State v. Gouleed

PAGE, Justice

(dissenting).

I respectfully dissent. In reversing the court of appeals, the court concludes that the trial court did not abuse its discretion in declaring the mistrial. I do not understand how the court can reach that conclusion when the trial court never considered the defendant’s constitutionally protected interest against double jeopardy and, therefore, failed to apply the manifest-necessity standard for declaring a mistrial. See Arizona v. Washington, 434 U.S. 497, 506, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) (stating a reviewing court has the obligation to ensure that the trial courts exercised sound discretion in declaring a mistrial).

The record indicates that during trial the state’s medical expert, Ramsey County Medical Examiner Dr. Michael McGee, testified that based on his examination he believed that F.M. died from several skull fractures that she suffered shortly before her death. According to Dr. McGee, F.M.’s injuries were the result of child abuse and not a fall as described by Gou-leed. Dr. McGee further testified that, although he found evidence of other, earlier injuries in F.M.’s thighs and head, he believed that these injuries, which were sustained before November 8, were not causally related to F.M.’s death. On cross-examination, Dr. McGee agreed that iron-staining was needed to effectively determine when F.M.’s skull fractures had occurred and he indicated that he had performed iron-staining in F.M.’s case.

In order to counter Dr. McGee’s testimony, Gouleed presented expert testimony from Dr. John Plunkett. Dr. Plunkett was of the opinion that Gouleed’s actions on November 8 were not the cause of F.M.’s death. Relying on the iron positivity in iron-stained autopsy slides, Dr. Plunkett testified that the injuries that caused F.M.’s death occurred four or five days before F.M.’s death. The state objected to Dr. Plunkett’s testimony when Dr. Plunk-ett indicated that he had performed independent iron-staining on some of the autopsy slides. A bench conference out of the hearing of the jury ensued. During that conference, the state requested that the trial court strike Dr. Plunkett’s testimony in its entirety, stating:

Here we’ve got a series of slides that the state has never seen and a whole series of testimony about those slides which are the slides [Dr. Plunkett was] testifying to to date these injuries. A critical issue in this case.

Gouleed’s counsel responded that Dr. Plunkett’s testimony should not have been “a huge shock” to the state because Dr. Plunkett had previously indicated in his July 18, 2003, report that the iron positivity means that at least a portion of the hemorrhage and associated injury occurred at least four to five days before F.M.’s death.

*804In response, the state argued that the issue was not whether “this is an old injury,” which was acknowledged by Dr. McGee, but rather “there’s brand new slides that have never been disclosed before that [Dr. Plunkett] dropped on us for the first time. And [Dr. Plunkett] is testifying regarding issues that are very prejudicial to the state on those very slides.” The state did not claim that either Dr. Plunkett’s testimony regarding the iron-staining done on the slides or the slides themselves contained any new evidence or facts, or resulted in any defense theories that were previously unknown to the state.

After listening to these arguments, the trial court declared a recess to give the state “the opportunity to take either the slides or the photographs and talk to [Dr. McGee],” so that the parties “can revisit the issue of whether or not, based on the disclosure made, that the state has been harmed.” The court also announced that it was going to “look very seriously at the lack of disclosure” because “we’re talking about the very essence of this case.” After the recess, the state informed the trial court that it “did get a chance to talk to [Dr. McGee]” and “it appears that what Dr. Plunkett had done is he received * ⅜ * an unstained set of slides [from the state,] [w]hich he has done his own procedures with in terms of staining for purposes of iron positivity.” Again, the state did not claim and there is no evidence in the record indicating that the iron-staining done by Dr. Plunkett produced evidence or facts or resulted in new defense theories that were previously unknown to the state.

The trial court agreed with the state that “the disclosure [regarding Dr. Plunk-ett’s own iron testing] should have gone to the direction of the state,” but stated that it was “not in a position at this point in time to tell the jury to disregard the testimony of Dr. Plunkett.” Rather, the court was “more in the mode of saying that there’s a mistrial[,] and we’re going to start over again” because the court did not “see any way out of it.” The court explained that if it granted the state’s request to strike then “[i]n this case we don’t have anybody else to present the defendant’s argument,” but it would not be “fair” to the state if the court “let the discovery violation go.”

The court stated:

So what’s the result? I mean to make it fair, we should have a much faster trial starting Monday than we are if this one gets kicked out today. That’s what I’d like to hear argument about as to whether with the remedy that I’m not going to disregard Dr. Plunkett’s testimony, there are two things that could happen: The state could have enough time to go over the exhibits with their expert and have him prepared for rebuttal testimony. Or I could go into the mode of saying we’re going to start over entirely.
* * * *
If you need some more time to think about my two standards right now. Continuance for an examination of the evidence for rebuttal, its medical people. Whether [Dr. McGee] is available may not be an issue for me right now. He’s going to have to be available. He’s on call for this week. So he’s under subpoena. I don’t care where he is[,] he still has to be here.
And the same thing with your people. So that’s what I’m facing right now. So if you need some time to consult each other and then deal with the court, that’s what I’m looking for: Either a continuance or a mistrial.

Further, the court did not believe that “a curative instruction to disregard [relevant slides]” was “going to cure [the discovery violation].”

*805After a short break, the trial court asked the state if there was anything the state wanted to put on the record. The state responded:

Only just, Your .Honor, to indicate that the state is concerned that a continuance of this trial not be an adequate remedy for the state.
Had the state been aware of the different slides earlier, we would have had our expert look at them. It may have— I don’t know until I have someone look at them. But it may have changed the way we put in our opening statement. It may have changed the way we brought in much of our testimony.
Certainly at this point, I think, it gives the appearance, if we just get a continuance and try to rebut the evidence, that somehow [Dr. Plunkett] has come in and exposed the state and the state has to try to respond. I don’t think there’s any way to get around that by a continuance.
The only option the state had brought to the court was to have [Dr. Plunkett’s] testimony stricken. If this is not stricken, the state feels like a continuance is not adequate.

Gouleed’s counsel indicated to the court Gouleed had requested him to “ask for the continuance versus the mistrial.” The trial court then declared: “Okay. It’s my intent then to bring the jury in and to direct them that the case, as far [as] they’re concerned, is closed and they’re done. And I’ll declare the mistrial.”

In this appeal, the parties disagree as to whether and to what degree Dr. Plunkett’s failure to provide full disclosure with respect to the slides he stained constituted a discovery violation. The state asserts in its brief that Dr. Plunkett committed a discovery violation that “could not have been more serious, either in substance or in timing, and it must be imputed to the defense.” Gouleed acknowledges only that there may have been a technical violation of the discovery rules. We need not, however, decide whether a discovery violation occurred because, even if we assume that the defense’s conduct at issue was a violation and therefore warranted some sanction by the district court, any violation that could have occurred does not justify the trial court’s decision to grant a mistrial.

As the court notes, both the United States and Minnesota Constitutions prohibit a criminal defendant from being tried twice for the same crime. U.S. Const, amend. Y; Minn. Const, art. 1, § 7. The United States Supreme Court has held that a criminal defendant who objects to a mistrial being declared may not be retried unless there was a “manifest necessity” for the mistrial or the ends of public justice would otherwise be defeated. Illinois v. Somerville, 410 U.S. 458, 461, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). We have said, “A high degree of necessity — not absolute necessity — must exist before a mistrial is appropriate.” State v. Long, 562 N.W.2d 292, 296 (Minn.1997), habeas corpus granted by Long v. Humphrey, 184 F.3d 758 (8th Cir.1999). And, as the Supreme Court noted in Arizona, “the key word ‘necessity’ cannot be interpreted literally; instead, * * * we require a ‘high degree’ before concluding that a mistrial is appropriate.” 434 U.S. at 506, 98 S.Ct. 824. On this record, no showing of a high degree of necessity to declare a mistrial can be made. Therefore, the trial court’s grant of the mistrial was inappropriate.

.As identified above, the state’s objection to Dr. Plunkett’s independent iron-staining of some of the slides was not that the staining presented new evidence or a new theory that the state was not aware of and could not respond to in the absence of a new trial, but rather that Gouleed failed to inform the state that Dr. Plunkett had conducted his own iron-staining. Presum*806ably, the state did not object based on Dr. Plunkett’s independent iron-staining presenting new evidence or a new theory because Dr. Plunkett’s testimony about what the slides he tested showed was consistent with his reasoning and opinion from his July 18 report, which the state had reviewed. As such, Gouleed’s discovery violation, if any, was procedural rather than substantive.

And, to the extent that the record does not show a substantive discovery violation, there is no basis for the trial court’s implicit conclusion that any remedy short of a mistrial would be inadequate to address the violation. Moreover, a careful review of the record reveals, and the state does not claim to the contrary, that Dr. Plunk-ett’s testimony about the iron-staining did not result in any evidence that was inconsistent with the July 18 report or, with the exception of the conclusion reached, Dr. McGee’s testimony. Specifically, both experts agreed that F.M. had injuries to her skull that predated November 8, 2002, and that iron-staining provides evidence that aids in determining the specific time of the injury. Further, there is nothing in the record that would indicate that the state could not have responded substantively to Dr. Plunkett’s testimony by recalling Dr. McGee. The state did argue that recalling Dr. McGee to rebut Dr. Plunkett’s testimony could leave the jury the impression that “somehow [Dr. Plunkett] has come in and exposed the state and the state has to try to respond. I don’t think there’s any way to get around that by a continuance.” A review of the record indicates that that argument cannot be supported. As discussed earlier, Dr. McGee had previously testified with respect to the purpose of iron-staining and the fact that F.M. had old injuries to her skull. Although the district court considered the possibility of granting a continuance so that the state could recall Dr. McGee to rebut Dr. Plunk-ett’s testimony, it dismissed that option without explaining its reasoning. In the absence of that explanation, our review is made more difficult. Had the court considered the manifest-necessity standard, it would likely have placed its reasoning on the record, thereby facilitating our review.

The state argues here that Dr. Plunk-ett’s testimony left the jury with the impression that the state was, at best, either unprepared, negligent, or incompetent, and, at worst, intentionally hiding exculpatory evidence, i.e., Dr. McGee had failed to conduct the necessary iron-staining. Given Dr. McGee’s trial testimony regarding the purposes of iron-staining and his testimony that he had performed iron-staining of his own, this argument lacks merit. The state also argues that it would have been irreversibly damaged by having to respond to the iron-staining done by Dr. Plunkett on rebuttal. Yet the state does not explain, and the district court failed to inquire, as to whether or how Dr. Plunk-ett’s testing presented evidence that was in some substantive way different from what had been acknowledged by Dr. McGee at trial or disclosed by the defense before trial. As noted previously, to the extent that iron-staining of the slides only aided in determining the time, and not the extent of F.M.’s injuries, there is nothing in the record that would indicate that the state could not have rebutted Dr. Plunk-ett’s testimony by recalling Dr. McGee.

It is disconcerting that no one raised the issue of double jeopardy or considered, except in the most cursory and perfunctory way, whether a continuance might resolve the problem, or whether rebuttal might completely offset any harm, if there were any, done by the violation.
It is of similar concern that neither the court nor counsel referred to or intimated any awareness of the mani*807fest-necessity standard that governs the declaration of a mistrial after jeopardy attaches. Fixated on the fact of a discovery violation, the court, without any apparent manifest-necessity analysis, proposed that a mistrial, the most drastic sanction, likely would be the way to rectify the violation. Neither counsel provided any manifest-necessity analysis to assist the court in appreciating the gravity of the proposed mistrial sanction.

State v. Gouleed, No. A04-700, 2005 WL 1216294, at *7 (Minn.App. May 24, 2005).