State v. DuFrame

• Decision Date: 13 April 1982
• Docket Number: No. 81-2001-CR,81-2001-CR
• Citation: 107 Wis.2d 300,320 N.W.2d 210
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Steven E. DuFRAME, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 210

320 N.W.2d 210

107 Wis.2d 300

STATE of Wisconsin, Plaintiff-Respondent, v. Steven E. DuFRAME, Defendant-Appellant.

No. 81-2001-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 24, 1982.

Opinion Released April 13, 1982.

Opinion Filed April 13, 1982.

Michael F. Hupy of Hausmann, McNally & Hupy, S. C., Milwaukee, for defendant-appellant.

Bronson C. La Follette, Atty. Gen., and Pamela Magee-Heilprin, Asst. Atty. Gen., for plaintiff-respondent.

Before VOSS, P. J., and BROWN and SCOTT, JJ.

VOSS, Presiding Judge.

Steven E. DuFrame appeals from the court order denying his motion to dismiss on double jeopardy grounds. Both parties agree that the sole issue before this court is whether retrial of the appellant is barred by double jeopardy where his first trial ended in a mistrial ordered sua sponte by the trial court. This court holds that the principle of double jeopardy does not bar the retrial.

On April 27, 1980, the automobile DuFrame was driving struck and killed an eighteen-year-old woman. As a result of the accident, he was charged with homicide by intoxicated use of a motor vehicle in violation of sec. 940.09, Stats.

DuFrame was tried by a jury. After deliberating for approximately ten hours, at least four of the members of the jury felt that there was not a reasonable prospect of reaching a unanimous verdict. The trial court sua sponte found that the jury was hopelessly deadlocked. DuFrame then moved to dismiss on double jeopardy grounds, and his motion was denied. This court granted leave to appeal the trial court's ruling.

The defendant argues that the trial court failed to make adequate findings to support the decision to sua sponte declare a mistrial. He correctly points out that a "manifest necessity" must be established to support the court's decision. However, contrary to the defendant's assertion, the record is sufficient to support the mistrial declaration.

Both the federal and state constitutions provide that a defendant may not be placed twice in jeopardy for the same offense. U.S.Const. amend. V; Wis.Const. art. I, § 8. See also State v. Calhoun, 67 Wis.2d 204, 226 N.W.2d 504 (1974). Both parties agree that jeopardy attached in this case because the jury had been selected and sworn. Sec. 972.07, Stats. Although jeopardy attached, the trial did not end in either a conviction or an acquittal. "Whether further prosecution is permissible depends on the facts and circumstances of the case." State v. Jenich, 94 Wis.2d 74, 83-84, 288 N.W.2d 114, 118 (1980).

The criteria to be used in evaluating a trial court's sua sponte mistrial declaration were set forth in dicta in State v. Copening, 100 Wis.2d 700, 303 N.W.2d 821 (1981). There the court stated:

[I]t is not infrequent that a trial court discerns sua sponte the necessity for a mistrial. When the trial court on its own volition orders a mistrial without the defendant's request or consent, or even over defendant's objection, the Fifth Amendment may, but does not necessarily, bar reprosecution. This situation is viewed in sharp distinction from that which ordinarily results from a mistrial on the defendant's motion, where, as we have stated above, the defendant has consciously elected to have a case tried in another forum. However, where the impetus for the mistrial comes from the court, the defendant without his acquiescence loses his right to be tried in the original forum. Thus, reprosecution will be barred unless there is a "manifest necessity" for the mistrial. United States v. Perez, 22 U.S. (9 Wheaton) 579 (1824). In that case, Justice Story enunciated what has come to be called the "manifest necessity" test. He said:

"... Courts of justice [may] discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated." (P. 580)

The trial court's exercise of discretion in making this sua sponte determination is ordinarily entitled to considerable deference on review by an appellate court. Gori v. United States, 367 U.S. 364 [81 S.Ct. 1523, 6 L.Ed.2d 901] (1961). This is because the usual prejudicial development resulting in mistrial is of a type whose effect is best assessed by the trial court's first-hand observation. It is appropriately left to the exercise of trial court discretion; and on review the test is whether, under all the facts and circumstances, giving deference to the trial court's first-hand knowledge, it was reasonable to grant a mistrial under the "manifest necessity" rule. It has been pointed out that a stricter standard might deter trial courts from granting mistrials, even when under the circumstance it appears appropriate, because of the fear that an appellate court might too readily disagree and reverse, which result would bar retrial. Arizona v. Washington, 434 U.S. 497 [98 S.Ct. 824, 54 L.Ed.2d 717] (1978). [Footnote omitted.]

Id. at 709-10, 303 N.W.2d at 826-27.

The supreme court went on to set forth the standards by which the "manifest necessity" test is to be judged:

The fact, however, that considerable deference normally is to be given to the trial court's determination of "manifest necessity" does not mean that this determination is not of great importance. The defendant has a valued interest in obtaining a verdict from the first tribunal before which he appears. Thus, the trial court's exercise of discretion must be scrupulous and a mistrial, absent a motion by the defendant, should only be granted in the event of "manifest necessity" or where required by the ends of public justice. United States v. Jorn, 400 U.S. 470 [91 S.Ct. 547, 27 L.Ed.2d 543] (1971), reiterating the admonition of Perez, supra. See also, Illinois v. Somerville, 410 U.S. 458 [93 S.Ct. 1066, 35 L.Ed.2d 425] (1973). Thus, whether retrial after a mistrial declared without the defendant's request or consent is permissible under the double jeopardy clause depends on "whether 'there [was] a manifest necessity for the [mistrial],' or the ends of public justice would otherwise [have been] defeated." United States v. Dinitz, supra [424 U.S. 600] at 607 [96 S.Ct. 1075 at 1079, 47 L.Ed.2d 267]. Accordingly, if these tests are not met, the bar of double jeopardy applies, and the defendant may not be retried. See also, State v. Kendall, 94 Wis.2d 63, 72, 287 N.W.2d 758 (1980); State v. Harrell, 85 Wis.2d 331, 334, 270 N.W.2d 428 (Ct.App.1978). Most recently, the United States Supreme Court has stated that the "manifest necessity" test requires not just necessity but a "high degree" thereof and precludes a trial court from ordering a mistrial irrationally or irresponsibly. The supreme court also emphasized that trial courts considering a mistrial declaration sua sponte or on the motion of the prosecutor should consider other alternatives before depriving a defendant of the valued right to keep his...