In this recommended-for-publication opinion, the court of appeals tackles an issue of first impression in Wisconsin.
Alvarado stood trial for second-degree sexual assault, and the jury was instructed both on that count and the lesser included offense of third-degree sexual assault. The jury deliberated for several hours and eventually sent a note to the judge saying they all agreed Alvarado was not guilty of second-degree but couldn’t agree about third-degree. The court declared a mistrial based on the hung jury.
The state sought a retrial, and Alvarado moved to dismiss the second-degree count on double-jeopardy grounds. The circuit court denied the motion and Alvarado sought, and received, leave to appeal the nonfinal order.
Avarado argues on appeal that the jury’s note, which said all agreed he was not guilty of second-degree sexual assault, constituted a not-guilty verdict, so he can’t be retried. The court of appeals disagrees, relying heavily on Blueford v. Arkansas, 566 U.S. 599 (2012):
Blueford argued—as Alvarado does here—that “acquittal is a matter of substance, not form,” and “the foreperson’s announcement of the jury’s unanimous votes on capital and first-degree murder represented … a resolution of some or all of the elements of those offenses in Blueford’s favor.” Id. at 605-06. The Supreme Court rejected this argument and concluded that the foreperson’s statement was not a verdict. Id. The court observed that during the deliberations after the foreperson’s announcement, the jury could have easily changed its mind. The court’s reasoning is worth quoting at length:
“[E]ven if we assume that the instructions required a unanimous vote before the jury could consider a lesser offense—as the State assumes for purposes of this case— nothing in the instructions prohibited the jury from reconsidering such a vote. The instructions said simply, “If you have a reasonable doubt of the defendant’s guilt on the charge of [the greater offense], you will [then] consider the charge of [the lesser offense].” The jurors were never told that once they had a reasonable doubt, they could not rethink the issue. The jury was free to reconsider a greater offense, even after considering a lesser one.
A simple example illustrates the point. A jury enters the jury room, having just been given these instructions. The foreperson decides that it would make sense to determine the extent of the jurors’ agreement before discussions begin. Accordingly, she conducts a vote on capital murder, and everyone votes against guilt. She does the same for first-degree murder, and again, everyone votes against guilt. She then calls for a vote on manslaughter, and there is disagreement. Only then do the jurors engage in a discussion about the circumstances of the crime. While considering the arguments of the other jurors on how the death was caused, one of the jurors starts rethinking his own stance on a greater offense. After reflecting on the evidence, he comes to believe that the defendant did knowingly cause the death—satisfying the definition of first-degree murder. At that point, nothing in the instructions prohibits the jury from doing what juries often do: revisit a prior vote. “The very object of the jury system,” after all, “is to secure unanimity by a comparison of views, and by arguments among the jurors themselves.” A single juror’s change of mind is all it takes to require the jury to reconsider a greater offense.”
Practitioners will want to note the lengthy seventh footnote to the opinion. Alvarado is not claiming that the circuit court erred in not entering a partial verdict, and instead declaring a mistrial. The footnote observes that some jurisdictions have concluded that a court is required at least to consider, and possibly to enter, such a partial verdict of acquittal before granting mistrial. The court does not take a position on the question, so a lawyer faced with this situation in the future would do well to request a partial verdict and preserve the issue.