State of Minnesota, Respondent, vs. Said Moussa Gouleed, Appellant.

State of Minnesota, Respondent, vs. Said Moussa Gouleed, Appellant. A04-700, Court of Appeals Unpublished, May 24, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-700

 

State of Minnesota,

Respondent,

 

vs.

 

Said Moussa Gouleed,

Appellant.

 

Filed May 24, 2005

Reversed

Gordon W. Shumaker, Judge

 

Ramsey County District Court

File No. K3-02-4161

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

Considered and decided by Peterson, Presiding Judge; Klaphake, Judge; and Shumaker, Judge.

 

 

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER, Judge

 

Appellant challenges his retrial on double-jeopardy grounds.  Appellant's first trial for second-degree murder ended after the district court sua sponte declared a mistrial when appellant's only expert's testimony was barred because of a discovery violation.  Appellant now argues that his retrial is barred on double-jeopardy grounds because mistrial was not a manifest necessity in his first trial.  Appellant also challenges his sentence under Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004).  We reverse.

FACTS

 

Appellant Said Gouleed was charged with felony-murder.  His first trial ended in a mistrial when the district court found that appellant's medical expert witness had committed a discovery violation.  The second trial resulted in appellant's conviction.  He claims that trial was barred by the double-jeopardy provisions of the federal and state constitutions.  He also raises evidentiary errors and a Blakely sentencing issue from the second trial.

It is undisputed that Gouleed's six-week-old daughter, Faduma, was a battered child who died on November 8, 2002, from closed-head injuries.  The state alleged that Gouleed was the batterer and charged him with second-degree felony murder.  Gouleed denied the charge, contending that he accidentally tripped while carrying Faduma and that she fell out of his arms and struck her head on the floor or a wall.  Acknowledging that the impact of such a fall would not likely be fatal, Gouleed further contended that Faduma had preexisting brain injuries, inflicted by someone else, and that the fall aggravated those injuries and led to her death.

Two experienced forensic pathologists testified in the first trial: Dr. Michael McGee for the prosecution and Dr. John Plunkett on behalf of the defense.

Dr. McGee performed Faduma's autopsy.  Externally, he found contusions on her head, face, chest, arms, and legs; depressed fractures on both sides of her skull; and fractures of some ribs, both femurs, a forearm, a wrist, and a finger.  Some injuries appeared fresh and others had signs of healing, suggesting that they predated November 8, 2002.

Internally, Dr. McGee found a cortical contusion and periosteal, subgaleal, subdural, and subarachnoid hemorrhages.  On gross examination, Dr. McGee testified, these appeared fresh.  Through later microscopic studies, Dr. McGee found both new and older blood in Faduma's thigh contusions and in her head.  He also stated: "evidence of old hemorrhage is seen  . . . " in her head.

Based on his examination, Dr. McGee concluded that Faduma sustained a minimum of three impacts to her head and that her death was caused by "cranial cerebral injuries due to closed-head trauma with skull fractures due to child abuse."  He classified Faduma's death as a homicide and stated his opinion that, although he found evidence of older head injuries, they did not have an effect on the injuries Faduma suffered on November 8, 2002.

During cross-examination, Dr. McGee testified that blood 24 hours old or less, called "acute blood," can contain elements of chronic, or older blood, and that microscopic studies can show these elements:

Q.        And in order to appropriately age a subdural hematoma, do you have to do an iron slide?

 

A.        Iron slides are advisable if you want to try to get an idea if there's any old component to the hemorrhage, yes.

 

Q.        Were iron slides done in this case?

 

A.        Yes.

 

Dr. McGee was able to date the rib, wrist, and finger fractures as having occurred between four and ten days prior to Faduma's death, but he concluded that "[t]he fractures to the head are acute and were received within hours of the child's death."  He further noted that the blood in Faduma's head appeared to be fresh hemorrhage and did not seem chronic.

In the first trial, the prosecutor did not ask Dr. McGee questions about the iron stain microscopic studies he performed.

Dr. John Plunkett prepared a letter-report on July 18, 2003, giving his opinion about the cause and manner of Faduma's death.  Defense counsel disclosed the report to the state three months before the first trial.

Dr. Plunkett indicated that he had reviewed police reports; the autopsy report, including photographs and microscopic slides; consultation reports from other physicians; clinic records; and hospital records  He found that the impact sites on Faduma's head were "associated with a large number of iron-positive macrophages in the inflammatory infiltrate.  The iron positivity means that at least a portion of the hemorrhage and associated injury occurred at least 4-5 days before her death."  He noted that another physician's "report of a positive iron stain also dates at least a portion of the head trauma to earlier than November 8," and he concluded that "[t]he history, photographs and microscopic appearance of her soft tissue, scalp, and dura injuries support that she had an established brain injury at the time of her death."

At some unrevealed point after receiving this report, but before the first trial, prosecutors tape-recorded their interview of Dr. Plunkett.  The doctor stated that he did not disagree with Dr. McGee's objective findings and he conceded that Faduma's head injuries all could have occurred on the day she died.  But, he said, "most likely they occurred several days before."  He reiterated his opinion from his report that Faduma had significant preexisting brain injuries that were revealed microscopically through "an inflammatory infiltrate that's several days old also associated with iron pigment," and he stated that every injury he looked at "was old or have an older component."

Dr. Plunkett conceded that some of the blood in Faduma's head was new, but added that some was old as well, and that she had sustained a significant brain injury four or five days before her death.  He explained that the age of an injury is determined by microscopic studies and as to Faduma "[y]ou see a mixed inflammatory infiltrate with  . . . sites and lymphocytes and you see iron pigment."  He stated that he based his opinion of the age of Faduma's injuries on microscopic slides and photographs and that each slide showed an injury at least four or five days old.

During the first trial, Dr. Plunkett explained his testimony through a "PowerPoint" presentation.  He focused on the age of Faduma's head injuries and indicated that age is determined through microscopic studies.  For such studies, he explained that there is a standard histological stain procedure known as hematoxylin and eosin (H & E) and another procedure called iron staining.  He testified that the iron-staining method helps determine the age of an injury.  He noted that an iron stain shows iron pigment within macrophages and that indicates older injuries.  He testified that a positive iron test shows that the injury occurred four or five or more days before death.  According to Dr. Plunkett, iron tests revealed that Faduma had head injuries four or five days old and that her blood showed that she had new head injuries as well.

Referring to a slide during his testimony, Dr. Plunkett said, "I've used an iron stain on it."  At that point, the prosecutor requested a conference with the court, stating that it appeared that Dr. Plunkett had done some additional work on the slide that was never disclosed.  The prosecutor stated that he had seen some of Dr. Plunkett's slides for the first time during his expert testimony and that the slides were of critical importance because the doctor was using them to date the injuries.  He then argued that because the court had already stricken the testimony of one of the state's medical experts for a discovery violation, the court should also strike Dr. Plunkett's testimony.

After hearing defense counsel's response that there had been full, timely disclosure that Dr. Plunkett would testify that iron positivity showed preexisting injuries, the court granted a 2½-hour recess so that the prosecutor could have Dr. McGee review the slides that Dr. Plunkett had stained and the accompanying photographs.  The court ruled that such a continuance was necessary "at least to allow someone to interpret them to see if there's anything necessary to testify."  The court then took the state's motion to strike the testimony under advisement.

It is not clear from the record what the prosecutor did with the new slides and photographs during the recess, or the nature of his discussions with Dr. McGee, but upon reconvening, defense counsel explained that he had learned how the new slides came about.  Gouleed's previous attorney had obtained both stained and unstained slides from Faduma's autopsy and sent them to Dr. Plunkett.  The doctor reviewed the stained slides and then did his own iron testing on the unstained slides.  After doing so, he prepared his July 2003 report.

Some of Dr. Plunkett's testimony referred to slides exactly as they had been prepared by Dr. McGee, but some were those showing the results of Dr. Plunkett's additional tests.  Arguing against the motion to strike Dr. Plunkett's testimony, defense counsel stated that the doctor was Gouleed's only expert witness and is "the only one that can testify to the defense theory of the case."  Counsel suggested that the court preclude Dr. Plunkett from showing additional photographs to the jury and instruct the jury to disregard those already shown.  Counsel urged, however, that the doctor should still be allowed to testify to the iron positivity in Faduma's cells.

The prosecutor contended that the previous disclosures of Dr. Plunkett's opinions had "no specificity."  He also stated, "And it is clear in this case, even by what Dr. McGee said, that there is some old injury and some evidence of that."  The prosecutor argued that, had he known about these slides, he might have conducted direct examination differently and might have opened the case differently.  Commenting on the disclosures in Dr. Plunkett's report, the prosecutor said they were inadequate:

And if his excuse for that is in his letter, he talks about iron positivity being related to the wounds to the head, well, that doesn't tell us there's any new slides there; he's conducted his own iron tests.  That simply to us isn't going to raise a red flag because Dr. McGee has said there's some signs of old injury.  That's not disclosure of the slides.

 

The court then suggested that it would not instruct the jury to disregard Dr. Plunkett's testimony, saying, "I am more in the mode of saying that there's a mistrial and we're going to start over again."  The court gave its rationale, pointing out that, had the state known about Dr. Plunkett's tests, "they would have argued their case different; they would have had questions different."  The court then invited further argument on the issue:  "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."  The court also stated that it would not rule out all of Dr. Plunkett's testimony but that it did not think a curative instruction would be adequate.

The prosecutor responded that "the state is concerned that a continuance of this trial [] not be an adequate remedy for the state."  He also argued:

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 Mr. 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.

 

Defense counsel informed the court that Gouleed "has requested that I ask for a continuance versus a mistrial."

The court then stated that it would declare a mistrial on its own motion, and it did so and discharged the jury.  After the matter was set for retrial, Gouleed moved to dismiss the charges on double-jeopardy grounds.  The court denied the motion, and Gouleed was found guilty after the second trial.  The court imposed an upward durational departure from the sentencing guidelines.  Gouleed appealed.

D E C I S I O N

Double Jeopardy Violation           

Both the federal and the Minnesota constitutions guarantee that a criminal defendant may not be tried more than once for the same crime.  U.S. Const. amend. V ("No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb"); Minn. Const art. 1, § 7 ("No person shall be . . . put twice in jeopardy of punishment for the same offense.").  Generally, jeopardy attaches and activates this constitutional guarantee when a jury is impaneled and sworn.  State v. McDonald, 298 Minn. 449, 452, 215 N.W.2d 607, 609 (1974).  The principle of double jeopardy does not prohibit the retrial of a defendant over whose objection the district court declared a mistrial if there was a "manifest necessity" for the mistrial or the ends of public justice would be defeated by allowing the trial to continue.  Illinois v. Somerville, 410 U.S. 458, 467, 93 S. Ct. 1066, 1072 (1973); State v. Gwara, 311 Minn. 106, 108-09, 247 N.W.2d 417, 419 (1976).

Jeopardy clearly had attached in Gouleed's first trial, and the state does not contend that Gouleed consented to the mistrial.  Thus, the dispositive question is whether there was a manifest necessity for the mistrial.  We review that question in the context of an abuse-of-discretion standard.  State v. Long, 562 N.W.2d 292, 296 (Minn. 1997).  Although we give deference to the district court when it exercises its discretion to declare a mistrial, we do so in recognition of the requirement that the court must proceed cautiously in such exercise.  McDonald, 215 N.W.2d at 610.  And it is our obligation to scrutinize the record to ensure that the double-jeopardy protection has been given credence through the court's exercise of "sound discretion."  Arizona v. Washington, 434 U.S. 497, 510, 98 S. Ct. 824, 832 (1978).

A mistrial is appropriate only if there is a "high degree of necessity," but the necessity need not be absolute.  State v. Olson, 609 N.W.2d 293, 302 (Minn. App. 2000).  In determining whether a mistrial was manifestly necessary, we consider "whether the district court adequately examined less drastic measures."  Id.  It seems that we also must necessarily consider the reason for the mistrial.

The district court sua sponte declared the mistrial because of a discovery violation.  It is undisputed that there was a discovery violation and that it was attributable to Gouleed's medical expert witness rather than to Gouleed himself or his attorney.  A proper review must entail answering questions about the nature and extent of the discovery violation; the likely or potential impact of that violation on the state's case; the possible influence of the violation on the jury's view of the evidence; and the possibility and availability of means other than a mistrial to repair, offset, meet, or ameliorate the violation.

The nature of the discovery violation was that Dr. Plunkett failed to reveal, until his direct examination, that he had performed iron staining on one or more of Faduma's autopsy slides.  He did the iron staining to help determine the possible age of some of Faduma's injuries.

Determining the extent of the violation is difficult at best because the record is inadequate for a full assessment of that issue.  It is undisputed that Dr. McGee also did iron-staining tests and that slides of those tests were given to Dr. Plunkett.  Dr. Plunkett considered those slides but did additional testing of his own.  The record shows that exhibits 90 through 101 were offered by Gouleed's attorney and were received without objection.  These were prints of Dr. Plunkett's "PowerPoint" presentation prepared from slides of Faduma's autopsy.

During his truncated direct examination, Dr. Plunkett showed and referred to various images of exhibit 90 (of the right thigh), of exhibits 91, 92, 93, and 94 (of the occipital scalp and occipital area of the brain), and of exhibits 95 and 96 (of the outside covering of the brain).  In all exhibits, he found evidence of iron pigment, signifying the existence of "old blood" and injuries that predated the injuries that Faduma suffered on the day of her death.  Although the record contains much rhetoric about the discovery violation, there is nothing clearly revealed as to which and how many of the slides were iron-stained by Dr. McGee and which and how many by Dr. Plunkett.  Dr. Plunkett stated in reference to an image of exhibit 96 that it was the same area as shown in another image of that exhibit, "except this time I've used an iron stain on it."  It was not until that point that the prosecutor interrupted the testimony so that he could discuss the discovery issue with the court.  The first discussion was off the record, and then the defense attorney asked Dr. Plunkett if the exhibits were as received from Dr. McGee.  Dr. Plunkett stated that "the H & Es are as they came.  The irons are as I did them."  It is not clear from that response whether Dr. Plunkett meant that he iron-stained all of the exhibits or just those he had discussed and shown to the jury.  Assuming the latter, he referred to various images of seven exhibits, six of which were aspects of the interior of Faduma's skull as shown in autopsy, and not all the images had been iron-stained.  On this record we cannot, without speculating, quantify the extent of the nondisclosure.  But the record shows that Dr. Plunkett's testimony about old blood in Faduma's head as shown by iron staining covered just over eight pages of the transcript.

Because of the discovery violation, the prosecutor urged the court to strike all of Dr. Plunkett's testimony.  His argument seemed based on two grounds.  First, the nondisclosure had caused prejudicial surprise because, had he known about Dr. Plunkett's additional testing, he might have presented his case differently.  Second, the court had already stricken the testimony of one of the state's medical experts for a discovery violation and to strike Dr. Plunkett's testimony would be a proper quid quo pro.  The second argument is not before us for review.  Thus, we will examine only the first argument.

Before Dr. Plunkett testified, the prosecutor knew that the doctor had reviewed microscopic slides of Faduma's autopsy that had been prepared by Dr. McGee; that (McGee) slides 11, 16, and 18 of Faduma's scalp and T1 through T4 of her dura, which were the impact sites, showed iron-positive macrophages in the inflammatory infiltrate; that some of the hemorrhage and associated injuries happened at least 4-5 days before Faduma's death; that Dr. Plunkett believed Faduma died from a closed-head injury and was a battered child; that Dr. Plunkett did not disagree with Dr. McGee's objective findings, which included findings of both new blood and old blood inside Faduma's head; that iron staining is the microscopic method used to date an injury; and that every slide Dr. Plunkett looked at showed evidence of old injury.  The prosecutor also knew that, in addition to acknowledging evidence of old hemorrhage in Faduma's head, Dr. McGee testified on cross-examination that iron slides are what are used to determine whether a fresh hemorrhage contains an old component and that he himself did iron slides on Faduma.

Presumably for reasons of trial strategy, the prosecutor chose not to ask Dr. McGee about iron staining on direct examination and elected not to follow up with questions about iron staining after defense counsel opened the subject on cross-examination.

What the prosecutor learned during Dr. Plunkett's direct examination was that the doctor did additional iron stains on some slides.  These slides showed evidence of old hemorrhage and old injury, which is what the prosecutor knew Dr. Plunkett would testify to long before the trial began.  The prosecutor knew that the iron-positivity findings were consistent with Dr. McGee's iron-positivity findings, and that Dr. Plunkett and Dr. McGee agreed as to the cause of death and the presence of previous injuries to Faduma.  The only point of difference in the opinions of these two pathologists was that of the effect of the prior head injuries on Faduma's death.  Dr. McGee said there was no effect and Dr. Plunkett said that the preexisting brain damage was aggravated by what otherwise would have been a nonfatal injury.  The sole function of the undisclosed slides was to corroborate a point that was not in contention.  Furthermore, the dispositive issue was not whether there had been previous injuries but whether the previous injuries were causally related to Faduma's death.  Thus, the discovery violation pertained to a conceded, nondispositive issue and had no unfairly prejudicial impact on the state's case.  Had the prosecutor desired Dr. McGee's comment on the Plunkett slides, there would have been an opportunity for rebuttal.  But even then Dr. McGee could not plausibly have denied the existence of old blood and previous head injuries.

As to the likely effect the discovery violation would have on the jury, the record shows that the jurors learned from Dr. McGee's testimony that there was evidence of old blood in Faduma's head and that iron-stained slides are the way to verify this.  They also heard Dr. Plunkett's concession that there was fresh blood in Faduma's head.  Although Dr. Plunkett testified in more detail about the old blood than did Dr. McGee, the jury heard very little in substance that they had not already heard during the state's case.  The influence of the discovery violation on the jury was minimal or nonexistent.

When alerted to the discovery violation, the district court granted the attorneys ample time to address the issue and to argue for a remedy.  Defense counsel suggested that the court should grant a continuance and that it should disallow further testimony from the undisclosed slides and instruct the jury to disregard the testimony the jury had already heard.  The prosecutor insisted that the only effective remedy would be to strike Dr. Plunkett's testimony in its entirety.  The court on its own suggested that a mistrial would likely be the only way to rectify the violation.

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 manifest-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.

The court gave the prosecutor time over a recess to speak with Dr. McGee about the Plunkett slides.  The prosecutor reported that he did so, but he never revealed the outcome of his discussion.  He never, for instance, stated that Dr. McGee would not be able to testify adequately on rebuttal.  The prosecutor steadfastly maintained, and the court agreed, that the state's case had been severely damaged and that the state might have presented it differently had the violation not occurred.  But the prosecutor failed to cite particulars of the alleged severe damage or of how the state might have done something different had it known about Dr. Plunkett's slides.  Perhaps the prosecutor would have asked Dr. McGee more questions about iron staining and perhaps he would have had Dr. McGee examine Dr. Plunkett's slides to determine their accuracy.  But this could yet have been done with a continuance and rebuttal testimony.  Additionally, a thoughtful analysis of the precise nature, extent, and likely significance of the violation would have led court and counsel inescapably to the conclusion that the dispute in its essence was about something to which both pathologists agreed.

On appeal, the state argues that the district court had no choice other than to declare a mistrial because there "was no way to unring the bell . . . ," and that Dr. Plunkett "had already testified at length [72 pages of transcript] and had shown and explained the undisclosed slides to the jury."  We note first that Dr. Plunkett's trial testimony does not begin until page 19 of the transcript; that the doctor does not testify in particular about the slides of Faduma until page 51, and that testimony relates to her thigh; that testimony about Faduma's head begins on page 54 and ends at page 63; and that only part of the testimony about the head relates to iron staining and the evidence of old injuries.

The state also argues that a continuance could not erase the impression on the jury "that the state was, at the least, unprepared, negligent or incompetent, or at the worst, intentionally hiding exculpatory evidence."  Because the prosecutor knew virtually everything about Dr. Plunkett's testimony, except his own iron testing, months before the trial, we are compelled to conclude that the prosecutor made a conscious strategic choice not to delve into iron staining in his case-in-chief.  It would not be unusual trial strategy to refrain from opening a defense-favorable issue during the state's case-in-chief; to wait to see whether the defense is able to fortify that issue; and, if so, to deal with it in rebuttal.  Aside from any strategy concerns, the jury learned during the state's case-in-chief that Faduma had sustained multiple injuries to various parts of her body and that some of them, including the head injuries, predated the day of her death.  It is difficult to imagine how a reasonable jury might conclude that the state was unprepared or was hiding exculpatory evidence.  The state revealed the "exculpatory" evidence through its medical expert, who concluded that the evidence was not exculpatory.  The defense, as could be anticipated, claimed the evidence to be exculpatory and covered it in more detail.

A case helpful to an understanding of the manifest necessity requirement is State v. Long, 562 N.W.2d 292 (Minn. 1997), in which we have the benefit of the analyses of that requirement by the state trial, appeals, and supreme courts and the federal circuit court of appeals.

The state accused Evelyn Long of attempted murder and assault after she stabbed her husband in the chest.  Id.at 293.  The police arrested Long on the evening of the stabbing and the next day a police sergeant interviewed her.  Id.  The sergeant tape-recorded the interview and prepared a written report as well.  Id.  Prior to trial, the state disclosed only the written report to the defense.  Id.  The tape-recording contained statements that were not noted in the written report.  Id.

The state characterized Long's action as an intentional crime, while Long asserted that she acted in self-defense.  Id.at 294.  As the Minnesota Supreme Court pointed out: "One question of fact that was critical to both theories was whether David Long was seated or standing when the stabbing occurred."  Id.  

Long's husband testified that he and his wife had quarreled, that he had not touched her before the stabbing, and that he was sitting in a chair when she stabbed him.  Id.  Evelyn Long, the sole defense witness, claimed her husband had pushed her extremely hard and then followed her into the kitchen where, out of fear for her safety, she grabbed a knife and stabbed him in self-defense.  Id.

The prosecutor cross-examined Long about her statement to the police sergeant the day after the incident.  Id.  She testified that she did not recall the sergeant or the interview and did not recall telling him that she stabbed her husband while he was seated.  Id.  The state called the sergeant as a rebuttal witness, and it was then that the defense learned of the tape-recording.  Id.  The tape-recording contained two statements that were not in the previously disclosed written report.  Id.  In the first, Long stated that her husband had been drinking, and in the second she said she had gone to the bathroom before she got the knife from the kitchen.  Id.  On cross-examination, she had denied that she went to the bathroom before getting the knife.  Id.

Long objected to the sergeant's testimony because of the discovery violation and initially moved for a mistrial.  Id.  The trial court denied the motion.  Id.  Long then moved that the court limit the sergeant's testimony to only that information in the written report, but the court found this inappropriate.  Id.  Rather, the court decided to give defense counsel an opportunity to review the tape.  Id.at 295.  Both counsel and the judge listened to the tape and the court noted that the contents in part corroborated and in part contradicted Long's testimony.  Id.

Noting that the sole occurrence witnesses were Long and her husbandthus making credibility the central and dispositive issue in the casethe court suggested that, had Long known about the tape before she testified, she likely would not have contradicted herself.  Id.  Further stating that the "information on the tape is crucial to both sides," the court analyzed various options to remedy the discovery violation.  Id.  The options included playing the tape and telling the jury about the late disclosure or not playing the tape.  Id.  The court rejected these options and, even though defense counsel had asked that the court not declare a mistrial, the court did so sua sponte.  Id.  When the court indicated that the matter would be rescheduled for trial, Long objected on double-jeopardy grounds and moved to dismiss the case.  Id.  The court denied the motion, and Long appealed.  Id.

The Minnesota Court of Appeals reversed, holding that there was no manifest necessity for a mistrial because it would have been reasonable for the trial court to limit the sergeant's testimony.  State v. Long, 544 N.W.2d 786, 789 (Minn. App. 1996).  The Minnesota Supreme Court disagreed, reversed the court of appeals, and observed that the trial court had "engaged in a thorough review of alternatives" and "considered less drastic alternatives to mistrial . . . ."  Long, 562 N.W.2d at 297.  Stating that the "credibility of defendant's testimony was crucial in light of her self-defense claim . . . ," the supreme court held that the trial court properly exercised its discretion in finding a manifest necessity for a mistrial.  Id.

The case reached the federal courts through Long's petition for a writ of habeas corpus.  The federal district court denied the petition and Long appealed to the federal court of appeals for the 8th circuit.  Long v. Humphrey, 184 F.3d 758 (8th Cir. 1999).  The court of appeals' approach was to "objectively evaluate whether the trial court's declaration of a mistrial resulted in an outcome that cannot reasonably be justified under the manifest necessity standard."  Id.at 760.  The court of appeals acknowledged that the critical question is whether less drastic alternatives were available.  Id.at 761.  Holding that there were several options less drastic than a mistrial that were available, the court stated that "the trial court simply was not faced with the sort of urgent circumstances or the high degree of necessity contemplated by the manifest necessity standard."  Id.  The court of appeals then reversed the holding of the supreme court and ruled that retrial was barred by double jeopardy.

Long illustrates the gravity of the manifest necessity issue and the urgent importance of engaging in a scrupulous inquiry as to both the significance of the discovery violation and options that might be available to avoid a mistrial.  Long is significant here because, like the defendant in Long, Gouleed expressed his desire that the court not grant a mistrial, and that expression required the district court to make an appropriate manifest-necessity analysis.

But whereas Long involved a crucial dispositive and sharply contested issue, in the instant case it was not the subject matter of the discovery violation that was contested but rather the conclusion to be drawn from the subject matter, namely, old blood, that was in dispute.  The federal appeals court in Long, in its reversal, found that despite the critical nature of the subject matter of the discovery violation, the availability of options to deal with the violation precluded a manifest necessity that justified a mistrial.  Long, 184 F.3d at 761.  Surely here a clarification of Dr. Plunkett's testimony as to how many of the slides contained his own iron staining; the limitation of his further testimony about his own tests; the striking of testimony about his own tests; a cautionary instruction; a short continuance to allow Dr. McGee to review the Plunkett tests; and rebuttal testimony by Dr. McGee were a few of the obvious alternatives to a mistrial.  These would have been reasonable options, considering the inescapable fact that there simply was no dispute about the existence of old blood and previous head trauma.

After a painstaking review of the record, according all reasonable deference to the district court, and genuinely honoring the double-jeopardy proscription, we have been unable to reach any principled conclusion that there was a manifest necessity for a mistrial or that the court and counsel appropriately investigated and examined measures short of a mistrial to remedy the discovery violation.  Therefore, the orders declaring a mistrial, denying the motion to bar the retrial, and the judgment of conviction are reversed.  Although this holding is dispositive of the case, we will address the alleged errors from the second trial.

Blakely Violation

The presumptive sentence under the Minnesota Sentencing Guidelines for Gouleed's conviction was 150 months executed.  Finding that Faduma was vulnerable because of her age and that Gouleed was in a position as father and caretaker to protect her, the court departed from the presumptive sentence and imposed a term of 225 months executed.

Gouleed contends that there were no aggravating factors to justify a departure and that the sentence was unconstitutional under Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004).  Because the latter argument is dispositive of the sentencing issue, we need not address the former.

In Blakely, the supreme court held that, when a judge imposes a sentence that exceeds the maximum permitted by sentencing guidelines on the basis of a fact not determined by a jury, the sentence departure is unconstitutional unless the defendant has admitted the departure fact.  Id.at ___, 124 S. Ct. at 2537-38.  The Blakely holding applies to the Minnesota Sentencing Guidelines.  State v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004).[1]

The district court's departure was based on facts that were neither found by a jury nor admitted by Gouleed.  Thus, the departure was unconstitutional and must be reversed.        

Evidentiary Errors

Gouleed contends that the district court erred by allowing law enforcement and medical responders who attended Faduma to testify to their feelings about the injured child.  Defense counsel objected to some of the testimony on the ground that the feelings of these witnesses were irrelevant and could serve only to incite the passions and prejudice of the jury.

The state contends that the questions were directed at explaining why these witnesses, who either did not write reports or did not include all details in their reports, could remember the details to which they testified.

"Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion."  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  If the district court has erred in admitting evidence, the reviewing court must determine whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.  State v. Post, 512 N.W.2d. 99, 102 n.2 (Minn. 1994).

Relevant evidence is that which has any tendency to make a consequential fact more or less probable than it would be without such evidence.  Minn. R. Evid. 401.  We are persuaded that the witnesses' feelings about Faduma's injuries did not have any tendency to make any fact of consequence to the charge or the defense more or less likely.  Thus, the evidence was irrelevant and should have been excluded.

However, the erroneously admitted evidence did not likely have a significant effect on the verdict.  Nor could any such evidence meet the plain-error test if defense counsel failed to object.  See State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998) (citation omitted) (to be reversible, plain error must be shown to have had a significant effect on the verdict).

The witnesses testified variously about how bad they felt and how sad they were and how the injuries to this baby would have a lasting impression on them.  Although such testimony could have evoked sympathy in the jurors and perhaps even rage against the perpetrator, the trial was replete with admissible evidence detailing the nature and extent of Faduma's multiple injuries and with expert evidence that Faduma was a victim of child abuse.  By the conclusion of the second trial, the jury was saturated with chilling, admissible evidence of the horrific abuse that culminated in Faduma's untimely death. Even had the inadmissible evidence of witnesses' feelings been excluded, the overwhelming evidence that remained would have been more than adequate to compel a conviction.

Reversed.

[1] The supreme court granted review in Conger, but stayed additional processing of that matter, pending a final decision in State v. Shattuck, No. C6-03-362 (Minn. argued Nov. 30, 2004).  By order filed in Shattuck just a few days earlier, on December 16, the supreme court held that the imposition of an upward durational departure based on aggravating factors not considered by the jury was a violation of the defendant's rights as articulated in Blakely v. Washington, 124 S. Ct. 2531 (2004).  Shattuck, 689 N.W.2d 785, 786 (Minn. 2004).  The court indicated that a full opinion will follow and directed the parties to submit additional briefs on the appropriate remedy.  Id.