|
COURT OF
APPEALS DECISION DATED AND
RELEASED May
16, 1996 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-0130
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
IN THE
INTEREST OF DAVID A. L.,
A
PERSON UNDER THE AGE OF 18:
STATE
OF WISCONSIN,
Petitioner-Respondent,
v.
DAVID
A. L.,
Respondent-Petitioner.
APPEAL
from an order of the circuit court for Dane County: ROBERT A. DE
CHAMBEAU, Judge. Reversed and cause
remanded with directions.
DYKMAN,
J. This is a single-judge appeal
decided pursuant to § 752.31(2)(e), Stats. We granted David A.'s petition for leave to
appeal a trial court order denying his motion to dismiss a delinquency
petition. Section 808.03(2), Stats.
David filed this motion after the court declared a mistrial at the
State's request during his first trial.
David argues that his motion to dismiss should have been granted because
a second trial would violate the Double Jeopardy Clause of the Fifth Amendment
to the United States Constitution.[1] We conclude that the trial court erroneously
exercised its discretion in declaring the mistrial because there was no
manifest necessity for the mistrial. Consequently,
David's motion to dismiss should have been granted. Accordingly, we reverse.
BACKGROUND
Dane
County filed a delinquency petition alleging that David A. had sexually
assaulted his younger cousin. At the
outset of the trial, the trial court ordered that all witnesses be sequestered
and remain outside of the courtroom and not discuss their testimony with one
another. Several times during the
trial, David objected to the introduction of various State evidence and moved
for a mistrial when his objections were overruled.
At
the end of the first day of testimony, David sought to introduce testimony
about a dispute between his and the victim's parents to show that the victim
may have fabricated his assertions at his parents' request. The trial court ruled that this testimony
was inadmissible and David moved for a mistrial. The court denied the motion.
David's
father was permitted to remain in the courtroom during this hearing. As the bailiff was locking the courtroom, he
overheard David's father in the hallway complaining to some family members or
friends about the judge's ruling on this matter. The bailiff also overheard another witness complaining about
having to return the next day to testify.
At least one juror was present in the hallway when these comments were
made. The bailiff reported the incident
to the judge.
The
following morning, the judge called the parties into his chambers and told them
about the incident. The State,
believing that the trial court's sequestration order had been violated, moved
for a mistrial. The judge stated that
he would not grant the motion until he had heard testimony from the bailiff.
At
a hearing on the matter, the bailiff testified that he saw David's father in
the hallway with some family members or friends and that there was "quite
a bit of shouting going on back and forth." Believing that the jury was gone, he permitted them to "blow
off steam." The bailiff could not
remember exactly what was spoken, but generally understood that the people were
upset with the judge and the court, that they felt that the judge did not want
to hear the truth but only what the police officers had to say, and that two
people in the group who had been waiting to testify were upset because they
were not going to be permitted to testify that day. He also sensed that David's father believed that the judge did
not care about his son and that David was not getting a fair trial. The bailiff then saw one of the jurors in
the hallway who told the bailiff that he did not hear anything they said except
that "the Judge called off the trial for today."
Based
upon this evidence, the State argued that David's father violated the
sequestration order by discussing what testimony the trial court would and
would not admit. David objected,
arguing that he did not believe that his father violated the sequestration
order because the order prohibited discussions about witness testimony and
there was no evidence that David's father specifically talked about any
testimony. The judge, however, believed
that there was a discussion of testimony or an inability to testify and that
there was a "general melee outside of the courtroom which compromised the
business of the courts." The judge
admitted that he had noticed some commotion outside of the courtroom at the end
of the day but he did not pay attention to what was being said. The judge ruled that the sequestration order
had been violated "based on the best evidence we have." He reasoned,
it doesn't seem to me to be too much of a presumptive
leap when [David's father] is one of the last witnesses testifies and then goes
out into the hall and talks to other witnesses about the Judge not wanting to
hear the truth and not wanting to hear the testimony that he has given or that
they have given. That's discussing
testimony. Period. I don't know how you can possibly put any
other spin on it. That is discussing
his testimony with another witness.
That's what's precluded.
In
deciding whether to grant a mistrial, he stated,
My obligation is not only to see that the defendant has
a fair trial. My obligation is also to
see that the State of Wisconsin has a fair trial. [The State] by [its] motion and by implication has ... found
[itself] in a position where the State, that where the Court is unable to
assure the State of a fair trial. I
racked my brain to try to figure out and try to think of something in my 30
years of experience that I could do to correct what has been done here, and I
don't know what that is other than impanel a new jury. I just, I am at a loss. I can't think of a corrective measure. I have tried, I have, I have done so many in
the past where there have been some corrective things that either I could do as
a judge or before that other judges did in cases that I have been involved in,
I can't think of what it is. It's not a
matter of advising the jury to disregard something. That would be, that would probably be the easier thing to do
because it's my belief that juries listen to judge's instructions, contrary to
what a lot of people believe, but I think they do and I think they are able to
accept that and perform their job here in a fair manner. But this doesn't involve the jury. This involves the witnesses. And it involves proceedings that went on in
this courtroom that they were not to know about and do now know about to the
disadvantage of the State. The playing
field now, counsel, has tilted. It no
longer is even. And I am unable to, to
figure out a way to bring it back even other than not allow the defense
witnesses to testify. If I did that
that offends my sense of fairness and the ability of the young [defendant] to
present a defense. I think he is
entitled to that.
The judge added that he was concerned about the victim
having to retestify in a new trial but because he could not assure the State of
a fair trial, there was no corrective measure that he could take. He then declared a mistrial and David
objected, arguing that there was no evidence that potential testimony had been
tainted.
Subsequently,
David moved to dismiss the petition against him arguing that retrial was
prohibited by the Double Jeopardy Clause.
The trial court denied his motion, reasoning that instructing the jury
to consider the credibility of the witness was not necessary to deal with the
violation and that declaring a mistrial was a manifest necessity. We granted David's motion for leave to
appeal that nonfinal order.
DISCUSSION
The
Fifth Amendment to the United States Constitution provides that a state may not
put a defendant in jeopardy twice for the same offense. Arizona v. Washington, 434
U.S. 497, 503 (1978). Jeopardy attaches
when a witness is sworn in a trial to the court without a jury or when the jury
selection is completed and the jury is sworn.
Section 972.07, Stats.; State
v. Barthels, 174 Wis.2d 173, 182, 495 N.W.2d 341, 345 (1993). Because jeopardy attaches before the
judgment becomes final, the constitutional protection "embraces the
defendant's `valued right to have his [or her] trial completed by a particular
tribunal.'" Arizona,
434 U.S. at 503. The purpose underlying
the prohibition against double jeopardy is that:
[T]he State with all its resources and power should not
be allowed to make repeated attempts to convict an individual for an alleged
offense, thereby subjecting him [or her] to embarrassment, expense and ordeal
and compelling him to live in a continuing state of anxiety and insecurity, as
well as enhancing the possibility that even though innocent he [or she] may be
found guilty.
Barthels, 174 Wis.2d at 181-82, 495 N.W.2d at 345 (quoting Green v.
United States, 355 U.S. 184, 187-88 (1957)).
The
State asserts that David has waived, consented, or is judicially estopped from
raising this issue because he made several motions for a mistrial earlier in
the proceedings. We treat differently
those mistrials granted at the defendant's request or consent, and those
declared by the court sua sponte or at the State's request. United States v. Dinitz, 424
U.S. 600, 607-08 (1976). A mistrial
declared at the defendant's request "is ordinarily assumed to remove any
barrier to reprosecution, even if the defendant's motion is necessitated by
prosecutorial or judicial error." Id.
at 607 (quoted source omitted). The
State, however, may retry a defendant when a mistrial had been declared over
the defendant's objections if it can demonstrate a "manifest necessity for
the mistrial." Arizona,
434 U.S. at 505. The reasoning for this
rule is as follows:
[W]hen judicial or prosecutorial error seriously
prejudices a defendant, he [or she] may have little interest in completing the
trial and obtaining a verdict from the first jury. The defendant may reasonably conclude that a continuation of the
tainted proceeding would result in a conviction followed by a lengthy appeal
and, if a reversal is secured, by a second prosecution. In such circumstances, a defendant's
mistrial request has objectives not unlike the interests served by the Double
Jeopardy Clause—the avoidance of the anxiety, expense, and delay occasioned by
multiple prosecutions.
Dinitz, 424 U.S. at 608.
After
reviewing the relevant case law on this subject, we are persuaded that David
did not consent to the mistrial. In United
States ex rel. Russo v. Superior Court, 483 F.2d 7, 11 (3d Cir.), cert.
denied, 414 U.S. 1023 (1973), the defendant moved for a mistrial after
learning that the jury was deadlocked.
The trial court did not specifically rule on the motion but sent the
jury to a motel for the evening. Id. The following day, without consulting either
the defense or prosecution, the trial court granted a mistrial because the jury
was exhausted. Id. The defendant objected to the mistrial after
the jury had been dismissed. Id.
In
concluding that the defendant did not consent to the mistrial even though the
trial court stated that it was granting the defendant's motion from the
previous day, the court reasoned that the defendant's motion was made for
reasons different than that upon which the court ruled, the defendant could
have concluded that there was a strong possibility for a verdict and therefore
his assessment of his chances for an acquittal changed, and the defendant had
no opportunity to object when the court declared a mistrial. Id. at 16. The court wrote, "We see no reason to
lock him into a motion once it is made."
Id.
Similarly,
in United States v. Evers, 569 F.2d 876, 878 (5th Cir. 1978), the
defendant moved for a mistrial after the prosecutor elicited improper
testimony. The defendant, however,
withdrew his motion after deciding that he did not want to sit through another
trial. Id. Nevertheless, the trial court granted the
motion.
In
concluding that the defendant had not consented to the mistrial, the court
noted that there is "[a] clear distinction ... between mistrials granted
at the request of the defendant, or with his consent, and those declared by the
court sua sponte, with respect to whether the double jeopardy clause bars
reprosecution." Id. The court reasoned that while the defendant
initially moved for a mistrial, he unequivocally withdrew his motion prior to
the time the trial court ruled. Id.
In
Jones v. Commonwealth, 387 N.E.2d 1187, 1191 (Mass. App. Ct.
1979), rev'd on other grounds, 400 N.E.2d 242 (Mass. 1980), the trial
court initially denied the defendant's motion for a mistrial but later granted
it over the defendant's objections. In
concluding that double jeopardy barred retrial, the court wrote:
We think that in
the circumstances of this case the mistrial should be treated as one declared sua
sponte by the judge, despite his pronouncement that he was acting upon the
defendant's written motion filed at the inception of trial. We see no reason to bind the defendant to
that motion. The motion had been based
on specific events occurring at an earlier stage in the proceedings. Our examination of the record indicates that
the mistrial declared by the judge appears to have been based in large part
upon events transpiring at trial after the Commonwealth and the defendant had
rested, events primarily involving the judge and codefendant's counsel. Furthermore, the defendant's counsel made
his changed position clear to the judge immediately upon being apprised of the
judge's intended action, and he unequivocally expressed a desire to continue
with that particular jury, stating his belief that any prejudice against the
defendant which might have existed in the jurors' minds had since abated.
Id. at 1192 (citations omitted; emphasis added). The court concluded that the judge's revival of the defendant's
mistrial motion "did not operate as consent by the defendant to the
judge's declaration of a mistrial in substantially different
circumstances." Id.
at 1193.
Likewise,
in United States v. Mastrangelo, 662 F.2d 946, 948-50 (2d Cir.
1981), cert. denied, 456 U.S. 973 (1982), the trial court granted the
defendant's mistrial motion even though it had earlier denied it. The court found no consent, concluding that
the defendant had effectively withdrawn the motion. Id. at 950.
See also United States v. Huang, 960 F.2d 1128,
1134 (2d Cir. 1992) (no consent where defendants moved for a mistrial with an
order barring retrial, the trial court stated that it would grant a mistrial
without the order, the defendants objected and the trial court granted the
mistrial anyway); United States v. Crotwell, 896 F.2d 437, 438-39
(10th Cir. 1990) (no consent to a mistrial found when the defendant moved for a
mistrial, changed his mind at a hearing on the matter but the trial court
granted one anyway); and United States v. Kwang Fu Peng, 766 F.2d
82, 84-85 (2d Cir. 1985) (no consent to a mistrial when the defendant expressly
withdrew a motion for a mistrial that had been denied but the trial court
declared one sua sponte).
In
Lovinger v. Circuit Court, 845 F.2d 739, 741-42 (7th Cir.), cert.
denied, 488 U.S. 851 (1988), the defendant's motion for a mistrial was
denied, but the trial court later declared a mistrial without giving the
parties an opportunity to object. The
court held that the defendant did not consent to mistrial despite his earlier
motion because his motion was perfunctory, the court's mistrial was based on
another ground, the court did not mention the earlier decision, and that
because of the State's "foibles," the defendant's assessment of his
chances of acquittal may well have changed.
Id. at 743-44.
Most
recently, in Weston v. Kernan, 50 F.3d 633, 635-36 (9th Cir.), cert.
denied, 116 S. Ct. 351 (1995), the defendant moved for a mistrial and the
trial court took it under advisement.
The defendant also submitted a written motion for a mistrial. When the trial court granted the mistrial
without prejudice, defense counsel interrupted the court, asking if he could confer
with his client about the effects of a mistrial without prejudice. The trial court said it was too late and
granted a mistrial. Id.
at 636.
In
concluding that there was no consent, the court stated: "A defendant's
consent to mistrial may be inferred `only where the circumstances positively
indicate a defendant's willingness to acquiesce in the mistrial order.'" Id. at 637 (quoted source
omitted). Because the defendant wanted
a dismissal with prejudice and objected when the mistrial without prejudice was
announced, the circumstances clearly indicated that the defendant did not
acquiesce to the mistrial. Id.
In
this case, while David did make several mistrial motions which were denied, his
objection to the mistrial motion made by the State because of the violation of
the sequestration order was unequivocal.
Those earlier motions were based upon different events which occurred
earlier in the proceedings and do not mean he waived his right to object to
this particular motion. Furthermore,
there is no evidence that David's father violated the sequestration in order to
give David some advantage over the State.
Under the circumstances, we cannot say that the mistrial was declared
with David's consent. Accordingly, the
court's decision must be evaluated using the manifest necessity test.
The
manifest necessity test provides that "[c]ourts of justice [may] discharge
a jury from giving any verdict, whenever, in their opinion, taking all the
circumstances into consideration, there is a manifest necessity for the act, or
the ends of public justice would otherwise be defeated." Barthels, 174 Wis.2d at 183,
495 N.W.2d at 346 (quoted source omitted). The test, however, is not literal, and a "high degree"
of necessity must be found before a mistrial is appropriate. Id.
Whether
a "high degree" of necessity exists rests within the trial court's
discretion because that court is in the best position to determine whether the
state seeks a mistrial to gain unfair advantages over the defendant. Id. The standard by which we review the discretion exercised in
granting a mistrial varies according to the facts of the particular case. Id. at 184, 495 N.W.2d at
346. If the state requests the
mistrial, we give stricter and more searching scrutiny to the judge's decision
than had the defendant requested or consented to it. Id. In
exercising its discretion, the trial court must examine the circumstances
leading to the state's motion and should consider the alternatives before
depriving the defendant of the right to have the original tribunal render a
final verdict. Id. at
185, 495 N.W.2d at 347. If we are
presented with a close case, the Supreme Court advises us to resolve doubts
about the propriety of a mistrial in favor of the liberty of a citizen. Russo, 483 F.2d at 17.
In
this case, the trial court concluded that the sequestration order had been
violated based only on the bailiff's testimony as to the "gist" of
the hallway discussions. It did not
individually question the jurors to determine if any discussions about
testimony had been overheard or the witnesses to determine exactly what they
said to one another in the hallway.
Then the court focused on its obligation to give the State a fair trial
but did not consider David's right to have his case decided by the first jury
which is empaneled. It considered
giving a curative instruction but rejected that option because the problem
involved witnesses and not the jury.
The court was concerned about the jury hearing the fact that certain
testimony would not be admitted but because it could not devise a measure to
correct this matter, it granted a mistrial.
We
conclude that the trial court erroneously exercised its discretion in this
case. When granting a mistrial, the
trial court is obligated to consider less drastic alternatives to remedy the
problem. As David suggested, the trial
court could have entered contempt orders for the violating witnesses; if specific
testimony was discussed, the court could have instructed the jury to consider
that fact in weighing credibility; and the court could have excluded tainted
testimony if doing so would not have unduly prejudiced David's ability to
present a defense. Had the court
questioned the jurors or witnesses, it might have found that only one juror
overheard any discussions and could have excused or admonished that juror and
continued with the trial. The only
thing the juror heard was that "the Judge called off the trial for
today," something that all the jurors already knew. The court could have admonished the
witnesses or limited their testimony.
This would have been consistent with David's right to have the first
jury empaneled decide this case.
The
manifest necessity test is a high one.
Examining the totality of the circumstances, we conclude that there was
no manifest necessity for the mistrial.
The fact that the sequestration order was violated does not, alone,
warrant a mistrial absent a showing of prejudice. The record does not reveal facts from which we can conclude that
the State was prejudiced by the witnesses' actions. We conclude that the trial court erroneously exercised it
discretion in granting a mistrial.
Accordingly, we reverse the order denying David's motion to
dismiss.
By
the Court.—Order reversed and
cause remanded with directions.
Not
recommended for publication in the official reports. See Rule
809.23(1)(b)4, Stats.