State v. Ragan
| Decision Date | 22 January 1997 |
| Docket Number | No. 96-0352-CR,96-0352-CR |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Ronald L. RAGAN, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment and an order of the circuit court for Washington County: LAWRENCE F. WADDICK, Judge.
Before SNYDER, P.J., BROWN and NETTESHEIM, JJ.
Ronald L. Ragan appeals from a judgment of conviction for filing a false declaration of candidacy pursuant to § 12.13(3)(a), Stats. Ragan also appeals from the trial court's denial of his motion for postconviction relief.
On appeal, Ragan challenges his conviction on three grounds. First, Ragan argues that his double jeopardy rights were violated when the trial court granted a retrial following a mistrial declaration. We conclude that the retrial did not violate Ragan's protection against double jeopardy.
Second, Ragan claims that his trial counsel was ineffective. Specifically, he argues that his counsel improperly failed to object to the retrial on double jeopardy grounds, failed to object to certain remarks made by the prosecution during closing arguments, failed to raise the defense of mistake, and failed to challenge the sufficiency of the complaint and bindover.
Since we will address the double jeopardy issue on the merits in the interests of justice, we need not address it in the context of ineffective assistance of counsel. As to the remaining claims, we hold that counsel was not ineffective for failing to object to the prosecutor's closing argument and for failing to raise the defense of mistake. We do hold that counsel was ineffective for failing to challenge the complaint and bindover, but we conclude that Ragan was not prejudiced.
Third, Ragan argues that the evidence was insufficient to support the jury's guilty verdict. We disagree. We affirm the judgment of conviction and the postconviction order.
On January 3, 1994, Ragan filed with the town clerk for the Town of Erin a notarized declaration of candidacy form for the position of town supervisor. The preprinted declaration of candidacy included the following language: "I have not been convicted of any infamous crime for which I have not been pardoned except the felony convictions on the attached list." Ragan signed and filed the form without listing any prior conviction. Nor did he otherwise notify that he had previously been convicted of a felony. Ragan won the election.
Ragan, however, had previously been convicted of felony theft in Milwaukee county in 1976 when he was twenty years old. As a result of Ragan's failure to give notice of this prior conviction, the State filed a criminal complaint charging Ragan with false swearing contrary to § 946.32(1)(a), Stats., and falsifying information with respect to a declaration of candidacy contrary to § 12.13(3)(a), Stats. The false swearing charge was dismissed at the preliminary hearing. The falsifying information charge proceeded to a jury trial.
Prior to trial, the State filed a motion in limine seeking to exclude at trial any reference to the fact that Ragan had won the election but had not been seated for the position of town supervisor. In support of its motion, the State argued that such evidence was inadmissible and that the jury might conclude that Ragan's loss of the position he had won in the election might be sufficient punishment. The trial court agreed and granted the State's motion.
Contrary to this ruling, a defense witness testified before the jury that Ragan had won the election. The State moved for a mistrial. The court granted the motion over Ragan's objection. Without further objection from Ragan, the matter proceeded to a retrial and the jury found Ragan guilty. Later, the trial court rejected Ragan's motion for postconviction relief, including his claims of ineffective assistance of counsel. Ragan appeals. We will recite additional facts as we address the appellate issues.
Ragan first argues that the trial court erred by failing to engage in the requisite "manifest necessity" analysis prior to granting the mistrial request by the State. As such, Ragan contends that the retrial violated his double jeopardy rights. Although Ragan objected to the mistrial request, he acknowledges that he did not object to the retrial on the basis of double jeopardy. Thus, Ragan concedes, pursuant to State v. Mink, 146 Wis.2d 1, 10, 429 N.W.2d 99, 102 (Ct.App.1988), that he has waived this issue. ("[When the state seeks a retrial], the defendant must move for dismissal on double jeopardy grounds to avoid waiver.")
Because the issue is waived, Ragan urges this court to review his double jeopardy claim "in the interests of justice." See State v. Moesly, 102 Wis.2d 636, 652, 307 N.W.2d 200, 209-10 (1981) (); § 752.35, Stats. The State responds that we should not address the issue in the interests of justice because Ragan has not shown a substantial probability of a different result on retrial and therefore justice has not miscarried. See Vollmer v. Luety, 156 Wis.2d 1, 16, 456 N.W.2d 797, 805 (1990).
The State's argument may be well taken. However, this case is unusual because this issue is also raised in Ragan's ineffective assistance of counsel argument. There he contends that his trial counsel was ineffective for failing to raise a double jeopardy claim. But that failing would constitute defective performance by counsel only if a manifest necessity for the mistrial did not exist in the first place. Thus, we would have to address the manifest necessity question in any event. We choose to address it under Ragan's interests of justice argument.
In reviewing a double jeopardy claim based on mistrial, the question is whether, under all of the facts and circumstances, it was reasonable to grant a mistrial under the "manifest necessity" rule. See Mink, 146 Wis.2d at 10, 429 N.W.2d at 103 (citing State v. Copening, 100 Wis.2d 700, 710, 303 N.W.2d 821, 826-27 (1981)). Considerable deference is normally given to the trial court's determination of "manifest necessity" because that court is in the best position to make a first-hand assessment of the prejudice consideration. See Mink, 146 Wis.2d at 10, 429 N.W.2d at 103. 1
Here, the State brought a pretrial motion in limine to exclude evidence that Ragan had won the election for town supervisor but had been denied the position. The State's request was based on two concerns. First, the evidence was irrelevant to the charge of filing a false declaration of candidacy. Second, the State sounded a jury nullification concern, arguing that "if the Jury hears that [Ragan] was elected and/or that he was not seated, they may feel that he's already been punished enough; and that might influence their findings of fact in this case." The trial court granted the State's motion in limine. 2
Although the correctness of the trial court's motion in limine ruling is not before us, we observe that the ruling was obviously correct from an evidentiary standpoint. Whether Ragan won the election and whether he was seated were clearly irrelevant to the charge of falsifying information on the declaration of candidacy.
When a defense witness later testified before the jury that Ragan had been elected to the office, the State moved for a mistrial. Ragan opposed the motion, suggesting instead that the trial court give the jury a curative instruction. The court rejected this suggestion and declared a mistrial. Although the court did not use the phrase "manifest necessity," the court harkened back to the State's argument at the motion in limine that Ragan's winning the election but not being seated might constitute punishment enough in the mind of the jury. 3 In addition, the court expressed a concern that the cautionary instruction "would be a reasonable inference for the Jury to conclude that ... there had been an election successfully run by this candidate and that he had not continued in office; and we're back to Square One." Thus, the court was legitimately concerned that a cautionary instruction would reinforce, rather than diminish, the effect of the improper testimony.
This issue touches on the dynamics of the courtroom and the fairness of the trial as sensed and evaluated by the trial court when the event occurred. As such, the trial court was in the best position to assess the effect of the improper testimony on the jury. Since the court's motion in limine ruling was correct from an evidentiary standpoint, and given the deference which we properly accord the trial court's manifest necessity ruling, we conclude that the court did not misuse its discretion in declaring the mistrial. 4
To succeed on a claim of ineffective assistance of counsel, Ragan must show that his attorney's performance was deficient and that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, ---, 80 L.Ed.2d 674 (1984). The test for measuring an attorney's performance is the reasonableness of counsel's challenged conduct on the particular facts of the case, viewed as of the time of counsel's conduct. Id. at 690, 104 S.Ct. 2052; State v. Pitsch, 124 Wis.2d 628, 636, 369 N.W.2d 711, 716 (1985). There is a strong presumption that the attorney has rendered effective assistance and made all significant decisions while exercising reasonable professional judgment. Strickland, 466 U.S. at 689, 104 S.Ct. 2052.
Our supreme court has stated that it disapproves of postconviction counsel second-guessing trial counsel's considered selection of trial tactics or the exercise of a professional...
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