On Point

State v. Alvin M. Moore, 2006 WI App 61, PFR filed 3/21/06
For Moore: Donna L. Hintze, SPD, Madison Appellate

Issue/Holding:

¶15      Charges are multiplicitous if they charge a single criminal offense in more than one count. State v. Grayson, 172 Wis. 2d 156, 159, 493 N.W.2d 23 (1992). Claims of multiplicity are analyzed using a two-prong test that requires examination of: (1) “whether the charged offenses are identical in law and fact;” and (2) if they are not, “whether the legislature intended the multiple offenses to be brought as a single count.”State v. Anderson, 219 Wis. 2d 739, 746, 580 N.W.2d 329 (1998).¶16      If, applying the first step of the analysis, a court determines that the charges are identical in law and fact, then the charges are multiplicitous and violate constitutional double jeopardy protections. State v. Trawitzki, 2001 WI 77, ¶¶20-21, 244 Wis. 2d 523, 628 N.W.2d 801. If the charges are not identical in law and fact, no constitutional violation exists, but the court must still determine if the legislature intended multiple punishments for the same offenses. Id., ¶¶20-22. …

¶17      [W]hether the legislature intended that multiple offenses that are different in fact be brought as a single count … is conducted de novo.

¶18      “[W]e begin with the presumption that the legislature intended multiple punishments. This presumption may only be rebutted by a clear indication to the contrary.” Id. at 751 (citations omitted). “We use four factors to determine legislative intent in a multiplicity analysis: 1) statutory language; 2) legislative history and context; 3) the nature of the proscribed conduct; and 4) the appropriateness of multiple punishment.” Id.

State v. Jose M. Jaimes, 2006 WI App 93, PFR filed 5/11/06
For Jaimes: Joseph L. Sommers

Issue/Holding: Retrial is ordinarily not barred when the defendant successfully requests mistrial, except where prosecutorial overreaching, comprised of the following elements, has been shown: the prosecutor’s has “ a culpable state of mind in the nature of an awareness that his activity would be prejudicial to the defendant”; and, the prosecutor’s action was designed to provoke mistrial, ¶¶7-8. The prosecutor’s intent is a factual finding, reviewed deferentially, ¶10 (citing State v. Rovaugn Hill, 2000 WI App 259, ¶12).

State v. Jose M. Jaimes, 2006 WI App 93, PFR filed 5/11/06
For Jaimes: Joseph L. Sommers

Issue/Holding:

¶11      Next, Jaimes argues that the prosecutor’s responsibility to avoid provoking a mistrial must extend to the law enforcement officers who testify at trial …. In effect, Jaimes argues that the officer’s testimony must be imputed to the prosecutor, and when an officer testifies about explicitly excluded evidence, it is binding on the prosecutor so as to attach double jeopardy.¶12      In response to this argument, the State acknowledges that no Wisconsin court has addressed this argument. It urges us to follow other jurisdictions’ holding that a police officer’s testimony creating a basis for the mistrial—in the absence of evidence of collusion by the prosecutor’s office intended to provoke the defendant to move for a mistrial—does not constitute prosecutorial overreaching to bar a retrial. We agree …

Citing with approval, People v. Walker, 720 N.E.2d 297, 301 (Ill. App. Ct. 1999), ¶13, and several other cases, ¶13 n. 1. The court also notes: “The test for overreaching is meant to be an onerous one as many trials admittedly will have some evidentiary error, and the remedies of striking the testimony, admonishing the prosecutor or witness or issuing a cautionary instruction typically are viewed as sufficient to remove prejudice to a criminal defendant,” ¶14. There was no “evidence that the prosecutor colluded with the officer to provoke the defendant into moving for a mistrial,” and so retrial wasn’t barred, ¶15.

State v. Jamale A. Bonds, 2006 WI 83, reversing unpublished decision
For Bonds: Jeremy C. Perri, Diana M. Felsmann, SPD, Milwaukee Appellate

Issue: Whether CCAP entries can satisfy the State’s burden of proving a repeater allegation.

Holding: Although the rules of evidence do not apply to proof of a repeater and a prior conviction need not be proved by certification,

(¶46) a CCAP report, by its own terms, is of questionable accuracy. It is not the official record of a criminal case, as the clerks of court for each county are the officials responsible for those records. Wis. Stat. § 59.40(2)(c).  And, a CCAP report is not a copy of the actual judgment of conviction. Yet, it was offered to prove, beyond a reasonable doubt, that Bonds was convicted of felony forgery on a particular date. The disclaimer with which a CCAP report is conditioned causes us to have reasonable doubt about its accuracy.

…

¶49      Accordingly, we are persuaded that the reasoning of Saunders cannot be analogously applied to a CCAP report.  CCAP records are not like uncertified copies of judgments in that CCAP reports do not purport to be identical to the court records, as photocopies do. The agreement to which all CCAP users are asked to adhere specifically warns that CCAP provides no warranty of accuracy for the data in its reports. We cannot, under those circumstances, consider the contents of a CCAP report to rise to the level of reliability sufficient to establish prima facie proof that a defendant has a prior qualifying conviction. In addition, Bonds did not stipulate to using a CCAP report as the “mode of proof” for habitual criminality. ^[11] He asserted before the circuit court that the State had not proved habitual criminality beyond a reasonable doubt; he has continued to do so throughout the appellate process. Therefore, we conclude that by relying solely ^[12] on the CCAP report, and without other evidence that could prove Bonds’s repeater status beyond a reasonable doubt, the State did not offer sufficient evidence to constitute prima facie proof that Bonds was an habitual criminal. Accordingly, the State did not meet its burden to prove habitual criminality.

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^[11]  The concurrence/dissent is incorrect to assert that the repeater allegation is proved because of Bonds’s “admission” in regard to a qualifying conviction. Concurrence/Dissent, ¶111. Although we do not agree that Bonds admitted a prior felony conviction, we point out that in order for a defendant to admit a prior conviction for purposes of proving habitual criminality, the defendant’s admission must contain specific reference to the date of the conviction and any period of incarceration. State v. Zimmerman, 185 Wis.  2d 549, 557, 518 N.W.2d 303 (Ct. App. 1994). Bonds made no statement that could establish the date of a prior felony conviction.
 ^[12]  We do not exclude the use of a CCAP report as a tool to facilitate a review with the defendant at sentencing of defendant’s past history of criminal convictions.

State v. Otis G. Mattox, 2006 WI App 110
For Mattox: Scott D. Obernberger

Issue: Whether grant of mistrial over objection, after defense counsel was held in contempt for supposedly violating a court order with respect to questioning a witness, was manifestly necessary so as to permit retrial.

Holding:

¶19      As noted, the chief concerns of the trial court in continuing the trial were the problems occasioned by Schnake being found in contempt, and the concern that charges of vindictiveness would be lodged against the trial court and the court would have to bend over backwards for Mattox’s attorney in order to avoid a charge of impartiality and unfairness. However, the trial court was mistaken about the contempt, and we have determined that any concern about its reputation did not constitute manifest necessity. ^[8]Thus, we are left with only one conclusion—no manifest necessity existed requiring a mistrial over the objections of both the State and Mattox. Consequently, the trial court erroneously exercised its discretion in terminating the trial because the trial court erred as a matter of law in its finding of contempt, and no other stated reasons rose to the level of a manifest necessity. Under these circumstances, Mattox’s exercise of his constitutional rights prevents a retrial. Accordingly, we reverse.

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 ^[8]   While we acknowledge that other reasons were proffered later by the trial court for its decision, we are satisfied that the analysis given at the time of the mistrial trumps later explanations, particularly when the new explanations contradict what was said at the time the mistrial was declared.

At the time mistrial was granted, the trial court gave four reasons, ¶8: Mattox would have an ineffectiveness claim, evidenced by counsel’s “contemptuous behavior”; the trial court otherwise would have to bend over backward to rule in Mattox’s favor, else risk being seen as vindictive; accusations of unfairness would reflect poorly on the court’s reputation; soldiering on wouldn’t be in anyone’s best interest. On the face of it, these reasons seem make-weight, but the court of appeals’ discussion makes the result more fact-specific than one might like:

¶15      … We are mindful that the trial court felt it was being placed in an awkward situation. However, the trial was close to a conclusion. The last of the State’s witnesses was on the stand when the mistrial was announced. It appears as though the only remaining witness was Mattox himself. The trial court could have easily completed the trial without having to “bend over backwards” for Mattox’s attorney or be exposed to a charge of vindictiveness. Indeed, while it may have been unpleasant to preside over the trial under the existing conditions, we cannot conclude that being perceived as “looking bad” is a manifest necessity. Although there is one sentence in the three pages of the transcript explaining the trial court’s decision to call a mistrial, where the trial court stated that the mistrial was in “Mattox’s best interest,” the trial court never explained why this was true. ^[7] Thus, our review of the record made at the time of the mistrial reveals no manifest necessity.

And, of course, the earlier reversal of the contempt finding kicked the legs out from under the mistrial. (Earlier, unpublished decision: Schnake v. Circuit Ct. for Milw. County, No. 04-2471, 5/17/05.) The court of appeals did reject (see fn. 8) the trial court’s months’-later rationalization that mistrial was necessary to avoid prejudice to Mattox. But to a large extent this rejection isn’t based on the idea that a trial court can’t come up with previously unexpressed notions, but rather that in this instance those notions were both unsupported in the record and also inconsistent with remarks made contemporaneous to the mistrial:

 ¶18      The trial court’s later statement that jury prejudice against Mattox resulting from his attorney’s conduct was the underpinning for the mistrial, is inconsistent with its contemporaneous statements. At the time the mistrial was ordered, there was no mention of the jury having been prejudiced by Schnake’s actions. We note that most of Schnake’s transgressions were done outside the jurors’ presence. Further, there is no evidence here supporting the trial court’s later conclusion. Unlike the situation existing in United States v. Spears, 89 F. Supp. 2d 891 (W.D. Mich. 2000), where the trial court sua spontedeclared a mistrial after the trial court noticed signs of juror exasperation with the defense attorney by “raising their eyes, shaking their heads negatively,” and individualvoir dire revealed bias against the defendant due to his counsel’s actions, see id. at 895, here we have no indication of juror bias. Indeed, the trial court commented at the time that, “[t]his case could very easily turn out to be an acquittal,” and earlier stated that “he may very well not get convicted….” Thus, it would appear that earlier, contrary to the court’s later comments, the trial court did not think that the jurors had been negatively influenced by Schnake’s behavior.

All of which is to say that the facts probably place this case at the margins of manifest necessity caselaw.

State v. Jamale A. Bonds, 2006 WI 83, reversing unpublished decision
For Bonds: Jeremy C. Perri, Diana M. Felsmann, SPD, Milwaukee Appellate

Issue: Whether post-plea amendment of the repeater allegation to change its basis prejudiced the defendant hence was improper.

Holding:

¶31      It is the State’s burden to prove that Bonds was not prejudiced and Wis. Stat. § 973.12(1) was satisfied through notice of sufficient allegations of the basis for charging habitual criminality. Stynes, 262 Wis.  2d 335, ¶10. When we apply the principles from Stynes, Gerard, Campbell and Wilks to the facts before us, we conclude that Bonds was not prejudiced by the State’s post-conviction amendment of the original allegations in the complaint on which the State based its assertion of habitual criminality. First, there is no dispute that Bonds’s prior convictions made him a repeater. Second, there is no dispute that Bonds was alleged to be a repeater before he pled, in compliance with § 973.12. … Third, Bonds suffered no prejudice when at sentencing, after he was convicted by a jury, the State amended the factual basis to a felony conviction that was sufficient to satisfy Wis. Stat. § 939.62, rather than relying on the three misdemeanor convictions listed in the criminal complaint.  The amendment did not prevent Bonds from meaningfully assessing the potential maximum penalty to which he could be subjected. …

¶32      … In addition, the “prejudice” that Bonds complains of is the adverse effect on a potential defense to the repeater allegation. Campbell concludes this is insufficient to set aside an amendment to a repeater allegation because it does not affect a defendant’s ability to assess the potential maximum sentence to which he may be subjected. Campbell, 201 Wis. 2d at 793.  We agree with Campbell.

State v. Xavier J. Rockette (II), 2006 WI App 103, PFR filed 6/29/06 ( prior unrelated appeal involving same defendant, different case: 2005 WI App 205)
For Rockette: Timothy A. Provis

Issue/Holding: Failure to move for mistrial waives objection to closing argument, ¶28, citing State v. Dale H. Davidson, 2000 WI 91, ¶86, 236 Wis. 2d 537, 613 N.W.2d 606. Although “plain” or “fundamental” error may not be waived, the test is whether the trial was rendered so unfair as to deny due process, ¶29. In this instance, the claimed error (prosecutorial comments exhorting jury to consider whether the State would give a witness “consideration … without any regard for the truthfulness of the statements,” ¶16) “were not so egregious as to constitute plain error”: “The prosecutor’s comments were limited in scope and, following objections, the prosecutor reminded the jurors that they, and not she, were the arbiters of witness credibility. The court also issued a curative instruction to the jury. Rockette made no motion for mistrial after the court addressed the objections,” ¶30.

Just goes to show how very difficult it is to obtain reversal on the basis of closing argument. There cannot be the slightest doubt that the prosecutorial comments were way over the line, violating the fundamental rule against vouching. As the court of appeals itself said, not so long ago, State v. Steven T. Smith, 2003 WI App 234, ¶23 (finding reversible error in a “closing argument [that] unfairly referenced matters not in the record and vouched for the credibility of the police witnesses”):

¶23. The line between permissible and impermissible final argument is not easy to follow and is charted by the peculiar circumstances of each trial. Whether the prosecutor’s conduct during closing argument affected the fairness of the trial is determined by viewing the statements in the context of the total trial. State v. Wolff, 171 Wis. 2d 161, 167-68, 491 N.W.2d 498 (Ct. App. 1992). The line of demarcation to which we refer “is thus drawn where the prosecutor goes beyond reasoning from the evidence to a conclusion of guilt and instead suggests that the jury arrive at a verdict by considering factors other than the evidence.” State v. Draize, 88 Wis. 2d 445, 454, 276 N.W.2d 784 (1979). “Argument on matters not in evidence is improper.” State v. Albright, 98 Wis. 2d 663, 676, 298 N.W.2d 196 (Ct. App. 1980).

It would have been nice, then, had the court at least paid lip service to this principle of improper prosecutorial vouching. Perhaps the evidence was overwhelming, or the comments indeed isolated enough that the curative instruction sufficed to overcome the error—but there ought to been some recognition by the court that the comments clearly were improper. If, that is, the court aims to deter a repetition.