State v. Killian

• Docket Number: 2020AP2012-CR
• Decision Date: 21 June 2023
• Citation: 2023 WI 52
• Parties: State of Wisconsin, Plaintiff-Appellant-Petitioner, v. James P. Killian, Defendant-Respondent.
• Court: Wisconsin Supreme Court

1

2023 WI 52

State of Wisconsin, Plaintiff-Appellant-Petitioner, v. James P. Killian, Defendant-Respondent.

No. 2020AP2012-CR

Supreme Court of Wisconsin

June 21, 2023

Submitted on Briefs: ORAL ARGUMENT: April 17, 2023

REVIEW OF DECISION OF THE COURT OF APPEALS Circuit Trempealeau Rian Radtke

For the plaintiff-appellant-petitioner, there were briefs filed by Kara L. Janson, assistant attorney general, with whom on the briefs was Joshua L. Kaul, attorney general. There was an oral argument by Kara L. Janson, assistant attorney general.

For the defendant-respondent, there was a brief filed by Todd E Schroeder and Schroeder & Lough, S.C., La Crosse. There was an oral argument by Todd E. Schroeder.

ZIEGLER, C.J., delivered the majority opinion of the Court in which ROGGENSACK, DALLET, HAGEDORN, and KAROFSKY, JJ., joined. ANN WALSH BRADLEY, J., filed a dissenting opinion, in which REBECCA GRASSL BRADLEY, J., joined.

OPINION

ANNETTE KINGSLAND ZIEGLER, C.J.

REVIEW of a decision of the Court of Appeals. Reversed and cause remanded.

¶1 This is a review of a published decision of the court of appeals, State v. Killian, 2022 WI.App. 43, 404 Wis.2d 451, 979 N.W.2d 569, affirming the Trempealeau County circuit court's^[1] order dismissing a criminal complaint against James Killian as barred by double jeopardy. We reverse.

¶2 Killian argues the Fifth Amendment's Double Jeopardy Clause prohibits the State from prosecuting the present case. According to Killian, the State previously prosecuted him for the offenses charged in this case because "[t]he evidence the State intended to submit in the preceding trial was sufficient to convict [Killian] of all the charges in the current case," and "the State intended to amend the charges against [Killian] during the trial to include charges for which he is again placed in jeopardy here." Because that case ended in a mistrial intentionally provoked by the prosecutor--a judicial determination the parties do not contest here--Killian argues double jeopardy bars the State's prosecuting the present case. Killian argues in the alternative that issue preclusion, under both the Double Jeopardy Clause and the common law, bars the present case.

¶3 We conclude that Killian's previous trial does not bar the State from prosecuting the present case because the scope of Killian's jeopardy in his trial did not include the offenses with which he is now charged. The scope of jeopardy is established by "the defendant's actual exposure to jeopardy in a prior prosecution." State v. Schultz, 2020 WI 24, ¶31, 390 Wis.2d 570, 939 N.W.2d 519. This requires that the defendant faced a "risk of a determination of guilt" regarding a particular offense. Serfass v. United States, 420 U.S. 377, 391-92 (1975). Killian was never exposed to the risk of conviction for the offenses charged in the present case. As a result, the offenses prosecuted in Killian's trial are not identical in law and in fact to the offenses charged in this case, so double jeopardy does not bar the present prosecution.

¶4 We also conclude that issue preclusion under the Double Jeopardy Clause and common law issue preclusion do not bar the present prosecution. Issue preclusion under the Double Jeopardy Clause requires a valid judicial determination of ultimate fact, and none exists in this case because Killian's trial ended in a mistrial. See Ashe v. Swenson, 397 U.S. 436 (1970). Common law issue preclusion also does not bar this prosecution. The circuit court's order dismissing with prejudice the criminal complaint in the first case did not decide the scope of Killian's jeopardy. Therefore, that issue was never "actually litigated," and issue preclusion does not bar the present prosecution. See Aldrich v. LIRC, 2012 WI 53, ¶88, 341 Wis.2d 36, 814 N.W.2d 433.

¶5 We therefore reverse the court of appeals and remand to the circuit court to consider Killian's unresolved argument regarding prosecutorial vindictiveness.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶6 This case involves Killian's alleged sexual assaults of two minors: Britney and Ashley.^[2] On March 17, 2015, the State charged Killian in Case No. 2015CF47 with one count of first-degree sexual assault of a child under the age of 12 contrary to Wis.Stat. § 948.02. The complaint alleged that, "on or about Monday, August 18, 2014," Britney, then ten years old, "was laying on a bed at [a] residence and [Killian] came in, laid beside her and grabbed her buttocks." The probable cause section further stated that during a forensic interview, Britney reported "that Killian had squeezed her butt on five different occasions starting when she was about eight years old" and that Killian also "touched her 'boobies' underneath her clothes" in 2014.

¶7 The State filed a second criminal complaint on March 15, 2016, in Case No. 2016CF38, charging Killian with repeated sexual assault of a child contrary to Wis.Stat. § 948.025. The complaint alleged, "from April 1994 through December 1999," Killian sexually assaulted Ashley. Additionally, the complaint's probable cause section stated Ashley "had been sexually assaulted by [Killian], starting at the age of six and ending at 17 years of age . . . start[ing] in about January 1988 and end[ing] about December 1999."

¶8 The two cases were later joined for trial. On October 5, 2016, prior to the cases being joined, the circuit court^[3] held a hearing in Britney's case on the parties' respective motions to admit or exclude other-acts evidence. The circuit court granted the State's motion to admit evidence of sexual assaults against Ashley that "occurred over a period of time between January 1988 and December of 1999" to demonstrate Killian's "motive, intent, preparation, absence of mistake or accident, and plan." The court also addressed Killian's motion to prohibit the State "from using evidence pertaining to other crimes, wrongs, or acts." The State argued it planned to introduce evidence of Killian's past interactions with Britney to show Killian "groomed [Britney] by engaging in behavior that include[d] asking her if he could be her boyfriend," "[b]uying her gifts," and "[n]ormalizing the behavior of sleeping with her in the bed together." Killian did not object to such evidence of "grooming" but only to "other acts of sexual assault." The State agreed it was "not alleging that [Killian] touched [Britney] outside of anything that was alleged here." The State then said it would not object, and the court granted Killian's motion to exclude evidence of other acts of sexual assault against Britney.

¶9 On June 15, 2017, four days before Killian's trial, the State filed a motion for leave to amend the Information. The proposed Amended Information included in Ashley's case one count of incest with a child contrary to Wis.Stat. § 948.06. The proposed Amended Information also expanded the charging period for Britney's case from "on or about Monday, August 18, 2014" to "on or between January, 2014 to August 18, 2014."

¶10 The circuit court discussed the State's motion with the parties in the morning on the first day of trial. Due to the State's delay, the court denied the addition of the incest charge. The prosecutor then commented that "maybe the proof at the trial will be sufficient to convince the Court that more sexual intercourse occurred which would be a basis for this charge." In response, the court reiterated how "the state's lack of preparation should not prejudice the defendant" and made clear, "I'm not going to allow [the amendment]."

¶11 As for the expanded charging period in Britney's case, Killian's counsel expressed concern about how "the act that's charged is a single act" and that the State was "attempting to . . . expand the date range in the hopes that it would make admissible evidence of other allegations that have not been charged." Defense counsel also reminded the court of the other-acts ruling in October and said, "So even if the date range were widened, I would argue that at this point, it would be inadmissible to bring in allegations of sexual contact." He reiterated, "[W]e came here to defend an alleged sexual contact that occurred on August 18th. And I think at the same time, this raises concerns that are even more broad than this one count." The prosecutor responded, "I think it's quite clear that we do not have to prove the actual date of the allegation," and clarified, "[O]f course, [Killian is] correct. We are charging one sole act." He further noted the possibility of amending the Information:

Interestingly, it appears to me that if more acts are disclosed at trial, the Information could be changed. And it could, in fact, I think naturally prejudice the defendant more. But I don't think that's unusual. It happens at trial that more facts are accused and Informations are changed and juries deliberate on multiple issues.

The circuit court clarified that the State was "not alleging there were additional things that happened. . . . [I]t's the same events or package that we've heard about all along. Nothing new." The prosecutor confirmed but nonetheless included, "If more facts are introduced at trial, the Court can amend the Information and give that instruction to the jury."

¶12 The court allowed the expanded date range, but only for purposes of establishing "when exactly [the alleged act of grabbing Britney's buttocks] happened on the calendar." Defense counsel sought clarification "that there can be no reference to other alleged touching that would constitute sexual assault of any kind," and the court agreed: "If there were intentions to introduce those at trial, then those were required to have been addressed and they were not addressed at all. So there's already been a ruling on that."

¶13 The trial...