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COURT OF
APPEALS DECISION DATED AND
RELEASED March
7, 1996 |
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
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This opinion is subject to further editing. If published, the official version will appear in the bound
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No. 95-2315-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
PERLES
PAYNE,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Dane County: ROBERT DE CHAMBEAU, Judge.
Reversed and cause remanded with directions.
SUNDBY, J.[1] The
United States Supreme Court has held that the Double Jeopardy Clause is
"distinctive." Blackledge
v. Perry, 417 U.S. 21, 31 (1974) (citing Robinson v. Neil,
409 U.S. 505 (1973)). It is distinctive
in that a violation of the Clause goes "to the very power of the State to
bring the defendant into court to answer the charge brought against
him." Id. at
30.
In
this case, the trial court granted the State's motion for a mistrial based on
defense counsel's opening statement to the jury. Nine days before retrial, defendant moved the trial court to
dismiss the complaint because to retry him would violate the Double Jeopardy
Clause. Sua sponte, the trial
court raised the issue whether defendant's motion was timely and when the
prosecutor refused to waive the untimeliness of defendant's motion, the trial
court summarily denied defendant's motion.
Because
of the uniqueness of the double jeopardy protection and defendant's
"weighty"[2] interest in
completion of the trial before the jury which has been selected, we conclude
that the trial court erroneously exercised its discretion when it summarily
denied defendant's motion as untimely.
We further conclude that the State failed to show that a mistrial was a
"manifest necessity." We
therefore reverse the order denying defendant's motion to dismiss and direct
that the trial court dismiss the complaint.
TIMELINESS OF MOTION
In its initial brief,
the State merely noted that the trial court had dismissed defendant's motion as
untimely; it did not address the timeliness of defendant's motion. The State argued that we should affirm the
trial court's order because the State's retrial of the defendant did not
violate his rights under the Double Jeopardy Clause. This court invited the parties to file supplemental briefs on the
question whether the trial court had erroneously exercised its discretion when
it summarily dismissed defendant's motion.
The parties accepted our invitation.
We reject the State's argument that the defendant waived his right to
insist that he not be twice placed in jeopardy by failing to file a timely
motion. A waiver is "a voluntary
and intentional relinquishment of a known right." Attoe v. State Farm Mut. Auto. Ins.
Co., 36 Wis.2d 539, 545, 153 N.W.2d 575, 579 (1967). The State's argument must be that defendant
could not insist on having his motion heard because it was not timely. Therefore, the waiver cases which the State
has cited are inapposite and our standard of review is whether the trial court
erroneously exercised its discretion when it summarily denied defendant's
motion as untimely. The State did not
raise the timeliness issue. However,
the trial court apparently believed that the untimeliness of defendant's motion
was an absolute bar to the court's consideration of the motion. If that had been the case, the court would
have had a duty to raise the issue of its lack of jurisdiction. However, we believe that the trial court may
consider a motion to dismiss on double jeopardy grounds at any time before or
during the trial. The question is not
one of power but of administration.
At
the outset of the motions' hearing before retrial, the following occurred:
THE COURT:
I have two motions here. One, a
Motion To Dismiss: Double Jeopardy; the
second, a Motion to Compel Disclosure of Mental Health Records. The second was filed on July 31st. The other motion, the motion to dismiss,
apparently was just given to my clerk today.
Ms. Gundersen, are you waiving the notice requirement on the motion to
dismiss?
MS. GUNDERSEN:
No, I'm not.
THE COURT: All right.
We won't hear the motion to dismiss, because it is not timely, and it
will be denied summarily....
The
court did not give the parties an opportunity to argue its ruling; nor did it
cite the notice statute on which it relied.
In
any event, the cases cited by the State are either guilty-plea cases or cases
in which the defendant failed to provide the appellate court with a record
sufficient for the court to review defendant's double jeopardy claim. These cases are inapposite.
THE MISTRIAL
We next consider whether
the trial court erroneously granted the State's motion for a mistrial. A trial court may not grant a motion for a
mistrial unless "there is a manifest necessity for the act, or the ends of
public justice would otherwise be defeated." State v. Copening, 100 Wis.2d 700, 709, 303 N.W.2d
821, 826 (1981) (quoting United States v. Perez, 22 U.S. (9
Wheat.) 579, 580 (1824)). The court
granted the State's motion because defense counsel informed the jury in his
opening statement that: "She [the
alleged victim] was taken to a mental hospital." The jury could have inferred that the police took the alleged
victim to the hospital.
The
trial court did not find that a mistrial was manifestly necessary, or that the
ends of public justice would be defeated if the court did not declare a
mistrial. However, the record need only
show sufficient justification for the trial court's ruling. See Arizona v. Washington,
434 U.S. 497, 516-17 (1978). "To
determine if a mistrial was manifestly necessary in a particular case, we
review `the entire record in the case without limiting [ourselves] to the
actual findings of the trial court.'"
United States v. Chica, 14 F.3d 1527, 1531 (11th Cir.
1994) (quoted source omitted).
To
determine whether the trial court erroneously denied Payne's motion to dismiss,
we must accept that the defense could present evidence to support the facts
stated in counsel's opening statement.
We conclude that the trial court erred when it ruled that: "What the police did or did not do is
not relevant to the issues that this jury has to decide." Defendant's theory of defense was that his
significant other, Angela Terry (the alleged victim), attacked him violently
and he simply defended himself. Because
police are charged with the duty to cause emergency detention of persons
dangerous to themselves or others, the decision of the police to take Terry
into emergency custody and take her to a mental hospital was extremely relevant
to Payne's self-defense claim. Under
§ 51.15(1)(a), Stats., a law
enforcement officer may take an individual into custody if the officer has
cause to believe that such individual is mentally ill and demonstrates by
recent acts a substantial probability of physical harm to herself or
others. Each law enforcement agency
must provide training in emergency detention procedures for at least one
officer. See § 51.15(11m). Thus, the police may have had the expertise
to testify that they believed they had cause to place Terry in emergency
detention. We do not know whether the
police acted under § 51.15(1) because the trial court did not allow
defense counsel to make an offer of proof.
Motions
for a mistrial are frequently based on statements made in opening or closing
argument. We have refused to affirm a
declaration of a mistrial unless such statements "[rise] to the level of
creating something that would interfere with fundamental fairness in the trial
itself." State v. Hagen,
181 Wis.2d 934, 948, 512 N.W.2d 180, 185 (Ct. App. 1994). We give great weight to curative
instructions as an alternative to ordering a mistrial. See State v. Bembenek,
111 Wis.2d 617, 634, 331 N.W.2d 616, 625 (Ct. App. 1983).
Courts
must strive to protect the defendant's right to have his or her trial completed
by a particular tribunal. See United
States v. Jorn, 400 U.S. 470, 484 (1971). In this case, the record shows that the defense conducted
extensive voir dire and challenged several potential jurors for cause. The defendant's interest is "a weighty
one," Illinois v. Somerville, 410 U.S. 458, 471 (1973),
given that a second prosecution:
increases the financial and emotional burden on the
accused, prolongs the period in which he is stigmatized by an unresolved
accusation of wrongdoing, and may even enhance the risk that an innocent
defendant may be convicted. The danger
of such unfairness to the defendant exists whenever a trial is aborted before
it is completed.
Washington, 434 U.S. at 503-04 (footnotes omitted).
Because
of defendant's "weighty interest" in having his or her trial
completed by a particular tribunal, "the prosecutor must shoulder the
burden of justifying the mistrial if he is to avoid the double jeopardy
bar," when the prosecutor successfully moves for a mistrial over the
defendant's objection. Chica,
14 F.3d at 1531 (quoting Washington, 434 U.S. at 505). "The prosecutor must demonstrate
`manifest necessity' for any mistrial declared over the objection of the
defendant." Washington,
434 U.S. at 505.
The
latter case dealt with defense counsel's allegedly improper opening
statement. The Court stated:
An improper opening
statement unquestionably tends to frustrate the public interest in having a
just judgment reached by an impartial tribunal. Indeed, such statements create a risk, often not present in the
individual juror bias situation, that the entire panel may be tainted. The trial judge, of course, may instruct the
jury to disregard the improper comment....
Unless unscrupulous defense counsel are to be allowed an unfair
advantage, the trial judge must have the power to declare a mistrial in
appropriate cases. The interest in
orderly, impartial procedure would be impaired if he were deterred from
exercising that power by a concern that anytime a reviewing court disagreed
with his assessment of the trial situation a retrial would automatically be
barred. The adoption of a stringent
standard of appellate review in this area, therefore, would seriously impede
the trial judge in the proper performance of his "duty, in order to
protect the integrity of the trial, to take prompt and affirmative action to
stop ... professional misconduct."
Id. at 512-13 (quoting United States v. Dinitz, 424 U.S.
600, 612 (1976)) (footnote omitted).
"[P]recisely
what constitutes manifest necessity is not at all clear." United States v. Sloan, 36
F.3d 386, 394 (4th Cir. 1994).
"Each case must turn on its facts." Downum v. United States, 372 U.S. 734, 737
(1963). "It is well established,
however, that `manifest necessity' means that a `high degree' of necessity is
required before a `mistrial is appropriate.'" Sloan, 36 F.3d at 394 (citing Washington,
434 U.S. at 506); see also Copening, 100 Wis.2d at 711,
303 N.W.2d at 827. The "valued
right" of a defendant to have his or her trial completed by the same jury
may be subordinated to the public interest only "when there is an imperious
necessity to do so," Downum, 372 U.S. at 736, and "only
in very extraordinary and striking circumstances," id.
(quoting United States v. Coolidge, 25 F. Cas. 622, 623 (C.C.
Mass. 1815)).
Whether
manifest necessity exists is a fact-intensive inquiry. Chica, 14 F.3d at 1531 (citing
Somerville, 410 U.S. at 461-62).
We make that inquiry by reviewing the record.
Because
we must accord the highest degree of respect to the trial judge's evaluation of
possible prejudice resulting from defense counsel's statement, we must
thoroughly review the record to determine first whether defense counsel was
guilty of unprofessional misconduct.
Although the trial court did not make a finding to this effect, the fair
administration of justice requires that we determine that question
independently. As the Arizona v.
Washington Court held, counsel may not be allowed to gain an unfair
advantage through improper opening argument.
If we find that defense counsel did not deliberately attempt to obtain
an unfair advantage, and we so conclude, we must nonetheless determine whether
defense counsel's argument increased the risk of jury bias to an impermissible
degree.
Prior
to trial, the State moved the court in limine to preclude the defense
from attempting to introduce "other acts," or Whitty,[3]
evidence of the alleged victim's previous violent conduct directed at
Payne. The court heard the State's
motion at the outset of trial. The
trial court stated that it could not address the State's motion because it did
not have any evidence before it at that time.
When the prosecutor persisted, defense counsel suggested:
Why don't we just
hash this out right here and now. I
intend to bring in other [acts] evidence but not [to] use it as Whitty
evidence. I intend to use it simply to
show that my client was aware of prior specific instances of the victim's
violence, which I'm going to use to establish what he reasonably knew about the
dangerousness of the victim ....
The following colloquy then took place between the
prosecutor and the court:
[THE
PROSECUTOR]: [He] can call it whatever
he likes, I think it still is properly analyzed under the Whitty--under
sec. 904.04(2).
THE COURT: You
are wrong, counsel, because ... if there is self-defense, he can testify ... as
to what is in his mind, whether true or untrue.... [T]hat's the state of the
law, and what he believes that person's reputation is, the victim's reputation
for--for being an aggressive person.
This
case required a Miranda-Goodchild hearing. Immediately prior thereto, the prosecutor
expressed her concern that during voir dire defense counsel attempted to talk
about mental illness. She said: "There is absolutely no evidence of
mental illness.... I think any mention
of that is entirely inappropriate, and I would ask the court if it would warn
[defense counsel] that he may not bring that out in his opening argument
...." Defense counsel replied that
he had told the assistant district attorney at the plea hearing that "this
was going to be [a] self-defense case.
I said there were issues of
mental illness ...." A colloquy
occurred between defense counsel and the court as to how the defense was going
to prove that the alleged victim was mentally ill and how it was relevant that
the alleged victim had been in a mental hospital. After further argument, the trial court stated:
Just a minute,
both of you. You can sit and puff ...
all you want, but what I'm going to tell the jury, and what the jury will be
instructed, is ... prove it.... [E]ven
where I thought I was right but needed an evidentiary ruling out of the court,
I didn't tell the jury I was going to prove it, because I didn't know, because
... in most situations, as to the admissibility of evidence, and, again, I
can't give you a ruling at this juncture.
I don't know what the evidence will be.... [I]t is risky what you say, but an opening statement isn't
evidence. All that is is I expect to
prove. I expect the evidence to show
such and such. If it doesn't, you got a
jury sitting there saying I can't believe that attorney, they didn't keep their
word to us, but ... I'm going to tell the jury right here what opening
statements are. It's what each attorney
expects to prove, but it isn't evidence and don't consider it as evidence. But I can't really fashion one's opening
statement either, counsel.... You do it
at your own risk....
Plainly,
the trial court gave defense counsel the benefit of the court's considerable
trial experience, but left it up to counsel whether he wished to risk telling
the jury that he intended to show that the alleged victim suffered from a
mental illness, and then not be able to prove that fact, either because of a
failure of proof or because of an exclusionary ruling.
We
conclude, therefore, that there was not a "manifest necessity" to
declare a mistrial because of defense counsel's misconduct. We next consider whether a mistrial was
manifestly necessary because defense counsel's opening statement created an
impermissible risk of jury bias.
Counsel began as follows:
What you are about to hear is going to be a sad story, a
very sad story. It is going to be a
story about domestic abuse, and it is going to be a story about mental
illness. [No objection.]
Defense
counsel then described how Terry grew up in an unbelievably dysfunctional
family in Milwaukee's inner city; how she was repeatedly raped by members of
her family beginning when she was six or seven years of age; how she turned to
the streets for family and joined the Crips gang who required as a condition of
membership that she allow a member of the gang to shoot her in the leg, or she
fight someone [Objection. State expects
defense to present this evidence at trial]; how when she grew older she could
not accept the gang life and was taken in by the Payne family; how she and
defendant have been friends since the seventh or eighth grade; how they suffered
the same ridicule and taunts because of their deafness; how soon after high
school she had a child as a result of a one-night stand "thing"; how
she and defendant developed a romantic relationship; how she suddenly changed
from a happy, caring person to a "harpy" who became increasingly
violent toward defendant; how on the night of the alleged offense she
"went totally wild. You'll hear
that she was suicidal." [Objection.
Sidebar conference, no instruction to jury]; how Terry attacked
defendant by slapping him repeatedly in the face; how defendant objected to the
way Terry was bad-mouthing the family; how their argument continued in the
bedroom where Terry continued to slap defendant in the face and he took it
until finally he slapped her back; how Terry ran to the kitchen and attempted
to get a knife out of a cabinet drawer but defendant prevented her by slamming
the drawer on her fingers; how she again began to slap defendant harder and
harder and he attempted to restrain her; how at this point another member of
the family called 911 and informed the dispatcher that Terry was "out of
control" and asked for assistance; how Terry ran to a neighboring house
which the police surrounded and grabbed her when she came out and placed her in
their squad car; how the police asked defendant whether he wanted her arrested
and "he said, `No, there is something wrong with her. She's sick.
She needs help.' The police
judging those actions--."
[Objection. Sidebar. THE COURT:
"It's not relevant and what you are telling the jury is you are
going to prove hearsay .... No, move
on.... [Y]ou've gone as far as you can
in this area. What the police did or
did not do is not relevant to the issues that this jury has to decide."];
how defense counsel renewed his opening statement and informed the jury: "She was taken to a mental
hospital." [Objection. THE COURT:
"Sustained. [Counsel], you
were instructed specifically not to get into that area."]
The
prosecutor then moved for a mistrial.
She argued that defense counsel had been admonished, "I don't know
how many times, regarding that."
The only admonition that appears in the record was the court's
instruction to counsel to move on because what the police did was hearsay and
not relevant. The record does not show
that defense counsel had been admonished, "I don't know how many
times," as argued by the prosecutor.
We cannot review what may have been said at the two sidebar conferences
because no record was made of those conferences, nor did the prosecutor ask the
court in arguing her motion to place that matter in the record for our review.
It
appears from the record that the prosecutor's concern was that she had not had
access to Terry's psychiatric records:
"I don't know if she ever went to a mental hospital, and, in fact,
he can't prove it. I have no access to
these psychiatric records." Those
records were ordered by the court on August 22, 1995. Whether defendant would have been able to produce those records
at the first trial should not have affected the court's ruling on the State's
motion because, as the trial court pointed out to defense counsel prior to
opening statements, counsel bore the risk of incurring the jury's displeasure
and disbelief if he was unable to fulfill his promise to them. The prosecutor did not argue that defendant
had failed to comply with a pre-trial order requiring the defense to produce
such records, nor would such an order have been possible because the records
could not have been made available except through court order.
In
view of the unobjected-to statements of defense counsel that Terry was mentally
ill and violent and that the police took her to a mental hospital, which
evidence we conclude was relevant, we conclude that defense counsel's opening
statement did not "[rise] to the level of creating something that would
interfere with fundamental fairness in the trial itself." Hagen, 181 Wis.2d at 948, 512
N.W.2d at 185. We conclude that the
State failed to carry its burden to show that a mistrial was a manifest
necessity, or necessary to prevent the ends of justice from being defeated.
By
the Court.—Order reversed and
cause remanded with directions.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.