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Waiver: Closing Argument – Failure to Move for Mistrial – Rule Inapplicable Where Objection Denied

State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.

Issue/Holding: ¶44, n. 14:

The State also argues that Cockrell waived his right to object on this ground because he did not move for a mistrial. We agree with Cockrell that the case the State relies on for this argument, State v. Davidson, 2000 WI 91, ¶86, 236 Wis. 2d 537, 613 N.W.2d 606, does not support the State’s position. In Davidson, the defense counsel’s objections to the prosecutor’s comments in closing argument were sustained and the defense counsel moved on without asking for a mistrial; the court held this was a waiver. 236 Wis. 2d 537, ¶5. The rationale for finding a waiver in this circumstance is that, when the court sustains the objection, without a request for a mistrial “all [the court] can assume is that the defendant was satisfied with the court’s ruling and curative measure, and that he had no further objections.” Neely v. State, 97 Wis. 2d 38, 55, 292 N.W.2d 859 (1980) (cited in Davidson, 236 Wis. 2d 537, ¶86). This rationale does not apply when the court has overruled the objection, as it did here.

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