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Salt Lake City v. Reyes-Gutierrez

Court of Appeals of Utah

August 24, 2017

Salt Lake City, Appellee,
Rafael Reyes-Gutierrez, Appellant.

         Third 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

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


          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.


         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 ...

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