State v. Harris, No. 20020656.

• Court: Supreme Court of Utah
• Writing for the Court: NEHRING, Justice
• Citation: 104 P.3d 1250,2004 UT 103
• Parties: STATE of Utah, Plaintiff and Appellee, v. Dustyn HARRIS, Defendant and Appellant.
• Decision Date: 10 December 2004
• Docket Number: No. 20020656.

104 P.3d 1250
2004 UT 103

STATE of Utah, Plaintiff and Appellee,
v.
Dustyn HARRIS, Defendant and Appellant

No. 20020656.

Supreme Court of Utah.

December 10, 2004.

104 P.3d 1253

Mark L. Shurtleff, Att'y Gen., Kris C. Leonard, David C. Cundick, Asst. Att'ys Gen., Salt Lake City, for plaintiff

J. Franklin Allred, Erda, for defendant.

NEHRING, Justice:

¶ 1 In this interlocutory appeal, we address whether the trial court erred in denying defendant

104 P.3d 1254

Dustyn Harris's motion to dismiss. Specifically, we examine whether the double jeopardy provision of the Utah Constitution prohibits Mr. Harris's retrial where the first trial judge, after discovering that the courtroom recording equipment had failed to record the morning trial proceedings, declared a mistrial over Mr. Harris's objection. Because we conclude that the first trial judge abused his discretion in concluding that legal necessity required the mistrial, we reverse the trial court and hold that double jeopardy prohibits Mr. Harris's retrial

BACKGROUND

¶ 2 The State of Utah charged Dustyn Harris with three counts of distribution of a controlled substance. Mr. Harris pleaded not guilty. The trial court quashed the bindover on the third count and severed the remaining two counts for separate trials. The State thereafter amended its information against Mr. Harris to allege separate charges of distribution and possession of a controlled substance.

¶ 3 In preparation for the trials on these charges, Mr. Harris filed a discovery request seeking all evidence created, received, or maintained by the Tooele City Police Department in connection with his case. He also sought and received an order allowing him to inspect the evidence. Defense counsel twice attempted to inspect the evidence being held by the police, including methamphetamine Mr. Harris had allegedly distributed. At the first inspection meeting, police informed Mr. Harris's counsel that he would be unable to inspect the evidence because the technician was ill. At the second meeting, counsel learned that the alleged drug samples had been sent to the lab and would not be available for inspection until testing was complete.

¶ 4 Mr. Harris contends that his counsel was not formally provided with the test results until the morning of trial on the distribution charge.¹ As a result of the State's alleged failure to disclose evidence, Mr. Harris filed a motion in limine requesting that the State be prevented from mentioning the nature, amount, and sources of proof of the tested substance in its opening statement. Although there is some uncertainty as to whether this motion was granted or denied, the State apparently omitted any such references when addressing the jury.

¶ 5 During the morning session on the first day of trial, the trial court, Judge Cornaby, empaneled the jury and the parties made their opening statements and examined the State's key witness. After excusing the jury for lunch, Judge Cornaby discovered that the recording equipment in the courtroom had failed to record the morning's proceedings.

¶ 6 When Judge Cornaby asked the parties off the record what they wished to do in light of the malfunction, Mr. Harris apparently offered to continue with the trial and waive any right to an appeal. Alternatively, he suggested that the parties simply reexamine the first witness and proceed with the same jury. The State objected to Mr. Harris's proposed alternatives, arguing that without a record, Mr. Harris would have no basis for an appeal and that Mr. Harris's waiver would likely lead to an ineffective assistance of counsel claim, among others, on appeal. For these reasons, the State asserted that continuing the trial would constitute plain error.

¶ 7 After considering the parties' arguments, Judge Cornaby declared a mistrial. Although he "hate[d] to do it," Judge Cornaby explained that he did not know what else could be done.

¶ 8 In response to the declaration of a mistrial, Mr. Harris formally sought to have the charges dismissed with prejudice, arguing

104 P.3d 1255

that double jeopardy barred his reprosecution. Judge Cornaby apparently denied this motion.² Mr. Harris alternatively sought a ruling that would prevent the State from using any of the evidence it had failed to disclose prior to the first day of trial. Although Judge Cornaby characterized the State's failure to disclose the laboratory test results until the morning of trial as "unconscionable" and noted that if he were having the trial that day he "would probably not admit [the evidence] for that reason," he nevertheless deferred the decision to the judge assigned to Mr. Harris's retrial

¶ 9 Judge David Young presided over the retrial of Mr. Harris. Mr. Harris renewed his motion to dismiss with prejudice, arguing that his reprosecution should be barred because (1) the first trial was improperly terminated, and (2) the State committed or allowed to be committed what Mr. Harris described as severe and flagrant discovery abuses that warranted dismissal under rule 16(g) of the Utah Rules of Criminal Procedure. He also renewed his motion in limine to prevent the State from using any of the evidence that it had failed to disclose prior to the first trial. Judge Young denied these motions.

¶ 10 Mr. Harris then sought leave to challenge the trial court's rulings through an interlocutory appeal. The court of appeals granted his petition, instructing the parties to brief, in addition to the double jeopardy and discovery violation issues raised by Mr. Harris, "the jurisdictional effect of State v. Ambrose, 598 P.2d 354 (Utah 1979), including its relationship to the provisions of Utah Code Ann. § 77-18a-1(1) (1999)." The court of appeals then certified the issues to this court in accordance with rule 43(c)(1) of the Utah Rules of Appellate Procedure. We have jurisdiction to review issues certified to us by the court of appeals pursuant to Utah Code section 78-2-2(3)(b) (2002).

ANALYSIS

I. JURISDICTION

¶ 11 Before deciding whether Judge Young erred in refusing to grant Mr. Harris's motion to dismiss, we must first examine whether we have jurisdiction to entertain Mr. Harris's appeal. Specifically, we must address whether, given our decision in State v. Ambrose, 598 P.2d 354 (Utah 1979), Mr. Harris can properly bring an interlocutory appeal of the trial court's denial of his motion to dismiss pursuant to Utah Code section 77-18a-1(1)(c), which provides that a defendant may appeal "an interlocutory order when upon petition for review the appellate court decides the appeal would be in the interest of justice," Utah Code Ann. § 77-18a-1(1)(c) (1999).

¶ 12 Like the instant case, Ambrose involved a defendant's appeal from a trial court's denial of a motion to dismiss on double jeopardy grounds. 598 P.2d at 356. There, the defendant was tried for attempted homicide. Id. When the jurors expressed difficulty in reaching a verdict after deliberating for a little over an hour, the trial court declared a mistrial. Id. at 356-57. When the trial court denied the defendant's subsequent motion to dismiss after determining that a retrial would not violate the defendant's right against double jeopardy, the defendant filed a direct appeal to this court. Id. at 357.

¶ 13 At that time, Utah's statutory scheme allowed a defendant to appeal only from final judgments.³ Consequently, the State argued that this court had no jurisdiction to entertain the defendant's appeal because the order denying the defendant's motion was not final. See id. In rejecting this assertion, we explained:

The denial of defendant's motion is a "final" judgment. The denial effectively

104 P.3d 1256

prevents defendant from obtaining his requested relief, which is based on a substantial constitutional right guaranteed him under both the Utah and the United States Constitutions. The order denying defendant's motion is clearly a complete and final rejection of his double jeopardy claim, a claim by which defendant essentially argues not the merits of the charge against him, but rather that the State has forfeited the power to again subject him to a criminal proceeding.

Id. (footnote omitted). Relying on this merits/power distinction, we concluded that the defendant's direct appeal was properly taken. Id.

¶ 14 The State argues that, based on our decision in Ambrose, Mr. Harris should have appealed directly from Judge Young's denial of his motion to dismiss. Because he filed a petition for permission to appeal an interlocutory order instead, it asserts that we lack jurisdiction to hear his appeal. Mr. Harris counters that Ambrose does not foreclose a defendant's ability to file an interlocutory appeal from the denial of a motion to dismiss on double jeopardy grounds, and suggests that a defendant may file either a direct appeal under Ambrose or an interlocutory appeal under Utah Code section 77-18a-1(1).

¶ 15 We disagree with Mr. Harris's implication that the denial of a motion to dismiss can properly constitute a final order for purposes of Ambrose and an interlocutory order for purposes of section 77-18a-1. An order is either final or interlocutory — it cannot be both. The more relevant question is whether we should continue, under Ambrose, to deem a trial court's denial of a motion to dismiss on double jeopardy grounds to be a final judgment. Although Mr. Harris does not ask that we overrule Ambrose, given the apparent tension between our holding in Ambrose and section 77-18a-1, we feel it prudent to reexamine Ambrose in light of Utah's current statutory framework.

¶ 16 In concluding that the denial of a double jeopardy motion to dismiss was a final judgment in Ambrose, our key concern was the protection of a defendant's fundamental right not to be placed twice in jeopardy — a protection that was seriously threatened by the then-governing statute disallowing interlocutory appeals. We reasoned that

to require [a] defendant to pursue his claim after retrial

...