District Court, Salt Lake Department The Honorable Vernice S.
Trease No. 141911985
Melissa G. Stirba, Attorney for Appellant
Simarjit S. Gill and Curtis M. Tuttle, Attorneys for Appellee
Jill M. Pohlman authored this Opinion, in which Judges
Stephen L. Roth and Michele M. Christiansen concurred.
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.
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).
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.
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.
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.
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.
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."
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
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
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 ...