The state provoked a mistrial in a case charging Killian with child sexual assault offenses against two complainants. The circuit court later dismissed the case due to the prosecutor’s misconduct. When the state recharged Killian with sexual offenses against the same complainants the circuit court dismissed the new case as a violation of double jeopardy. The court of appeals affirms.
Understanding the court of appeals’ decision requires some significant backstory, so this is an unusually long post.
The state initially charged Killian with one count of first degree sexual assault of a child (Britney) for a single act in August 2014 and one count of repeated sexual assault of another child (Ashley) between April 1994 and December 1999—though the complaint alleged the conduct began in January 1988. Before trial, the court granted the state’s motion to admit as other-acts evidence Ashley’s allegations for the entire 1988 to 1999 time period; it also granted, without objection from the state, Killian’s motion to exclude any further other-acts evidence. (¶¶5-7).
Two days before trial, however, the prosecutor moved to: 1) add an incest charge involving Ashley; and 2) expand the date range for the acts involving Britney from “on or about August 18, 2014” to “between January 2014” and the August date. The court denied the request to add the incest charge against Ashley because the request was made too late and was “extremely prejudicial.” (¶¶8-9). With respect to the expanded date range for Britney, Killian’s lawyer expressed concern that the state’s motivation was to make other uncharged acts admissible on the ground they occurred in that period. The prosecutor denied that, but did say that the information could be amended to conform to the proof at trial. The court granted the motion, but it also reaffirmed its earlier ruling barring evidence of acts other than the act of contact originally charged. (¶¶10-11).
In opening statement the prosecutor referred to other acts against Britney beyond the single charged act. (¶¶12-13). Before Britney testified the prosecutor asked the court to reconsider its other-acts ruling—a request the court denied because it “blindsided” the defense—and warned the court that “anything could happen” when Britney testified because she might refer to other acts. Though the prosecutor said he would try to limit her testimony to the single incident charged, he also said that if she couldn’t be controlled, “then I guess [defense counsel is] going to move for a mistrial.” (¶¶14-16). Sure enough, Britney testified about uncharged acts. (¶17). Killian’s lawyer moved for a mistrial. The circuit court granted the motion. (¶18).
Killian later filed a motion to dismiss for prosecutorial overreaching. (¶19). After an evidentiary hearing, the circuit court found the prosecutor believed that if he introduced the other-acts evidence, Killian would either: 1) not object, which would allow the jury to consider the previously barred evidence; or 2) object and move for a mistrial, which would allow the State to retry the case, add charges, better prepare for the prosecution, and give the state a better chance of conviction. The court concluded “the prosecutor’s actions were intentional” and “designed to create another chance to convict” and knowingly prejudicial to Killian. The court granted the motion to dismiss and barred the state from retrying the case, relying on State v. Jaimes, 2006 WI App 93, 292 Wis. 2d 656, 715 N.W.2d 669. (¶20).
The State did not appeal the dismissal. Instead, 18 months later it charged Killian in a new case with nine counts of first degree child sexual assault and incest of Ashley between 1990 and 1997 and one count of repeated sexual assault of Britney between June 2012 and August 17, 2014. Killian moved to dismiss on double jeopardy grounds, and the circuit court granted the motion. (¶¶21-22). It was right to do so, holds the court of appeals.
A successive prosecution is barred by double jeopardy if the previously dismissed charges and the new charges are the “same offenses,” which requires determining whether the old and new charges are identical in law and in fact. Blockburger v. U.S., 284 U.S. 299 (1932). Offenses are not identical in law if each requires proof of an element that the other does not. Offenses are not identical in fact when a conviction for each offense requires proof of an additional fact that convictions for the other offenses do not. Offenses are also not identical in fact if they are different in nature or separated in time. State v. Davison, 2003 WI 89, ¶24 n.11, 263 Wis. 2d 145, 666 N.W.2d 1; State v. Schultz, 2020 WI 24, ¶22, 390 Wis. 2d 570, 939 N.W.2d 519.
The state argues that the circuit court didn’t properly apply the Blockburger test because it looked beyond the pleadings and considered the arguments and evidence presented at the first trial. The state insists the court should have limited its analysis to a strict comparison of the pleadings in the first case against those in this case and concluded the second prosecution wasn’t for the “same offense” under the Blockburger test. (¶27). The court of appeals rejects this claim because under Schultz, the supreme court’s recent decision addressing a similar situation as this case:
the key question … is how to properly identify the offenses for which Killian was in jeopardy of being convicted during his first case. In other words, absent the mistrial caused by prosecutorial overreach, could Killian have been convicted in the prior case on all of the offenses at issue in the present case?
(¶27). The answer here is “yes.”
First, regarding the charges involving Britney, the state argues that the current allegations—that Killian had touched Britney’s breast and pubic mound and had pressed his erect penis against her body (¶21)—are significantly different in nature than the allegation in the first prosecution—that Killian had grabbed Britney’s buttocks (¶5)—and that the scope of jeopardy in the first prosecution did not include the other-acts evidence that the prosecutor elicited in violation of the circuit court’s order (¶38). The court rejects this claim:
¶39 The State’s arguments are untenable in the context of this case. …[I]n ascertaining whether Killian’s rights against double jeopardy have been violated by this second prosecution, we must examine the entire record of the first prosecution to determine the scope of jeopardy, including “all of the evidence, testimony, and arguments of the parties.” See Schultz, 390 Wis. 2d 570, ¶¶32, 55. In other words, our review is not limited to simply comparing the pleadings filed in each prosecution. See id.
¶40 The record of the first prosecution demonstrates that Killian was in jeopardy of being convicted for touching Britney’s breast, for touching her pubic mound, and for pressing his erect penis on her body. The criminal complaint in the first prosecution alleged that Killian had “sexual contact” with Britney, and it further alleged instances where Killian had grabbed Britney’s buttocks and touched her “boobies.” Shortly before voir dire, the prosecutor obtained the circuit court’s permission to increase the alleged period of the offense to that of between January 2014 and August 18, 2014.
¶41 Then, despite the circuit court’s pretrial ruling to exclude other-acts evidence that constituted additional alleged acts of sexual assault against Britney, the prosecutor nonetheless discussed multiple acts of sexual assault in his opening statement to the jury. …. Notably, the prosecutor never discussed in his opening statement that Killian had touched Britney’s buttocks—that is, the alleged crime for which Killian was actually charged.
¶42 Later during the trial, and outside the presence of the jury, the prosecutor asked to introduce evidence related to additional instances of sexual contact that Killian had with Britney. The prosecutor argued that Killian’s “course of conduct” was “on trial,” which the prosecutor said included “a breast rub,” “alleged humping,” “penis rubbing on her leg,” “a vagina rub,” and “a butt rub.” When the circuit court asked the prosecutor what action was charged, the prosecutor responded, “I figured you could take your pick. It’s either the touching the breast or the butt rub.” Although the circuit court reaffirmed its pretrial ruling prohibiting evidence of additional acts of sexual contact, the prosecutor later elicited testimony from Britney that Killian had rubbed her breasts and her vagina. Accordingly, the jury learned, either in the prosecutor’s opening statement or through Britney’s testimony, about each act now alleged in the current complaint.
¶43 The State’s argument on appeal also ignores the reality of what occurred in the first case. In particular, if Killian had not moved for a mistrial, the prosecutor could have requested to amend the Information under Wis. Stat. § 971.29(2) to include additional charges…. Importantly, such a risk was not merely an unlikely hypothetical. Rather, the prosecutor had repeatedly referenced the possibility of amending the Information to add new charges based on Britney’s testimony.
¶45 Had Killian not objected or requested a mistrial, the prosecutor was poised to elicit additional testimony regarding Killian rubbing his penis against Britney’s body—as mentioned in the prosecutor’s opening statement—and the prosecutor seemed intent to seek amendment of the Information to include each act supported by the evidence—as he repeatedly argued. Although the record is limited due to the trial ending early, those limitations occurred only as a result of the State’s egregious and intentional misconduct, as found by the circuit court. Despite its limitations, the record of the first prosecution sufficiently demonstrates that Killian was exposed to the risk of being convicted of first-degree sexual assault for touching Britney’s breast, for touching her pubic mound, and for rubbing his penis against her body. ….
The court also rejects the state’s astonishing claim that Killian should be judicially estopped from arguing that he was at risk of being convicted based on the other-acts alleged against Britney because he has taken inconsistent positions by arguing in the first case that the other-acts evidence was inadmissible and now arguing that he was at risk of conviction based on that evidence. (¶33). As the court explains, it was the state who referred to the other acts evidence and then warned it could move to amend the charges to conform to the proof; thus, Killian’s evolving position is in response to the state‘s intentional subversion of the other-acts exclusion order and its threat that, if the other acts came in, the charge would be amended to conform to the proof. “Accordingly, it would not be equitable to judicially estop Killian’s argument here.” (¶¶35-37). And that’s putting it mildly.
With respect to the charges involving Ashley, the state again argues they are factually or legally different from those in the first prosecution. (¶49). This argument fails for the same basic reasons the court spelled out in discussing the charges involving Britney:
¶50 The State’s arguments again consider only the charging documents and therefore fail to consider the entire record. This includes, in particular, the circuit court’s findings that the prosecutor intended to bring additional charges against Killian involving Ashley upon there being a mistrial in the first case. When looking at the pleadings alone, the State is correct that Counts 1 through 9 are either factually or legally different from the earlier charge related to Ashley. But again, the scope of jeopardy is not limited to the charges in the pleadings. See Schultz, 390 Wis. 2d 570, ¶¶32, 55.
¶51 The record as a whole demonstrates that Killian was in jeopardy in the first prosecution for the offenses now charged involving Ashley. Importantly, the criminal complaint in the first prosecution included allegations that Killian had sexually abused Ashley from about January 1988 to December 1999. ….
¶52 Before trial, the circuit court granted the State’s motion to admit other-acts evidence related to Killian’s sexual assaults of Ashley “between January 1988 and December 1999,” which would have allowed Ashley to testify about all of Killian’s acts of sexual abuse. Then, at trial, similar to what occurred with respect to Britney, the prosecutor informed the jury during his opening statement that they would hear “a horrible story of long term abuse by one’s father” and that Ashley told Britney’s mother and others that “her father started molesting her at about 6 or 7 years old and didn’t stop until she was about 17.”
¶54 …[T]he record also demonstrates that the State would have asked the circuit court to amend the Information to include at least one incest charge. Immediately before trial, the prosecutor had asked the court to amend the Information to include a charge of incest that allegedly occurred between April 1994 and December 1999. The court ultimately denied the State’s request to amend the complaint, but the prosecutor told the court “maybe the proof at the trial will be sufficient to convince the [c]ourt that more sexual intercourse occurred which would be a basis for this charge.” Although some of the current offenses charged are alleged to have occurred before 1994—which is earlier than the charge and proposed amendment in the first prosecution—the State was prepared and permitted to present testimony of all of Killian’s sexual assaults against Ashley between 1988 and 1999. Because the record establishes the prosecutor’s intention to seek to amend the charges to conform to the evidence or to add such charges upon a mistrial being declared, Killian was in jeopardy of being convicted of incest offenses and for offenses that occurred before 1994.
A note on the state’s argument that other-acts evidence does not place a defendant in jeopardy of being convicted for offenses arising from the other acts. For this it relies on United States v. Felix, 503 U.S. 378 (1992). While the court agrees with that proposition as a general matter, the state’s conduct here went beyond “simply introduc[ing]” such other acts into evidence. Instead, the State attempted to amend the complaint before trial to include a count of incest involving Ashley and, through expansion of the charging period, other acts of contact involving Britney and explicitly talked about moving to amend the charges to conform to the proof once the evidence was in. Thus, the state’s conduct in the first case amounted to the active prosecution of Killian for the charges in the second case and therefore Killian was put at risk of being found guilty in the first case, and recharging them violates his right not to be put twice in jeopardy. (¶¶46-47, 55).