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COURT OF APPEALS DECISION DATED AND RELEASED June 20, 1995 |
NOTICE |
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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. 94-3113
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
IN THE INTEREST OF
LASANDO L. R.,
A CHILD UNDER THE AGE
OF 18:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
LASANDO L. R.,
Respondent-Appellant.
APPEAL from a non-final
order of the circuit court for Milwaukee County: CHRISTOPHER R. FOLEY,
Judge. Affirmed and cause remanded.
SULLIVAN,
J. Lasando L. R. appeals from a non-final order[1]
denying his motion to dismiss a delinquency petition charging him with one
count of armed robbery, and one count of attempted armed robbery. He presents this court with one issue for
review: whether the Double Jeopardy Clause of the United States Constitution
and Article I, Section 8 of the Wisconsin Constitution bar his retrial on the
delinquency petition. We affirm.[2]
The State filed a
delinquency petition charging Lasando with committing an armed robbery and
attempted armed robbery. Lasando filed
a discovery request for all statements made by Lasando concerning the offenses
that were in the possession of the State or its agents. A jury trial was set, but then delayed when
Lasando failed to appear for his trial.
He was later apprehended and the case proceeded to trial.
During his trial, a
police detective and the assistant district attorney mentioned a statement made
by Lasando, of which his counsel had never received a copy during
discovery. Lasando moved for dismissal
for the discovery violation or, in the alternative, for a mistrial. The juvenile court granted the
mistrial. Lasando then moved to dismiss
the delinquency petition on, inter alia, double jeopardy grounds. The juvenile court, after a hearing in which
both the detective and assistant district attorney testified, denied the
motion, finding that it was not the “subjective intent of the prosecutor ... to
goad the defense into a mistrial request.”
Lasando appeals from the non-final order denying his motion.
Generally, a mistrial
ordered on a defendant's motion does not bar retrial under double jeopardy
principles. State v. Quinn,
169 Wis.2d 620, 624, 486 N.W.2d 542, 543 (Ct. App. 1992). Double jeopardy may bar a second trial if
the defendant petitions for mistrial on the basis of “prosecutorial
overreaching” and the following two elements are met:
“(1) The prosecutor's action must be
intentional in the sense of a culpable state of mind in the nature of an
awareness that his activity would be prejudicial to the defendant; and
(2) the prosecutor's action was designed either to create another chance to
convict, that is, to provoke a mistrial in order to get another `kick at the
cat' because the first trial is going badly, or to prejudice the defendant's
rights to successfully complete the criminal confrontation at the first trial, i.e.,
to harass him by successive prosecutions.”
Id. at
624, 486 N.W.2d at 543-44 (citation omitted; emphasis in original); see also
Oregon v. Kennedy, 456 U.S. 667, 670-76 (1982).
Examining the
prosecutor's intent involves a factual finding on the part of the juvenile
court. Quinn, 169 Wis.2d
at 626, 486 N.W.2d at 544; see Kennedy, 456 U.S. at
675. We will not overturn a juvenile
court's finding of fact unless it is clearly erroneous. Section 805.17(2), Stats.
In this case, the
juvenile court found that it was not the “subjective intent of the prosecutor
... to goad the defense into a mistrial request.” This finding is not clearly erroneous. The State opposed the mistrial and, according to the juvenile
court, the assistant district attorney was “absolutely devastated” when the
mistrial was granted. Further, the
court stated that there was nothing either in the way the trial was
progressing, or in the make-up of the jury that suggested that the State would
“wish” to retry the case again in front of another jury. Lasando presents this court with nothing
from which we can conclude that the juvenile court's finding of fact on this
issue was clearly erroneous.
Accordingly, we affirm the non-final order denying Lasando's motion to
dismiss the delinquency petition. The
matter is remanded to the juvenile court for further proceedings.
By the Court.—Order
affirmed and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.