State v. Calhoun, S

• Decision Date: 06 March 1975
• Docket Number: No. S,S
• Citation: 226 N.W.2d 504,67 Wis.2d 204
• Court: Wisconsin Supreme Court
• Parties: STATE of Wisconsin, Appellant, v. Carl Arthur CALHOUN, Respondent. tate 163 (1974).

Page 504

226 N.W.2d 504

67 Wis.2d 204

STATE of Wisconsin, Appellant, v. Carl Arthur CALHOUN, Respondent.

No. State 163 (1974).

Supreme Court of Wisconsin.

March 6, 1975.

Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Dist. Atty. by Stephen Jacobs, Asst. Dist. Atty., Milwaukee, for appellant.

Shellow & Shellow by James M. Shellow and David P. Jenkins, Milwaukee, for respondent.

ROBERT W. HANSEN, Justice.

While the appeal is from the judgment holding that this defendant cannot be retried, the challenge is to the exercise of discretion by the trial court in granting defendant's motion for mistrial and directing that defendant be retried. In reviewing the facts and circumstances surrounding the trial court's granting of defendant's motion for mistrial, we deal (1) with the consequences of a less than complete compliance with a demand for disclosure under Wisconsin law, and (2) with the applicability of double jeopardy provisions of the state ¹ and federal ² constitutions, as controlled and determined by the decisions of the United States Supreme Court as to mistrial-with-retrial.

TRIAL COURT'S DECLARING A MISTRIAL.

Where the claim is one of double jeopardy under a mistrial-with-retrial order, the United States Supreme Court has held that such cases '. . . turn on the partuclar facts and thus escape meaningful categorization. . . .' ³ The high court makes clear that inquiry as to the facts includes determining whether '. . . in light of the State's established rules of criminal procedure, the trial judge's declaration of a mistrial was not an abuse of discretion. . . .' ⁴ This is particularly so in cases, as the one now before us, in which a mistrial has been declared prior to verdict. ⁵

Three possibilities exist as to the propriety and consequences of the trial court here granting defendant's motion for a mistrial. The first, urged by the defendant, is that the trial court acted properly in doing what it did, but did not go far enough. Having declared a mistrial, the trial court was here required to accompany the granting of defendant's motion with an order dismissing the charges. The second possibility, urged by the state on appeal, is that the trial court was entitled to declare a mistrial-with-retrial, and that the judge to whom the case was assigned went too far in finding retrial barred by a double jeopardization. The third possibility, suggested by the state's brief on appeal, is that the trial court went too far and that a mistrial should not have been declared on the ground and record before the trial court. Making an independent review of the facts and circumstances, we consider all three possibilities.

Four days before the trial began, defense counsel served on the district attorney's office a demand for disclosure of any evidence in the possession of the state '. . . tending to exculpate the defendant of the commission of this offense, or to minimize his complicity in it.' At the time of the demand, the district attorney assigned to the case had in his possession police notes or summaries regarding: (1) A statement by Ronald Calhoun, son of the defendant, that the victim had reached into his pocket and pulled out a gun immediately before the fatal shooting; and (2) a statement by John Calhoun, also a son of the defendant, to the same effect; and (3) a statement by Rose Wesley, niece or cousin or friend of defendant, that she saw the victim reach into his pocket prior to being shot by the defendant. With self-defense claimed, these statements were exculpatory in nature. In his affidavit in support of the state's motion to vacate the dismissal, the assistant prosecutor stated that, acting in good faith, he did not furnish these statements to the defense believing that the statements of the two sons and the niece were available to the defendant and that they would say to their father or uncle no less than they said to the police on his behalf. It was the prosecutor's interpretation of the law in this state that he was not required to furnish exculpatory information to the defendant that was not in the exclusive possession of the state and was equally available to the defense.

On the issue of whether a demand for disclosure reaches exculpatory material that is not in the exclusive possession of the state, the trial court did not refer to Wisconsin's discovery and inspection statute. ⁶ The notice of demand served by the defendant did not refer to such statute, and the demand appears to go beyond what is to be disclosed under the statute. ⁷ Prior to enactment of the statute, this court distinguished between 'discovery' and 'disclosure.' ⁸ As to both, it has not been held that the legislature did not codify and implement by the statute the full mandate of Nelson v. State, ⁹ which in turn followed the mandate of the United States Supreme Court in Brady v. Maryland. ¹⁰ We do not here reach or rule on whether the statute controls as to both 'discovery' and 'disclosure.' However, we would not label as 'prosecutorial misconduct' a conclusion of law by an assistant district attorney that the discovery statute was applicable and did not require the furnishing, on demand, of exculpatory material not in the exclusive possession of the state and not relating to statements made by the defendant. ¹¹

As to whether exculpatory material, not in the exclusive possession of the state, must be turned over on demand for disclosure, the applicability of the state discovery statute would make no difference. Under that statute, in regard to its witness list exchange requirement, in Irby v. State, ¹² this court stated the rule to be that, even to secure a recess or continuance for failure to comply with the statute, it is to be established that '. . . the defendant be surprised and prejudiced by the testimony. . . .' ¹³ Prior to the enactment of the discovery statute, applying the Brady v. Maryland mandate, this court in State v. Cole, ¹⁴ dealing with a prosecutorial failure to disclose information concerning a gun and the kind of car involved in an arrest, found no error in the failure to disclose and stated: 'Certainly defendant was aware of the kind of car and gun involved in her arrest. Therefore, this information was not 'in the exclusive possession of the state.' . . .' ¹⁵ At the constitutional level, the exclusive possession prerequisite to the duty to disclose was thus recognized. In Nelson itself, this court discussed cases dealing with '. . . the responsibility of the state on respect to coming forward with exculpatory evidence within its exclusive control and the necessity of a prior request therefor. . . .' ¹⁶ Also, in Nelson, we held that '. . . the duty of the state to disclose exculpatory evidence has not been constitutionally extended to require full disclosure of all evidence helpful to the accused . . ..' ¹⁷ In support of the holding, we cited, and later in the opinion quoted from Giglio v. United States, ¹⁸ the United States Supreme Court holding that: '. . . We do not, however, automatically require a new trial whenever 'a combing of the prosecutors' files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict. . . . " ¹⁹ Under these holdings, we hold that it was not error for the assistant district attorney to conclude that the duty to disclose upon demand did not include, on statutory or constitutional grounds, the furnishing of exculpatory material not in the exclusive possession of the state.

As to the factual issue of whether the information not here disclosed was or was not in the exclusive possession of the state, we turn to the record. That does not take long for there is very nearly no record at all on the issue presented. What there is limits itself to an announcement, a motion and a statement by defense counsel. Prior to taking the testimony of the state's last witness, during a recess, defense counsel announced that he had learned of a matter '. . . which prompts a motion.' He requested and received court permission to make the motion after the state's case was completed. Defense counsel then stated that he had learned that three summaries of statements made by witnesses to the police had not been furnished by the state to the defense, and made defendant's motion for mistrial. He alleged that the statements were exculpatory in nature and that he could not obtain the information in any other way. The trial court examined the statements, found them to contain exculpatory material and granted the motion for mistrial.

No supporting affidavit was offered and no testimony was taken as to the manner or circumstances under which the defense learned of the information in the police summaries containing statements made by the two sons and the niece or cousin or friend of the defendant. No inquiry was made as to whether, prior to trial, the sons or niece had told defendant or his counsel what they told the police following the fatal shooting. This record does not satisfactorily exclude the possibility that the sons and niece had not furnished to the defendant, not only the same information given to the police as to what happened, but also the fact that they had earlier given the police that same information. Certainly they were completely available for such questions being asked and such answers given. ²⁰ The two teenage sons lived with the defendant at the family home. The niece or cousin or friend was a frequent visitor to the defendant's home. One son, John, testified for his father at the hearing on reduction of bail and it was stated that the other son, Ronald, was in the courtroom. Both sons and the niece or cousin or friend, the record shows, were present at the preliminary hearing in this case. Dealing with the duty to disclose exculpatory information, the trial court made no finding as to the information here involved being in the exclusive possession of the prosecution. On our review of the record, we...