§ 634.07

Hoagland v. State · 1994 1 citation

We cannot tell from this record whether the state would be unduly prejudiced in a retrial and, therefore, remand on this issue to the trial court. We note, however, the state reported that one of its witnesses had died and that-it was unable to locate two other witnesses, but the record does not establish the importance of their testimony for defendant’s conviction. The state found that those witnesses it could locate did not recall their testimony at trial. The state did not, however, establish that these witnesses’ recollections could not be refreshed with infor *537 mation from the record of either Peirce’s, Goodridge’s, or Palthen’s trials. The state failed to do this even though the state offered an affidavit from the prosecutor which stated the witnesses and evidence offered were largely identical at all four trials. From the record it appears that the state did not interview the prosecuting or defense attorneys at any length, or review the records of the other trials to determine what concrete difficulties it might experience in retrying the case. The state reports that one witness purportedly is unwilling to return to Minnesota to testify, but makes no showing that the witness cannot be made to testify under compulsory process available under Minn. Stat. § 634.07 (1992). The state did not indicate that it would have difficulty in locating the physical evidence which the record indicates was introduced at trial. Nor did the state effectively counter Hoagland’s argument that the state would find retrial easier because Hoagland’s three codefendants could now be required to testify against him.