Day v. State, 75-685-CR

• Decision Date: 29 March 1977
• Docket Number: No. 75-685-CR,75-685-CR
• Citation: 76 Wis.2d 588,251 N.W.2d 811
• Parties: Carl DAY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 811

251 N.W.2d 811

76 Wis.2d 588

Carl DAY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 75-685-CR.

Supreme Court of Wisconsin.

Submitted on Briefs March 3, 1977.

Decided March 29, 1977.

Carl Day, plaintiff in error (hereinafter defendant), was convicted after a trial by jury of burglary and theft, contrary to secs. 943.10(1)(a), 943.20(1) (a) and 943.20(3)(b), Stats. This conviction was later vacated after a hearing on a motion for post-conviction relief under sec. 974.06, Stats., when it was disclosed that at the trial and at the post-conviction hearing Tom Hull, Chief Deputy Sheriff of Marquette County and prosecution witness, had committed perjury by testifying that he had obtained a fingerprint matching the defendant's from a television set which was allegedly stolen during the crime. In an affidavit, Hull confessed to this perjury and stated he actually had obtained the matching fingerprint from a beer can found in the defendant's car. Upon the vacation of defendant's judgment of conviction, he was ordered released "forthwith from custody without bail pending a new trial."

A new trial was had before a jury, and the defendant was again convicted. Both prior to trial and after conviction, the trial court denied the defendant's motion to dismiss the prosecution on the ground that a retrial violated the double jeopardy clauses of the United States and Wisconsin Constitutions. The defendant seeks review of his reconviction.

Howard B. Eisenberg, State Public Defender, for plaintiff in error.

Bronson C. La Follette, Atty. Gen., and William L. Gansner, Asst. Atty. Gen., for defendant in error.

HANLEY, Justice.

The sole issue presented is whether the reprosecution of the defendant placed him in double jeopardy.

Defendant contends his retrial, which resulted in a conviction, placed him twice in jeopardy for the same offense, contrary to the fifth amendment of the United States Constitution and sec. 8, art. I of the Wisconsin Constitution. This court has noted that the double jeopardy provisions of both the state and federal constitutions are identical in scope and purpose, and thus has accepted the decisions of the United States Supreme Court, where applicable, as controlling. State v. Calhoun, 67 Wis.2d 204, 220, 226 N.W.2d 504 (1975).

It is a well-established principle that the double jeopardy provisions do not preclude the state's retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction. United States v. Dinitz, 424 U.S. 600, 610, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). This court has also recognized that a defendant who succeeds in getting his first conviction set aside cannot argue successfully that the double jeopardy provisions bar a second prosecution. State v. Detco, 66 Wis.2d 95, 104, 223 N.W.2d 859 (1974); State v. Meier, 60 Wis.2d 452, 461-62, 210 N.W.2d 685 (1973).

The rule permitting reprosecution after a defendant's conviction is set aside "reflects the judgment that the defendant's double jeopardy interests, however defined, do not go so far as to compel society to so mobilize its decision-making resources so that it will be prepared to assure the defendant a single proceeding free from harmful governmental or judicial error." United States v. Jorn, supra, 400 U.S. at 484, 91 S.Ct. at 556.

Also, this court has adopted a doctrine of waiver where a defendant requests a new trial. "Implicit in the request for a new trial must of necessity be a waiver of the objection to the new trial on the ground of double jeopardy." State v. Schmear, 28 Wis.2d 126, 135, 135 N.W.2d 842, 848 (1965).

The application of the above principles to the instant case, where the defendant sought a new trial upon post-conviction motion and succeeded, compels the conclusion that he was not placed twice in jeopardy by reprosecution for these offenses.

Defendant's counsel, however, argues that his case is special, and the general rule should not apply. His claim is that this case falls within a narrow exception to the general rule of permitting retrial after a mistrial is granted upon the defendant's request or with his consent. This exception was discussed by this court in State v. Calhoun, supra, 67 Wis.2d at 222-26, 226 N.W.2d 504. Simply stated, the general rule prevails that where a defendant requests or consents to a mistrial, double jeopardy principles do not bar the state from retrying him. United States v. Jorn, supra, 400 U.S. at 485, 91 S.Ct. 547. An exception to this rule exists, however, where a defendant's mistrial motion is necessitated by judicial or prosecutorial impropriety designed to avoid an acquittal. United States v. Jorn, supra at 485, n. 12, 91 S.Ct. 547; United States v. Tateo, 377 U.S. 463, 467-68, n. 3, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964). Thus, under this exception, the principle of double jeopardy protects a defendant from reprosecution where prosecutorial or judicial actions are intended to provoke mistrial requests, the granting of which affords the prosecution a more favorable opportunity to convict the defendant. United States v. Dinitz, supra, 424 U.S. at 611, 96 S.Ct. 1075.

Counsel for the defendant in the instant case claims that the perjury on the part of a critical state witness was prosecutorial conduct "designed to avoid an acquittal" and thus, since the conviction was set aside on this ground, reprosecution is barred. We think this argument has two basic flaws, and therefore we do not agree.

In the first place, the rule which the defendant seeks to impose has evolved in relation to retrial after mistrial, while the instant case does not involve the...