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STATE OF MINNESOTA IN COURT OF APPEALS A08-0377 State of Minnesota, Respondent, vs. Kenneth William Crane, Appellant. Filed June 2, 2009 Affirmed Halbrooks, Judge Concurring specially, Johnson, Judge Blue Earth County District Court File No. 07-CR-07-184 Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and Eileen Wells, Mankato City Attorney, Christopher D. Cain, Assistant City Attorney, 10 Civic Center Plaza, P.O. Box 3368, Mankato, MN 56002-3368 (for respondent) Lawrence Hammerling, Chief Appellate Public Defender, Jessica Merz Godes, Assistant Public Defender, 540 Fairview Avenue North, Suite 300, St. Paul, MN 55104 (for appellant) Considered and decided by Johnson, Presiding Judge; Halbrooks, Judge; and Ross, Judge. SYLLABUS Absent further developments in the ongoing litigation between the state and CMI, the manufacturer of the Intoxilyzer 5000EN, a district courts finding that the state does not possess the Intoxilyzer source code is clearly erroneous under the supreme courts ruling in State v. Underdahl.

OPINION HALBROOKS, Judge Before his trial for third-degree driving while impaired (DWI), Kenneth William Crane moved the district court to order the prosecution to disclose the computer source code for the Intoxilyzer breath-test machine. The district court denied that motion on the basis that the state did not possess or control the source code, and a jury found Crane guilty on two counts of third-degree DWI. On appeal, Crane argues that the district court erred in its discovery ruling. We conclude that the district courts ruling was erroneous under the supreme courts recent ruling in State v. Underdahl, but we affirm the conviction because the ruling was not prejudicial to Crane. FACTS On the evening of January 18, 2007, emergency medical personnel in Mankato found Kenneth Crane passed out in a vehicle that was stopped with its engine running. A police officer from the Mankato Department of Public Safety observed that Crane appeared to be intoxicated. Crane failed a field sobriety test and was arrested. At the Mankato Law Enforcement Center, Crane consented to a breath test. An officer

administered a breath test using the Intoxilyzer 5000EN, which is the breath-test machine approved for use in Minnesota. See Minn. R. 7502.0420, subp. 3 (2005). The test revealed that Crane had an alcohol concentration of .14. The state charged Crane with two counts of third-degree DWI. In April 2007, Crane moved the district court under Minn. R. Crim. P. 9.01, subd. 2(1), to order the state to disclose the computer source code for the Intoxilyzer. The district court deferred 2

ruling on that motion until the supreme court issued its decision in Underdahl v. Comm'r of Pub. Safety (In re Comm'r of Pub. Safety), 735 N.W.2d 706 (Minn. 2007) (Underdahl I). After the supreme court issued its decision in Underdahl I, the state submitted an affidavit of Glenn Hardin, Toxicology Supervisor at the Minnesota Bureau of Criminal Apprehension Forensic Science Laboratory (BCA). Hardin stated in his affidavit, "The source code for the Intoxilyzer 5000EN is not now, nor has it ever been, in the possession of the BCA" and that the only person in "actual possession" of the source code is the manufacturer, CMI, Inc. In August 2007, the district court considered Cranes motion in light of Underdahl I and the Hardin affidavit. Based on the affidavit, the district court concluded that no governmental agency possessed or controlled the source code and therefore denied Cranes motion. But the district court noted that it would agree to issue a

subpoena to CMI if Crane requested it. The case was tried to a jury in October 2007, and the jury found Crane guilty on both counts of third-degree DWI. Without specifying which count it sentenced on, the district court sentenced Crane to 180 days in jail and a $900 fine, with 150 days stayed and work release granted. Crane appeals. ISSUE Did the district court err in denying Cranes motion for disclosure of the Intoxilyzer source code?

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ANALYSIS I. Crane argues that the district court abused its discretion in denying his motion to order disclosure of the Intoxilyzer source code. A district court has "wide discretion" in ruling on discovery requests and will not be reversed absent a "clear abuse of that discretion." Underdahl I, 735 N.W.2d at 711 (quotation omitted). But when a district courts pretrial order is based on factual findings, we review those factual findings for clear error. State v. Gauster, 752 N.W.2d 496, 502 (Minn. 2008). Interpretation of the rules of criminal procedure is a question of law reviewed de novo. State v. Johnson, 744 N.W.2d 376, 379 (Minn. 2008). A. Discovery Ruling The rule of criminal procedure under which Crane moved for disclosure of the source code provides: Upon motion of the defendant, the court for good cause shown shall require the prosecuting attorney . . . to assist the defendant in seeking access to specified matters relating to the case which are within the possession or control of an official or employee of any governmental agency, but which are not within the control of the prosecuting attorney. The prosecuting attorney shall use diligent good faith efforts to cause the official or employee to allow the defendant access at any reasonable time and in any reasonable manner to inspect, photograph, copy, or have reasonable tests made. Minn. R. Crim. P. 9.01, subd. 2(1) (emphasis added). Thus, some official or employee of a government agency must possess or control the source code in order for Crane to obtain relief under rule 9.01, subdivision 2(1). Our analysis of the possession issue is guided by

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the supreme courts recent decision in State v. Underdahl, ___ N.W.2d ___, 2009 WL 1150093 (Minn. Apr. 30, 2009) (Underdahl II), pet. for reh'g filed (Minn. May 5, 2009). In Underdahl II, the supreme court considered a consolidated appeal by the state from two district court orders granting motions for discovery of the source code. ___ N.W.2d at ___, 2009 WL 1150093, at *2. The supreme court framed the issue on appeal as "whether the district courts findings that the State had possession or control of the source code were clearly erroneous." Id. at ___, 2009 WL 1150093, at *8. Although it

acknowledged the ongoing federal court litigation between the state and CMI regarding the parties rights to the source code, the supreme court concluded that the district courts findings in both cases that the state had possession or control of the source code was not error. Id. at ___ & n.7, 2009 WL 1150093, at *8 & n.7. The supreme court based its ruling on two grounds. First, the supreme court noted, as it did in Underdahl I, that based on the language of the requests for proposal (RFP), which contained the terms of the agreement between the state and CMI, "any copyrightable material would ,,be the property of the State and are by this Contract assigned to the State." Id. at ___ & n.6, 2009 WL 1150093, at *8 & n.6 (quoting Underdahl I, 735 N.W.2d at 708). Second, the supreme court reasoned that the defendants alternative means of accessing the source code, if any existed, were irrelevant for the purpose of ruling on the motion because "Rule 9.01, subd. 2(1), only speaks to the States obligation to assist a defendant in seeking access to material the State possesses, aside from the defendants possible access." Id. at ___, 2009 WL 1150093, at *8.

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In this case, the district court made a factual finding that the source code was not within the possession or control of an employee of any governmental agency because "the manufacturer wont provide it." The district court based its finding solely on the Hardin affidavit, which avers that the state had not been able to obtain the source code from CMI. But this affidavit does not satisfy the states burden, because in Underdahl II, the supreme court concluded that the state possessed the source code, notwithstanding the fact that the state was engaged in ongoing litigation with CMI over access to the source code. Id. at ___ & n.7, 2009 WL 1150093, at *8 & n.7. As noted above, the supreme court based this conclusion in part on the same language in the RFP that the supreme court had relied on in Underdahl I to affirm the denial of the commissioners petition for a writ of prohibition. 735 N.W.2d at 713. Underdahl I was decided one month before the district court in this case ruled on Cranes motion. Thus, we conclude that the district courts finding regarding possession of the source code was clearly erroneous. Neither Underdahl II nor our ruling forecloses a different result in future cases based on further developments in litigation between the state and CMI. See Underdahl II, ___ N.W.2d at ___ n.7, 2009 WL 1150093, at *8 n.7 (permitting state to supplement record with proposed settlement agreement in federal lawsuit between state and CMI). Because the district courts ultimate ruling on Cranes motion was based on an erroneous factual finding, the district courts denial of Cranes motion was an abuse of discretion.

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B.

Remedy We turn next to consider the proper remedy for the district courts erroneous

discovery ruling. In some cases when a criminal defendant has improperly been denied discovery, appellate courts have reversed the conviction and remanded for a new trial after determining that the denial of discovery prejudiced the defendant. See State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000); State v. Zeimet, 310 N.W.2d 552, 553 (Minn. 1981). In other cases, appellate courts have applied the harmless-error test, holding that a new trial is not necessary unless the denial of discovery is "prejudicial [to] the defendants right to a fair trial." State v. Miller, 754 N.W.2d 686, 705-07 (Minn. 2008); see also State v. Roan, 532 N.W.2d 563, 571 (Minn. 1995) ("Even if the trial court erred in quashing the subpoena, a new trial is required only if the . . . nondisclosure was material to the outcome of the verdict.") In light of the fact that cases addressing the denial of a defendants right to discovery consistently address the prejudice to the defendant in crafting an appellate remedy, we examine whether the district courts erroneous discovery ruling in this case was prejudicial error. Error related to discovery rulings is harmless beyond a reasonable doubt if the jurys verdict "was surely unattributable to the error." State v. Palubicki, 700 N.W.2d 476, 489 (Minn. 2005); see also Miller, 754 N.W.2d at 705. In this case, Crane was convicted of third-degree DWI in violation of Minn. Stat.

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