Gabriel Eliajah MONTOYA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
S-16-0130
Supreme Court of Wyoming.
December 28, 2016
2016 WY 127
interpretation of that law in a public meeting or elsewhere.
[¶24] The first Brimmer requirement requires that the “parties hav[e] existing and genuine, as distinguished from theoretical, rights or interests.” Brimmer, 521 P.2d at 578. While the City may desire court ratification of its method of allocating proceeds from its sale of electricity, the City has not alleged a tangible interest that has been harmed; nor has the City established that the Citizens Group has anything other than a “theoretical” interest. If the City‘s assertion that the Citizens Group has “taken positions contrary to [the City] regarding the statutes at issue” qualified as an “existing and genuine” interest, there would be no end to declaratory judgment actions by governmental entities.
[¶25] Brimmer‘s second prong requires that the “controversy must be one upon which the judgment of the court may effectively operate.” Id., 521 P.2d at 578. We have explained that “[t]he first two elements of the Brimmer test are inextricably linked: if a plaintiff fails to allege that an interest has been harmed, a judicial decision cannot remedy a nonexistent harm.” Vill. Rd. Coalition v. Teton Cty. Hous. Auth., 2013 WY 38, ¶ 16, 298 P.3d 163, 169 (Wyo. 2013). Because the City has alleged no harm, the courts could fashion no remedy. There is no controversy the judicial determination of which would have the effect of a final judgment; and these proceedings are “a mere disputation,” thus, the third and fourth Brimmer prongs are also not satisfied. We agree with the district court‘s conclusion that the City has failed to assert a justiciable controversy, and any decision on the City‘s spending of electrical revenues would be advisory.
CONCLUSION
[¶26]
Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.
Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Joshua C. Eames, Assistant Attorney General; Darrell D. Jackson, Faculty Director, and Kevin T. Farrelly, Student Director, Prosecution Assistance Program, University of Wyoming, College of Law.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
FOX, Justice.
[¶1] After his first jury trial ended in a mistrial, a second jury found Gabriel Eliajah Montoya guilty of felony stalking. Mr. Montoya appeals his conviction, claiming his second trial violated his right against double jeopardy because the prosecutor provoked him into moving for a mistrial. We affirm.
ISSUE
[¶2] We rephrase the issue as follows: Were Mr. Montoya‘s rights against double jeopardy violated when he was tried again after his first trial ended in a mistrial?
[¶3] Mr. Montoya was charged by Information with felony stalking in violation of
[¶4] The district court notified the parties of the jury‘s question and stated:
My strong suspicion is that this document got mixed in with other documents; namely Exhibit 1, which the jury returned to me along with this document, when [the State‘s attorney] handed Mr. Montoya documents as he testified at the witness stand, and then they were given to the jury as they went into deliberations. Of course, not at all imputing ill intent to the State, but it would seem to be that this is a substantive concern.
The district court then invited defense counsel to make a motion. Counsel for Mr. Montoya moved for a mistrial, stating “I don‘t believe it was intentional or ill will, but it has made it to the jury. There‘s no limiting instruction that can unring this bell.” The State did not object to the motion and stated:
I do apologize to the Court. It was delivered to the witness stand when Mr. Montoya testified, and my intention was for him to identify it and acknowledge that he received it and knew about it. But there wasn‘t supposed to be any testimony about it. It inadvertently must have been taken off the witness stand with Exhibit 1.
The district court granted Mr. Montoya‘s motion for mistrial and scheduled a second jury trial.
[¶5] Prior to the second jury trial, Mr. Montoya filed a Motion to Dismiss, claiming his right to a fair trial would be violated by a second trial because the witnesses were tainted when they remained in the courtroom after they testified in the first trial. Mr. Montoya did not raise any issues related to double jeopardy. The district court denied the motion and a jury found Mr. Montoya guilty of felony stalking. Mr. Montoya was sentenced to incarceration for a period of not less than three years nor more than five years. The court suspended the terms of confinement on the condition that Mr. Montoya successfully complete five years of probation. Mr. Montoya timely filed his notice of appeal.
STANDARD OF REVIEW
[¶6] We review alleged violations of constitutional rights de novo. Webster v. State, 2016 WY 76, ¶ 8, 376 P.3d 488, 491 (Wyo. 2016). In State v. Newman, 2004 WY 41, 88 P.3d 445 (Wyo. 2004), we held that once a mistrial is declared and the State refiles the charges, the defendant is “entitled to raise the bar of double jeopardy by presenting evidence that the prosecution intended to goad him into moving for a mistrial the first time around.” Id. at ¶ 22, 88 P.3d at 453. Mr. Montoya did not file a motion to dismiss raising the double jeopardy issue when the second trial was scheduled, and our review is limited to a search for plain error. Bowlsby v. State, 2013 WY 72, ¶ 6, 302 P.3d 913, 915 (Wyo. 2013). “[T]he appellant must prove (1) the record clearly reflects the alleged error; (2) the existence of a clear and unequivocal rule of law; (3) a clear and obvious transgression of that rule of law; and (4) the error adversely affected a substantial right resulting in material prejudice to him.” Id. “Under the plain error standard of review, we reverse a district court‘s decision only if it is so plainly erroneous that the judge should have noticed and corrected the mistake even though the parties failed to raise the issue.” Young v. State, 2016 WY 70, ¶ 14, 375 P.3d 792, 796 (Wyo. 2016) (quoting Masias v. State, 2010 WY 81, ¶ 20, 233 P.3d 944, 950 (Wyo. 2010)).
DISCUSSION
Were Mr. Montoya‘s rights against double jeopardy violated when he was tried again after his first trial ended in a mistrial?
[¶8] Mr. Montoya contends that he had no other option but to request a mistrial in the first trial and that the prosecutor forced him into that position by providing the objectionable material to the jury. He argues that the prosecutor was the only one who had control over the document, and the prosecutor‘s actions should not be excused because of simple negligence or mistake. That argument misconstrues the standard to establish a double jeopardy violation. “Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant‘s motion, ... does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.” Oregon v. Kennedy, 456 U.S. 667, 675-76, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 416 (1982). See also United States v. Powell, 982 F.2d 1422, 1429 (10th Cir. 1992) (“Carelessness or mistake on the part of the prosecution ... is not sufficient to bar retrial under the Double Jeopardy Clause“).
[¶9] In United States v. Tafoya, 557 F.3d 1121 (10th Cir. 2009), the district court issued limiting instructions in an attempt to avoid unfair prejudice and confusion on certain issues. Id. at 1123. During the trial, “counsel for the Government elicited inadmissible testimony from a witness” in violation of the order and the district court granted the defendant‘s motion for a mistrial. Id. at 1124. The defendant filed a motion to dismiss, claiming a retrial would violate the double jeopardy clause. Id. At a hearing on the motion, the prosecutor conceded his question that brought forth the inadmissible testimony was “an inartful question,” that he “shouldn‘t have asked that question,” and that he “did not do a good job” of conveying the testimony limitations to the witnesses. Id. at 1125. The district court determined that while the prosecutor‘s conduct was perhaps negligent, it was not his “intent to goad the defendant into moving for a mistrial.” Id. On appeal, the Tenth Circuit Court of Appeals upheld the district court‘s findings, stating the “district court did not err in holding that there was no intent to manipulate [defendant] into moving for a mistrial, and this case does not fall into the ‘goading’ exception as set forth in Kennedy, 456 U.S. at 673-77, 102 S.Ct. at 2083.” Id. at 1127.
[¶10] The record in this case is devoid of any evidence indicating prosecutorial intent to goad the defense into moving for a mistrial. Absent any showing of intent in the record, and particularly in light of defense counsel‘s contemporaneous agreement with the district court‘s assessment, Mr. Montoya‘s rights against double jeopardy were not
FOX
Justice
Armando RAMIREZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
S-16-0064
Supreme Court of Wyoming.
December 28, 2016
2016 WY 128
Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; and Eric M. Alden, Senior Assistant Appellate Counsel.
Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne Martens, Senior Assistant Attorney General; and Samuel S. Voyles, Assistant Attorney General.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
HILL, Justice.
[¶1] Armando Ramirez entered a conditional guilty plea to a fourth offense felony DWUI charge. Ramirez claims his latest DWUI does not qualify as his fourth offense in the last ten years, because although the offense occurred within ten years of his oldest relevant prior conviction, he did not plead guilty until after ten years had passed. We will affirm.
ISSUE
[¶2] We rephrase the issue as follows: Whether the felony penalty under
FACTS
[¶3] On July 11, 2013, Armando Ramirez drove a vehicle involved in an accident in Cheyenne. Five days later, he was charged with a felony DWUI, his fourth within 10 years according to the charging documents. Three prior convictions were listed in the criminal information: (1) A DWUI conviction dated April 6, 2006, for an offense occurring March 9, 2005; (2) a DWUI conviction dated October 24, 2005, for an offense occurring August 10, 2005; and (3) a DWUI conviction dated December 15, 2008, for an offense occurring August 30, 2008.
[¶4] After several continuances, Ramirez filed a motion to dismiss in May of 2015. He argued that a felony prosecution was improper because 10 years had passed since his