State v. Copening
| Decision Date | 31 March 1981 |
| Docket Number | No. 79-246-CR,79-246-CR |
| Citation | 100 Wis.2d 700,303 N.W.2d 821 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Roy W. COPENING, a/k/a Amos Wade, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
Jerome S. Schmidt, Asst. Atty. Gen. (argued) and Bronson C. La Follette, Atty. Gen., on brief, for plaintiff-respondent-petitioner.
William J. Tyroler, Asst. State Public Defender, for defendant-appellant.
The defendant, Roy W. Copening, was charged in the Circuit Court for Kenosha County with conspiracy to commit theft by fraud, in violation of secs. 943.20(1)(d) and (3)(b) and 939.31, Stats., by making false representations to banks. Upon the motion of the defendant, the trial court declared a mistrial. Subsequently, the defendant moved for dismissal of the charges because the scheduled retrial would place him again in jeopardy for the same offense. Although the defendant recognized that, ordinarily, a declaration of a mistrial upon the motion of a defendant does not bar retrial, he asserted that the facts here came within a narrow exception to that usual rule. The defendant contended that he was obliged to move for mistrial because of prosecutorial overreaching and, hence, was entitled to be discharged. The trial court denied the motion for dismissal; and the defendant was reprosecuted, found guilty of the charged crime, and sentenced to four years in the Wisconsin State Prison.
On appeal, the court of appeals reversed the judgment of conviction and held, contrary to the determination of the trial court, that the conduct of the prosecutor which induced the defendant's motion for mistrial constituted overreaching in that it was intended to prejudice the defendant. 1 It accordingly concluded that the double jeopardy clause of the United States Constitution and the analogous clause of the Wisconsin Constitution barred reprosecution. 2 The state has petitioned for review, contending that the court of appeals erred in its conclusion that the prosecutor's action in this case constituted prosecutorial overreaching. We hold that the court of appeals erred in its decision and accordingly reverse.
The record shows that the first jury trial commenced on May 30, 1978. Twice during the proceedings on May 31, 1978, the defendant moved for a mistrial. The second motion was granted. It appears that, in the course of the state's case on May 30, 1978, two witnesses, bank employees, testified in respect to transactions at separate banks. At the commencement of proceedings on May 31, 1978, the second day of the trial, the defendant moved for a mistrial because the prosecutor had failed to comply with the provisions of sec. 971.24, Stats., in that prior statements of these state witnesses in possession of the prosecution were not turned over to the defense prior to their direct testimony. Sec. 971.24(1) provides:
The court denied the mistrial motion. It agreed with defense counsel's contention that the prosecution's failure to comply with the statute was error because its explicit purpose was to afford opposition counsel the opportunity to challenge inconsistencies between trial testimony and earlier statements. Under the circumstances, the court concluded, however, that the error was not prejudicial and that it appeared to be an oversight. Moreover, the prior statement of one witness appeared to be consistent with her testimony, and the other document did not appear to be a statement as contemplated in sec. 971.24(1), Stats. The court reasoned that, because the prosecutor ultimately provided the defendant with the documents, although not sua sponte and prior to testimony as required, the court could remedy the error by offering defense counsel the opportunity to recall the witnesses for further cross-examination.
In the colloquy on this matter, the court noted, however, that, had the prosecutor not appropriately supplied the statements until after trial, mistrial or the grant of a new trail would be necessary. The prosecutor claimed the statute was not mandatory and that he was not required to sua sponte turn over the statements prior to examining a witness. He stated that the practice in Kenosha county did not require such production of statements prior to direct examination and that, in any event, defense counsel must request the statements. The trial court admonished the prosecutor that such was not the practice in Kenosha county and that the defendant was not required to request the statement. The trial court said:
On this appeal the attorney general does not contend that the prosecuting attorney correctly stated the requirements of sec. 971.24(1), Stats. Rather, there is complete acquiescence in the trial court's determination that it was the responsibility of the prosecutor sua sponte to turn over prior statements before commencing direct examination.
Despite these extensive warnings of the trial court, the prosecutor committed the identical error later on that very day. The state called Officer Heroux, a detective on the police force of the city of Kenosha. He was questioned about his investigation of the alleged check-passing scheme and his first meeting with the defendant. Detective Heroux identified the defendant in court as being a suspect to whom he had spoken during the course of the investigation. When the prosecutor completed his direct examination of the officer, defense counsel asked to approach the bench, and a conference was there held. The court then stated, "Let the record show (defense) counsel was just handed copies of the witness' police reports." Out of the presence of the jury, another extended reported colloquy was held, which resulted in the trial court's grant of a mistrial. This interchange developed the fact that the prosecutor had prior written statements of Officer Heroux and that they were not handed over to the defense counsel until after direct-examination was completed. The court re-emphasized its position, stated earlier in the day, that written statements were required to be produced before the witness said one word on the stand. The prosecutor, Robert Zapf, stated that the only reason he called the officer was to avoid having him called as a defense witness. The following then ensued:
Without permitting further explanation at that point, the court declared a recess. After the recess, the court out of the presence of the jury asked Zapf whether he had any explanation why the statements were not turned over to the defendant prior to Officer Heroux' testimony. Zapf argued, as he did before, that he felt that courtroom procedures in Kenosha county did not require the production of police reports and that there was nothing in the record to show that the witness relied on those reports. The court then inquired:
"Mr. Zapf ... did you intentionally not turn those reports over to the defense counsel when this witness went on the stand, one simple question, yes or no."
After a number of non-responsive statements by the prosecutor, the court interrupted, saying:
Finally, Zapf stated that he did not turn over the statement of the police officer because he had only one set of the police reports in the file. This was an apparent explanation of the fact that he needed the report during his own direct examination. He then said:
"I gave them to counsel with the proviso that upon his completion of cross-examination and review of them, they be returned to the State's file."
The court then asked whether there were any motions. Alfred Decker, defense counsel, then moved for mistrial. The court then reread the provisions of sec. 971.24, Stats., and pointed out:
The court then again made the finding that the prosecutor failed to comply with the provisions of the statute. Zapf continued to protest. He resisted the granting of the mistrial, saying that he would accept the responsibility but that he, Zapf, should be punished and not the system of criminal justice. The court then pointed out:
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