Salt Lake City v. Reyes-Gutierrez

405 P.3d 781

SALT LAKE CITY, Appellee,

v.Rafael REYES-GUTIERREZ, Appellant.

No. 20150755-CA

Court of Appeals of Utah.

Filed August 24, 2017

Melissa G. Stirba, Attorney for Appellant.

Simarjit S. Gill and Curtis M. Tuttle, Attorneys for Appellee.

Judge Jill M. Pohlman authored this Opinion, in which Judges Stephen L. Roth and Michele M. Christiansen concurred.¹

Opinion

POHLMAN, Judge:

¶ 1 After his first trial ended in a mistrial granted on his own motion, Defendant Rafael Reyes-Gutierrez was retried and convicted of one count of retail theft, a class A misdemeanor. Reyes-Gutierrez appeals his conviction on double jeopardy grounds, asserting that the prosecutor goaded him into seeking a mistrial in the initial proceeding, and retrial was therefore constitutionally barred. We affirm.

BACKGROUND

The First Trial

¶ 2 Reyes-Gutierrez left a retail store without paying for a pair of shoes he had placed in his shopping bag. The City charged Reyes-Gutierrez with retail theft under Utah Code section 76-6-602 and enhanced the charge from a class B to a class A misdemeanor based on his prior theft convictions. See Utah Code Ann. § 76-6-412(1)(c)(iii) (LexisNexis Supp. 2016) (providing that theft of property valued less than $500 is punishable as a class A misdemeanor if the defendant was twice convicted of other theft offenses within ten years of the present offense).

¶ 3 Several days before Reyes-Gutierrez's first trial, defense counsel notified the prosecutor that she was unable to view the copy of the store's surveillance video that the City had produced in discovery. The prosecutor tried to view his copy of the same video but discovered it also did not work. When the prosecutor asked the store's loss prevention supervisor if he could get another copy, he was told the store no longer had the video. The prosecutor told defense counsel that because he could not get the video to work, he would not be using it at trial.

¶ 4 The City's first witness at trial was an asset protection associate who testified that he observed Reyes-Gutierrez try to leave the store without paying for the shoes. On cross-examination, the associate explained that he observed the theft through the store's video surveillance system. When asked if he brought a video recording of the incident to court, he stated that he did not but that he previously gave one to the police. On further examination by both parties, the associate provided additional testimony about his familiarity with the store's video files and its ability to preserve video recordings.

¶ 5 The City next called the Salt Lake City police officer who investigated the theft. He testified on direct examination that he did not recall whether he had reviewed video surveillance footage of the theft. On cross-examination, the officer testified that he had received a copy of the video from the store asset protection associate but that he did not bring a copy of the video to court.

¶ 6 After the officer's testimony, the jury was excused for lunch. During a conference with the court, the City's attorneys expressed concern that defense counsel's cross- examination of the witnesses suggested that there was a video recording of the theft that the City had either lost or withheld and that the City had acted improperly. The prosecutor stated: "I think it would be appropriate to notify the jury that there is a video, the prosecution provided it to the defense, [and] neither side has been able to make it work." The prosecutor also questioned whether it would be appropriate to call defense counsel to testify about whether the City gave the defense a copy of the video and whether she could get it to play.

¶ 7 The trial court agreed that the impression had been left that there was a video "hanging out somewhere" and told the attorneys that they would "have to figure out a way to put it before the jury as evidence" because the court could not instruct the jury about evidence unless the parties stipulated to an instruction. The City's attorneys indicated their preference for a stipulated instruction, stating that "otherwise [the City will] have to call [defense counsel] to testify." The trial court told the parties to discuss how they wanted to proceed, stating that "it wouldn't be the first time that a lawyer has called another lawyer who is on the case as a witness."

¶ 8 During the ensuing recess, the City learned that Reyes-Gutierrez did not intend to testify. Defense counsel also told the City that Reyes-Gutierrez would stipulate to a jury instruction regarding the video. However, just before court resumed, defense counsel changed course and told the prosecutor that she would not stipulate to the City's proposed instruction.

¶ 9 After the break, and before any further discussion about the video, the prosecutor raised a concern with the court regarding defense counsel's opening statement. Defense counsel had told the jury that the evidence would show that Reyes-Gutierrez "wasn't trying to take the shoes without paying for them," and this case was about a "simple human error." The prosecutor argued that no evidence had been provided to that effect and that, in light of Reyes-Gutierrez's intention not to testify, "either a mistrial would be appropriate or else ... the City should be able to present evidence [of prior convictions] contrary to the assertion." Defense counsel objected to both alternatives, and the prosecutor submitted the issue without further argument. The court denied the City's request.

¶ 10 Defense counsel then asked the trial court to address the possibility of her being called to testify about the video. The prosecutor weighed in, explaining that the parties "had a stipulation before the lunch break," but as the proceeding resumed "it was unstipulated and so [they were] left having to figure out how to deal with it from there." Defense counsel then argued that the issue of the video was irrelevant, and if the City attempted to call her, she would "have to move for a mistrial at that point."

¶ 11 Before the City responded, the trial court commented that, "if the defendant stipulates to a mistrial," the court would grant it. The court expressed the view that because the jury had been left with the impression that the City had chosen not to use or had lost the video, "it may be necessary for the City to put on evidence about the videotape, that the videotape was turned over to the defense, [and] that it didn't work." In response, the prosecutor suggested that the City might be able to call someone else from defense counsel's office to testify that the defense had received the video, and the court and the prosecutor discussed other possible alternatives to calling defense counsel as a witness. Defense counsel reiterated that she would move for a mistrial if called to testify.

¶ 12 After a brief recess, the prosecutor informed the court that no agreement had been reached and that he would be calling defense counsel to testify. Defense counsel objected and again stated that if the City tried to call her, she would ask for a mistrial. The court then informed the parties that it was "wholly appropriate" for either the prosecutor or defense counsel, or both of them, to testify about the video and their knowledge about its functionality. Defense counsel proposed that the police officer be recalled, but the court and the prosecutor agreed that he could not testify about what had been given to the defense.

¶ 13 Following some additional discussion, the court stated that it might allow defense counsel to be called as a witness unless there was someone else from her office who could testify about the video. The court then asked, "Are you moving for a mistrial?" Defense counsel repeated that she would move for a mistrial if the City called her as a witness. Co-counsel for the City then interjected, stating that rather than retry the case, the City could call the prosecutor as a witness. Defense counsel again objected.

¶ 14 At that point, the court asked for any last comments from the attorneys. Co-counsel for the City expressed her view that the City had attempted to do everything it could "to make this case go forward at this time," including calling the prosecutor to testify about the video instead of defense counsel, but that the City would stipulate to a mistrial if a motion were made. Defense counsel responded, "I think if you are going to allow attorneys to be called as witnesses in this case then I am forced to move for a mistrial."

¶ 15 The court stated that it would allow the prosecutor to testify and noted that defense counsel "has moved for a mistrial." When asked if the City stipulated to the mistrial, co-counsel for the City stated, "[W]e're willing to go forward to do whatever we need to go forward with trial today but it appears that we are at a stalemate and we will stipulate." The court then confirmed Reyes-Gutierrez's agreement and declared a mistrial. The prosecutor indicated the City's intent to file a rule 404(b) notice and a motion in limine to avoid on retrial the issues that arose relating to the video and the mistake defense.

The Motion to Bar Retrial

¶ 16 Reyes-Gutierrez filed a motion to bar retrial on double jeopardy grounds, arguing that the City goaded him into seeking a mistrial so that it could retry him under more favorable conditions. During a hearing on the motion, before the same judge who presided over the trial, the prosecutor asked to be placed under oath. He testified that after the court denied the City's motion to either admit evidence relevant to the mistake defense or declare a mistrial, he "did not want a mistrial on the case, [he] wanted to finish the trial that day."

¶ 17 The prosecutor also testified about how important presenting evidence regarding the video was to the City. He described how he had met with the police officer during a break in the first trial to try to get the video to work and explained that he did not call the officer or the asset protection associate to...