               IN THE SUPREME COURT, STATE OF WYOMING

                                       2016 WY 127

                                                          OCTOBER TERM, A.D. 2016

                                                                December 28, 2016

GABRIEL ELIAJAH MONTOYA,

Appellant
(Defendant),

v.                                                   S-16-0130

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                    Appeal from the District Court of Laramie County
                      The Honorable Catherine R. Rogers, Judge

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.


NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
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?
                                           FACTS
[¶3] Mr. Montoya was charged by Information with felony stalking in violation of
Wyo. Stat. Ann. § 6-2-506(e)(iv) (LexisNexis 2015). His case proceeded to trial and was
submitted to the jury. After jury deliberations began, but before a decision was reached,
the jury submitted a question to the court: “We have State’s Exhibit 1 and 2, but we also
have [the victim’s] Petition for Stalking Protection Order with [the victim’s] written
reason for getting the Petition for Stalking Protection Order. Were we supposed to have
[the victim’s] written reasoning for getting the protection order?”

[¶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.

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[¶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 re-files 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?

[¶7] Mr. Montoya asserts that subjecting him to a second trial for the same criminal
offense violated the double jeopardy protections of the Fifth Amendment.1 The United
States and Wyoming constitutions guarantee that a person will not be placed twice in
jeopardy of prosecution, conviction, or punishment for the same criminal offense. U.S.
Const. amend. V; Wyo. Const. art. 1, § 11. Although language of the two provisions
1
 Mr. Montoya makes cursory references to a Sixth Amendment right to a fair trial, but fails to present a
cogent argument; therefore we will not consider it. Ortiz v. State, 2014 WY 60, ¶ 57, 326 P.3d 883, 896
(Wyo. 2014) (This Court will not address arguments that lack any cogent argument or citation to relevant
authority) (citation omitted).


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differs, “they have the same meaning and are co-extensive in application.” Derrera v.
State, 2014 WY 77, ¶ 23, 327 P.3d 107, 113 (Wyo. 2014) (quoting Landeroz v. State,
2011 WY 168, ¶ 17, 267 P.3d 1075, 1080 (Wyo. 2011)). The provisions of both
constitutions provide an accused three protections: “1) protection against a second
prosecution for the same offense following an acquittal; 2) protection against a second
prosecution for the same offense after a conviction; and 3) protection against multiple
punishments for the same offense.” Id. (quoting Landeroz, 2011 WY 168, ¶ 17, 267 P.3d
at 1080). “For double jeopardy to bar re-trial in a case where the district court grants a
defense motion for a mistrial based upon prosecutorial misconduct, the defense must
show prosecutorial intent to goad the defense into moving for a mistrial.” Newman, 2004
WY 41, ¶ 21, 88 P.3d at 452-53 (citing Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct.
2083, 2089, 72 L.Ed.2d 416 (1982)).

[¶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.




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[¶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
violated. We find no plain error in the second prosecution. Affirmed.




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