2016 COA 63
Colo. Ct. App.2016Background
- Defendant Daniel August was charged with kidnapping and sexual assault (July 2009) and tried twice after earlier 404(b) evidence of a March 2008 sexual assault was admitted for limited purposes (knowledge, motive, mental state, consent).
- At the second trial, during the prosecutor’s closing PowerPoint, a slide stated "history repeats itself" and summarized the March 2008 incident in a way defense argued invited impermissible propensity inference; defense objected and moved for a mistrial.
- The trial court declared a mistrial near the end of closing and then dismissed the charges, finding the prosecutor intentionally misused 404(b) evidence to "pull victory from the jaws of defeat" and to goad the defense into requesting a mistrial.
- The People appealed the dismissal on double jeopardy grounds; prior appellate decision had remanded for findings on prosecutorial intent to provoke a mistrial.
- The court of appeals held the trial court applied an incorrect legal standard by treating intent to secure a conviction (or to "pull victory") as sufficient; under Kennedy the relevant intent is to provoke a mistrial to avoid a jury verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether double jeopardy bars reprosecution after a mistrial caused by prosecutorial misconduct | People: dismissal improper because prosecutor did not intend to provoke a mistrial to avoid a verdict; she objected to mistrial and had no benefit from it | August: prosecutor intentionally misused 404(b) to provoke mistrial and save case for retrial (to improve evidence, correct openings, relitigate excluded evidence, preview defense) | Vacated dismissal; remand for reconsideration because trial court applied wrong standard and made sparse findings |
| Proper legal standard for state double jeopardy claim when mistrial results from prosecutorial misconduct | People: federal Kennedy standard applies (intent to "goad" defendant into moving for mistrial) | August: state precedents allow broader showing (bad faith, gross negligence, overreaching) | Court applies Kennedy (intent to avoid jury verdict) and rejects alternative equal/alternative intent theory |
| Burden and proof required to show prosecutor intended to provoke mistrial | People: defendant bears heavy, exacting burden; intent must be inferred from objective facts | August: pointed to sequence of prior improper comments, weak prosecution case, and benefits from retrial | Court: defendant bears heavy burden; must show objective indicia that prosecutor sought to abort trial (timing, sequence, resistance to mistrial, plausible justifications, excluded evidence that would strengthen case, desire to avoid jury decision) |
| Whether trial court’s specific factual findings supported dismissal | People: findings were sparse and premised on improper standard (intent to win at all costs) | August: trial court found prosecutor knowingly exceeded limits and sought to "goad" defense | Held: court erred; must reconsider using Kennedy standard and make fuller findings on totality of circumstances before barring retrial |
Key Cases Cited
- Oregon v. Kennedy, 456 U.S. 667 (U.S. 1982) (double jeopardy bars reprosecution only where prosecutorial misconduct was intended to provoke mistrial)
- People v. Berreth, 13 P.3d 1214 (Colo. 2000) (discusses application of double jeopardy to states)
- People v. Espinoza, 666 P.2d 555 (Colo. 1983) (addressing waiver by defendant's mistrial motion and prosecutorial misconduct)
- Harris v. People, 888 P.2d 259 (Colo. 1995) (adopting subjective test aligning state law with Kennedy)
- United States v. Gonzalez, 248 F.3d 1201 (10th Cir. 2001) (rejecting inference that prosecutor’s desire to win by improper means equates to intent to abort trial)
- United States v. Jozwiak, 954 F.2d 458 (7th Cir. 1992) (explaining distinction between intent to win and intent to avoid jury decision)