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Waiver of Issue: Multiplicity

State v. William Koller, 2001 WI App 253, PFR filed
For Koller: Peter M. Koneazny, SPD, Milwaukee Appellate

Issue: Whether multiplicity claims were waived due to lack of objection until after trial. Holding: Although it isn’t necessary to raise a multiplicity challenge before trial, waiver attaches if “also omitted prior to the time the case was submitted to the jury.” ¶40.

The court’s holding seems to be informed by two notions. First, fairness to the prosecutor:

¶42. It could be argued that the State should be required to anticipate multiplicity challenges during trial and, even in the absence of such a challenge, present evidence showing that multiple charging is justified, or lose its opportunity to do so. We are not persuaded. Trials are not structured to resolve multiplicity disputes and, absent notice, the State should not be required to prove facts supporting multiple charges for purposes of multiplicity analysis. …

Second, multiplicity is strictly, necessarily, and invariably delegated to the trial court:

¶35. Koller complains that his trial counsel’s failure to raise multiplicity challenges allowed the ‘legally and factually complex issue of multiplicity to go to the jury.’ This argument is based on a misunderstanding of the roles of judge and jury with respect to multiplicity disputes. These disputes are resolved by trial judges, not juries. …¶37. Because multiplicity is not a jury matter, it follows that when a multiplicity challenge is raised during trial, including after the State has rested, the trial court may allow the State to present additional evidence, normally without the jury present.

But the courts also says, in passing, that there’s a real question as to what burden the state must satisfy — preponderance, or beyond reasonable doubt — in rebuffing a multiplicity challenge; the court leaves the question open. ¶38. If the issue is seen as a foundational one, then under § 901.04, preponderance could well be the correct standard. And the court’s holding treats the matter as if it involves nothing more or less than preliminary admissibility. But if the question in reality is whether the state has proven each charge, then beyond reasonable doubt would seem applicable, as with any sufficient-proof question. The court’s holding doesn’t adequately address this distinction, which gets at the heart of the problem; instead we’re left with a holding in search of a rationale. Leaving this question open only postpones the day of definitive resolution.)

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