State v. Schwantes, 52003.
| Decision Date | 15 January 1982 |
| Docket Number | No. 52003.,52003. |
| Citation | 314 NW 2d 243 |
| Parties | STATE of Minnesota, Respondent, v. Gary SCHWANTES, Appellant. |
| Court | Minnesota Supreme Court |
Chestnut & Brooks and Kevin S. Burke, Minneapolis, for appellant.
Warren Spannaus, Atty. Gen., St. Paul, Thomas L. Johnson, County Atty., Vernon E. Bergstrom, Chief Asst. County Atty., Appellate Section, Michael McGlennen, Thomas A. Weist and Anne E. Peek, Asst. County Attys., Minneapolis, for respondent.
Considered and decided by the court en banc without oral argument.
The defendant was charged with first-degree arson but, at the trial court's request, the state amended the charge to attempted first-degree arson. Thereafter, a district court jury found defendant guilty as charged and the court sentenced defendant to 34 months in prison, the sentence to run consecutively to defendant's federal sentence of 18 months for bank fraud. Issues raised by defendant on his appeal from judgment of conviction are (1) the sufficiency of the evidence that defendant was the one who set the fire, (2) whether defendant was prejudiced by the state's negligent failure to disclose reports of prior statements by defendant's wife, information which bore on defendant's decision to waive the privilege against adverse spousal testimony, and (3) whether there were valid grounds for the trial court to depart from the "presumptive sentence" of 16 months. We reverse defendant's conviction and remand for a new trial.
No useful purpose would be served by summarizing all the evidence against defendant. Suffice it to say, the state's evidence at defendant's trial was clearly adequate to establish that defendant, owner of a house he had acquired from his mother, deliberately set fire to the house when his mother was temporarily away from the premises. However, a serious breach of the discovery rules requires a new trial in the interests of justice.
The prosecution used the open-file policy of disclosure. Apparently after defense counsel copied the file, a report by an agent from the Bureau of Alcohol, Tobacco and Firearms was placed in the file. This report summarized a statement by defendant's wife at the time a search warrant was executed at their apartment in which she allegedly said that defendant was gone from the apartment when she woke at 11 a. m. on June 8, the day of the fire, and that he returned when she was in the bathroom. This statement discredited defendant's alibi. The timing was crucial. The prosecutor had received an oral report of this statement from another agent of the bureau on the day the search warrant was executed. Defense counsel was not told of this oral report when he requested disclosure or when he copied the file and he was not later told of the subsequently inserted written report. The subsequent written report was specifically requested by the prosecutor, who initially had thought that defendant's wife was friendly to the prosecution but then had learned otherwise. In other words, the prosecutor apparently requested the written report so that it would be available if it became necessary to impeach defendant's wife if she was called and if she testified that defendant had not left the apartment on the morning in question. Notwithstanding defense counsel's continuing demand for discovery, the prosecutor did not tell defense counsel about the report or send a copy to defense counsel but simply put the report in the file even though he had reason to know that defense counsel had already copied the file.
Defense counsel interviewed defendant's wife before trial and she apparently did not tell him that she had told the officers or agents that defendant was gone when she awoke. Thus, in deciding whether to waive the marital privilege, defendant and defense counsel apparently did not know that the wife's testimony bearing on this point could be specifically impeached by a prior inconsistent statement. Had they known this, they presumably would not have waived the privilege, which resulted in the prosecutor's calling the wife and then impeaching that part of her testimony bearing on this point.
As stated in the comment to Minn.R. Crim.P. 9, the purpose of the discovery rule is "to give the defendant and prosecution as complete discovery as is possible under constitutional limitations." The state does not argue that the prosecutor was under...
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