BISBEE — The case in an alleged cactus theft ended in a mistrial Thursday after the judge conceded two pieces of evidence that should not have been shown to the jury made their way into the deliberation room.
The case against Stacey Hower could have been resolved in a plea agreement several months ago after the 52-year-old Benson woman was accused of stealing $411 worth of cacti from the front yard of another Benson resident on March 30, 2017 in J-Six.
But Hower asked for a trial, insisting that she was at the residence of Shirley Gilbert that morning to deliver eggs, not steal cacti.
A woman fitting Hower’s description and a pickup resembling Hower’s were both caught on surveillance camera at Gilbert’s house the day the cacti vanished. At one point, the female looked directly into the camera, a Cochise County Sheriff’s report states. Additionally, the woman is then seen backing up her white truck into the driveway, retrieving a shovel, digging up the cacti and placing the plants into the vehicle.
When a Cochise County deputy went to Hower’s residence in early April 2017 and confronted her with still photos from the video, Hower said the woman in the picture was her, but she said she was delivering eggs. Hower’s husband Michael recognized Hower, as well, the report shows.
Additionally, the deputy spotted freshly planted cacti in Hower’s yard that fit the description of Gilbert’s pilfered plants, the report shows.
Hower’s husband told the deputy that Hower told him she found the plants “on the side of the road,” the report shows. He told the deputy he thought Hower had been suffering a “plant craze.”
The theft of the plants alone — described in court documents as red barrel and artichoke cactus — was a misdemeanor. But the case quickly grew into a felony when prosecutors said Hower falsified receipts from stores she claimed she purchased the cacti from.
That added more serious charges in addition to theft, including forgery, tampering with physical evidence and fraudulent schemes/artifices,
The trial — which included an eight-member jury before Superior Court Judge Laura Cardinal — ended late Wednesday afternoon with Cochise County Deputy Prosecutor Jason Lindstrom repeatedly pointing at Hower and reminding jurors that the defendant had wanted a trial even though she was caught on video and had been offered a misdemeanor plea agreement.
In the end, it was two pieces of evidence that had never been presented in the trial that rendered the entire procedure null and void. While jurors were still deliberating Thursday morning, defense attorney Paul Gattone filed a motion stating that two exhibits made their way into the jury room that should not have. He requested a mistrial.
Lindstrom argued that a mistrial could only be declared after the verdict and not before.
“We don’t even know where the jury is on the charges,” he told Cardinal. “We don’t even know if they saw these two exhibits.”
Lindstrom asked that each juror be polled to determine whether they had seen the two exhibits, described as Exhibits 8 and 17.
But Cardinal declared a mistrial, apologizing to both attorneys and saying that she had conferred with “two experienced trial judges” before making her decision.
“I want to apologize for the error of the court for allowing two pieces of evidence to get to the jurors,” Cardinal said.
When the jurors returned to the courtroom, Cardinal told them that there had been “an unfortunate matter.”
It was not clear Thursday who made the error, but Cardinal said, “We’re going to make adjustments so that this never, ever happens again.”
Juror Tom Robertson, who said this was his first time serving as a juror, shared his thoughts after the trial had been thrown out.
“The thing that does frustrate me is that they’re going to have to spend more money doing this again,” Robertson said.
Hower’s new trial is set for Feb. 10, 2020.