On Point: 12. Double Jeopardy, 5th Am.

State v. James P. Killian, 2020AP2012, review of a published court of appeals decision granted 1/20/23; case activity

Issues presented (from state’s PFR):

Has the State exposed Killian to multiple prosecutions for the same offense in violation of double-jeopardy principles?

State v. Etter L. Hughes, 2021AP1834-CR, District 1, 11/1/22 (not recommended for publication); case activity (including briefs)

The court of appeals rejects Hughes’s claim that she should be allowed to withdraw her pleas to four counts of child abuse on the grounds that the state improperly amended the information to add more charges against her because there was no independent factual basis for those charges and because two of the counts were multiplicitous under § 948.03(5)(c).

State v. Tomas J. Hoyle, 2020AP1876-CR, petition for review of an unpublished opinion granted 9/14/22; case activity (including briefs)

Issue: (adapted from the State’s PFR):

The 5th Amendment prohibits a prosecutor from commenting  on defendant’s failure to to the stand. Griffin v. California, 380 U.S. 609, 615 (1965); Bies v. State, 53 Wis. 2d 322, 325-26, 193 N.W.2d 46 (1972). In a case where the defendant exercises his right not to testify, does the prosecution violate this prohibition by telling the jury that the victim’s account is “uncontroverted” and no evidence was offered to dispute it?

State v. James P. Killian, 2022 WI App 43; review granted 1/20/23; reversed, 2023 WI 52; case activity (including briefs)

The state provoked a mistrial in a case charging Killian with child sexual assault offenses against two complainants. The circuit court later dismissed the case due to the prosecutor’s misconduct. When the state recharged Killian with sexual offenses against the same complainants the circuit court dismissed the new case as a violation of double jeopardy. The court of appeals affirms.

State v. Mitchell D. Green, 2021AP267-CR, petition for review of an unpublished COA opinion granted 6/22/22; reversed, 2023 WI 57 case activity (including briefs)

Question presented (from the State’s PFR):

Did the circuit court erroneously exercise its discretion when it concluded that there was a manifest necessity for a mistrial after Green introduced unnoticed third-party perpetrator evidence at trial via the testimony of a witness who claimed to have committed the crime but was unrepresented by counsel?

Denezpi v. United States, No. 20-7622, 2022 WL 2111348, June 13, 2022, affirming U.S. v. Denezpi, 979 F.3d 777 (10th Cir. 2020); Scotusblog page (including briefs and commentary)

Denezpi was prosecuted in the Court of Indian Offenses, a creature of the federal Bureau of Indian Affairs that provides a criminal court system for those (relatively few) tribes that haven’t set up their own. After serving a 140-day sentence in that prosecution, he was charged for and convicted of the same conduct in federal court—and ultimately given a 30-year sentence. The Supreme Court rejects his claim that the second prosecution was barred by the Double Jeopardy Clause.

State v. Tomas Jaymitchell Hoyle, 2020AP1876-CR, 4/26/22, District 3 (not recommended for publication); case activity (including briefs)

Hoyle chose to remain silent at his trial for child sexual assault. During closing arguments, the prosecutor repeatedly argued that the testimony from “Hannah” (the complaining witness) was “uncontroverted” and told the jury it had “heard no evidence” and that there was “absolutely no evidence” disputing her account of the alleged sexual assault. Under the circumstances of this case, the court of appeals holds that the prosecutor’s arguments violated Hoyle’s Fifth Amendment rights.

State v. Alec D. Alford, 2020AP2072-CR, District 2, 3/23/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Dismissal with prejudice for failing to comply with the time limit under the intrastate detainer statute isn’t an “acquittal on the merits” under § 939.71 and thus doesn’t bar filing new charges based on the same course of conduct.

State v. Mitchell D. Green, 2021AP267, 3/22/22, District 1 (not recommended for publication); petition for review granted, 6/22/22, reversed, 2023 WI 57; habeas granted, No. 24-2980 case activity (including briefs)

The state charged Green with crimes including child sex trafficking. The alleged victim testified that another man had trafficked her, but that Green had driven her a particular encounter where a client had spit in her mouth. After the state rested, the defense called Green’s cousin–his name was Cousin–who said that he’d been the one to drive the girl that night. Cousin said he’d done the driving for a third man, Delmar, who’d asked for a ride in exchange for gas money and then invited the alleged victim and another man along for the ride. Cousin said he remembered the incident because when he picked the alleged victim up after the encounter, she had mentioned the mouth-spitting.

State v. Roman T. Wise, 2021 WI App 87; case activity (including briefs)

Wise was convicted of 4 counts of fleeing or eluding an officer under §346.04(3). He claimed trial counsel was ineffective for failing to seek dismissal of 3 of his 4 charges on the grounds that they were multiplicitous. The court of appeals held that the charges were not multiplicitous because each one required proof of a different element or fact. Thus, the circuit court appropriately denied Wise’s ineffective assistance of counsel claim without a hearing.