State v. Cesar O. Fernandez-Reyes, 2024AP1668-CR, 3/4/25, District III (not recommended for publication); case activity
COA affirms circuit court’s order declaring a mistrial and denying the defendant’s motion to bar a retrial on double jeopardy grounds where prosecutor learned she had COVID after the first day of trial.
Cesar Fernandez-Reyes’s trial on two counts of first-degree sexual assault of a child began in December 2023. On the first day of trial, a jury was empaneled and the parties presented opening statements. That evening, the prosecutor went to an urgent care facility due to upper respiratory symptoms, tested positive for COVID, and was directed to quarantine for five days. (¶¶ 3-4).
The prosecutor immediately contacted the circuit court and defense counsel, and the court addressed the issue the next day. The State moved for a mistrial, while defense counsel objected and argued that jeopardy had attached, his opening statement revealed deficiencies in the State’s case, and a mistrial would provide the State a tactical advantage. The circuit court considered alternatives to a mistrial – conducting the trial with the prosecutor appearing by Zoom, requiring the State to use a different prosecutor, or adjourning the trial for a few days. The court also solicited advice from four other judges, two of whom responded and said they would declare a mistrial. After allowing the parties an opportunity for argument, the circuit court declared a mistrial. Seven months later, Fernando-Reyes moved to bar his retrial because it violated his right against double jeopardy, which the circuit court denied. (¶¶ 5-8).
On appeal, Fernando-Reyes argued that a retrial violated his right against double jeopardy because the circuit court’s order granting a mistrial based on the prosecutor’s COVID diagnosis was not supported by manifest necessity. The Court reviewed the circuit court’s decision to order a mistrial for sound discretion. A circuit court exercises sound discretion in deciding that manifest necessity requires a mistrial if the court: 1) gives both parties a full opportunity to explain their positions and considers alternatives to a mistrial; 2) carefully considers the defendant’s interest in having the trial conducted in a single proceeding; and 3) ensures that the record reflects an adequate basis to find a manifest necessity. (¶ 19).
The Court determined that the circuit court provided both parties a full opportunity to explain their positions and consider alternatives. The Court noted that the State explained why certain alternatives were not feasible – the other assistant district attorney assigned to the case recently graduated law school and had not worked on the case, the prosecutor developed a rapport with the victim, and the circuit court’s Zoom system was malfunctioning. (¶¶ 20, 22). The Court also observed that the circuit court considered adjourning the trial to the following week, but the State was concerned that the prosecutor might have spread COVID to the jurors and one of the jurors needed to be removed, which would have left no alternate juror. (¶ 24). Further, the parties and the circuit court expressed difficulties with obtaining expert witnesses and two interpreters if the case were delayed for one week. (¶ 25).
With respect to carefully considering the defendant’s interest in having the trial concluded in a single proceeding, Fernandez-Reyes argued that the circuit court did not address the issue, which was a failure to exercise sound discretion. However, the Court remarked that “magic words” are not required and that the “single proceeding factor” is not “meant to be taken as literally as Fernandez-Reyes suggests.” (¶ 29). Noting that the circuit court observed that jeopardy had attached, recognized the consequences of its decision for the State and the defendant, considered alternatives, and determined a mistrial was the most appropriate course of action, the Court determined that the circuit court properly exercised its discretion by carefully considering the defendant’s interest in having the trial concluded in a single proceeding. (¶ 31).
Finally, the Court found an adequate basis for the circuit court’s finding of manifest necessity given the prosecutor’s COVID diagnosis. (¶ 32). Further, the circuit court considered the alternatives to a mistrial and determined they were not feasible:
[T]he district attorney was ill with COVID-19 and she did not discover her diagnosis until the evening after the first day of the trial; the court believed the district attorney’s explanation of how, why, and when she discovered she had COVID-19; the inexperienced ADA was unable to take over the case; the district attorney had a good relationship with the alleged child victim; Zoom was not a reasonable option due to technical difficulties; the jurors had been possibly exposed to COVID-19; one juror needed to be excused for cause, leaving no alternate in the event that a juror or jurors became sick, possibly from exposure to the district attorney; the advice from judicial colleagues was that the law supported a mistrial; and the two Spanish language interpreters likely would have been unable to arrange their schedules to appear the following week.
(¶ 33).
