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Prosecutor’s improper opening statement didn’t show intent to provoke mistrial, so defendant can be retried

State v. Nancy Jean Wall, 2013AP787-CR, District 4, 3/6/14; court of appeals decision (not recommended for publication); case activity

The prosecutor’s reference during opening statement that Wall’s BAC was over the legal limit of 0.02, despite a stipulation designed to keep that threshold from being referred to during trial, was not intended to provoke a mistrial. Therefore, the circuit court’s dismissal of the charges was erroneous.

Wall, who was charged with 5th/6th offense OWI and operating with a prohibited alcohol content, stipulated she had five prior OWI offenses and that her BAC exceeded 0.02, all in order to prevent the jury from learning that she had multiple OWI convictions. During opening statement, the prosecutor referenced the PAC charge against Wall and stated that the charge meant Wall was operating a motor vehicle with a BAC greater than she was allowed, which the prosecutor stated “was more than 0.02 grams.” The prosecutor also said the PAC charge would be proven because Wall had a blood alcohol concentration of 0.104, “over five times” greater than the “0.02” “the law says she can have.” (¶¶3-4). Wall moved for a mistrial, arguing the prosecutor’s references to the 0.02 BAC standard violated the stipulation and communicated to the jury that Wall had two or more prior OWI convictions. The trial court granted Wall’s motion and subsequently dismissed the case, finding the prosecutor overreached by violating the stipulation. (¶5).

The court of appeals reverses, concluding the prosecutor’s remarks did not constitute prosecutorial overreaching that would bar retrial:

¶11     …. Even assuming an intentional violation by the prosecutor, the record does not support dismissal with prejudice because the record does not support a finding that “the prosecutor acted with intent to gain another chance to convict or to harass the defendant with multiple prosecutions.” See [State v.] Hill, [2000 WI App 259,] 240 Wis. 2d 1, ¶12[, 622 N.W.2d 34]. …

¶12      Prior to the circuit court granting Wall’s motion for a mistrial, the prosecutor engaged in a lengthy discussion with the court about the appropriateness of his reference to the 0.02 BAC standard. The prosecutor argued against the motion for mistrial, which we have stated is an indication that a prosecutor did not intend to provoke the defendant to request a new trial. See Hill, 240 Wis. 2d 1, ¶¶17-18; State v. Quinn, 169 Wis. 2d 620, 626, 486 N.W.2d 542 (Ct. App. 1992). The prosecutor also suggested that a curative instruction could be given to the jury, which has been determined to be evidence that a prosecutor does not intend to provoke a mistrial. See Quinn, 169 Wis. 2d at 626. Furthermore, the reference to the 0.02 BAC was made during the prosecutor’s opening statements, before the prosecutor would have had an opportunity to gauge how well or poorly the trial was proceeding. In addition, shortly before trial, Wall sought permission from the court to call an additional witness at trial. Upon objection by the prosecutor, the circuit court denied Wall’s request on the basis that Wall did not provide the prosecution sufficient notice. It would have been reasonable for the prosecutor to infer that in the event of a retrial, any issues concerning notice to the prosecution of Wall’s intent to call this particular witness would not be present and that as a result of the witness’s testimony, the State would be in a less favorable position during a second trial.

As the court notes (¶14 n.2), the state argued the stipulation did not preclude it from referring to the 0.02 BAC standard, and the argument over what the stipulation meant figured prominently in the parties’ briefs. Message: Make sure you understand what the stipulation means regarding the evidence the state will and won’t introduce and the arguments the state will and won’t make, and then make that understanding clear on the record.

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