District court did not abuse its discretion in ordering a mistrial in a felony murder case where a defense expert failed to disclose testing of autopsy slides that formed the basis of his opinion that the victim's critical injuries were inflicted days before her death.
The retrial of the defendant did not unconstitutionally subject him to double jeopardy where the record in the first trial established a manifest necessity for a mistrial.
The opinion of the court was delivered by: Meyer, Justice
Reversed in part and remanded.
Heard, considered, and decided by the court en banc.
Said Moussa Gouleed was found guilty of second-degree unintentional felony murder for the death of his 6-week-old daughter. He was retried after the district court in the first trial sua sponte ordered a mistrial because of a discovery violation by the defense's expert witness. The court of appeals reversed the orders declaring a mistrial and denying the motion to bar a retrial, and reversed Gouleed's conviction.*fn1 We determine that the record of the first trial showed a manifest necessity for a mistrial because Gouleed's expert failed to disclose testing he had done related to a critical evidentiary issue in the trial, and we conclude that Gouleed was not unconstitutionally subjected to double jeopardy. We reverse the court of appeals in part, reinstate Gouleed's conviction, and remand for resentencing.
At about 7:30 p.m. on November 8, 2002, Gouleed's wife took the couple's 21/2-year-old son and left their 6-month-old infant, F.M., in Gouleed's care. The complaint alleged that Gouleed told officers that, while he was watching F.M., he took F.M. out of her crib to give her a bottle because she was crying. Gouleed also told officers that he tripped over an infant chair while carrying F.M., causing him to drop her. He said her head hit the floor, then she "jumped" up and her head hit the wall.
According to Gouleed's wife, when she returned a little after 9 p.m., she found Gouleed cradling F.M., who was not breathing. Gouleed's wife called 911, and F.M. was taken to Children's Hospital in St. Paul where she was pronounced dead just after 11 p.m.
Dr. Michael McGee, the Ramsey County medical examiner, performed an autopsy on F.M. the next day. Dr. McGee documented the following injuries: significant, depressed fractures on both sides of her skull; multiple healing fractures to her ribs; bi-lateral femur fractures; healing fractures of a forearm, wrist, and finger; contusions on her head, face, chest, and arms; and bruising on both of her legs. According to the complaint, Dr. McGee's provisional report concluded that the cause of death was injuries resulting from child abuse and the manner of death was homicide. Gouleed was charged with second-degree unintentional felony murder in violation of Minn. Stat. § 609.19, subd. 2(1) (2004).*fn2
The defense hired an expert forensic pathologist, Dr. John Plunkett, assistant coroner for the Minnesota Regional Coroner's Office, whose practice is focused on infant head injuries. On July 18, 2003, several months before his testimony, Dr. Plunkett issued a letter reporting his opinion on the cause of F.M.'s death. He based his opinions on his review of clinic and hospital records, Dr. McGee's autopsy report, including photos and microscopic slides, a consultation report from an ophthalmologist and another doctor, as well as police reports. Dr. Plunkett did not indicate that he had conducted any testing in preparing his report. He referred to microscopic slide evidence in his report stating that "[b]oth impact sites [on F.M.'s head] are associated with a large number of iron-positive macrophages in the inflammatory infiltrate * * *. The iron-positiv[i]ty means that at least a portion of the hemorrhage and associated injury occurred at least 4-5 days before her death." He specifically referenced Dr. McGee's microscopic slides numbered 11, 16, and 18 containing samples taken from F.M.'s scalp, and slides T1 through T4 containing samples taken from the dura membrane.*fn3 Dr. Plunkett opined that "[e]ven the skull fracture or fractures could have occurred significantly earlier" than November 8, 2002. Dr. Plunkett concluded that it was unlikely that an accident like that described by Gouleed would have caused F.M.'s death "unless a pre-existing injury contributed to the fatal outcome."
In preparation for trial and with Gouleed's counsel present, the state interviewed Dr. Plunkett and questioned him at length about his letter report. He said in the interview that it was "likely that this child had the [skull] fractures four or five days before [her death]." In the interview, Dr. Plunkett repeated his opinion that the microscopic slides indicated that F.M. had significant pre-existing brain injuries, and he mentioned that iron pigment in microscopic slides from the injured area supported his position. But he did not indicate that he had performed his own testing on slides he had received from Dr. McGee.
After delays prompted by Dr. Plunkett's schedule,*fn4 Gouleed's trial began October 31, 2003. On November 4, Gouleed moved for a mistrial after Dr. David Kispert, a neuroradiologist who had reviewed a CT scan of F.M.'s injuries, testified that he did not agree with the opinion attributed to him in another doctor's report that there were indications of subdural blood of various ages in F.M.'s head injuries. Gouleed argued that a mistrial was "absolutely necessary" because the state had failed to disclose a meeting it had had with Kispert before trial. The court denied the motion for a mistrial but struck all of Kispert's testimony.
Gouleed requested another mistrial the next day when a juror cried during Dr. McGee's testimony. That motion also was denied.
In his trial testimony, Dr. McGee stated that the microscopic slide evidence showed injury in the thighs and head, but that these previous head injuries were not causally related to F.M.'s death. Dr. McGee said that a fall as described by Gouleed could not have caused the injuries that killed her. Dr. McGee also indicated that his examination revealed subdural and subarachnoid hemorrhaging, as well as hemorrhaging at the base of F.M.'s brain. He noted he had seen accidental injuries such as she had suffered only in unrestrained children who had been in car accidents; F.M. could not have carried on normal activities for four to five days with such injuries; and it was unlikely that her 21/2-year-old brother could have caused such injuries. He concluded that F.M. died from at least three impacts that had occurred within hours of her death, resulting in closed head trauma and produced by child abuse.
On cross-examination, Dr. McGee agreed that iron slides (i.e., autopsy samples stained with iron) were needed to effectively date F.M.'s subdural hematoma, and he indicated iron slides had been done in F.M.'s case. Defense counsel did not further inquire about the nature, extent, or results of the iron-staining, nor did the defense ask when the staining had been done or who had done it. The prosecutor, on direct examination, had not specifically asked Dr. McGee about the iron-stained microscopic slides and did not follow up with any questions about iron-staining on redirect. No microscopic slides or images of microscopic evidence were admitted during Dr. McGee's testimony.
The defense called Dr. Plunkett as an expert witness. After the typical questions about Dr. Plunkett's credentials, defense counsel established the foundation for admission of exhibits Dr. Plunkett would rely on during his testimony:
Q: [By defense attorney] Showing you what's been marked Exhibit 90 through 101. Do you recognize those?
A: These are prints of a power point presentation that I prepared from slides from the autopsy on [F.M.].
Q: Okay. And how do you know that these documents are from [F.M.]?
A: Well, I received the slides from the Ramsey County Coroner's Office. I looked at the slides, which had a key to go with the slides. The key corresponded with the slides that I was looking at. And so I assume that those, in fact, did come from [F.M.].
Q: Did the slides and the codes from the autopsy correspond with what you were looking at under the microscope?
A: Yes, they did. And I have labeled the slides - the designations on these slides. 14 refers to slide number 14. And I used A, B, C, D or E for various magnifications [sic] powers. And it's listed, ...