State of Minnesota v. Royale Romeo Harris

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-1809

State of Minnesota,
Respondent,

vs.

Royale Romeo Harris,
Appellant.

Filed December 26, 2023
Affirmed
Smith, Tracy M., Judge

Washington County District Court
File No. 82-CR-19-4446

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Kevin Magnuson, Washington County Attorney, Kayla K. Wengronowitz, Assistant
County Attorney, Stillwater, Minnesota (for respondent)

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

Considered and decided by Bratvold, Presiding Judge; Reyes, Judge; and Smith,

Tracy M., Judge.

NONPRECEDENTIAL OPINION

SMITH, TRACY M., Judge

In this direct appeal from a judgment of conviction for the nonconsensual

dissemination of private sexual images, appellant Royale Romeo Harris argues that the

prosecution violated its obligations under Minnesota Rule of Criminal Procedure 9.01 and
Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose the substance of statements

made by the complainant to the prosecutor and victim-witness advocate during a phone

call. We affirm.

FACTS

In October 2019, respondent State of Minnesota charged Harris with the

nonconsensual dissemination of private sexual images of A.C., with whom he was

previously in a relationship. Thereafter, defense counsel requested “[t]hat the State provide

the defense with written summaries of all conversations between all witnesses and the

prosecuting attorney” and “victim-witness personnel.” The prosecution provided defense

counsel with a summary of one phone call in October 2021 between A.C. and the

prosecutor and victim-witness advocate in which A.C. discussed the offense. The matter

proceeded to a jury trial in February 2022.

At trial, A.C. testified about the events that led to the charges against Harris. The

events all took place on the same day in September 2019, after Harris and A.C.’s

relationship had already ended. Harris called A.C. at work more than 80 times, but she

ignored his phone calls. Harris left her the following voicemail message:

That post was made to public. All of them were. You’re such a
wonderful person. You’re amazing. I appreciate you doing me
the way that you did. Having no faith in me after you telling
me how much you loved me. Now you got a new guy ‘cuz you
done took your meds, you good now. I’m glad you did me like
that. You deserve everything you got coming to you. I was a
good dude to your kids. You want to blame all your problems
on me. Karma’s going to get you and I can’t wait.

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After receiving the message, A.C. received a phone call from her daughter about a post on

Facebook. A friend also advised A.C. to check Facebook. A.C. discovered that Harris had

posted to his Facebook account a photo of her appearing partially nude and a video that

depicted them in a sexual act; A.C. was tagged in the posts. Harris also made derogatory

comments about A.C. in the posts.

Although A.C. had sent Harris the photo and consented to Harris recording the

video, A.C. did not consent to Harris posting the photo or video online. A.C. called Harris

and begged him to remove the photo and video, but he refused to do so. A.C. then called

Harris’s mother and asked her to try to convince Harris to remove the posts. When Harris

continued to display the photo and video on his Facebook account, A.C. contacted the

police. A.C. took screenshots of Harris’s Facebook page, and her friend made a screen

recording 1 of the posts and sent it to her. A.C. sent the police the screenshots and screen

recording as well as Harris’s voicemail.

On recross-examination of A.C., defense counsel asked her whether she wanted to

see Harris prosecuted. She responded:

I wanted the posts to come down. I also asked for this
trial to be cancelled because I already got what I wanted out of
it.
I believe if somebody does somebody wrong to
somebody that, yes, they should pay for it. But I moved on with
my life and I didn’t want to rehash all of these old feelings. I
got what I wanted out of it.
He knows the truth, God knows the truth. I have no
reason to lie about any of it. I got what I wanted, I wanted the
posts to come down and I wanted [Harris] to leave me alone,

1
Similar to a screenshot, a screen recording captures what appears on the screen of a device
as a video.

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 which is what he has been doing over the past three years,
that’s what I wanted.
I tried dropping it several times and they wouldn’t let
me.

After A.C. completed her testimony and was released by the district court, defense counsel

raised a concern that A.C. suggested in her testimony that she had communicated with the

prosecution about dropping the case but the prosecution had not disclosed summaries of

those statements.

The prosecution acknowledged that it had not disclosed a January 25, 2022 phone

call with A.C. to inform her that the trial had been continued. The prosecutor then shared

her notes of A.C.’s statements during that phone call:

[M]yself and [the victim-witness advocate] spoke with [A.C.]
via phone. She is fatigued by court in general. She testified in
a different case also has a case that she is a victim of in
Washington County. She explains the nature of that case a little
bit. Not my case, unrelated to this. Kids have been sick with
COVID. Financially struggling and feels her job is in jeopardy
even though she knows they legally have to let her go with a
subpoena. The stress of life is just really difficult right now,
and other cases are more serious bigger priority to her. She
does not want to invest her time in this case anymore.
Everything she wanted out of this case has already happened.
Those being, one, the photos were taken down; two, the
defendant had stopped harassing her. She reiterated that she is
not wanting to come to court and testify any further. Agreed
we would follow up with her after I had conversations within
my office. She appreciated that I was understanding of her
situation. She agreed that the case -- she agreed the case was
solid but I was going to consider her thoughts and life
circumstances as I want to place a balancing upon
accountability but not at her expense. She thanked us for our
conversation.

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 The district court offered to permit the defense to take a break to speak with the

victim-witness advocate and to call that person to testify about A.C.’s undisclosed

statements, but Harris declined the offer. Harris then moved for a mistrial. The district court

denied the motion.

The jury found Harris guilty of nonconsensual dissemination of private sexual

images. The district court granted Harris’s motion for a downward dispositional departure

and sentenced him to a stayed term of 19 months in prison, placing him on probation for

three years.

Harris appeals.

DECISION

Harris argues that he is entitled to a new trial because the prosecution’s failure to

disclose the substance of A.C.’s statements made during the January 2022 phone call

violated its obligations pursuant to Minnesota Rule of Criminal Procedure 9.01 and Brady.

We address each argument in turn.

Discovery Violation Under Minn. R. Crim. P. 9.01

Appellate courts review de novo whether a discovery violation occurred. State v.

Palubicki, 700 N.W.2d 476, 489 (Minn. 2005). But we review a district court’s decision to

impose discovery sanctions for an abuse of discretion. See id. A reviewing court should

not order a new trial to remedy a discovery violation unless there is a reasonable probability

that the evidence would have affected the outcome of the trial. State v. Clobes, 422 N.W.2d

252, 255 (Minn. 1988).

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 At the defense’s request and before the omnibus hearing, the prosecution must

“allow access at any reasonable time to all matters within the prosecutor’s possession or

control that relate to the case,” unless they are privileged. Minn. R. Crim. P. 9.01, subd. 1.

The prosecution must also disclose “[a]ny” statements “known to the prosecutor that relate

to the case,” including “the substance of oral statements.” Id., subd. 1(2)(c). The word

“any” means “every.” Palubicki, 700 N.W.2d at 490.

Harris contends that A.C.’s statements in the January 2022 phone call “relate[] to

the case” because they are “important” and “[i]t is material that a witness did not . . . want

to appear in court and swear an oath to tell.” The state contends that A.C.’s statements do

not “relate to the case” because they “relate to the witness’s availability and opinions about

coming to court” and “do not reveal any material, relevant, inculpatory, or exculpatory

information.”

The parties do not cite any authority in support of their respective interpretations of

statements that “relate to the case.” In an unpublished opinion, 2 this court stated that “[t]he

correct standard for production under Rule 9.01 is any statement that relates to the case,

without an exception for conversations related to scheduling matters.” State v. Chaney, No.

A14-1513, 2015 WL 5088943, at *9 (Minn. App. Aug. 31, 2015) (concluding that “the

district court incorrectly found that the state did not have to produce statements related to

the case that deal with procedural matters”), rev. denied (Minn. Nov. 17, 2015). Although

2
In 2020, an amendment to the Minnesota Rules of Civil Appellate Procedure changed the
terminology from “unpublished” to “nonprecedential” when referring to this court’s
nonbinding opinions. See Minn. R. Civ. App. P. 136.01, subd. 1.

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the opinion is not precedential, we find the interpretation in Chaney to be persuasive, and

we adopt it here. Thus, A.C.’s statements during the January 2022 phone call discussing

the trial continuance relate to the case and the prosecution should have disclosed them.

Nonetheless, this discovery violation does not warrant a new trial. Although Harris

points out that his trial counsel said that the statements were “something that [he] would

have been able to explore at length and prepare for [A.C.’s] cross-examination had [he]

known about [them] ahead of time,” Harris does not explain what defense counsel would

have done differently or how an earlier disclosure of A.C.’s statements would have affected

the outcome of the trial. Furthermore, the record demonstrates that A.C.’s statements were

mostly consistent with her trial testimony regarding her feelings about the case, and defense

counsel had the opportunity to cross-examine A.C. about her testimony that she had wanted

the case to be dropped. Additionally, Harris declined the district court’s offer to call the

victim-witness advocate to testify about any inconsistencies between A.C.’s statements and

her trial testimony. Because the record does not show a reasonable probability that the

discovery violation affected the outcome of the trial, Harris is not entitled to a new trial.

Brady Violation

In Brady, the United States Supreme Court held “that the 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.” 373 U.S. at 87. Thus, a Brady violation requires that (1) the

evidence is favorable to the defendant as either exculpatory or impeaching, (2) the evidence

was suppressed by the prosecution, and (3) the evidence is material. Walen v. State, 777

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N.W.2d 213, 216 (Minn. 2010). The state concedes the second element—that it suppressed

the evidence of A.C.’s statements made to the prosecutor and victim-witness advocate

during the January 2022 phone call—but argues that the suppressed evidence is neither

favorable nor material. Appellate courts review alleged Brady violations de novo. Zornes

v. State, 903 N.W.2d 411, 417 (Minn. 2017).

Harris contends that A.C.’s statements are favorable as impeachment evidence. The

state asserts that A.C.’s statements could not have been used for impeachment purposes

because they were “consistent with her trial testimony” and “did not tend to show bias or

untruthfulness.” We conclude that, though Harris does not identify how the statements

would have been used to impeach A.C., the statements could have been used as prior

inconsistent statements to show that, despite her trial testimony that she asked to have the

case dropped and the trial canceled, A.C. did not ask the prosecutor during the January

2022 phone call to drop the case or cancel the trial. 3 Therefore, Harris meets the favorability

element.

Harris’s argument, however, fails on the materiality element. “Evidence is material

only if there is a reasonable probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different.” Pederson v. State, 692 N.W.2d

452, 460 (Minn. 2005) (quotation omitted). A “reasonable probability” is one “sufficient

to undermine confidence in the outcome.” Id. (quotation omitted).

3
See Minn. R. Evid. 613 (permitting the admission of prior inconsistent statements for
impeachment purposes).

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 Although Harris speculates that his trial counsel “would have prepared and executed

the cross-examination of A.C. differently had he known about the statement[s],” Harris

does not explain what that different preparation and execution of cross-examination would

have been or how it would have affected the outcome of the case. Because Harris makes

no showing of a reasonable probability that the disclosure of A.C.’s statements would have

resulted in a different verdict, he has not established that A.C.’s statements are material.

Harris’s Brady argument therefore fails.

In conclusion, because there is not a reasonable probability that the discovery

violation affected the outcome of the trial and because Harris has not established a Brady

violation, Harris is not entitled to a new trial.

Affirmed.

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