State v. Bunch

• Decision Date: 01 February 1995
• Docket Number: No. 94-0926-CR,94-0926-CR
• Citation: 529 N.W.2d 923,191 Wis.2d 501
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. John D. BUNCH, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 923

529 N.W.2d 923

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.

Submitted on Briefs Nov. 25, 1994.

Opinion Released Feb. 1, 1995.

Opinion Filed Feb. 1, 1995.

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.

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.

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 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.

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.

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 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 that "he could not assist in his own defense nor aid in the direct examination of witnesses." He also 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 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 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 is in a particularly good "on-the-spot" position to evaluate factors such as a statement's "likely impact or effect upon the jury."

Id. (quoted source omitted; emphasis added).

Here, the trial court was not provided with any formal evidence in support of Bunch's mistrial request. Instead, the "evidence" was more informal: the unsworn argument of Bunch's attorney and the physical appearance and demeanor of Bunch himself. Regardless, the trial court was in a superior position over us to determine whether counsel's unsworn representations were borne out by the court's intangible, "on-the-spot" perception of Bunch. Given this record and the trial court's advantage over us, we respect the court's discretionary call on this matter.

Viewed in isolation, Bunch's explanation as to why he did not have a medical report at the ready was eminently reasonable since the event was an emergency. But viewed "in light of the whole proceeding," Pankow, 144 Wis.2d at 47, 422 N.W.2d at 921, and particularly in light of the trial court's ability to measure the attorney's claims against the court's own perceptions of Bunch, the court's inquiry about a medical report is understandable. In short, the court was skeptical about Bunch's claim and the court was soliciting some verification of the claim.

While Bunch understandably did not have that verification at hand when he made his mistrial...