State v. Juarez, 19547-3-III.

• Decision Date: 27 February 2003
• Docket Number: No. 19547-3-III.,19547-3-III.
• Citation: 64 P.3d 83,115 Wash.App. 881
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Jacobo Cedillo JUAREZ, Appellant.

64 P.3d 83

115 Wash.App. 881

STATE of Washington, Respondent, v. Jacobo Cedillo JUAREZ, Appellant.

No. 19547-3-III.

Court of Appeals of Washington, Division 3, Panel Six.

February 27, 2003.

Dan K. Connolly, Okanogan, WA, for Appellant.

Karl F. Sloan, Okanogan, WA, for Respondent.

SWEENEY, J.

A criminal defendant cannot be put in jeopardy twice for the same offense. U.S. CONST. amend. V; WASH. CONST. art. I, § 9. And jeopardy attaches when a jury is selected and sworn. State v. Rich, 63 Wash. App. 743, 747, 821 P.2d 1269 (1992).

Here, compelling discovery violations by the State left insufficient time for the defense to meet damaging new evidence within the speedy trial period. Jacobo Cedillo Juarez was thereby forced to choose between his constitutional right to have both a speedy trial and effective assistance of counsel. The trial court refused either to dismiss the prosecution or to suppress the evidence, however, and instead impaneled a jury. Mr. Juarez moved under protest for a continuance. The court responded by declaring a mistrial. Mr. Juarez was later tried before a different jury. He was, then, put in jeopardy twice. We reverse his conviction and dismiss the charges.

FACTS

The State charged Jacobo Juarez with three counts of delivery of cocaine. The charges followed controlled buys on January 12, 26, and 27, 2000. The buys on January 26 and 27 were audio taped. Mr. Juarez and the confidential informant (CI) spoke in Spanish.

The court arraigned Mr. Juarez on February 24. He remained in custody. So the latest date to satisfy speedy trial mandate was April 24. Trial was set for March 28. The State moved for continuance to accommodate an unavailable witness. Trial was then set for April 18. The next available jury after that was May 2.

On February 24, the court ordered production of "all discovery," specifically audio tapes and transcripts, before an omnibus compliance hearing on March 2. At the omnibus hearing on March 2, the defense made a specific request for any body wire tapes or transcripts.

At a March 16 status conference, the defense reminded the State that it had yet to comply with the discovery order. The court ordered the State to "get on it." Report of Proceedings (RP) (Apr. 18, 2000) at 32. Only then did the State send the tapes to be transcribed. On March 22, the defense received the first set of transcripts, which contained essentially no dialog, and consisted almost entirely of "inaudible" notations. The State did not turn over the tapes themselves.

Because of the poor quality of the transcripts, the State told the defense the tapes would probably not be used at trial.

On April 14 (the Friday before the Tuesday trial date), the prosecutor sent the defense the audio tapes together with a second transcription. This transcription was a little clearer but still basically useless. The prosecutor then told the defense the tapes were being transcribed a third time and that new information had been found.

The court learned all of this on Monday, April 17, the day before trial. The prosecutor gave the defense, for the first time, the third transcription and proposed that it be introduced as evidence. The court gave defense counsel a couple of hours to compare the new transcripts with the audio. The defense estimated that the third transcripts contained 80 to 90 percent more information. The State's estimate was 60 percent. The new transcripts included incriminating statements previously labeled "inaudible." Defense counsel said he would move to exclude the tapes.

Defense counsel explained Mr. Juarez's dilemma: either waive speedy trial or proceed with ineffective counsel because of the impossibility of preparing a defense to the new evidence on such short notice. Mr. Juarez was not willing to waive his right to a speedy trial. The State insisted the tapes were crucial to going forward with the case. The court agreed that audio tapes generally are "some of the most compelling evidence imaginable." RP (Apr. 17, 2000) at 21.

The court issued a provisional ruling that the tapes would not be admitted. The court offered to reconsider its ruling before trial the next day if the State could come up with any supporting authority.

On trial day, April 18, the State moved for reconsideration of the ruling excluding the tapes. Mr. Juarez moved to dismiss the prosecution because the State's failure to provide timely discovery had prevented him from obtaining his own expert analysis of the tapes. Defense counsel explained that the situation presented a classic dilemma of a criminal defendant being forced to choose between constitutional rights-either effective assistance of counsel, or a speedy trial.

The court denied the motion to dismiss. It acknowledged that dismissal was within its discretion under discovery rule CrR 4.7(h)(7) but just did not "see a way to get there in this case." RP (Apr. 18, 2000) at 36. The court was of the opinion that dismissal was appropriate only if surprise evidence was exculpatory. Therefore, the only remedy it would consider was to suppress the tapes. The court reserved its decision on suppression and selected and swore in a jury.

The following morning, April 19, the court again took up the matter of the tapes. The State conceded that the latest transcripts contained new and highly incriminating evidence. The prosecutor explained that, as a money saving measure, the State's policy was to postpone the ordering of tape transcripts until close to the trial date. Mr. Juarez renewed his objection to the admission of the tapes on such short notice. Defense counsel also told the court he had just received additional belated discovery from the State in the form of a police report by an officer who said he saw Mr. Juarez handing something to the CI.

The court calculated that the State had retained the tapes for 78 to 79 days before providing the transcript. The court thought this inexcusably tardy and prejudicial to the defendant. But the court found that the State had not acted in bad faith. It therefore decided to continue the trial to April 24-the last day of the speedy trial period-contingent on the continuing availability of the jury.

The court appointed Raul Martinez, a certified Spanish language courtroom interpreter, to help the defense analyze the tapes and transcripts. But Mr. Martinez was unavailable for trial on April 24. Mr. Juarez again unsuccessfully moved to dismiss.

The court then announced it would not, after all, continue the trial unless Mr. Juarez formally moved for a continuance. Defense counsel did so under protest, citing his inability to defend against the newly produced evidence.

THE COURT: Do you have a motion for continuance at this point beyond the 24th?

[DEFENSE COUNSEL]: Yes. I'm moving to continue the trial. I don't see that I have any choice.

RP (Apr. 19, 2000) at 87.

The State then objected to any continuance past April 24, the last speedy trial date. But, in light of the highly damaging nature of the most recent transcripts and the defense's need for more time to address it, the court ordered the trial continued until May 23.

The court then declared a mistrial and dismissed the jury.

On May 23, a second jury found Mr. Juarez guilty of three counts of delivering cocaine. He was sentenced to 67 months.

DISCUSSION

We do not reach a number of interesting discovery and procedural issues raised by Mr. Juarez, because they are incidental to the grounds underlying our disposition. That is, we conclude that Mr. Juarez's right not to be placed in double jeopardy twice was violated.

DOUBLE JEOPARDY

The double jeopardy clause of the Fifth Amendment protects the criminal defendant from repeated prosecutions for the same offense. United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). Mr. Juarez contends that jeopardy attached when the first jury was selected and sworn. Retrial is, therefore, barred unless either the defense freely consented to a mistrial, or some emergency necessitated discharge of the jury over the defendant's objection. State v. Rich, 63 Wash.App. 743, 747, 821 P.2d 1269 (1992).

Besides prohibiting additional trials for the same offense after conviction or acquittal, double jeopardy also protects the right of the defendant to be tried by the jury he selected. State v. Jones, 97 Wash.2d 159, 162, 641 P.2d 708 (1982) (citing Arizona v. Washington, 434 U.S. 497, 503 n. 11, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978)). When, as here, a mistrial is declared, the defendant's "valued right to have his trial completed by a particular tribunal" is implicated. Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949).¹

We must first determine whether jeopardy attached in the first instance. And that is a question of law. State v. Eldridge, 17 Wash. App. 270, 275, 562 P.2d 276 (1977); Downum v. United States, 372 U.S. 734, 737, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963).

Jeopardy attaches after the jury is selected and sworn. It is not necessary that argument or testimony be presented. Downum, 372 U.S. at 737, 83 S.Ct. 1033. To hold otherwise would permit "`unlimited, uncertain, and arbitrary judicial discretion.'" Downum, 372 U.S. at 738, 83 S.Ct. 1033 (quoting United States v. Watson, (D.C.N.Y.) 3 Ben. 1, F. Cas. No. 16651). In Downum, a jury was selected and sworn and instructed to return later. When it returned, the prosecution asked that the jury be discharged because a key witness was not present. The defense moved to strike the counts involving the absent witness for want of prosecution and to proceed with trial on the remaining counts. This motion was denied. And the judge discharged the jury over defense objections. Two days later, the case was called again. And a second jury was impaneled. The defendant pleaded double jeopardy. Downum, 372 U.S. at 735, 83 S.Ct. 1033. The Court noted that, by allowing a jury to be selected and sworn even though one of its key witnesses had not been...