An attorney for a Blue Earth woman convicted of perjury last month is seeking a new trial claiming his client’s constitutional rights were violated and there was prosecutorial misconduct.
Allison Ann Mastin, 37, was convicted of perjury following a two-day trial that began on Jan. 23.
In court papers filed on Feb.7 in Faribault County District Court, attorney Gary Gittus says jurors rendered an inconsistent verdict when a 12-member jury found Mastin not guilty of aiding an offender – obstructing an investigation.
During a July 2018 contested omnibus hearing for Wyatt Tungland, Mastin and her daughter testified that he could not have been involved in the assault because he was at their house when the beating occurred.
Last April, Tungland pleaded guilty to felony third-degree assault in the October 2017 beating of a former Blue Earth Area football teammate.
Under an Alford plea, Tungland maintained he was innocent but admitted there may be sufficient evidence with which the prosecution could likely convict him.
The court was in error when it failed to allow Tungland, says Gittus, to explain his Alford plea to the jury during his testimony.
In court documents, Gittus accuses assistant County Attorney LaMar Piper of misconduct when he met with witness Tungland two days before the start of the trial.
He says that Piper failed to provide the defense a witness contact form or any disclosure in writing as required by law.
“This meeting uncovered key evidence concerning Mr. Tungland’s ability to know, remember and relate the events,” he says.
According to court papers, Tungland recorded the meeting without Piper’s knowledge, which Gittus says could have been entered as evidence.
During the meeting with Piper, Tungland reportedly said his brain was “mush” due to nine concussions he has suffered and he could not remember much about the assault at the time authorities interviewed him on Nov. 17, 2017.
Gittus says Piper acknowledges that Tungland’s memory may be bad by saying, “I know, I’ve read your medical.” He says Mastin rights were violated by not being able to question and confront Tungland about his concussions.
Gittus contends that Piper did not allow Tungland to have an attorney present during their meeting knowing that he was facing a possible probation violation.
Court documents say that Gittus first became aware of the audio recording when Tungland gave it to him after the jury began deliberations.
Another example of prosecutorial misconduct, according to Gittus, occurred when Piper told Tungland, “I don’t want to kick you when you’re down.”
Gittus claims that Piper also was out of line when he sent a letter to Judge Michael Trushenski on Jan. 7.
Gittus says that Piper requested specific information about Tungland’s attorney, Chris Ritts, receiving a transcript of a statement that he made to law enforcement in December 2017. He also wanted to know whether the judge or his law clerk remembered an oral response from Ritts.
The court allowed the final law enforcement witness to testify, says Gittus, about newspaper and social media reporting about the original assault and alibi. He says this allowed lawyers to completely disregard any of the court’s previous rulings.
“This allowed the floodgates of social media involvement to be considered by the jury, despite the objection of the defense and previous rulings by the court,” adds Gittus.