State v. Long

562 N.W.2d 292, 1997 Minn. LEXIS 291, 1997 WL 197514
CourtSupreme Court of Minnesota
DecidedApril 24, 1997
DocketCX-95-1628
StatusPublished
Cited by18 cases

This text of 562 N.W.2d 292 (State v. Long) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Long, 562 N.W.2d 292, 1997 Minn. LEXIS 291, 1997 WL 197514 (Mich. 1997).

Opinions

OPINION

BLATZ, Justice.

Evelyn Long appeals to this court asking that she not be retried for stabbing her husband in the chest. Asserting the double jeopardy protections contained in both the United States and Minnesota Constitutions, she argues that the state is barred from prosecuting her a second time because the trial court’s sua sponte declaration of a mistrial at the first trial was an abuse of discretion. The court of appeals agreed. State v. Long, 544 N.W.2d 786 (Minn.App.1996). We reverse.

The stabbing which gave rise to this appeal took place in a St. Paul apartment on the evening of November 9, 1994. The stabbing was precipitated by an argument between defendant and her husband, David Long, over finances and infidelity. After the stabbing, the husband spent 10 days in the hospital recovering from his injuries.

Authorities arrested defendant that evening. The next morning St. Paul Police Sergeant Richard Freichels questioned her. The sergeant prepared an 11-line written report and also made an audio tape recording of the interview. The tape contained additional statements from defendant that both contradicted and corroborated her in-court testimony. The problem that underlies this appeal is that only the written report was turned over to defendant prior to trial. Long did not learn of the taped statement until after testifying in her own defense.

The same day defendant spoke with Sgt. Freichels, the state charged her with two counts of assault in the second degree. The state amended the complaint prior to trial, and defendant was tried on the following counts: 1) attempted murder in the second [294]*294degree in violation of Minn.Stat. §§ 609.19, subd. 1 (1994) and 609.17 (1994); 2) assault in the first degree in violation of Minn.Stat. § 609.221 (1994); and 3) assault in the second degree in violation of Minn.Stat. § 609.222, subd. 2 (1994).

At trial the state contended that defendant stabbed her husband intentionally; defendant asserted she acted in self-defense. One question of fact that was critical to both theories was whether David Long was seated or standing when the stabbing occurred. David Long testified that he was sitting in a chair when his wife stabbed him. According to David Long, his wife first went upstairs for about 2 minutes, then into the kitchen and returned to the living room with a knife in her hand. She then asked him, “Do you know why you are not dead yet?” and stabbed him with a knife. David Long told police that he had not touched defendant before she stabbed him.

The only defense witness was defendant, who testified that prior to the stabbing she was on the couch and that David Long had pushed her “so hard the couch pushed into the wall.” Defendant stated that David Long then followed her into the kitchen where she grabbed a knife and when she turned around, David Long started backing up and fell into a chair. Defendant testified that, when he then stood up, she stabbed him out of fear for her personal safety.

On cross-examination, the prosecutor asked defendant about an interview with Sgt. Freichels. Defendant claimed that she did not remember Sgt. Freichels. She also said she did not recall telling the sergeant that she stabbed David Long while he was seated.

At the conclusion of defendant’s testimony, the defense rested and the state called Sgt. Freichels as a rebuttal witness. It was at this point that both the judge and defendant became aware that defendant’s interview with the sergeant had been tape recorded. During a bench conference, the prosecutor advised the judge that the sergeant had the tape with him and that it had not been given to defendant. The prosecutor later explained that she had no knowledge of the tape until the last day of trial when she considered calling the sergeant as a rebuttal witness. She said she told him on that day to prepare to testify at trial and asked whether a tape existed. The sergeant said he did not think there was a tape but upon checking, he found one.1 The prosecutor then advised him to review the tape to see if there was anything on the tape that differed from his 11-line written report.

Following the bench conference, and prior to any further discussion of the sergeant’s testimony, the court excused the jury. The prosecutor then explained to the judge that the tape recording differed from the sergeant’s written report in that there were two additional statements on the tape: 1) defendant alleged that her husband had been drinking (something she had not discussed in her testimony); and 2) defendant said she had gone to the bathroom prior to getting the knife from the kitchen (something she had denied on cross-examination).

Defense counsel objected to Sgt. Freichels’ testimony as improper rebuttal evidence because his testimony would not rebut her testimony (defendant had testified she did not remember the interview). Further, defense counsel objected because the written report was incomplete and the tape recording was not properly disclosed prior to trial. After the judge overruled defendant’s objections, defendant moved for a mistrial based on prosecutorial misconduct because the prosecutor had not disclosed the taped interview prior to trial. The judge denied the motion.

Defense counsel subsequently moved for a limitation of the sergeant’s testimony as a sanction based on the alleged discovery violation. Defense counsel asked that the scope of the sergeant’s testimony be confined to the written report. The judge found such a sanction inappropriate, noting he knew of no other proceeding where a police officer was limited to testifying to the contents of a report, and concluded that the proper action was to give defendant an opportunity to re[295]*295view the tape so the parties would know what was on it. The judge and both counsel then listened to the tape in chambers. The tape was never entered into evidence.

When the trial resumed, the judge noted that the tape’s contents both supported and contradicted defendant’s testimony, as well as her husband’s. The judge also stated to the parties that he preliminarily decided that the only remedy for the late tape discovery may be a mistrial, after which he consulted with another judge who independently agreed with his assessment. In the trial judge’s view, it would be like trying to “un-ring a bell.” In his own words:

The essence of this ease comes down to which party is believed, David Long or the defendant. And in many respects — and it seems to me that the prejudice to the defense at this point is that while the defendant does not remember making her statement to Sergeant Freich[el]s, and, in fact, had testified she did not remember Sergeant Freieh[el]s, that had the tape been available prior to trial for her to review and to listen to that, that may have jogged her memory and would have allowed her to testify accordingly.
If it had not jogged her memory and she still did not have any independent memory having heard the tape, she would at least know what she had said in her own voice at the time, and it’s unlikely that she would have contradicted herself.
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State v. Long
562 N.W.2d 292 (Supreme Court of Minnesota, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
562 N.W.2d 292, 1997 Minn. LEXIS 291, 1997 WL 197514, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-long-minn-1997.