State v. Moeck
| Decision Date | 06 May 2005 |
| Docket Number | No. 2003AP2-CR.,2003AP2-CR. |
| Citation | 2005 WI 57,280 Wis.2d 277,695 N.W.2d 783 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent Petitioner, v. Richard A. MOECK, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
For the plaintiff-respondent-petitioner the cause was argued by Daniel J. O'Brien, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.
For the defendant-appellant there was a brief by David D. Cook, Monroe, and oral argument by David D. Cook.
¶ 1.
This is a review of a published decision of the court of appeals1 reversing a judgment of conviction and an order denying post-conviction relief of the Circuit Court for La Crosse County, Michael Kirchman, Judge. The judgment and order stem from a fourth trial in which Richard Moeck, the defendant, was convicted of two counts of first degree sexual assault, one count of false imprisonment, one count of robbery, and one count of intimidation of a victim. In denying the defendant's motion for post-conviction relief, the circuit court concluded that the defendant's fourth trial following a mistrial in the third trial did not violate double jeopardy protections.
¶ 2. The court of appeals reversed the circuit court's judgment of conviction and order denying post-conviction relief. The court of appeals concluded that there was not a manifest necessity caused by defense counsel's opening statement in the third trial sufficient to warrant a mistrial, and therefore the fourth trial violated the defendant's right to be free from double jeopardy.
¶ 3. Two issues are presented to this court. First, did the court of appeals err as a matter of law in rejecting the State's argument that the "law of the case" doctrine applied because on two prior occasions the court of appeals rejected the defendant's challenge to the circuit court's order for a mistrial in the third trial? Second, were the Double Jeopardy Clauses of the U.S. and Wisconsin Constitutions violated when the defendant was retried a fourth time following a mistrial in the third trial on the basis of defense counsel's opening statement?
¶ 4. We hold that the court of appeals did not err as a matter of law in holding that the "law of the case" doctrine did not apply to the defendant's most recent challenge in the court of appeals to the circuit court's order granting a mistrial in the defendant's third trial. We further hold that because the State did not meet its burden of showing a manifest necessity for the termination of the third trial, the circuit court erred in granting the State's motion for a mistrial. Accordingly we agree with the court of appeals that the fourth trial violated the defendant's right to be free from double jeopardy. We therefore affirm the decision of the court of appeals.
¶ 5. In addressing the first issue, the application of the law of the case doctrine, we set forth a brief narration of the procedural posture of the instant case and then examine whether the law of the case doctrine bars the court of appeals from overturning its two earlier decisions affirming the circuit court's order declaring a mistrial.
¶ 6. The following facts are undisputed. The defendant has been prosecuted four times for allegedly sexually assaulting and robbing the complainant, C.S., on August 2, 1997.
¶ 7. The defendant's first trial was in January 1998. The defendant testified. The trial ended in a hung jury.
¶ 8. The defendant's second trial was in March 1998. The defendant testified. The jury convicted the defendant. The conviction was overturned by the court of appeals in October 1999, on the ground that the circuit court committed reversible error in denying the defendant's request for a mistrial after the circuit court, during voir dire, inadvertently mentioned the defendant's repeat offender status three times. The court of appeals held that the curative jury instruction was not sufficient to correct the error. ¶ 9. The defendant's third trial was in March 2000. The defendant did not testify. The circuit court granted the State's motion for mistrial at the close of all the evidence. The defendant objected to the motion for mistrial. The events surrounding the mistrial are the subject of this review.
¶ 10. The defendant's fourth trial was in November 2000 before a different circuit court judge than the defendant's three prior trials.
¶ 11. The defendant moved to dismiss the fourth trial on double jeopardy grounds, arguing that there was no manifest necessity for ordering the mistrial at the third trial. The circuit court denied the motion; the court of appeals granted the defendant's leave to appeal the nonfinal order and affirmed the circuit court's order denying the defendant's motion to dismiss the fourth prosecution.
¶ 12. The defendant did not testify at the fourth trial. The jury convicted the defendant on all counts.
¶ 13. After the jury returned verdicts in the fourth trial finding him guilty, the defendant filed a petition for a writ of habeas corpus in the court of appeals challenging the effectiveness of counsel on the pretrial interlocutory appeal. The court of appeals concluded that, even assuming deficient performance, the defendant failed to prove prejudice because "no amount of advocacy would have convinced this court [of appeals] that the trial court unreasonably exercised its discretion [in granting a mistrial]."
¶ 14. The defendant then filed a postconviction motion in circuit court, again challenging the fourth trial on double jeopardy grounds. The circuit court once again rejected the defendant's double jeopardy challenge.
¶ 15. On the defendant's appeal of the conviction and order, raising his double jeopardy challenge for the third time, the court of appeals agreed with the defendant's double jeopardy argument, reversing the judgment of conviction and the order denying the defendant's motion for post-conviction relief. We granted the State's petition for review.
¶ 16. This review is a review of the court of appeals decision reversing a judgment of conviction and order entered in the defendant's fourth trial.2 With respect to the law of the case doctrine, we are reviewing the court of appeals' decision in the instant case to disregard its two prior rulings upholding the validity of the circuit court's declaring a mistrial in the third trial. As we have explained, the court of appeals had twice ruled in the State's favor on the validity of the circuit court's declaring a mistrial. On the defendant's third challenge to the mistrial on appeal from the judgment of conviction, the court of appeals ruled against the State.
[1]
¶ 17. We now determine whether the law of the case doctrine bars the court of appeals from overturning its earlier decisions affirming the circuit court's order declaring a mistrial.
[2]
¶ 18. The law of the case doctrine is a "longstanding rule that a decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal."3 ¶ 19. The State argues that because the court of appeals twice ruled that the circuit court's discretionary grant of a mistrial in the third trial was not violative of due process, the court of appeals violated the law of the case doctrine in the present case. There is no question that the court of appeals "reversed itself" in the instant case when it ruled that the circuit court erred in granting a mistrial in the third trial.
¶ 20. In response to the defendant's first double jeopardy challenge, the court of appeals declared in September 2000 that there was manifest necessity for the mistrial in the third trial and therefore there was no double jeopardy violation.
¶ 21. In response to the defendant's second double jeopardy challenge, the court of appeals held in June 2002 that no double jeopardy violation resulted from the mistrial.
¶ 22. In response to the defendant's third double jeopardy challenge, the court of appeals reversed course, holding for the defendant that the fourth trial was a violation of the prohibition against double jeopardy.
¶ 23. According to the State, when the issue of the validity of the mistrial arose a third time in the court of appeals, the court of appeals should have adhered to its two prior rulings that the circuit court did not err in granting the mistrial. The State argues that the defendant's double jeopardy challenge should have failed once again.
[3]
¶ 24. The issue of whether the two prior decisions of the court of appeals establish the law of the case raises a question of law that this court determines independently of the court of appeals, benefiting from the analysis of the court of appeals.4
[4]
¶ 25. The State recognizes, and we agree, that the law of the case doctrine is not an absolute rule that must be inexorably followed in every case.5 Courts have the power "to disregard the rule of `law of the case' in the interests of justice" and to reconsider prior rulings in a case.6 We have recognized that "`cogent, substantial, and proper reasons exist'" under which a court may disregard the doctrine and reconsider prior rulings in a case.7
¶ 26. The court of appeals' third review in the instant case of the defendant's double jeopardy challenge to the circuit court's declaration of the mistrial was apparently based on the same standard of review as were its first two reviews.8 It had determined twice before that the circuit court had not erroneously exercised its discretion in granting the mistrial. The difference warranting the court of appeals' reversing itself is that in the instant case the court of appeals examined all the facts, not just an incomplete version of the facts as it had before.
¶ 27. The court of appeals had based its prior decision that the circuit court properly exercised its discretion only on the circuit court's written order. In the instant...
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