529 N.W.2d 923 (Wis.App. 1995), 94-0926, State v. Bunch

Docket Nº94-0926-CR.
Citation529 N.W.2d 923, 191 Wis.2d 501
Opinion JudgeThe opinion of the court was delivered by: Nettesheim
Party NameSTATE of Wisconsin, Plaintiff-Respondent, v. John D. BUNCH, Defendant-Appellant. [d]
AttorneyOn behalf of the defendant-appellant, the cause was submitted on the brief of Sandra J. Zenor of Kaiser Law Offices of Hartland.
Case DateFebruary 01, 1995
CourtCourt of Appeals of Wisconsin

Page 923

529 N.W.2d 923 (Wis.App. 1995)

191 Wis.2d 501

STATE of Wisconsin, Plaintiff-Respondent,

v.

John D. BUNCH, Defendant-Appellant. [d]

No. 94-0926-CR.

Court of Appeals of Wisconsin.

February 1, 1995

Submitted on Briefs Nov. 25, 1994.

Opinion Released Feb. 1, 1995.

Page 924

[191 Wis.2d 504] On behalf of the defendant-appellant, the cause was submitted on the brief of Sandra J. Zenor of Kaiser Law Offices of Hartland.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Atty. Gen., and William L. Gansner, Asst. Atty. Gen.

Before ANDERSON, P.J., and NETTESHEIM and SNYDER, JJ.

[191 Wis.2d 505] NETTESHEIM, Judge.

John D. Bunch appeals from a judgment of conviction for first-degree sexual assault of a child. Bunch argues that the trial court erred by: (1) denying his motion for mistrial, and (2) excluding evidence of a prior sexual assault against the victim by a third party. We conclude that the trial court properly exercised its discretion as to both rulings. We affirm the judgment of conviction.

FACTS

Bunch was charged with four counts of first-degree sexual assault of a seven-year-old child contrary to § 948.02, STATS. The matter went to jury trial. During the first day of trial, the State completed its case-in-chief, save for the reading of a short stipulation to the jury. Before the trial resumed on the following morning, a man approached Bunch in a courthouse hallway and threw a cup of hot coffee in his face. Bunch was treated by courthouse emergency medical personnel and then transported to the emergency room of a local hospital where he was further treated. He was released the same morning and returned to the courthouse. The proceedings resumed at 11:02 a.m., outside the presence of the jury.

At that time, Bunch's attorney requested a mistrial. In support, Bunch's attorney stated that: (1) Bunch was sedated and under anesthesia; (2) Bunch was in extreme pain and discomfort and that his eyes were burning; (3) Bunch had informed his attorney that he had a headache and his medication was not helping; and (4) Bunch was told by his doctor to go home, lie down, rest and put a cold compress on his eyes to relieve the pain and swelling as soon as he could.

[191 Wis.2d 506] The trial court inquired whether Bunch's attorney had a medical report concerning Bunch's condition. The attorney stated that he did not because the event was an emergency

Page 925

situation. The court also inquired whether Bunch intended to testify. Bunch's attorney declined to conclusively answer this question. The trial court then denied the mistrial request, noting that the State's case was nearly completed and that a mistrial would require the seven-year-old victim to again testify at a second trial. At 1:35 p.m., the evidentiary phase of the jury trial resumed.

The State completed its case by reading the short stipulation. Bunch then presented his defense. Bunch did not testify. As part of his evidence, he proffered the testimony of a third party admitting that he had previously sexually assaulted the young victim. The trial court excluded this evidence on relevancy grounds.

We will recite additional facts as we address the appellate issues.

DISCUSSION

  1. Motion for Mistrial

    The decision whether to grant a motion for a mistrial lies within the sound discretion of the trial court. State v. Pankow, 144 Wis.2d 23, 47, 422 N.W.2d 913, 921 (Ct.App.1988). The trial court must determine, in light of the whole proceeding, whether the basis for the mistrial request is sufficiently prejudicial to warrant a new trial. Id. We will reverse the trial court's mistrial ruling only on a clear showing of an erroneous exercise of discretion. Id. A trial court properly exercises its discretion when it has examined the relevant facts, applied the proper standard of law, and engaged in a [191 Wis.2d 507] rational decision-making process. Schultz v. Darlington Mut. Ins. Co., 181 Wis.2d 646, 656, 511 N.W.2d 879, 883 (1994).

    The deference which we accord the trial court's mistrial ruling depends on the reason for the request. See State v. Barthels, 174 Wis.2d 173, 184, 495 N.W.2d 341, 346 (1993). When the basis for a defendant's mistrial request is the State's overreaching or laxness, we give the trial court's ruling strict scrutiny out of concern for the defendant's double jeopardy rights. Id.; see also State v. Copening, 100 Wis.2d 700, 710 & n. 3, 303 N.W.2d 821, 827 (1981). In such a situation, a mistrial is allowed only if there is a "manifest necessity" for termination of the trial. See Barthels, 174 Wis.2d at 183, 495 N.W.2d at 346; Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978).

    However, where the defendant seeks a mistrial on grounds not related to the State's alleged laxness or overreaching, we give the trial court's ruling "great deference." Barthels, 174 Wis.2d at 184, 495 N.W.2d at 346. Nor do we apply the "manifest necessity" test. See Copening, 100 Wis.2d at 710 & n. 3, 303 N.W.2d at 827.

    The situation here obviously comes under the latter scenario because the grounds for the request were totally unrelated to any conduct by the State. As such, Bunch's double jeopardy rights are not implicated, and we give the trial court's ruling "great deference." Barthels, 174 Wis.2d at 184, 495 N.W.2d at 346.

    We set out at some length the relevant portions of the mistrial request and the trial court's ruling in the accompanying footnote. 1 Based on this record, Bunch maintains

    Page 926

    [191 Wis.2d 508] that "he could not assist in his own defense nor aid in the direct examination of witnesses." He also [191 Wis.2d 509] contends that his condition precluded him from testifying in his own defense.

    The threshold problem with Bunch's appellate argument is that he presumes that his attorney's argument regarding Bunch's ability to proceed was established fact. It is obvious, however, that the trial court was not willing to accept Bunch's attorney's representations at face value. Thus, the court inquired as to whether Bunch had a medical report to support his contentions and whether he intended to testify. We must bear in mind that the trial court was in a position to view Bunch's condition and demeanor and to measure those observations against counsel's representations. We do not have that advantage from this appellate perspective.

    The questions posed by Bunch's mistrial request were factual: what was Bunch's physical condition and how would it bear upon his ability to proceed with the trial? Obviously, the trial court was in a better position [191 Wis.2d 510] than us to resolve this factual question. As one commentator has observed:

    There can be little question that appellate courts are "ill-suited to consider the variables that go into fact-finding." The deference accorded to the trial court's presence at the reception of testimony extends to reasonable inferences drawn from the credible evidence. The trial court has a "superior opportunity to get 'the feel of the case.' " The deference may be seen rooted in whatever those intangibles are that elude print (notably the print of the record on appeal) and that make up the "climate" of the trial.

    ....

    ... [A] trial tribunal's better position depends upon its having experienced or "sensed" the trial itself.

    Ronald R. Hofer, Standards of Review--Looking Beyond the Labels, 74 MARQ.L.REV. 231, 240 (1991) (quoted sources omitted; footnotes omitted).

    While we usually apply the trial court's "better position" rationale to factual questions concerning the demeanor and credibility of witnesses, see, e.g., State v. Pepin, 110 Wis.2d 431, 435-36, 328 N.W.2d 898, 900 (Ct.App.1982), the rationale also pertains to other factual events which occur during the course of a trial court proceeding. Thus, in State v. Hagen, 181 Wis.2d 934, 949, 512 N.W.2d 180, 185 (Ct.App.1994), we noted the trial court's "advantage over us in assessing the impact and effect of improper attorney argument on the outcome of the proceedings." And, in Schultz, 181 Wis.2d at 657, 511 N.W.2d at 883, the supreme court used similar rationale when affirming a ruling granting a mistrial based on improper attorney

    Page 927

    [191 Wis.2d 511] remarks made during the evidentiary phase of the proceedings. The court said:

    In a variety of decisions involving review of circuit courts' discretionary actions, this court has repeatedly stated that a major reason circuit courts are given discretionary authority over matters that involve evaluation of the circumstances surrounding a trial is that the circuit court judge is present at trial and is therefore better able to understand what occurred.... In exercising discretion on whether to grant a mistrial, the circuit court...

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117 practice notes
  • 580 N.W.2d 340 (Wis.App. 1998), 97-1248, State v. Givens
    • United States
    • Wisconsin Court of Appeals of Wisconsin
    • 25 Febrero 1998
    ...in those lab reports." Whether to grant a motion for a mistrial is within the trial court's discretion. See State v. Bunch, 191 Wis.2d 501, 506, 529 N.W.2d 923, 925 (Ct.App.1995). The trial court must determine, in light of the entire proceeding, whether the basis for the mistrial moti......
  • 600 N.W.2d 247 (Wis.App. 1998), 98-0294, Ellsworth v. Schelbrock
    • United States
    • Wisconsin Court of Appeals of Wisconsin
    • 27 Julio 1999
    ...injuries. As we have stated, the decision whether to grant a mistrial lies within the trial court's sound discretion. State v. Bunch, 191 Wis.2d 501, 506, 529 N.W.2d 923, 925 (Ct.App.1995). The trial court must determine, in light of the entire proceeding, whether the basis for a mistrial i......
  • 670 N.W.2d 557 (Wis.App. 2003), 02-2350, State v. Charles F.G.
    • United States
    • Wisconsin Court of Appeals of Wisconsin
    • 12 Agosto 2003
    ...discretion by denying the mistrial motion. ¶ 18 Whether to grant a mistrial is within the trial court's discretion. See State v. Bunch, 191 Wis.2d 501, 506, 529 N.W.2d 923 (Ct.App.1995). The trial court must assess, in light of the whole proceeding, whether the basis for the mistrial reques......
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    • Wisconsin Court of Appeals of Wisconsin
    • 8 Abril 2015
    ...and should have resulted in a mistrial. [¶23] Whether to grant a mistrial is within the trial court's discretion. See State v. Bunch, 191 Wis.2d 501, 506, 529 N.W.2d 923 (Ct. App. 1995). The trial court must assess, in light of the whole proceeding, whether the basis for the mistrial reques......
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  • 562 N.W.2d 926 (Wis.App. 1997), 95-3280, State v. Armstrong
    • United States
    • Wisconsin Court of Appeals of Wisconsin
    • 26 Febrero 1997
    ...in light of the whole proceeding, whether the claimed error was sufficiently prejudicial to warrant a new trial. See State v. Bunch, 191 Wis.2d 501, 506, 529 N.W.2d 923, 925 (Ct.App.1995). We view the prosecutor's comment to be innocuous in light of the principal issues of the trial. The co......
  • 580 N.W.2d 340 (Wis.App. 1998), 97-1248, State v. Givens
    • United States
    • Wisconsin Court of Appeals of Wisconsin
    • 25 Febrero 1998
    ...in those lab reports." Whether to grant a motion for a mistrial is within the trial court's discretion. See State v. Bunch, 191 Wis.2d 501, 506, 529 N.W.2d 923, 925 (Ct.App.1995). The trial court must determine, in light of the entire proceeding, whether the basis for the mistrial moti......
  • 600 N.W.2d 247 (Wis.App. 1998), 98-0294, Ellsworth v. Schelbrock
    • United States
    • Wisconsin Court of Appeals of Wisconsin
    • 27 Julio 1999
    ...injuries. As we have stated, the decision whether to grant a mistrial lies within the trial court's sound discretion. State v. Bunch, 191 Wis.2d 501, 506, 529 N.W.2d 923, 925 (Ct.App.1995). The trial court must determine, in light of the entire proceeding, whether the basis for a mistrial i......
  • 670 N.W.2d 557 (Wis.App. 2003), 02-2350, State v. Charles F.G.
    • United States
    • Wisconsin Court of Appeals of Wisconsin
    • 12 Agosto 2003
    ...discretion by denying the mistrial motion. ¶ 18 Whether to grant a mistrial is within the trial court's discretion. See State v. Bunch, 191 Wis.2d 501, 506, 529 N.W.2d 923 (Ct.App.1995). The trial court must assess, in light of the whole proceeding, whether the basis for the mistrial reques......
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