State v. Harp
| Decision Date | 27 October 2005 |
| Docket Number | No. 2004AP3240-CR.,2004AP3240-CR. |
| Citation | 707 N.W.2d 304,2005 WI App 250 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Barbara E. HARP, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, Attorney General, and Michael C. Sanders, Assistant Attorney General.
Before DYKMAN, VERGERONT and HIGGINBOTHAM, JJ.
Barbara Harp appeals from a nonfinal order of the circuit court declaring a mistrial in a felony case involving two counts of intentionally abusing a patient at a health care facility under WIS. STAT. § 940.295(3)(a)1. and (b)2. (2003-04),1 and denying a motion to dismiss the charges on double jeopardy grounds. The circuit court granted the State's motion for a mistrial after determining that Harp's counsel had elicited alibi testimony from a witness without giving the State the required notice of that witness under WIS. STAT. § 971.23(8)(a).2 We grant Harp's petition to review the circuit court's interlocutory order.3
¶ 2 Harp contends that her counsel was not required to give notice of the witness because the witness's testimony was not alibi testimony, and therefore the circuit court erred by ordering a mistrial. Because we conclude that the testimony of the witness was not alibi testimony, notice was not required and the circuit court therefore failed to properly exercise its discretion in ordering a mistrial. State v. Seefeldt, 2003 WI 47, ¶ 28, 261 Wis.2d 383, 661 N.W.2d 822. Accordingly, we reverse.
¶ 3 Barbara Harp, then a certified nursing assistant (CNA) at the Columbia County Healthcare Facility (Columbia), was charged with two counts of intentionally abusing a patient under circumstances that cause bodily harm. The criminal complaint was filed after another CNA at Columbia, Stephanie Kleist, reported that on July 20, 2003, while working with Harp, she heard Harp slap Jody Parker, a resident, and then saw Harp wiping blood off Parker's face. The complaint was later amended to include a second incident, which allegedly occurred on May 16, 2003.
¶ 4 The case against Harp went to trial on September 23, 2004. The prosecution called Kleist, who testified that on May 16 2003, Harp worked as her partner in her end of the hallway of patients' rooms, known as Birch Boulevard. She testified that Parker was in the section for which Harp was responsible, but that she often assisted Harp in caring for Parker. She averred that on the May 16 incident, she saw Harp hit Parker in the forehead four or five times.
¶ 5 After the prosecution rested, Harp's counsel called Leah Stahl, another CNA employed at Columbia. She testified that in March 2003, Birch Boulevard, which had previously included a mixture of patients with various needs, was split into two sections, one end of the hallway housing patients with dementia, and the other end remaining mixed. Stahl then gave the following testimony:
. . . .
. . . .
At the request of Harp's counsel, the court took judicial notice that Memorial Day 2003 fell on May 26.
¶ 6 Later, the prosecutor cross-examined Stahl:
. . . .
. . . .
. . . .
¶ 7 At the conclusion of Stahl's testimony, the prosecutor moved for a mistrial, arguing that Stahl had just provided alibi testimony, and that the State had not received the required notice of an alibi witness. The court declined to order a mistrial, subject to reconsideration, noting that Later, the court explained that the potential alibi testimony regarding Stahl's recollection of working with Harp on that day "didn't come through the testimony of the witness on direct examination, only through cross." The court concluded that it wanted "to hear what some other witnesses have to say and where it goes."
¶ 8 The defense rested with Harp's counsel stating that "in order not to ... run afoul of any claim that we're attempting to present alibi witnesses, I'm not going to call further witnesses." The court then recessed the proceedings to see if Columbia had records showing which CNA's were paired together on May 16, 2003. No such records were found. The court declared a mistrial.
¶ 9 On October 4, 2004, Harp filed a motion to dismiss the charges filed against her based on the double jeopardy clauses of the federal and state constitutions and WIS. STAT. § 972.07. The court denied Harp's motion. She now appeals the trial court's mistrial order and its order denying her motion to dismiss the complaint.
¶ 10 Generally, the level of deference we afford a circuit court's decision to grant a mistrial depends upon the circumstances of the case. Seefeldt, 261 Wis.2d 383, ¶¶ 25-28, 661 N.W.2d 822. In Arizona v. Washington, 434 U.S. 497, 507-10, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), the U.S. Supreme Court described "two ends of the spectrum of deference." Seefeldt, 261 Wis.2d 383, ¶ 25, 661 N.W.2d 822. At one end are cases in which there is reason to believe that the prosecutor has sought a mistrial to gain a tactical advantage or to harass the defendant. Washington, 434 U.S. at 507-08, 98 S.Ct. 824. On the other is the mistrial based on the judge's belief that the jury is unable to reach a verdict. Id. at 509, 98 S.Ct. 824. A mistrial premised on the latter circumstance is "accorded great deference by a reviewing court," id. at 510, 98 S.Ct. 824, whereas a mistrial resulting from the former is subject to the "strictest scrutiny." Id. at 508, 98 S.Ct. 824. In any case, a court reviewing a circuit court's order of a mistrial must, at a minimum, "satisfy itself that the trial judge exercised `sound discretion' in declaring a mistrial." Seefeldt, 261 Wis.2d 383, ¶ 28, 661 N.W.2d 822.
¶ 11 The State contends that the circumstances of this case are analogous to those in State v. Williams, 2004 WI App 56, ¶ 28, 270 Wis.2d 761, 677 N.W.2d 691. There, we applied deferential review to a trial court's mistrial order after Williams' counsel asked what the court believed to be an improper question of a witness. Id. They argue that as in Williams, the trial court's mistrial order was necessitated by improper questioning by defense counsel (eliciting alibi testimony without giving the state prior notice) and therefore our review should be highly deferential. Harp counters that this case is unlike Williams because the questioning of Harp's counsel was not improper. Stahl was not an alibi witness and hence notice of her appearance was not required, or, alternatively, Stahl provided alibi testimony only upon the prosecutor's cross-examination, contentions we address later. As a result, Harp asserts, we must apply strict scrutiny to the trial court's order of a mistrial.
¶ 12 We need not address the parties' dispute about the level of deference demanded by the particular circumstances because no matter the standard of review, our result would be the same. Our analysis below concludes that the circuit court's mistrial order was based on an error of law, and...
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