State of Utah v. Suarez

State of Utah,
Plaintiff and Appellee,

v.

Henry Jeffry Suarez,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 980268-CA

F I L E D
June 17, 1999
  1999 UT App 190 -----

Third District, Salt Lake Department
The Honorable David S. Young

Attorneys:
Linda M. Jones and Vernice S. Ahching, Salt Lake City, for Appellant
Jan Graham and Norman E. Plate, Salt Lake City, for Appellee

-----

Before Judges Greenwood, Davis, and Jackson.

DAVIS, Judge:

Defendant appeals the trial court's denial of his motion to dismiss, arguing his right to protection against double jeopardy was violated when the State prosecuted him a second time following the mistrial. "Whether the trial court properly denied [defendant's] motion to dismiss presents questions of law which we review for correctness, affording no deference to the trial court." State v. Sterkel, 933 P.2d 409, 411 (Utah Ct. App. 1997).

During the first trial,(1) defendant moved for a mistrial, which the trial court granted. Defendant then moved to dismiss the charges against him on double jeopardy grounds. The trial court denied defendant's motion. The law regarding a retrial after a mistrial was granted is well settled:

Generally, if a defendant seeks a mistrial, he waives any defense he might otherwise assert based upon double jeopardy, even though the prosecution or the court provoked the error. However double jeopardy bars retrial where bad faith conduct by a judge or a prosecutor is intended to provoke a mistrial so as to afford the prosecution a more favorable opportunity to convict.

State v. Trafny, 799 P.2d 704, 709 (Utah 1990) (footnotes omitted).

Defendant maintains that the prosecution here acted in bad faith by intentionally eliciting the answer from the officer. The offending colloquy between the prosecutor and the officer is as follows: Q. Did you speak to any guests who had attended the party?

A. I'd hoped to obtain those names from Jennifer, but was not able to locate her. I had also hoped to ask Mr. Suarez about that, but he had refused to talk to me, and I never was able to-- At this point, defense counsel objected and subsequently made a motion for a mistrial. Counsel for defendant argued that the officer's answer violated defendant's right to remain silent. The trial court agreed and granted defendant's motion for a mistrial.

At the hearing on defendant's motion to dismiss the charges, the trial court denied defendant's motion, ruling: "The court does not find that the statement was made in bad faith, nor that the prosecutor offered the statement for some purpose of obtaining a mistrial, to retry the case later to another jury, or before another judge for any reason." "[W]e [will] overturn the trial court's finding only if it is 'not adequately supported by the record, resolving all disputes in the evidence in a light most favorable to the trial court's determination.'" State v. Real Property at 633 East 640 North, 942 P.2d 925, 928 (Utah 1997) (quoting State v. Pena, 869 P.2d 932, 935-36 (Utah 1994)). Here, there is more than adequate evidence to support the trial court's finding.

As the State points out in its brief, if the prosecution had intended to elicit the testimony given by the officer regarding defendant's refusal to talk to him, she would have followed up on her earlier line of questioning. The prosecutor had asked the officer, "Are there any other things you did as part of your investigation?" The officer responded, "I also contacted [defendant], explained to him that I wanted to talk to him concerning this case." Instead of exploring this further, the prosecutor quickly went on to another line of questioning: "Okay. Any one else you contacted?" On this record, we cannot say that the prosecution was acting in bad faith when it extracted the officer's unforeseen answer. We agree with the trial court that "the answer that was volunteered by the investigator was not even responsive to the question."

Based upon the evidence and findings, the trial court properly denied defendant's motion to dismiss the charges.

Affirmed.
 
 
 

______________________________
James Z. Davis, Judge

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WE CONCUR:
 
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 
 

______________________________
Norman H. Jackson, Judge

1. The first trial immediately followed a mistrial declared during voir dire, which is not relevant to this analysis.