State v. Mutei

THE STATE OF TEXAS, Appellant, v. FRANCES MUTEI, Appellee.

No. 08-15-00056-CR

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

February 10, 2017

Appeal from the 205th District Court of El Paso County, Texas

(TC# 20140D03917)

OPINION

Frances Mutei was indicted on two counts of sexual assault of a child younger than seventeen years of age, and one count of indecency with a child under the age of seventeen by sexual conduct, involving his then-sixteen-year-old niece, "J. M."¹ Prior to his jury trial, the trial court granted Mutei's motion in limine prohibiting the State from presenting evidence that Mutei had retained an attorney while the police were investigating the allegations, and that this attorney had sent a letter to the chief of police stating that Mutei did not intend to cooperate in the department's investigation. On the third day of trial, the trial court granted Mutei's motion for mistrial based on the State's alleged violation of that order. The trial court thereafter granted Mutei's application for a pretrial writ of habeas corpus, dismissing all of the pending chargesagainst him on the ground that the Double Jeopardy Clause prohibited his retrial. We hold that Mutei's retrial is not barred by the Double Jeopardy Clause because Mutei failed to establish that the State intentionally provoked defense counsel into requesting the mistrial to avoid an acquittal. For the reasons that follow, we reverse and remand.

FACTUAL SUMMARY

At trial, J. M. testified that she and her sister spent the 2012 Memorial Day weekend at her grandmother's house in El Paso, where her aunt and her aunt's husband, Mutei, were living at the time. During the evening of May 26, 2012, Mutei and his wife returned to the grandparents' home from a party, and J.M. asked Mutei if she could have a drink from a bottle of Crown Royal that they had brought with them. Mutei told J.M. to "wait a while," and later that night, after J.M.'s aunt had gone to bed, Mutai gave J.M. a total of four shots of whiskey, as well as a beer. At the time, the two of them were sitting on a couch in the grandparents' living room, and were alone with the exception J.M.'s sister, who was asleep on a nearby couch. According to J.M., after she became intoxicated, Mutei began kissing her, placed his hands on her breasts, inserted his finger into her vagina, and inserted his penis into her vagina.

J.M. did not initially report the incident to anyone, as she felt uncomfortable about the situation, and was concerned that if she made an outcry, it would disrupt her mother's upcoming wedding plans. However, when she returned home a day or two later, J.M. gave her mother a general description of what had occurred. Her mother went to the grandparents' home and confronted Mutei, who denied that the incident had occurred. At the grandfather's request, J.M.'s mother decided not to report the matter to the police. However, she did allow a family friend totake J.M. to be examined by her aunt, a doctor in Juarez, who upon examining J.M., found "scratches" and "tearing to the vaginal area."

When J.M.'s father learned of the incident a few days later, he immediately contacted the police and took J.M. to a hospital in El Paso, where a sexual assault examination was performed on her by a Sexual Assault Nurse Examiner (SANE) nurse. The nurse testified that she did not find any injuries or physical evidence of an assault, but explained that the negative findings were not necessarily inconsistent with a finding of sexual assault, particularly given the delay that had occurred in conducting the examination. El Paso Police Officer Frederick Gomez testified that he conducted an interview with J.M. and her father that same day. J.M. reported that Mutei had forcibly pulled down her pants, placed his finger in her vagina, and had forced her to have sexual intercourse with him. Gomez spoke with J.M.'s mother, who reported that the child's aunt examined her earlier and had found "tearing to the vaginal area[.]" As discussed in more detail below, Detective Cory Balke was assigned to investigate the case on June 4, 2012, and attempted to make contact with the various family members who had been at the grandparents' house at the time of the assault.

The Motion in Limine

Apparently learning of the police department's investigation, Mutei retained counsel who sent a letter to the El Paso Chief of Police informing him that Mutei had retained counsel, that he would not be speaking with the police about the matter, and that he would not be cooperating with the department's investigation. Prior to trial, Mutei filed a motion entitled, "Motion in Limine re: Evidence Relating to Retaining Attorney," seeking to prohibit the State from making any reference to the letter at trial, because it would violate both his Fifth Amendment rights and Article 38.38 ofthe Texas Code of Criminal Procedure, which prohibits the State from introducing evidence of a defendant's decision to retain counsel and further prohibits it from commenting on that decision.² At a pretrial hearing on the motion, defense counsel pointed out that the letter was referenced in three different police reports, and explained that he wanted to ensure that the detectives who investigated the case were aware that they could not refer to the letter in their trial testimony. The trial court granted the motion, concluding that the State would not be permitted to "go into any of that," as it was "not fair game." The trial court further announced that if the State introduced any such evidence, it would declare a "mistrial due to prosecutorial misconduct."

Detective Balke's Testimony

At trial, Detective Balke testified at length regarding his investigative efforts, which began with an interview that he conducted with both J.M. and her father the day after he received the case. Based on his interview and his review of Officer Gomez's report, Balke believed that J.M. had made a credible outcry. However, he noted there were several impediments to his investigation, including the fact that J.M. had delayed in making her outcry and had washed the clothes she had been wearing at the time of the assault. He explained that J.M. and her father informed him of their belief that someone at the grandparents' house had either shampooed or removed the couch where the assault had taken place. Based on this information, Detective Balke believed there was no reason to obtain a search warrant of the residence, and determined that the next step in his investigation would be to interview and obtain statements from the individuals whohad been present on the night of the assault. Balke made several attempts to speak with these potential witnesses. He went to the home on two occasions and left phone messages with the witnesses, all of which met with "negative results." Believing the witnesses were being uncooperative, Balke terminated his investigation, and the matter was turned over to the district attorney's office, which submitted the matter to the grand jury without further investigation.

In response to the prosecutor's questioning regarding the investigative steps he took prior to turning the matter over to the district attorney's office, Balke testified that he also tried to speak with Mutei, but that this effort similarly "met negative results." Defense counsel objected to that statement, and the trial court sustained the objection. In a bench conference, the prosecutor argued that Balke's testimony did not violate the order in limine, beause the order only prohibited the State from referencing the fact that Mutei had retained an attorney who had sent a letter to the police chief, and that Balke had not mentioned either of those facts. The prosecutor also sought permission to continue questioning Balke about his investigation, arguing that Mutei had attacked the integrity of the police department's investigation, and that it was necessary to allow the detective to explain why he terminated his investigation prematurely.³ The trial court agreed to allow the State to continue that line of questioning, to "see where it goes." The trial court did not admonish either the prosecutor or the detective at that time.

Upon further examination by the prosecutor, Detective Balke once again described his unsuccessful efforts to contact the potential witnesses, adding that he "tried to reach the other involved party to get both sides of the story" before obtaining a warrant for Mutei's arrest. The prosecutor advised Balke that he was "going to stop [him] right there," and the detective did notelaborate any further on his attempts to speak to Mutei. Defense counsel did not object to that testimony, and the trial court provided no admonitions to the State or to the detective.

Defense counsel cross-examined Detective Balke, focusing primarily on the manner in which he conducted his investigation, eliciting testimony in which Balke acknowledged that he did not get a search warrant for the grandparents' house, did not dust for fingerprints, and did not get a DNA sample from Mutei. Defense counsel then asked if it was possible to "get a search warrant for someone's DNA," to which Detective Balke responded in the affirmative. Counsel asked the detective whether he had done "that in this case," and if he had obtained any DNA from Mutei. In response, Detective Balke replied, "Mr. Mutei wouldn't speak with me."

Motion for Mistrial

Defense counsel objected that the detective's response -- which he pointed out was not directly responsive to the prosecutor's question -- was an intentional violation of the trial court's order in limine, and then moved for a mistrial, contending that the detective's testimony had "poisoned the whole jury." The trial court expressed its agreement that Detective Balke had deliberately and intentionally violated the order in limine and that his testimony was "unresponsive" to the prosecutor's question; he further opined that the detective knew "exactly what he...