State v. Johnson

• Decision Date: 18 February 2000
• Docket Number: No. 97-1360-CR.,97-1360-CR.
• Citation: 605 N.W.2d 846,2000 WI 12,232 Wis.2d 679
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Hayes JOHNSON, Defendant-Appellant.
• Court: Wisconsin Supreme Court

232 Wis.2d 679

2000 WI 12

605 N.W.2d 846

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Hayes JOHNSON, Defendant-Appellant.

No. 97-1360-CR.

Supreme Court of Wisconsin.

Oral argument November 4, 1999.

Decided February 18, 2000.

For the plaintiff-respondent-petitioner the cause was argued by Lara M. Herman, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

For the defendant-appellant there was a brief by Russell D. Bohach and Brennan & Collins, Madison and oral argument by Russell D. Bohach.

¶ 1. JON P. WILCOX, J.

The State of Wisconsin petitions this court for review of a published decision of the court of appeals, State v. Hayes Johnson, 223 Wis. 2d 85, 588 N.W.2d 330 (Ct. App. 1998), which reversed an order denying the defendant's motion for postconviction relief. The case presents two issues: (1) whether the defendant has established a realistic likelihood of prosecutorial vindictiveness, which would give rise to a presumption of vindictiveness; and (2) whether the defendant has established actual prosecutorial vindictiveness.

¶ 2. The defendant, Hayes Johnson, was initially tried before a jury on a single count of first-degree sexual assault. The jury was unable to reach a verdict, and the trial court declared a mistrial. Before retrial, the prosecutor filed an amended information charging the defendant with two counts of first-degree sexual assault and one count of burglary, based on the same course of conduct as the initial charge. The prosecutor offered to withdraw the new charges in exchange for the defendant's guilty plea to a single count of first-degree sexual assault. The defendant rejected the plea offer and moved to dismiss on the ground that the filing of additional charges gave rise to a presumption of prosecutorial vindictiveness. The trial court denied the motion, holding that no presumption of vindictiveness arose from the addition of charges after the mistrial and that there was no other evidence of vindictiveness.

¶ 3. On retrial, the jury found the defendant guilty of both counts of sexual assault, but found him not guilty of the burglary charge. In a postconviction motion, the defendant renewed his prosecutorial vindictiveness claim. The trial court again denied the motion, and the defendant appealed.

¶ 4. The court of appeals reversed, concluding that the institutional bias against retrials, together with the prosecutor's addition of new charges and offer to withdraw them if the defendant would plead guilty, was sufficient to trigger the presumption of prosecutorial vindictiveness.

¶ 5. On review, we hold that the defendant did not establish a realistic likelihood of vindictiveness in this case and that a presumption of vindictiveness therefore does not apply. We also determine that the defendant has failed to establish actual vindictiveness. We therefore reverse the decision of the court of appeals.

I.

¶ 6. The relevant facts are as follows. In October 1994 the defendant was arrested after his girlfriend's five-year-old daughter complained that he had sexually assaulted her. At the preliminary hearing on October 24, 1994, the victim testified that the assault occurred when the defendant entered her bedroom and laid her body on top of his. She stated that during the assault he touched her vagina with his hand and with his penis.

¶ 7. The State filed an information charging the defendant with one count of first-degree sexual assault of a child in violation of Wis. Stat. § 948.02(1)(1991-92).¹ The defendant rejected the State's offer to reduce the charge to second-degree sexual assault in exchange for the defendant's guilty plea. The case proceeded to trial in the Circuit Court of Milwaukee County, Judge Diane S. Sykes, on October 31, 1995. On November 3, 1995, the jury stated that they were unable to reach a verdict in the case, and the trial court ordered a mistrial. Neither party objected to the mistrial order. ¶ 8. At a hearing on November 6, 1995, the defense attorney indicated that the prosecutor intended to file an amended information. The trial court set the case for retrial on December 4, 1995.

¶ 9. On November 14, 1995, the prosecutor filed an amended information charging the defendant with two counts of first-degree sexual assault of a child in violation of Wis. Stat. § 948.02(1) (one count based on the defendant's touching of the victim's vagina with his finger, the other count based on the defendant's touching the victim with his penis), and one count of burglary in violation of Wis. Stat. § 943.10(1)(f) (based on the defendant's entry into the victim's bedroom with intent to commit a felony). In a motion accompanying the amended information, the prosecutor explained that under the facts of the case the defendant could properly be prosecuted for these three charges, and that the jury should have the opportunity to consider all of the appropriate charges relating to the course of conduct.

¶ 10. On November 28, 1995, the defendant filed a motion to dismiss the amended information, alleging in part that the prosecutor's filing of additional charges after the mistrial gave rise to a presumption of prosecutorial vindictiveness because a realistic likelihood of vindictiveness existed under the circumstances of the case.

¶ 11. On December 4, 1995, the prosecutor wrote a letter to the defendant offering to withdraw the amended information in exchange for the defendant's agreement to plead guilty to a single count of first-degree sexual assault.² The letter stated:

Dear Mr. Wasserman:

I'm writing to you regarding State v. Hayes Johnson, case number F94-3955.

Attached please find the State's Brief in Opposition to the Defense Motion to Dismiss the Amended Information and a copy of the letter of transmittal to the Court.

I also summarize herein our discussion of Saturday, December 2, 1995, regarding a possible resolution of this matter. As you know, your client is currently charged with:

Two counts of First Degree Sexual Assault of a Child

One count of Burglary.

He faces 90 years in prison; if your client wishes to reduce his exposure, the State makes the following offer:

Plead guilty to only one count of First Degree Sexual Assault of a Child; the State will withdraw the Amended Information, thereby dismissing the second count of First Degree Sexual Assault of a Child and the Burglary and recommend a Presentence Report; the State is willing to advise the Court that the State does not recommend the imposition of maximum sentence and to leave the sentence to the Court; you are free to argue for whatever sentence you feel is appropriate, including placement in a counselling program. Further, I will recommend that the sentence run concurrent to your client's probation revocation time.

It is my hope that these very young children, only 5 and 7, can be spared additional Court intrusions in their young lives. That is why I am willing to offer to dismiss charges constituting 50 years of prison exposure, to recommend that the Court not impose the maximum sentence, to recommend concurrent time, to leave sentencing to the Court and you are free to make whatever recommendation you feel is appropriate. If we cannot reach a resolution that spares these young children from the trauma of another round of testifying, and if the defendant is convicted of some or all of the charges, it is the State's intention to affirmatively and strongly recommend the imposition of a very lengthy prison sentence which will keep the defendant in prison for many decades.

I have no objection to your client entering his plea as an Alford plea, denying his guilt but accepting the State's offer to cut his losses.

If your client wants to take advantage of the opportunity to be out of prison in a relatively short period of time, this offer is, in my judgment, his best bet to accomplishes [sic] that objective.

Thank you for your attention to this matter.

Sincerely,

[signed]

Gale G. Shelton

¶ 12. That same day, the trial court denied the defendant's motion to dismiss. The court relied on the case law of other jurisdictions holding that there is no presumption of prosecutorial vindictiveness when additional charges are filed after a mistrial caused by a hung jury. The court explained that the hung jury and mistrial put the parties back in the position they were in before the trial began. Because the prosecutor would clearly have had the discretion to file these charges before the trial, there was no presumption of vindictiveness raised by filing them after the mistrial. Finding no other evidence of prosecutorial vindictiveness, the court denied the motion. ¶ 13. The defendant rejected the state's plea offer, and the case proceeded to retrial. On December 7, 1995, the jury found the defendant guilty of both counts of first-degree sexual assault, but not guilty of burglary.

¶ 14. The defendant was subsequently sentenced to 20 years in prison on each count of sexual assault, to be served consecutively. In a motion for postconviction relief, the defendant renewed his claim that the amended information should have been dismissed because of prosecutorial vindictiveness. The trial court denied the motion, and the defendant appealed.

¶ 15. The court of appeals reversed the trial court's order denying postconviction relief and remanded the case for further proceedings. The court concluded that the defendant had established both (1) that he had exercised a protected right, his right to a jury trial; and (2) that there was a realistic likelihood that the prosecutor had added new charges to punish him for exercising this right. Johnson, 223 Wis. 2d at 94. Specifically, the court determined that the institutional bias against retrials and the prosecutor's offer to withdraw the amended information in exchange for a guilty plea were sufficient to trigger a presumption of prosecutorial vindictiveness. Id. at 95. The State petitioned for review of this decision of the...