On Point blog, page 1 of 2
COA affirms order declaring mistrial when prosecutor learned she had COVID after first day of trial.
State v. Cesar O. Fernandez-Reyes, 2024AP1668-CR, 3/4/25, District III (not recommended for publication); case activity
COA affirms circuit court’s order declaring a mistrial and denying the defendant’s motion to bar a retrial on double jeopardy grounds where prosecutor learned she had COVID after the first day of trial.
COA affirms and agrees that officer’s violation of sequestration order need not result in new trial
State v. Marqus G. Phillips, 2023AP450, 10/4/23, District 2 (one-judge decision, ineligible for publication); case activity (including briefs)
That the Constitution does not guarantee an “error-free trial” is an unnecessary response to a straw man when a defendant seeks a new trial after it is discovered that the second of two state’s witnesses was found to have violated the circuit court’s witness sequestration order. It’s also an easy out where the circuit court’s lack of prejudice determination in denying a mistrial claim is reviewed under the “clearly erroneous” standard of review.
SCOW reverses grant of new trial by deferring to circuit court’s exercise of discretion when denying motion for mistrial
State v. Eric J. Debrow, 2023 WI 54, 6/23/23, reversing an unpublished court of appeals decision; case activity (including briefs)
In yet another reversal of a defense win, SCOW defers to the circuit court’s decision denying a motion for mistrial but slightly muddies the waters as to the proper legal analysis when assessing mistrial claims on appeal.
Defense win: Witness’s reference to defendant’s prior conviction for similar crime requires new trial
State v. Eric J. Debrow, 2021AP1732, 7/21/22, District 4 (not recommended for publication); petition for review granted, 12/15/22, reversed, 2023 WI 54; case activity (including briefs)
The court of appeals holds Debrow is entitled to a new trial because of the unfair prejudice caused by one witness’s testimony that would have led the jury to conclude Debrow had a prior criminal conviction that led the witness to be “on alert” when Debrow went into the bedroom of two children.
Defense win! COA holds mistrial was necessary where jury heard prejudicial, inadmissible testimony
State v. Juan J. Castillo, 2020AP983, 6/29/21, District 3 (not recommended for publication); case activity (including briefs)
Castillo was tried for the alleged sexual assault of his five-year-old cousin when he was sixteen. He wished to call an expert to testify about the factors that can affect the reliability of a child’s allegations of assault; the circuit court disallowed this testimony. The court of appeals upholds the circuit court’s ruling on that matter, concluding that the testimony didn’t “fit” the facts of this case. But the court does order a new trial, holding the circuit court should have granted the mistrial Castillo requested after the now-8-year-old alleged victim “blurted out” on the stand that Castillo had assaulted three other girls, and after his sister gave testimony suggesting he was incarcerated at the time of trial.
COA finds no error in denying mistrial or in refusing self-defense instruction
State v. Raymond R. Barton, 2019AP1990, 9/24/20, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
Barton was convicted at trial of three counts involving battery of his adult stepson. He argues the trial court should have granted the mistrial he asked for when his daughter testified she was afraid that something had happened because “things had happened before.” He also asserts the court should have instructed the jury on self-defense. The court of appeals rejects both arguments.
COA finds no error in denying mistrial for 3 evidentiary issues
State v. Ross Harris, Jr., 2018AP1667, 10/24/2019, District 4 (one-judge opinion; ineligible for publication); case activity (including briefs)
The charges in this case, disorderly conduct and battery, arose from an altercation in a hospital elevator. The state said Harris, newly a grandfather, had attacked A.D., the fiancé of his newborn grandchild’s maternal grandmother, while both were visiting the baby. Harris said it was A.D. who had attacked him.
Discovery violation didn’t require mistrial, and evidence was sufficient to support possession of firearm conviction
State v. Francisco Luis Canales, 2013AP1435-CR, District 1, 3/11/14; court of appeals decision (not recommended for publication); case activity
Though the state violated its discovery obligation by failing to disclose multiple computer-aided dispatch (CAD) reports describing 9-1-1 calls regarding the incident, the circuit court did not erroneously exercise its discretion in denying Canales’s motion for mistrial after the discovery violation came to light.
A mistrial is appropriate only when there is a “manifest necessity,” for “the law prefers less drastic alternatives,
Double Jeopardy – Mistrial over Objection – “Manifest Necessity”
State v. Levi Alexander Rodebaugh, 2011AP2659-CR, District 4, 4/5/12
court of appeals decision (1-judge, not for publication); for Rodebaugh: Bryon J. Walker; case activity
Grant of mistrial was unsupported by “manifest necessity,” hence was an erroneous exercise of discretion, where the complainant failed to show for trial and couldn’t be quickly located. Retrial is therefore barred as a matter of double jeopardy:
¶9 After Rodebaugh’s jury was sworn and jeopardy attached,
Curative Instruction – Stricken Testimony
State v. Cortez Ramon Brooks, I, 2010AP2454-CR, District 1, 1/10/12
court of appeals decision (not recommended for publication); for Brooks: Ann T. Bowe; case activity
The trial court immediately struck non-responsive testimony of a jailhouse informant that Brooks had admitted to “multiple homicides.” Denial of a subsequent motion for mistrial based on this testimony is upheld as an appropriate exercise of discretion.
¶18 First, any prejudice from Burks’s answer was cured by the trial court immediately striking the answer upon Brooks’s motion.