State v. Green

• Docket Number: 2021AP267-CR
• Decision Date: 29 June 2023
• Parties: State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Mitchell D. Green, Defendant-Appellant.
• Court: Wisconsin Supreme Court

1

2023 WI 57

State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Mitchell D. Green, Defendant-Appellant.

No. 2021AP267-CR

Supreme Court of Wisconsin

June 29, 2023

SUBMITTED ON BRIEFS ORAL ARGUMENT: December 1, 2022

REVIEW of a decision of the Court of Appeals.

Circuit Court Milwaukee County L.C. No. 2019CF914 David L Borowski Judge

For the plaintiff-respondent-petitioner, there were briefs filed by John A. Blimling, assistant attorney general, with whom on the briefs was Joshua L. Kaul, attorney general. There was an oral argument by John A. Blimling, assistant attorney general.

For the defendant-appellant, there was a brief filed by John T Wasielewski and Wasielewski &Erickson, Milwaukee. There was an oral argument by John T. Wasielewski.

JUSTICES: REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ROGGENSACK, and KAROFSKY, JJ., joined.

REBECCA GRASSL BRADLEY, J.

¶1 The State charged Mitchell D. Green with trafficking of a child, a class C felony, among other offenses. See Wis.Stat. § 948.051(1) (2017-18).^[1] At trial, the victim, S.A.B., testified that Green had driven her to a hotel in Milwaukee, where she was forced to engage in a sex act. After S.A.B. testified, Green called as a witness his cousin, Jonathon Cousin, who testified that he, not Green, had driven S.A.B. and another man, J.R., to the hotel.

¶2 After a recess for lunch, the trial court held a hearing to address the State's concerns regarding Cousin's testimony. Specifically, the State argued that Green presented a third-party perpetrator defense through Cousin's testimony, without notifying the State or seeking a ruling from the court regarding the admissibility of that evidence under State v. Denny, 120 Wis.2d 614, 357 N.W.2d 12 (Ct. App. 1984) (conditioning admissibility of third-party perpetrator evidence on a showing of a motive, opportunity, and direct connection between the third party and the crime charged). Green denied offering Cousin's testimony for that purpose. The court concluded Cousin's testimony was Denny evidence and therefore should not have been presented to the jury without the defense notifying the State in advance and the court ruling on its admissibility. Because the jury heard that evidence without either precondition being satisfied, the court determined a mistrial was necessary.

¶3 Green filed a motion to dismiss the case with prejudice, arguing retrial would violate his right against double jeopardy under the Fifth Amendment to the United States Constitution as incorporated against the States by the Fourteenth Amendment. After the trial court denied Green's motion, Green filed a motion for reconsideration, which the court also denied. Green appealed, and the court of appeals reversed. State v. Green, No. 2021AP267-CR, unpublished slip op. (Wis. Ct. App. March 22, 2022).

¶4 Before this court, the State argues retrial would not violate Green's right against double jeopardy because the trial court exercised sound discretion in deciding manifest necessity justified a mistrial. We agree; accordingly, we reverse the decision of the court of appeals.

I. BACKGROUND

¶5 Prior to trial, Green filed a witness list naming Cousin. Green's counsel had a written statement from Cousin, but the State did not demand its production. In August 2019, the State filed pretrial motions in limine, asking the circuit court to prohibit Green "from introducing any other-acts evidence involving a third-party perpetrator, unless and until defendant satisfies his burden and such evidence is ruled admissible by the court[.]" Green did not object to the State's motions. At a final pretrial hearing, the court acknowledged the "State had filed their motion in limine[.]" Milwaukee Circuit Court Judge Janet Protasiewicz presided over the case until the day of trial. Nothing in the record indicates the court ruled on the State's motion in limine before the trial scheduled to commence on January 27, 2020.

¶6 On the day of trial, Judge Protasiewicz spun^[2] the case to Judge David Borowski. Three witnesses testified: S.A.B.; Gerardo Orozco, a Milwaukee police officer; and Cousin. S.A.B. was the prosecution's first witness. S.A.B. testified she "was sex trafficked" between October 30, 2018 and December 4, 2018. S.A.B. explained that she was forced to be part of a sex trafficking ring and that Green--who S.A.B. knew as Money Mitch- -was integral to the operation.

¶7 S.A.B. testified specifically to Green's involvement in one trafficking incident alleged to have occurred during the fall of 2018: "I got a call. It was a date. Money Mitch was at JR's house, and I told JR that I had a date. Money Mitch was like, well, I got a car. I can drive you. I said okay." After that conversation, S.A.B. testified that Green picked her up and drove her to a hotel in Milwaukee. S.A.B. recounted further details from the night, testifying she "remember[ed] the date because the guy spit in my mouth and I didn't appreciate that, so I made him give me more money, and then when I went downstairs I gave Money Mitch all the money."

¶8 After Officer Orozco testified, Green called his first witness, Cousin, who testified Green had "nothing to do with" the events S.A.B. described; according to Cousin, he and not Green had driven S.A.B. that night. Cousin testified that one night in 2018, "I think October," a family member named Delmar called Cousin to ask for a ride home. Cousin agreed to drive Delmar home, provided Delmar paid him for gas. When Cousin arrived, Delmar approached the car alone. Sitting in Cousin's passenger seat, Delmar asked if two more people could ride with them. Cousin agreed, "as long as I get my gas money." Cousin denied knowing either S.A.B. or J.R.

¶9 With three passengers in Cousin's car, Cousin asked Delmar where to take them. According to Cousin, Delmar told him "just drop us off downtown[.]" Cousin testified "they didn't tell me an exact destination. They just said downtown, and that actually made me mad. I'm like well where are we going." Because "they didn't tell me where they were going, I stopped in front of the blue building." S.A.B. and J.R. exited the car, but Delmar stayed in the car with Cousin and asked him to remain parked until the two returned. Cousin agreed after Delmar offered to give him more gas money.

¶10 According to Cousin, S.A.B. and J.R. returned to the car no more than fifteen minutes later. While driving, Cousin heard S.A.B. and J.R. conversing in the backseat "about a story that happened[.]" Cousin heard S.A.B. say: "the guy asked me to ask if he can spit in my mouth, . . . it's disgusting, I let him do it, I threw up." After hearing this exchange, Cousin "turned up [his] radio" because he did not "know what[] [was] happening in that back seat."

¶11 The State did not object to Cousin's testimony on direct examination. During cross-examination, when the State asked Cousin about driving "a sex worker who is underage to a hotel," Cousin replied he "had no recognition of what was going on that night, so I was just doing it for the gas money." At the conclusion of Cousin's testimony, the trial court recessed for lunch.

¶12 The trial court met in chambers with each party's counsel, as well as an attorney from the state public defender's office whom the court asked to advocate on Cousin's behalf. After an off-the-record discussion, the court recalled the case to conduct a hearing on the record regarding the State's concerns about Cousin's testimony. At the outset, the court expressed concerns about Cousin's testimony, in which "arguably" Cousin "said that he rather than the defendant committed the child trafficking" although the court acknowledged "that's open to interpretation, and technically [Cousin] denied that[.]" In the court's view, Cousin may have incriminated himself without counsel, and Green may have violated Denny by presenting Cousin's testimony without notifying the State in advance or seeking a ruling on its admissibility.

¶13 The trial court ultimately concluded Cousin's testimony was "clearly" Denny evidence. The court characterized Cousin's written statement as "literally . . . taking the fall for . . . Green." Reading from Cousin's statement, the court noted Cousin said, "JR asked me if I was giving [sic] money would I give them a ride. Them being both of them, the pimp and the alleged prostitute." Green's counsel argued "it never was my intent to accuse a known third party who had motive and opportunity of the crime that . . . Green is charged with." The court responded, "if he's not being called for that reason, counsel, why is he being called? . . . [T]hat would be completely irrelevant." Addressing Green's counsel, the court said "[i]t is Denny evidence clearly. You're offering him only to get your client off." Although Green's counsel argued Cousin "didn't incriminate himself" the court noted that Cousin "admitted to every single element of the crime other than saying, yeah, I knew it was a prostitute[.]" In the court's view, "the State has enough to arguably get past probable cause right now based on what [Cousin] said on the stand."

¶14 The trial court allowed each party to recommend how to proceed, noting "I don't know how I could possibly unring the bell. . . . I would have to tell [the jury] to disregard all that testimony completely." The State argued the solution was best left to the "sound discretion" of the court, while defense counsel argued Cousin's testimony reflected he "provide[d] a perfectly legal ride in exchange for gas money," which was not Denny evidence; accordingly, "I don't think it's anything to fix. [Cousin's] testimony is what it is, it's relevant, and the jury should be allowed to weigh it."

¶15 After summarizing...