State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1377

State of Minnesota,
Respondent,

vs.

Juan Carlos Tamez,
Appellant.

Filed April 15, 2019
Affirmed
Smith, Tracy M., Judge

Clay County District Court
File No. 14-CR-17-3514

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Brian J. Melton, Clay County Attorney, Anthony J. Weigel, Assis tant County Attorney,
Moorhead, Minnesota (for respondent)

Kenneth J. Kohler, Drew J. Hushka, Vogel Law Firm, Moorhead, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Halbrooks, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Juan Carlos Tamez was charged with a number of offen ses arising out of
an incident of domestic abuse. After opening statements had begun at his trial, the district

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court declared a mistrial base d on discovery violations by Tame z. Tamez subsequently
moved to dismiss the charges on the ground that retrial would v iolate his rights under the
Double Jeopardy Clause. The dist rict court denied the motion, a nd Tamez brings this
interlocutory appeal. Because the district court did not abuse its discretion in deciding that
a manifest necessity required a mistrial, the Double Jeopardy Clause does not bar a retrial
of Tamez. We affirm.
FACTS
The complaint against Tamez alleges as follows. In September 2 017, Tamez’s minor
daughter, S.E.T., was at the home of her grandmother, S.T., where S.E.T. had been living
since April of that year. Tamez came to the house and confronted S.E.T., insisting that she
return to live with him. During the confrontation, Tamez slapped S.E.T. in the face, pushed
her down, and lifted her up by her hair, until S.T. got between Tamez and S.E.T. The
complaint goes on to allege that Tamez later told the police that he “snapped” and admitted
grabbing and hitting S.E.T. Tamez was charged with two counts of felony domestic assault
and one count of malicious punishment of a child.
Trial on the charges began on Tuesday, July 10, 2018. On the Friday before the trial,
July 6, the state received an ema il disclosure from defense cou nsel that indicated that
d e f e n s e c o u n s e l h a d m e t w i t h s i x w i t n e s s e s , i n c l u d i n g S . T . T h e disclosure stated in a
cursory fashion that the witnesse s’ statements were consistent with their previous
statements to either law-enforcement investigators or the defen se investigator. However,
the witnesses’ previous statemen ts to law-enforcement investiga tors and the defense

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investigator were often inconsis tent. Also, S.T. had not been i nterviewed by any of the
investigators. Following up on the disclosure, the prosecutor a sked defense counsel who,
besides him, was present at the interviews, and he identified h is clerk. On the morning of
trial, the state subpoenaed the clerk. Later that day, during t he jury’s lunch break in the
middle of voir dire, defense counsel asked the district court to quash the subpoena and the
question of the adequacy of disclosure was discussed. Defense counsel initially argued that
the disclosure was adequate but, by the end of the day, concede d the issue and agreed to
provide a supplemental disclosure.
The following morning, defense counsel sent the prosecution an email that
purported to attach notes from his clerk summarizing the witnes ses’ statements. Trial
resumed that day. In his opening statement, defense counsel ref erred to text messages
exchanged between S.E.T. and S.T. Counsel explained that the t ext messages indicated
that, around the time of the incident, S.E.T. had disobeyed S.T .’s direction to come home
and had lied to S.T. Defense counsel described the texts in detail.
Upon hearing these statements fro m counsel, the state objected . Discussion at the
bench ensued, and the court went into recess. The state explained that the defense had not
disclosed statements by S.T. Defense counsel replied that he had emailed his supplemental
disclosure that morning, which included a summary of S.T.’s sta tement. It then became
clear that defense counsel had failed to attach the supplemental disclosure.
Describing the situation as a “huge discovery issue,” the dist rict court asked the state
for its suggested remedy. The state requested exclusion of the July 6 interview with S.T.

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Defense counsel objected, arguing that exclusion would violate Tamez’s right to a fair trial.
When asked for his suggestion for remedies, defense counsel stated:
[T]he only remedies that I can see at this point in time would
be a continuance to allow the State to review the evidence that
we tried to give to them and she didn’t indicate that she didn’t
get it, or do a mistrial and start over.

Those are the only options . Otherwise you’re depriving
Mr. Tamez of a fair trial.

Before taking a break to consid er the parties’ suggestions, the district court stated, “It
sounds to me like there was a lot that wasn’t disclosed. I mean, there—we have some fairly
significant disclosure issues here.”
When the district court returned from the break, it explained what it was going to
do:
While exclusion is clearly an available remedy, there
is—the prejudice to Mr. Tamez is just too great to exclude the
[interview]—because I think there’s quite a lot of it, at least
that’s the impression that I’m getting. And these are discovery
and disclosure violations and Mr. Tamez’s right to a trial and
to present his defense cannot be prejudiced significantly
because of it and I think the prejudice in this case, with
exclusion, would be significant.

. . . .

At this point, I’m not excluding.

The calendar and the timing doesn’t allow for a
continuance, so my only option at this point is a sua sponte
mistrial, which I don’t want to do either.

So I’m saying I’m not excluding. So your request to
exclude, [prosecuting attorney], is denied.

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I would intend to decl are a mistrial . . . .

The district court did not ask defense counsel whether he consented to the mistrial, nor did
defense counsel affirmatively express his objection.
Tamez subsequently moved to dismiss the case, arguing that a r e t r i a l w o u l d b e
barred by double jeopardy. The dis trict court denied the motion , and this interlocutory
appeal followed.
D E C I S I O N
“The United States and Minnesot a Constitutions prohibit trying a defendant twice
for the same crime.” State v. Roeschelein, 776 N.W.2d 480, 483 (Minn. App. 2009); see
U.S. Const. amend. V; Minn. Const. art. I, § 7. It is undispute d that jeopardy attached at
Tamez’s first trial. See State v. McDonald, 215 N.W.2d 607, 609 (Minn. 1974) (explaining
that jeopardy generally attaches once a jury is impaneled and sworn). However, “[w]hen a
mistrial has been declared, the conclusion that jeopardy has at tached begins, rather than
ends, the inquiry as to whether the Double Jeopardy Clause bars retrial.” State v. Long, 562
N.W.2d 292, 296 (Minn. 1997) (quotation omitted).
Under certain circumstances, the court may retry a defendant after a mistrial without
violating the protection against double jeopardy. “[I]f a defen dant consents to the district
court’s declaring a mistrial, he waives any claim that retrial is barred under the double
jeopardy doctrine.” State v. Hunter, 815 N.W.2d 518, 521 (Minn. App. 2012). “If, on the
other hand, a defendant objects to the declaration of a mistria l, double jeopardy bars a

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second trial unless a ‘manifest necessity’ required the first t rial to be terminated.” Id. at
522 (quoting State v. Fuller, 374 N.W.2d 722, 726 (Minn. 1985)). Tamez argues that he
did not consent to the mistrial and that there was no manifest necessity for a mistrial.
We begin with the manifest-nece ssity argument, assuming that Ta mez did not
consent to the mistrial. Appellate courts “review a district co urt’s sua sponte decision to
declare a mistrial without the defendant’s consent for an abuse of discretion.” Id. While it
is true that “[m]anifest necessity is an objective necessity, apparent not only to the district
court but to any reviewing court,” id. (quotation omitted), the “overriding interest in the
evenhanded administration of justice requires that [an appellat e court] accord the highest
degree of respect to the trial court’s evaluation that a mistri al was necessary, Long, 562
N.W.2d at 296 (quotation omitted).
“The manifest necessity standard is a flexible standard which seeks fairness to the
defendant, the government, and the public interest alike.” Id. (quotation omitted)
“Although Minnesota appellate courts have not established ‘clear-cut guidelines as to what
constitutes manifest necessity,’ on review, one consideration i s ‘whether the court
adequately assessed less drastic alternatives.’” Roeschelein, 776 N.W.2d at 484 (quoting
Long, 562 N.W.2d at 296).
Tamez argues that there was no manifest necessity for a mistri al because
continuance was the less drastic alternative. He correctly poin ts out that the record does
not elucidate specifically how the district court’s schedule co nflicted with a continuance
and thereby necessitated a mistrial. But the district court con sidered the possibility of a

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continuance. It stated that there was “not enough time to both continue and get this trial in”
and that “[t]he calendar and the timing [did not] allow for a c ontinuance.” We decline to
second-guess the district court’s prudence in managing its own docket. Cf. Weitzel v. State,
883 N.W.2d 553, 560 (Minn. 2016) (“[A] state district court has the authority to control
the disposition of cases on its dockets with economy of time an d effort for itself, for
counsel, and for litigants.”). The district court’s finding in this context does not have to be
meticulously proven by the record; rather, it receives “the highest degree of respect” from
an appellate court. Long, 562 N.W.2d at 296 (quotation omitted).
Moreover, the district court expressed great concern about the magnitude of the
discovery violations. The inform ation contained in the opening statement, as the district
court noted, was not only undisc losed but also contrary to defe nse counsel’s prior
representation. Defense counsel stated that the July 6 intervie w was consistent with the
witnesses’ statements made to th e investigators although S.T., w h o m t h e s t a t e h a d
subpoenaed, had not made any statement to the investigators. Cf. Minn. R. Crim. P. 9.02,
subd. 1(4) (“The defendant mus t disclose . . . [s]tatements of prosecution witnesses
obtained by the defendant, defense counsel, or persons participating in the defense . . . .”).
The district court expressed its suspicion that the state would be surprised with even more
undisclosed information during trial, for which a jury had already been sworn.
These circumstances make Tamez’s case much like State v. Gouleed, 720 N.W.2d
794 (Minn. 2006). In Gouleed, the defense’s expert witness, Dr. Plunkett, provided
multiple microscopic slides of autopsy samples in support of hi s testimony that certain

8
injuries sustained by the victim significantly predated her dea th. 720 N.W.2d at 798. To
date the injuries, some of the slides had been processed with a technique called iron-
staining, the effectiveness of which Dr. Plunkett also testified to. Id. Both parties assumed
that Dr. Plunkett was using the slides as he received them from the prosecution’s expert
who had performed the autopsy. Id. However, when asked on direct examination,
Dr. Plunkett stated that he had iron-stained the slides himself. Id. The fact that Dr. Plunkett
had independently stained the s lides and performed testing was not previously disclosed.
Id. The district court eventually declared a mistrial due to the discovery violation, and the
defendant moved to dismiss the case on double-jeopardy grounds before retrial. Id. at 799.
Just like in this case, as the dissent in Gouleed points out, the district court in
Gouleed did not explain specifically w hy it dismissed “the possibility of granting a
continuance so that the state c ould recall [its expert] to rebu t Dr. Plunkett’s testimony.”
State v. Gouleed, 720 N.W.2d 794, 806 (Minn. 2006) (Page, J., dissenting). Howe ver, the
majority affirmed the district court, holding that the court acted within its discretion when
it determined “that continuing the trial would not be fair to e ither party” and declared the
mistrial. Gouleed, 720 N.W.2d at 801-02. Integral to the majority’s decision was t h e
“observation that the discovery violation went to the very heart of the state’s case”—“the
medical significance of the prior injuries.” Id. at 801. Noting that “the iron-stained slides
provided a visual basis and critical support for Dr. Plunkett’s conclusion that some of [the
victim’s] injuries significantly predated her death,” the supre me court gave deference to

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the district court’s assessment of “the impact of the undisclosed iron-staining evidence on
the fairness of the proceedings.” Id.
The same deference should be given here. The undisclosed infor mation referred to
in the opening statement indicated that S.E.T. lied to and diso beyed S.T. As in Gouleed,
“the state would have had to respond” to such evidence, in this case to safeguard S.E.T.’s
credibility, which goes to the “he art of the state’s case,” and the state “should have had
[the] evidence in advance of trial.” Id. Gouleed explains that, in such a situation, “the
district court is ‘best situated to decide whether, for compell ing reasons, “the ends of
substantial justice cannot be attained without discontinuing the trial.”’” Id. (quoting Long,
562 N.W.2d at 296).
The analogy between Gouleed and this case is made even stronger by the fact that,
in both cases, the defendant’s fai lure to disclose induced the mistrial. And, in both cases,
the district courts considered excluding the defense evidence at issue but ordered a mistrial
so that the defendants would be able to fully present their def enses at the next trial.
Admittedly, here, as in Gouleed, the record is “somewhat lack ing” to assure a reviewing
court that the district court e xplored the possibility of conti nuance to the fullest extent
possible. Id. at 802. But, as in Gouleed, the record reflects that the district court did not act
“abruptly” or with “no effort to exercise a sound discretion to assure” that there was a
manifest necessity for a mistrial. Id. (quotation omitted). Following Gouleed, we conclude

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that the district court did not abuse its discretion by declaring a mistrial.1 Double jeopardy
therefore does not preclude Tamez’s retrial.
Affirmed.

1 Tamez does not discuss Gouleed, but his reply brief contains an argument that implicates
Gouleed. He argues that the mistrial was “a prophylactic to potential issues,” not a manifest
necessity. He is correct in that the district court never deter mined, and it is not clear from
the record, whether the discovery violations resulted in actual prejudice to the state.
However, Tamez’s position largely echoes the dissent’s concern in Gouleed:

[T]he 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. . . .
Dr. Plunkett’s testimony about what the slides he tested
showed was consistent with his reasoning and opinion from his
[written] report, which the state had reviewed. As such,
Gouleed’s discovery violation, i f any, was procedural rather
than substantive.

Gouleed, 720 N.W.2d at 805-06. Apparently, the majority in Gouleed rejected a rule that a
discovery violation must be determined to be prejudicial to ser ve as a manifest necessity
for mistrial.