People v. August

• Decision Date: 21 April 2016
• Docket Number: Court of Appeals No. 15CA0161
• Citation: 375 P.3d 140,2016 COA 63
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellant, v. Daniel Christian AUGUST, Defendant–Appellee.
• Court: Colorado Court of Appeals

375 P.3d 140

2016 COA 63

The PEOPLE of the State of Colorado, Plaintiff–Appellant

v.Daniel Christian AUGUST, Defendant–Appellee.

Court of Appeals No. 15CA0161

Colorado Court of Appeals, Div. II.

Announced April 21, 2016

Daniel H. May, District Attorney, Shannon Gerhart, Chief Deputy District Attorney, Doyle Baker, Senior Deputy District Attorney, Jennifer Darby, Deputy District Attorney, Judy Haller, Deputy District Attorney, Colorado Springs, Colorado, for Plaintiff–Appellant

Douglas K. Wilson, Colorado State Public Defender, Joseph Paul Hough, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellee

Opinion by JUDGE DAILEY

¶ 1 The People appeal the trial court's order dismissing, on double jeopardy grounds, charges against defendant, Daniel Christian August. We vacate and remand with directions to reconsider the issue.

I. Facts

¶ 2 In July 2009, the People charged defendant with the kidnapping and sexual assault of his former wife (the victim) that had allegedly occurred earlier that month. He was tried twice on those charges.

¶ 3 The first time, the trial court declared a mistrial and dismissed the charges, on federal double jeopardy grounds, based on a finding that the prosecution had willfully violated a court order. On appeal, a division of this court concluded that the reprosecution of defendant would be barred only if the prosecutor had acted with the intent to provoke a mistrial. See People v. August, (Colo.App. No. 11CA0365, 2013 WL 3713443, July 3, 2013)

(not published pursuant to C.A.R. 35(f) ). Because the trial court had made no findings with respect to this issue, the division remanded the case with directions to do so. Id. On remand, the trial court found that the prosecutor had not intended to provoke defendant into moving for a mistrial and, consequently, denied defendant's motion to dismiss the charges.

¶ 4 At defendant's second trial, the prosecution was permitted to present CRE 404(b)

evidence that defendant had sexually assaulted the victim on a previous occasion (the March 2008 assault). The trial court instructed the jury that the evidence was admitted, and thus was to be considered, only for the limited purpose of “knowledge, motive, mental state, and consent as it relates to the charges in this case.”

¶ 5 In closing argument, the prosecutor presented a fifty-five slide PowerPoint presentation. Near the close of her argument, the prosecutor introduced slide fifty-three, which referenced the March 2008 assault, and stated that “history repeats itself.” Defense counsel immediately objected to the statement. He also objected to the slide:

HISTORY REPEATS ITSELF

? March 2008—[The victim] refused Defendant—So he raped her

? July 2009—[The victim] again refused defendant—So he raped her again

? Rape is about Power and Control

? Shows the Defendant's intent—and [the victim]'s lack of consent

¶ 6 Defense counsel's objection—and the basis for his subsequent request for a mistrial—was that defendant was no longer being tried on the evidence of what happened in July 2009, but rather “on the idea that history repeats itself; that this is propensity.” The prosecutor responded that, read in its entirety, the slide was not an impermissible reference to propensity and that, in any event, any error could be cured by repeating the limiting instruction previously given to the jury.

¶ 7 Agreeing with the defense, the court declared a mistrial and heard argument as to whether the charges should be dismissed, as defendant requested, under the double jeopardy provisions of the United States and Colorado Constitutions.

¶ 8 On behalf of the People, a different prosecutor argued, “[We] weren't intentionally asking for the defendant to ask for a mistrial. We wouldn't gain anything by trying this case a third time.” She pointed out that (1) the action which caused the mistrial occurred near the end of the prosecutor's closing argument; (2) “the prosecution's case doesn't get any better as time goes on”; (3) “there is no evidence that the People would benefit from a mistrial,” and, “although the defense had vigorously cross-examined all of the People's witnesses, there is no indication that the trial was going to go badly for the People” and that “a mistrial was necessary to save the case for another day”; (4) the prosecution had “strenuously objected against [sic] the mistrial”; and (5) the prosecution had a strong desire to avoid a mistrial because the case had already been “extremely hard on [the] victim.”

¶ 9 In response, defense counsel argued that the “experienced” prosecutor had “intentionally and willfully caused a mistrial” to gain several benefits from being able to try the case a third time, to wit: (1) the lead detective could be better prepared to be a more effective witness in a future trial;¹ (2) the prosecutor could correct misstatements made in opening statement; (3) prosecutorial evidence excluded from trial because it had not been timely or properly disclosed would not be excludable for those reasons in a future trial; (4) the prosecution could relitigate whether it would be allowed to play a videotape of the victim's statements; and (5) the prosecution would get “a third opportunity at seeing what [the defense's] case is.”

¶ 10 The trial court did not comment on whether or what the prosecution stood to gain in foregoing this trial in favor of another one, other than to (1) characterize the prosecutor's action as trying “to win either by making improper use of the [Rule] 404(b)

evidence or, if that wasn't caught, using that [Rule] 404(b) evidence to pull a victory from the jaws of defeat”; and (2) state, “I do not agree with the People that this is a good prosecutorial case. It's not gotten any better. It is a problematic case, at best.”

¶ 11 The court determined that the prosecutor “has a goal of winning, of winning at any and all costs, [by] throwing fair blows as well as foul blows. To paraphrase Vince Lombardi: Winning isn't everything. Winning is the only thing.” The court also noted that, during closing argument, the prosecutor had misused the CRE 404(b)

evidence a couple of times before the time that caused defense counsel to object and ask for a mistrial. The court dismissed the charges on double jeopardy grounds, concluding that the prosecutor

• “knew the limits of what was permissible, could have confined her comments to what was permissible, and intentionally failed and refused to do so”; and

• “was ... trying to pull victory from the jaws of defeat by using inappropriate, impermissible evidence for impermissible purposes. And, failing that, she was goading the defense into asking for a mistrial, and that that was her joint specific intent for this—for the purposes of this trial.”

II. Double Jeopardy

¶ 12 The People contend that the trial court erred when it dismissed the charges against defendant on double jeopardy grounds. We agree.

A. General Legal Principles

¶ 13 “The Fifth Amendment of the United States Constitution provides that no person ‘shall ... be subject for the same offense to be twice put in jeopardy of life or limb,’ and is made applicable to the states through the Fourteenth Amendment.” People v. Berreth, 13 P.3d 1214, 1216 (Colo.2000)

(alteration in original). Similarly, the Colorado Constitution states, “nor shall any person be twice put in jeopardy for the same offense.” Colo. Const. art. II, § 18.

¶ 14 “[O]ne of the principal rights embodied in the double jeopardy clause is the defendant's ‘valued right to have his trial completed by a particular tribunal.’ ” People v. Espinoza, 666 P.2d 555, 558 (Colo.1983)

(quoting United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976) ). Ordinarily, a defendant's motion for mistrial functions as a waiver of that right. Id. ; People v. Baca, 193 Colo. 9, 12, 562 P.2d 411, 413 (1977). However, when the defendant's motion for mistrial is attributable to a particular type of prosecutorial misconduct, the motion will not result in such a waiver.

¶ 15 Under federal double jeopardy principles, if prosecutorial misconduct is intended to provoke a mistrial, the defendant's motion will not result in a waiver of double jeopardy protections. See Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982)

; Espinoza, 666 P.2d at 558. To bar reprosecution under this standard, the record must support a finding that the prosecutorial misconduct “giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.” Kennedy, 456 U.S. at 679, 102 S.Ct. 2083.

¶ 16 Colorado's appellate courts, however, have not determined the standard for analyzing issues of this sort under the state constitutional double jeopardy provision. And, we need not do so here. This follows because defendant makes no attempt to develop an argument as to why our state constitutional standard should be different from the federal standard, other than to rely on certain language in Espinoza

; People v. Reyher, 728 P.2d 333 (Colo.App.1986) ; and Baca intimating that prosecutorial “overreaching,” “bad faith,” or even “gross negligence,” would suffice.

¶ 17 In none of those cases, however, did the courts attempt to distinguish the state from the federal constitutional standard. The Reyher

decision borrowed the “gross negligence” language, 728 P.2d at 336, from Baca, which was a pre-Kennedy case construing the state constitutional double jeopardy protection consistent with its federal counterpart, 193 Colo. at 14 n. 5, 562 P.2d at 414 n. 5 ; and, Espinoza eschewed a state constitutional double jeopardy analysis, while noting that Kennedy required more than simply a showing of “bad faith” or “overreaching,” 666 P.2d at 559. Any lingering issue about the ongoing meaning of those cases has been resolved by Harris v. People, 888 P.2d 259 (Colo.1995), where the supreme court said, “Colorado has adopted a subjective test ... under which a retrial is barred only if prosecutorial or judicial misconduct...