving the area of
the shooting around the time of the shooting. All of this corroborating evidence conflicted
with appellant’s statement to pol ice that he left T.W.’s reside nce between 8:00 and 9:00
p.m. and that no shooting occurred.
Further, the district court retroactively sustained appellant’s objection to the
improper expert testimony and provided an extensive corrective instruction to the jury. See
State v. Mahkuk, 736 N.W.2d 675, 689 (Minn. 2007) (stating that the district court did not
abuse its discretion by denying a motion for a mistrial after i t sustained the defense’s
objection and gave a curative instruction). The district court did not abuse its discretion by
denying appellant’s mistrial motion based on the improper expert testimony.
We next address the discovery violations. Whether a discovery violation occurred
is an issue of law, which we review de novo. State v. Bailey, 677 N.W.2d 380, 397 (Minn.
2004). There are really two violations at issue. The first is the prosecution’s failure to
d i s c l o s e t h a t E . D . w o u l d b e t e s t i f y i n g a s a n e x p e r t . P r i o r t o trial, the prosecutor must
disclose the name of “[a] person who will testify as an expert but who created no results or

17
reports in connection with the case” to the defense, as well as “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.” Minn. R. Crim. P.
9.01, subd. 1(4)(c). We agree with the district court’s conclu sion that E.D. offered
improper expert testimony. The prosecutor failed to disclose E.D. as an expert witness.
The second violation at issue is t he failure of the prosecution to disclose oral
statements made by E.D. to the prosecutor prior to E.D.’s testimony. The prosecutor must
disclose the substance of any oral statements that relate to the case. Id., subd. 1(2)(c). The
existence of this second violation is less clear. The record d oes not indicate the specifics
of E.D.’s prior oral statements, and the district court did not conclusively determine that
this second violation occurred. E.D.’s crime-scene testimony w as struck because of
“potential discovery concerns.” It appears that the district c ourt was simply acting out of
an abundance of caution when it c hose to strike approximately t en-and-a-half pages of
transcript testimony. We disagree with appellant’s assertion that all of E.D.’s crime-scene
testimony should have been disclosed, as much of the testimony concerned the positioning
of physical evidence. If there was a failure to disclose, it related to E.D.’s opinions on the
implications of the location of physical evidence. However, ev en assuming that the
prosecutor failed to disclose E.D.’s opinions, the district court did not abuse its discretion
by denying a mistrial. It is not reasonably probable that the verdict would have been
different had disclosure occurred.
“The imposition of sanctions for violations of discovery rules and orders is a matter
particularly suited to the judgment and discretion of the [district] court.” State v. Lindsey,

18
284 N.W.2d 368, 373 (Minn. 1979). A new trial should be grante d based on a discovery
violation if “there is a reasonable probability that, had the e vidence been disclosed to the
defense, the outcome of the trial would have been different.” State v. Clobes, 422 N.W.2d
252, 255 (Minn. 1988).
Proper disclosures may have resulted in additional objections t o E.D.’s opinions
about the crime scene (though appellant did raise 11 objections , only three of which were
overruled), restrictions on that testimony, a more effective cross-examination, and perhaps
a rebuttal expert. But E.D.’s crime-scene opinions were not as critical as appellant
contends. Inconsistent evidence on the exact positions of appe llant, J.D., and T.W. at the
time of the shooting existed both before and after E.D.’s testi mony. E.D.’s opinions on
how the shooting transpired were overshadowed by J.D.’s testimony that the shooting did
transpire. While there were inconsistencies on how individuals were situated, J.D.
consistently claimed that appella nt was the shooter, and he was consistent on the
positioning of T.W.’s body. His corroborated version of events stood in direct conflict
with appellant’s statements to police that nothing occurred. M oreover, the district court
provided an extensive corrective instruction that directed the jury to disregard E.D.’s
opinions on what occurred at the crime scene. See Mahkuk, 736 N.W.2d at 689; see also
State v. Taylor, 650 N.W.2d 190, 207 (Minn. 2002) (noting that we presume a jury follows
a district court’s instructions). The district court did not a buse its discretion in declining
to grant a mistrial as a sanction for the discovery violations.
Appellant argues that the distric t court abused its discretion by not applying the
factors from Lindsey when determining the appropriate discovery sanction. In determining

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whether to impose sanctions for a discovery violation, the dist rict court should consider
“(1) the reason why disclosure w as not made; (2) the extent of prejudice to the opposing
party; (3) the feasibility of rectifying that prejudice by a co ntinuance; and (4) any other
relevant factors.” Lindsey, 284 N.W.2d at 373. Failure to consider these factors constitutes
an abuse of discretion. State v. Sailee , 792 N.W.2d 90, 95 (Minn. App. 2010), review
denied (Minn. Mar. 15, 2011). Although the district court did not expressly cite to Lindsey,
the record establishes that the court sufficiently addressed each Lindsey factor.
First, the district court considered the reason why the disclosure was not made. The
parties made a thorough record on why E.D.’s oral statements and expert testimony were
not disclosed. The prosecutor did not believe that the questio ning of E.D. called for
specialized expert knowledge. The prosecutor argued that “it d oesn’t require expert
opinion or expert testimony or a ny kind of specialized knowledg e to determine where
people were when all this took pl ace.” Likewise, the prosecutor did not view E.D.’s oral
statements made prior to the testimony “as new information that required disclosure.” The
record indicates that the distri ct court considered “the explan ation by the [s]tate” when
determining the appropriate sanction for the discovery violation.
Second, the district court considered the extent of prejudice to appellant. The court
examined the transcript and noted that the vast majority of appellant’s objections to E.D.’s
testimony were sustained, and only a limited portion of E.D.’s testimony was improperly
admitted. Third, the district court considered the feasibility of resolving the issue with a
continuance. Appellant requested a continuance of “a couple we eks.” The district court
noted that the objected-to improper expert testimony was limited, a two-week continuance

20
was therefore unjustified, and “less drastic measures” could “rectify” the issue. Lastly, in
its thorough examination of the discovery issue on the record, the district court considered
other relevant factors, such as the potential for a curative instruction to be given to the jury.
The district court effectively considered the Lindsey factors.
III. T h e d i s t r i c t c o u r t d i d n o t e r r b y r e q u i r i n g a p p e l l a n t t o b e p r esent in the
courtroom for S.S.’s testimony b ecause criminal defendants do n ot have an
absolute right to absent themselves from trial.

Lastly, appellant argues that the district court erred by requi ring him to be present
for S.S.’s identification testimony. Appellant asserts that hi s presence inhibited an
effective cross-examination of S.S. because S.S. could not be questioned without appellant
sitting “right in front of him.” Appellant contends that his due-process rights were violated
because he could not put on a full defense. Appellant’s arguments are unavailing.
I n Carse v. State, this court stated that “a district court is not required to a ccept a
defendant’s waiver of his right to be present and, particularly where identity is at issue, a
defendant may be required to be present.” 778 N.W.2d 361, 371 n.4 (Minn. App. 2010),
review denied (Minn. Apr. 20, 2010). Appellant asserts that our statement in Carse was
dictum. See Brink v. Smith Cos. Constr. , 703 N.W.2d 871, 877 (Minn. App. 2005)
(“[D]ictum, if it contains an ex pression of the opinion of the court, is entitled to
considerable weight.” (quotation omitted)), review denied (Minn. Dec. 21, 2005).
Regardless of whether our statement in Carse is dictum, the statement is sound. A
defendant may be compelled to submit to some form of identification procedure. See, e.g.,
United States v. Wade, 388 U.S. 218, 222-23, 87 S. Ct. 1926, 1929-30 (1967) (requiring a
defendant to participate in a pretrial lineup); United States v. Valenzuela, 722 F.2d 1431,

21
1433-34 (9th Cir. 1983) (requiri ng a defendant to appear clean shaven to facilitate
identification).
Appellant asserts that his forced presence violated his right to due process, but this
argument has been rejected. In United States v. Moore, a federal appellate court stated that
“there is no perceptible due process violation by demanding that the defendant attend trial,
even where such identification is an integral part of the issue s before the jury.” 466 F.2d
547, 548 (3d Cir. 1972); see also United States v. Fitzpatrick , 437 F.2d 19, 27 (2d Cir.
1970) (concluding that defendant’s contention that it was rever sible error for the district
court to deny his motion to waive his presence in the courtroom f i n d s n o s u p p o r t i n
caselaw); Swingle v. United States, 151 F.2d 512, 513 (10th Cir. 1945) (“A defendant,
lawfully charged, may be compelled to present himself for trial.”). Appellant fails to offer
any support for the assertion that a defendant has an absolute right to absent himself from
trial. The district court did not err by requiring appellant t o be present for S.S.’s
identification testimony.
Affirmed.