Announced April 21, 2016.
El Paso County District Court No. 09CR2700, Honorable Barney Iuppa, Judge
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.
¶ 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.
¶ 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, 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; (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 ...