WINNEMUCCA — The trial for a local man accused of sexual assault with a child under 14 years was halted midway after a defense motion for a mistrial was granted by the court.  Humboldt County Public Defender Matt Stermitz made the motion after Humboldt County DA Russell Smith inadvertently referred to the defendant's custody status -- a courtroom no-no.

The trial for Sergio Duran Gamboa, 20, began Wednesday (Nov. 4) morning with jury selection.  The jury was still seated late Thursday afternoon when Smith asked a defense witness, "How many times you have visited him while he has been in custody?"  The question opened the door for Stermitz to argue his client's ability to receive a fair trial had been jeopordized because the jury could reasonably assume the defendant was in jail.  Smith later explained the reason for the question was to determine if the witness was biased due to her relationship with the defendant.

The issue of referring to a defendant's custody status was researched overnight by both sides and Judge Michael Montero.  The judge granted the motion for a mistrial Friday morning and released the jury.  Montero explained the necessity of protecting the Constitutional rights of the defendant.  He added Smith's comment did not appear to be an intentional act. 

Smith later explained when the higher court examines whether or not an error was harmless they weigh certain factors such as a) the preponderance of evidence, and b) the sentence the defendant faces when/if convicted.  In this case the juvenile victim, who was 12-years-old at the time of the alleged incident,  waited almost a year before she talked to law enforcement, so there was no physical evidence.  In addition, if convicted the defendant faces life in prison with the possibility of parole.  For those reasons he felt a mistrial was appropriate and said he hoped to get the case back on the court calendar -- with a new jury -- as soon as the court could accomodate it.

Despite the sudden end to their time in the jury box, some of the jurors said their experience was good and called the case "facinating".