FARMINGTON -- A judge declared a mistrial after a witness said she saw a photograph of the defendant a month ago -- 3 1/2 years after she was robbed.
Kim Ko Jacobs, co-owner of Kim's Fashions in Clearfield, testified that on Dec. 24, 2006, a man walked into her store for the second time that day.
She was one of several witnesses testifying in a one-day jury trial Wednesday in 2nd District Court for Joseph Lee Apadaca, 40. He is charged with two counts of first-degree felony aggravated robbery and one count of third-degree felony possession of a handgun by a restricted person.
Police say Apadaca is the man who robbed Kim's Fashions and robbed Baskin-Robbins in Clearfield on Jan. 7, 2007.
The first time the suspect came into Kim's Fashions on Christmas Eve he bought a pair of sunglasses and wanted to buy several NFL blankets, but he had no cash, Jacobs said. The store does not take checks.
The man returned about an hour later with a gun, Jacobs testified, demanded the money from the cash register and took her husband's wallet.
Jacobs testified she met with prosecutors and police officers several weeks ago, She read the police reports and was shown a photograph of Apadaca.
"How sure are you that my client is the man who was in the store?" said Mark Arrington, Apadaca's public defender.
"100 percent," Jacobs said.
Jacobs said she saw the photograph, shots from the "front and side of him," but she had not seen him personally until she entered the courtroom Wednesday.
After she had testified and before the lunch break, Arrington asked the judge for a mistrial. He said he and Apadaca "were under the impression the witnesses were going to testify to their recollections cold, without a photograph."
He said having the witnesses see the photograph before the trial goes "beyond preparing them" for the trial.
Arrington said police had witnesses look at a photo lineup sometime after the robberies. Apadaca's photo was not included in that lineup.
Deputy Davis County Attorney Tyler Larsen said that Jacobs' husband, Jefferey Jacobs, who testified earlier, had also seen the photograph, as did one of the cashiers from Baskin-Robbins.
"I think there's a way to salvage this case that's legal," said Judge Michael G. Allphin.
Allphin allowed the trial to continue while his law clerk researched the legal rulings.
After the last witness stepped from the stand, Allphin spent about 30 minutes with the attorneys in his chambers.
He ruled a mistrial, stating that the jury was "sufficiently tainted" by the testimony on identification.
Arrington said Apadaca was willing to plead to two second-degree felony robberies if prosecutors would be willing to allow him to serve his sentences concurrently with a sentence he is currently serving in Idaho.
Larsen declined the offer, saying after the court hearing, "these crimes are too serious to plead away."
Apadaca was extradited in October 2009 from Idaho State Prison, where he was serving two 20-year mandatory sentences and one 15-year mandatory sentence, officers said.
Clearfield police received a tip that Apadaca had committed the two robberies in 2006 and 2007.
Apadaca was serving time in Idaho after pleading guilty in August 2007 to first-degree felony robbery and second-degree felony kidnapping in a home invasion case during which an 80-year-old woman was tied up with duct tape and assaulted.
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