An unpublished Arizona appellate decision considered an identity theft, theft, and fraudulent schemes case. The charges arose after a high-end mountain bike was stolen from a home in 2010 and then sold on Craigslist. At trial, the defense attorney stated that the mountain bike the defendant sold wasn’t the bike stolen from the home, as made plain by the difference in serial numbers.
The defense attorney cross-examined the buyer of the bike. The buyer’s wife gave the police officer a piece of paper on which she’d put two numbers that the victim of the theft said were on his bike. One of these numbers matched the bike the buyer bought. The buyer’s wife had kept the paper for three years without turning it over to the police until a few weeks before trial. The first the defense counsel and prosecutor heard of it was during the cross-examination.
The court asked the parties if they wanted a mistrial due to the surprise. The defense attorney initially said that one way to deal with what happened was a mistrial, but he was clear that he would rather go to trial with the same jury. The prosecutor suggested empaneling a new jury or precluding any more evidence about the scrap of paper. The defense attorney also stated that he wouldn’t move to strike the surprise testimony because he didn’t want to call attention to it, and if a mistrial were deemed necessary, he would ask for a dismissal with prejudice.
The court did declare a mistrial, but the second trial went forward without a motion to dismiss with prejudice. The defendant was sentenced to 19.5 years in prison to be served consecutively with a term imposed in another case. The defendant appealed.
On appeal, the defendant argued he didn’t agree to a mistrial, and the mistrial wasn’t manifestly necessary, so the second trial was improper under the principle of double jeopardy. The appellate court explained the prohibition against double jeopardy is a fundamental right found in both the federal and state constitutions. Under the United States Constitution, someone can’t be twice put in jeopardy of life or limb for the same offense and is supposed to be free from multiple prosecutions.
When a defendant moves for a mistrial or agrees to it, the retrial will not be barred by the double jeopardy clauses. But when the court declares a mistrial in spite of a defendant’s objection, a retrial is only appropriate when there is a manifest necessity for the retrial or public justice demands it.
In this case, the prosecution argued that the defendant agreed to the mistrial because he initially suggested it as one possible remedy and because he didn’t try to get the case dismissed with prejudice. The appellate court disagreed, noting that the defense attorney had clearly stated the preference to go forward without referring to the surprise testimony, even though he’d equivocated a bit.
The appellate court explained there are varying levels of need, and a high degree of need must be shown to find a mistrial appropriate. Great deference is accorded to a trial judge. However, neither the defense attorney nor the defendant pushed for a mistrial, even though favorable evidence for the prosecution was presented without disclosure to the defendant. Under these circumstances, the appellate court believed the balance tilted in favor of the defendant. It reasoned that the court didn’t recognize the defendant’s interest in retaining primary control over which path to follow, once the jurors had heard information that prejudiced him that wasn’t disclosed before trial. The conviction and sentences were reversed and sent back to the lower court, with the charges to be dismissed with prejudice.
If you are facing a theft or identity theft charge in Tempe, Chandler, Gilbert, or Scottsdale, consult criminal defense attorney James E. Novak. As a former Maricopa County Prosecutor, he’ll use insights obtained as a prosecutor to evaluate whether any of your constitutional rights was violated and develop an approach to your defense. He offers a free initial consultation for people facing active criminal charges in his area. If you have been charged with a crime, call or contact The Law Office of James Novak at (480) 413-1499 and speak directly with Mr. Novak.
- A.R.S. § 13-1802 (Theft)
- A.R.S. §13-2008 (Taking Identity)
- A.R.S. §13-2310 (Fraudulent Schemes)
- Maricopa County Sheriff’s Office | Jail Information for Families
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