from the District Court of Laramie County The Honorable
Catherine R. Rogers, Judge
of the State Public Defender: Diane M. Lozano, State Public
Defender; Tina N. Olson, Chief Appellate Counsel; David E.
Westling, Senior Assistant Appellate Counsel.
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.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
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
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?
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?"
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 ...