This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-97-2127

State of Minnesota,

Respondent,

vs.

Clinton Wade Brousseau,

Appellant.

Filed June 30, 1998

Affirmed

Crippen, Judge

Washington County District Court

File No. K59622

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Richard D. Hodsdon, Acting Washington County Attorney, John W. Fristik, Assistant County Attorney, Washington County Government Center, 14900 61st Street North, P.O. Box 6, Stillwater, MN 55082 (for respondent)

Daniel S. Adkins, Jerry Strauss, Strauss & Associates, 145 Commerce at the Crossings, 250 Second Avenue South, Minneapolis, MN 55401-2169 (for appellant)

Considered and decided by Crippen, Presiding Judge, Davies, Judge, and Harten, Judge.

U N P U B L I S H E D O P I N I O N

CRIPPEN, Judge

Appellant Clinton Brousseau, challenging denial of his motion to dismiss before retrial on three charges of controlled substance violations, asserts that Minnesota's constitutional double jeopardy protection should be expanded beyond the current federal standard. We affirm.

FACTS

One half hour before appellant's trial was to begin, two police officers disclosed to the prosecutor for the first time three pieces of paper ("drug notes") found among earlier reported items in appellant's possession when he was booked. Calling one of the officers as the state's first witness, the prosecutor questioned him about the drug notes. After appellant objected and the trial court heard the parties in an in-camera hearing, the court declared a mistrial and scheduled a retrial. Before the retrial began, appellant made a motion to dismiss, claiming that further prosecution would constitute double jeopardy. The trial court denied the motion, finding that the prosecutor did not specifically intend to cause a mistrial.

D E C I S I O N

Under the United States Constitution, jeopardy attaches only when the state, through its objectionable conduct, calculates to cause a mistrial. Oregon v. Kennedy, 456 U.S. 667, 676, 102 S. Ct. 2083, 2089 (1982); State v. Fuller, 374 N.W.2d 722, 726-27 (Minn. 1985) (employing the Kennedy standard; reserving judgment on whether the Minnesota Constitution affords a defendant greater protection from double jeopardy than the federal constitution).

In asking this court to expand the protections afforded under Minnesota's double jeopardy clause, appellant points to a line of decisions in other jurisdictions, each holding that jeopardy attaches when a prosecutor acts intentionally and wrongfully, even without proof of a design to prompt a mistrial. See State v. Kennedy, 666 P.2d 1316, 1326 (Or. 1983) (ruling that retrial is barred when official misconduct is so prejudicial that mistrial is the only cure and "the official knows that the conduct is improper and prejudicial and either intends or is indifferent to the resulting mistrial or reversal"); Pool v. Superior Court, 677 P.2d 261, 271-72 (Ariz. 1984) (ruling jeopardy attaches and retrial is barred if official knowingly engages in intentional, egregious, and improper conduct indifferent to the fact that such conduct will likely result in a mistrial or dismissal; conduct due to legal error, negligence, or mistake does not meet this condition).

In each of these cases, the courts formulated a rule that encompasses either (a) prosecutorial misconduct that was especially indifferent toward the risk of mistrial or (b) evidence that a mistrial served some interest of the prosecution. In this case, there is no evidence that a mistrial would provide any advantage to the state; to the contrary, a mistrial might be expected to benefit the defense, permitting them to better answer the newly produced evidence. Moreover, the record amply justified the trial court's finding that the prosecutor credibly explained his motives; although the prosecutor knew that there was a discovery violation, he explained that he was anticipating impeachment of the officer for his failure to disclose the drug notes and did not foresee the risk of a mistrial. These facts and circumstances are not comparable to those that have prompted other courts to consider a rule more expansive than the one found in Oregon v. Kennedy, 456 U.S. at 676, 102 S. Ct. at 2089.

Affirmed.