State v. Mink
| Decision Date | 27 July 1988 |
| Docket Number | No. 87-1796-CR,87-1796-CR |
| Citation | 146 Wis.2d 1,429 N.W.2d 99 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Claude L. MINK, Sr., Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Review Denied.
John Anthony Ward, Kenosha, for defendant-appellant.
Donald J. Hanaway, Atty. Gen., and Maureen McGlynn, Asst. Atty. Gen., for plaintiff-respondent.
Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.
Claude L. Mink, Sr., appeals from a judgment convicting him of first-degree sexual assault, contrary to sec. 940.225(1)(d), Stats., for sexual contact with a person twelve years of age or younger. He raises two issues.
First, he argues that his right to be free from double jeopardy was violated because: (1) the trial court erred in determining that the jury in his first trial was deadlocked; and (2) the trial court failed to properly evaluate the alternatives to a mistrial. We conclude that Mink has not preserved his right to have these issues reviewed.
Second, Mink argues that evidence of other acts allegedly committed by him should not have been admitted under sec. 904.04(2), Stats., and that this evidence was unduly prejudicial under sec. 904.03, Stats. We conclude that the admission of other acts evidence in this case was within the trial court's discretion. Accordingly, we affirm.
Mink was charged with having sexual contact with his four-year-old grandson, J.S., on May 16, 1986. The first trial resulted in a mistrial when the jury remained deadlocked after approximately thirteen hours of deliberation.
At the second trial, evidence was introduced regarding Mink's alleged sexual contact with his stepsons. These acts were alleged to have occurred in late 1965 and for several years thereafter. The trial court allowed this testimony, over Mink's objection, for the purpose of proving motive under sec. 904.04(2), Stats. Limiting instructions were frequently read to the jury concerning this evidence.
The jury in Mink's second trial found him guilty. The trial court entered a judgment of conviction from which Mink now appeals. Additional facts will be stated as necessary.
The state argues that Mink waived his double jeopardy claim by failing to raise it prior to the second trial. Mink counters by asserting that the "detailed objection" made immediately prior to the granting of a mistrial suffices to preserve a double jeopardy claim. 1 We begin with a discussion of the relationship between mistrials and double jeopardy claims.
The decision whether to grant a mistrial lies within the sound discretion of the trial court. State v. Mendoza, 101 Wis.2d 654, 659, 305 N.W.2d 166, 168-69 Generally, when a defendant requests a mistrial, double jeopardy rights are deemed waived. State v. Jenich, 94 Wis.2d 74, 92, 288 N.W.2d 114, 122 (1980). When the defendant does not consent to the mistrial, the constitutionality of a retrial depends on whether there was a manifest necessity for the mistrial. State v. DuFrame, 107 Wis.2d 300, 303-04, 320 N.W.2d 210, 211 (Ct.App.1982).
(Ct.App.1981). The classic justification for a mistrial is that the jury is unable to agree. State v. Kendall, 94 Wis.2d 63, 71, 287 N.W.2d 758, 762 (1980)
Double jeopardy not only protects accused persons from being twice subjected to punishments, but protects them from being twice put to trial with its accompanying embarrassment, expense and ordeal. 2 Jenich, 94 Wis.2d at 80, 288 N.W.2d at 117. Federal and state courts have held that in order to guarantee protection against two trials, double jeopardy claims must be presented first to the trial court, preferably prior to the second trial. See, e.g., Paul v. Henderson, 698 F.2d 589, 591-92 (2d Cir.), cert. denied, 464 U.S. 835, 104 S.Ct. 120, 78 L.Ed.2d 118 (1983); Commonwealth v. White, 476 Pa. 350, 382 A.2d 1205, 1207-08 (1978). Our supreme court has also declined to address claims not raised in the trial court which do not impugn the integrity of the determination of guilt but assert instead that the trial of the defendant should not have commenced. Maclin v. State, 92 Wis.2d 323, 330, 284 N.W.2d 661, 665 (1979). Two reasons offered by the supreme court for declining to address such a claim are: (1) the availability of a remedy in the trial court by amendment or dismissal of the charges; and (2) a record which fails to provide the appellate court with the informed consideration of the trial judge. Id. at 331, 284 N.W.2d at 665.
Here, we do not have the advantage of the trial court's ruling on double jeopardy. We realize that the trial court is not required to utter the words "manifest necessity" when declaring a mistrial. See Arizona v. Washington, 434 U.S. 497, 516-17, 98 S.Ct. 824, 835-36, 54 L.Ed.2d 717 (1978). However, in order for a trial judge to properly rule on a double jeopardy claim where the defendant did not consent to the mistrial, a finding regarding manifest necessity must be made. See DuFrame, 107 Wis.2d at 303-04, 320 N.W.2d at 211. Unless a double jeopardy claim is specifically raised in the trial court, the record is incomplete for review on that basis.
An objection to a mistrial and a motion to dismiss the charges seek different remedies. By objecting to a mistrial, a defendant is expressing his or her interest in obtaining a verdict from the first tribunal to hear the case. See State v. Copening, 100 Wis.2d 700, 710-11, 303 N.W.2d 821, 827 (1981). If the trial court grants a mistrial over that objection, the defendant has then preserved the right to raise double jeopardy, cf. Jenich, 94 Wis.2d at 92, 288 N.W.2d at 122, if the need later arises.
Following a mistrial, the burden of going forward is on the state. The state may decide not to pursue the case further, to enter into plea negotiations or to try the defendant again. Only when the latter option is chosen does the issue of double jeopardy arise. At that point, the defendant must move for dismissal on double jeopardy grounds to avoid waiver.
Here, Mink did not take the crucial step of seeking dismissal of the charges. Therefore, his claim of double jeopardy based on the mistrial is waived.
Even if we were to hold that Mink did not waive his double jeopardy claim, we would affirm. The question is whether, under all the facts and circumstances, giving The first jury to hear Mink's case had deliberated nearly nonstop from 10:20 a.m. until 11:40 p.m. Around 6:00 p.m., when the jurors were offered a meal, they asked the bailiff "how long [the trial court] was going to keep them before telling them what to do." The court had the jurors brought in and after asking about their progress sent them back to deliberate further. Some time later, the jury sent out a question asking what constituted a hung jury.
deference to the trial court's first-hand observation, it was reasonable to grant a mistrial under the "manifest necessity" rule. Copening, 100 Wis.2d at 710, 303 N.W.2d at 826-27. Ordinarily, whether manifest necessity existed is a mixed question[146 Wis.2d 11] of fact and law. United States ex rel. Russo v. Superior Court, 483 F.2d 7, 15 (3d Cir.), cert. denied, 414 U.S. 1023, 94 S.Ct. 447, 38 L.Ed.2d 315 (1973). Here, the facts are not disputed and only a question of law remains. See Quinn v. Town of Dodgeville, 122 Wis.2d 570, 577, 364 N.W.2d 149, 154 (1985)
Around 9:00 p.m., the trial court read Wis J I--Criminal 520 to them. 3 At 10:14 p.m., the trial court asked the jurors whether they were likely to agree within the next hour or two. Again at 11:41 p.m., the jurors were asked whether there was a possibility that they would reach an agreement if they were given extra time, either that night or the next morning. The answer to all of these questions was unanimously "no." Under these facts and circumstances, the declaration of the mistrial was within the trial court's discretion and was manifestly necessary. Cf. DuFrame, 107 Wis.2d at 305-06, 320 N.W.2d at 212-13. 4
Mink's remaining argument concerns other acts evidence which was admitted by the trial court as evidence of motive under sec. 904.04(2), Stats. 5 The general rule is that evidence of other acts is not admissible. Whitty v. State, 34 Wis.2d 278, 292-93, 149 N.W.2d 557, 563 (1967), cert. denied, 390 U.S. 959, 88 S.Ct. 1056, 19 L.Ed.2d 1155 (1968). However, sec. 904.04(2) does allow admission of other acts evidence if used for specific purposes, such as proof of motive or identity. State v. Danforth, 129 Wis.2d 187, 202, 385 N.W.2d 125, 131 (1986).
Other acts evidence must pass a two-step test prior to being admissible. Id. First, the evidence must be relevant to one of the statutory exceptions. Id. Second, the trial court must determine whether any prejudice resulting from the admission of such evidence substantially outweighs its probative value. Id. This second step involves the balancing test of sec. 904.03, Stats. 6 Mink takes exception to the trial court's determinations on each of these two steps. Our review of these evidentiary issues is governed by the abuse of discretion standard. State v. Fishnick, 127 Wis.2d 247, 257, 378 N.W.2d 272, 278 (1985). The trial court's determination will be upheld if discretion was exercised according to accepted legal standards and in accordance with the facts of record. Id. There must be a reasonable basis for the trial court's determination, and the trial judge must undertake a reasonable inquiry and examination of the underlying facts. Id.
We are also mindful of the supreme court's reaffirmation of its commitment to the principle that a greater latitude of proof is to be allowed in the admission of other acts evidence in sex crime cases, particularly those involving a minor child. State v. Friedrich, 135 Wis.2d 1, 19-20, 398 N.W.2d 763, 771 (1987). This "greater latitude" is not so much a matter of relaxing the general rule that other acts evidence...
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