State v. Barthels

Decision Date08 October 1992
Docket NumberNo. 91-1361-CR,91-1361-CR
Citation174 Wis.2d 173,495 N.W.2d 341
PartiesSTATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Julie BARTHELS, Defendant-Appellant. . Oral Argument
CourtWisconsin Supreme Court

For the plaintiff-respondent-petitioner the cause was argued by Thomas J. Balistreri, Asst. Atty. Gen., with whom on the briefs was James E. Doyle, Atty. Gen.

For the defendant-appellant there was a brief and oral argument by Steven D. Phillips, Asst. State Public Defender.

HEFFERNAN, Chief Justice.

This is a review of a published decision of the court of appeals 1 which reversed a judgment of the circuit court convicting Julie Barthels in a second trial following a mistrial granted on the motion of the state, over the objection of defendant, when the prosecutor, after the swearing of the jury, was unable to produce a key medical witness.

The question is whether the second trial constituted double jeopardy in violation of the defendant's rights or whether the act of granting the mistrial was justified by "manifest necessity" or for the reason that the ends of public justice would otherwise be defeated, thereby permitting a second trial.

The factual posture of the issue is whether, applying "strict scrutiny" to a motion for mistrial made by the state, there was a "manifest necessity" for a mistrial when the prosecutor knew that his key witness likely would not be able to appear at trial, and yet the prosecutor failed to so inform the court until after the jury was sworn and the defendant was ready for trial. Further facts will appear hereafter.

We conclude that there was no "manifest necessity" of a mistrial reasonably demonstrated and that the defendant was, over her objection, tried for a second time and was convicted in violation of the guarantees against double jeopardy of both the United States and Wisconsin Constitutions. Accordingly, we affirm the court of appeals. 2

Barthels was charged with sexual assault of her foster child. 3 The prosecution's case depended heavily upon the testimony of Dr. Basil Jackson, Barthels' attending psychiatrist at St. Francis Hospital in Milwaukee, with whom Barthels had openly discussed her sexual and physical abuse of the child. Barthels sought by a motion in limine to exclude Dr. Jackson's testimony because it would violate her physician-patient privilege. At Dr. Jackson's suggestion, the state issued a subpoena to protect the doctor from Barthels' claim of privilege and to "make it easier for [his] patient." 4

Several days prior to trial, Dr. Jackson informed the assistant district attorney that he would have to finish testifying by 10:30 a.m. because he and his wife were leaving for Tennessee in the afternoon. 5 Recognizing the potential conflict, the doctor suggested either a different trial date or a taped deposition. The prosecutor promised to do what he could to accommodate Dr. Jackson's schedule but offered neither a guarantee to Dr. Jackson nor a response proposed by the doctor's alternatives.

The court heard pretrial motions on July 9, 1992, two days before the commencement of trial. Matters such as jury selection and determining the admissibility of Dr. Jackson's testimony had been postponed until the morning of trial. Noting that some time would be required to dispose of these remaining pretrial matters, the prosecutor informed the court that Dr. Jackson would "be going to Tennessee immediately after his testimony," thereby necessitating early and prompt court proceedings on the morning of trial. He did not, however, alert the court to Dr. Jackson's statement that he should have to finish his testimony by 10:30 a.m. Neither did he at that time request an adjournment to accommodate the doctor's scheduling conflict. 6

On July 11, Dr. Jackson arrived at the courthouse at 7:00 a.m., the remaining pretrial motions were heard in chambers beginning at 8:30 a.m., and the jury was selected and sworn by 10:40 a.m. The assistant district attorney did not know that Dr. Jackson left the courthouse at 10:30 a.m. Immediately following the swearing-in of the jury, he learned that his witness had left and he then notified the court. Judge Van Akkeren excused the jury for lunch.

During the lunch break, the prosecutor reviewed the evaluation team's records from St. Francis Hospital and the waiver statement made as an offer of proof on the basis of Dr. Jackson's testimony. The prosecution ultimately concluded that confrontation requirements would not enable the state to sustain a conviction absent Dr. Jackson's testimony. Accordingly, the following exchange occurred after the break:

Mr. DeCecco: [A]t this time, Your Honor, we would respectfully request the court to grant either a continuance or a mistrial in the matter due to the fact that an essential witness who had been subpoenaed in good faith ... who did appear here earlier today, and who despite ... requests to remain to testify did indeed leave before his testimony.... We feel we cannot proceed and respectfully request the court to grant the State's motion.

The Court: Mr. Rostollan, any comment?

Mr. Rostollan: Well Your Honor, obviously we're in a difficult situation. We have gotten to this particular point. I appreciate the State's position.... I don't know how--obviously I would like this matter dismissed. I don't know if that dismissal at this point in time is a mistrial with prejudice or whatever along those lines. I guess I am sort of responding off the cuff to a motion that I had not had any time to look at.

Following this discussion and because of Dr. Jackson's absence, Judge Van Akkeren declared a mistrial, stating that "the State ha[s] made its attempt to have the witness present. The witness is not here and the court is not going to hold the State, call the State to task for that." The court discharged the jury. The court when granting the mistrial did not refer to the manifest necessity test that is appropriate to the granting or denial of a mistrial on motion of the prosecution. Nor did it consider the state's suggestion for a continuance. The court then set a date for trial. Prior to the date set, Barthels moved for dismissal of the information on grounds of double jeopardy. 7 The motion was denied by opinion and order on September 27, 1990.

Judge Van Akkeren later denied Barthels' motion for a continuance of the trial for the purpose of filing a petition for a discretionary appeal pursuant to sec. 808.03(2), Stats. After determining that the inconvenience occasioned by the adjournment outweighed the risk of unnecessarily subjecting Barthels to a second trial, the trial court affirmed its initial decision to grant the State's request for a mistrial. The court relied on three factors in reaching its initial decision: (1) the state had followed all necessary steps to ensure Dr. Jackson's presence; (2) the state would not be unfairly advantaged by a mistrial because Barthels had not yet disclosed her defense strategy; and (3) absent the state's complicity in the mistrial, dismissing the action would defeat the ends of justice.

The parties proceeded to trial. Barthels was convicted and sentenced to eight years in prison. The conviction was reversed by the court of appeals because it held the second trial unconstitutionally subjected Barthels to double jeopardy.

In construing Wisconsin's prohibition against double jeopardy, this court is guided by the rulings of the United States Supreme Court. State v. Calhoun, 67 Wis.2d 204, 220, 226 N.W.2d 504 (1975); Harrell v. State, 88 Wis.2d 546, 554, 277 N.W.2d 462 (Ct.App.1979). We therefore begin our discussion by noting that Court's assessment of the underlying purpose for the prohibition, cautioning that:

[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 to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well an 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). See also State v. Comstock, 168 Wis.2d 915, 937, 485 N.W.2d 354 (1992) (Citing cases). To protect against prosecutorial harassment and to further public policies favoring judicial finality, jeopardy attaches as soon as the defendant has been put at risk of penalty or harm, namely: (1) when a witness is sworn in a trial to the court without a jury, or (2) when the selection of the jury has been completed and the jury sworn in a jury trial. Comstock, 168 Wis.2d at 937, 485 N.W.2d 354.

The parties here agree that jeopardy attached when the jury was sworn at 10:40 a.m. on the morning of July 11. While this fact normally would preclude the state from pursuing a second trial against Barthels, the Supreme Court has permitted limited exceptions to the general prohibition against double jeopardy when the trial is terminated before reaching a final resolution on the merits but the state can demonstrate a "manifest necessity" for asking for a mistrial. Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978); State v. Copening, 100 Wis.2d 700, 709, 303 N.W.2d 821 (1981).

It is reasoned that criminal trials are often complicated and lengthy affairs during which numerous technical or otherwise unforeseen eventualities may arise that necessitate declaring a mistrial. Accordingly, the Court has recognized that a mechanical application of the rule against double jeopardy would unduly burden the state in its efforts to effectively prosecute crime and would "be too high a price to pay for the added assurance of personal security and freedom from governmental harassment which such a mechanical rule would provide." United States v. Jorn, 400 U.S. 470, 479-480, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971). See also Wheeler v. State, 87 Wis.2d 626, 630, 275 N.W.2d...

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