State v. Barthels
| Decision Date | 15 January 1992 |
| Docket Number | No. 91-1361-CR,91-1361-CR |
| Citation | 480 N.W.2d 814,166 Wis.2d 876 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, d v. Julie BARTHELS, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Atty. Gen. and Thomas J. Balistreri, Asst. Atty. Gen.
Before NETTESHEIM, P.J., and BROWN and ANDERSON, JJ.
Julie Barthels appeals from a judgment of conviction for sexual assault against a child contrary to sec. 940.225(1)(d), Stats. (1987-88), 1 and an order denying postconviction relief. She raises two issues on appeal. First, she contends that the trial court's granting of the state's mistrial request after the first jury was sworn violated her constitutional protection against double jeopardy. Second, Barthels contends that some members of the second jury were exposed to extraneous prejudicial information regarding another pending criminal charge against her involving the same victim as in this case. We agree with Barthels' arguments. We reverse the judgment of conviction. We will recite the relevant facts as we discuss each issue.
This issue concerns the role of Dr. Basil Jackson as a prosecution witness. On August 7, 1989, Barthels was admitted to St. Francis Hospital in Milwaukee for "chronic severe depressive disease." Dr. Jackson was Barthels' treating psychiatrist during this period of hospitalization. While hospitalized, Barthels revealed to a psychotherapist that she felt guilty about having sexually and physically abused M.A.T., the child victim in this case. Barthels and her husband were the foster parents of M.A.T. when the abuse occurred.
The psychotherapist reported Barthels' admissions to Dr. Jackson, who then confronted Barthels with this information. Barthels admitted the occurrences, and she and Dr. Jackson thereafter regularly discussed the matter. Eventually, the hospital staff prevailed upon Barthels to sign a release form which permitted the hospital to disclose Barthels' admissions to the Department of Health and Social Services. This revelation eventually led to the charges in this case. 2
By a motion in limine, Barthels sought exclusion of her admissions to Dr. Jackson and others as violative of her physician-patient privilege. Specifically, Barthels contended that her consent for the release of her medical records was not knowingly and voluntarily given in light of her hospitalization and medications. The state saw Dr. Jackson as an important witness on this question and the state subpoenaed Dr. Jackson to the trial. 3
On July 9, 1990, two days before the jury trial commenced, the trial court addressed a number of pretrial motions from both the state and the defense. However, the court did not fully resolve all of these at this hearing and, at the conclusion of the hearing, the court indicated that it would revisit the unresolved matters at the commencement of the trial, two days later. 4
Dr. Jackson arrived at the courthouse on the day of trial at 7:00 a.m. The trial court and the parties first resolved the remaining pretrial issues. A jury was then selected and was sworn in at 10:40 a.m. Without any further proceedings, the jury was then excused for lunch. Apparently Dr. Jackson and the prosecutor had no direct communication during this morning. Per his Upon the jury's return after lunch, the assistant district attorney reported to the trial court that Dr. Jackson had departed "to leave for out of state." The state expressed its belief that "without Dr. Jackson we cannot sustain a conviction." The state requested a mistrial or a continuance. Barthels responded that she preferred a dismissal with prejudice. The trial court denied Barthels' motion for dismissal and granted the state's motion for a mistrial, noting that "the State had made its attempt to have the witness present." Accordingly, the trial court discharged the jury and adjourned the trial to October 2, 1990.
earlier statement that he could not remain beyond 10:30 a.m., Dr. Jackson left the trial.
Prior to the adjourned trial date, Barthels sought dismissal of the information on double jeopardy grounds. Dr. Jackson testified at this hearing. He stated that on the day of the original trial, he was scheduled to take a noon plane out of Milwaukee to travel to Tennessee where he had committed to teach a graduate school seminar. Dr. Jackson stated that some weeks before the trial date he had advised the assistant district attorney of this conflict and that he had to leave the trial no later than 10:30 a.m. Dr. Jackson testified that the assistant district attorney advised that "he would see what he could do as early as possible." Dr. Jackson also testified that the assistant district attorney told him that "he would do his best to get me out of there at 10:30 which he knew was the latest time that I could catch my plane." At another point, Dr. Jackson testified that the assistant district attorney "indicated that in his judgment, he didn't give me a guarantee, in his judgment that I would be finished by 10 o'clock because he planned to call me first."
In a written decision, the trial court denied Barthels' motion for dismissal. The court concluded that "the State had taken all steps necessary to assure the presence of the witness and he still did not appear." The court also concluded that Dr. Jackson was an indispensable witness. Finally, the court concluded that "[t]o dismiss this action because of the doctor's failure to appear, without the complicity of the State, would clearly defeat the ends of justice."
Although the matter is not in dispute, we elaborate somewhat on the fact and significance that jeopardy attached to Barthels when the jury was sworn. Section 972.07(2), Stats.; Crist v. Bretz, 437 U.S. 28, 37, 98 S.Ct. 2156, 2161-62, 57 L.Ed.2d 24 (1978); State v. Fosse, 144 Wis.2d 700, 704, 424 N.W.2d 725, 727 (Ct.App.1988). A defendant has a valuable and protected interest in concluding his or her trial before the first tribunal selected to determine a verdict. Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 829, 54 L.Ed.2d 717 (1978); State v. Copening, 100 Wis.2d 700, 710, 303 N.W.2d 821, 827 (1981). The United States Supreme Court has addressed the policy underlying this constitutional principle:
[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him [or her] to embarrassment, expenses and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). Therefore, Barthels' constitutional protection against double jeopardy was implicated by the trial court's ruling discharging the sworn jury and permitting the state to try Barthels before a second jury.
The state contends that Barthels did not sufficiently or properly object to the state's request for a mistrial or continuance. We disagree.
When the state asked for a mistrial or continuance, Barthels' counsel responded that he was "responding off the cuff to a motion that I had not had any time to look at." Regardless, counsel expressed his The state contends that Barthels' request for dismissal with prejudice was not sufficient to constitute an objection to the state's request for a mistrial or continuance. An objection must be made with specificity so the trial court and the adversary are given an opportunity to remedy any defect. See Champlain v. State, 53 Wis.2d 751, 758, 193 N.W.2d 868, 873 (1972). Stated differently, a party must register an objection with sufficient prominence such that the court understands what it is asked to rule upon. See State v. Salter, 118 Wis.2d 67, 79, 346 N.W.2d 318, 324 (Ct.App.1984). However, where the grounds for objection are obvious, as they are here, the specific ground of objection is not important. Champlain, 53 Wis.2d at 758, 193 N.W.2d at 873.
wish to have the matter dismissed with prejudice.
Under the facts of this case, we conclude that the state's argument places form over substance. It was apparent that the state believed that it could not prove its case without Dr. Jackson's testimony. Thus, since the state could not prove its case, Barthels asked for the very relief she would have requested had the matter proceeded without Dr. Jackson's testimony--dismissal with prejudice. This request, we conclude, was equivalent to a request that the matter proceed before the jury which had been selected and sworn with the same expected result.
Moreover, the record does not even remotely suggest that the trial court or the state saw Barthels as stipulating or acquiescing to a mistrial or a continuance. A fair reading of the record reveals that Barthels wanted dismissal, not a mistrial or continuance. The context of the court's remarks when making its ruling reveals that it saw the state's request for a mistrial or continuance as a matter in dispute. We conclude that Barthels sufficiently preserved her double jeopardy claim.
A trial court's declaration of a mistrial is addressed to the court's discretion. Copening, 100 Wis.2d at 710, 303 N.W.2d at 826. On appeal, we ordinarily give such a ruling considerable deference. Id. at 709, 303 N.W.2d at 826. However, where the mistrial motion is made because the prosecution is unprepared for trial, appellate review becomes markedly stricter. Id. at 711, 303 N.W.2d at 827.
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