On Point blog, page 8 of 14
Lamar Evans v. Michigan, USSC No. 11-1327, cert granted 6/11/12
Does the Double Jeopardy Clause bar retrial after the trial judge erroneously holds a particular fact to be an element of the offense and then grants a midtrial directed verdict of acquittal because the prosecution failed to prove that fact?
Lower court opinion (491 Mich 1, 810 NW2d 535 (2012))
The QP efficiently sets up the issue,
Double Jeopardy – Retrial after Mistrial
State v. Susan M. Thorstad, 2011AP2854-CR, District 4, 5/31/12
court of appeals decision (1-judge, not publishable); for Thorstad: Charles W. Giesen; case activity
Mistrial was granted after the arresting officer, in contravention of pretrial order, testified that this was Thorstad’s second OWI. However, the officer was unaware of the order, because the prosecutor had failed to advise of same, an omission the trial court attributed to “laxness on the part of the State.” The trial court then ruled that,
Restitution – Finality and Double Jeopardy
State v. Eric Archie Armstrong, District 2/1, 2010AP1056-CR, 5/30/12
court of appeals decision (not recommended for publication); for Armstrong: Ellen Henak, SPD, Milwaukee Appellate; case activity
Setting restitution four years after sentencing didn’t violate double jeopardy principles, turning principally on whether Johnson “had a legitimate expectation of finality in the first judgment,” State v. Greene, 2008 WI App 100, ¶15, 313 Wis.
Double Jeopardy – Establishing Final Verdict
Alex Blueford v. Arkansas, USSC No. 10-1320, 5/24/12, affirming 2011 Ark. 8
Double Jeopardy doesn’t bar retrial on greater offenses, despite jury foreperson’s report of unanimous votes against those charges, after ensuing deadlock resulted in mistrial.
Blueford’s primary submission is that he cannot be retried for capital and first-degree murder because the jury actually acquitted him of those offenses. See Green v.
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court of appeals decision (1-judge, not for publication); for Rodebaugh: Bryon J. Walker; case activity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,
Alex Blueford v. Arkansas, USSC No. 10-1320, cert granted 10/11/11
Decision below: Blueford v. State, 2011 Ark. 8
Question Presented (from cert. pet.):
Whether, if a jury deadlocks on a lesser-included offense, the Double Jeopardy Clause bars reprosecution of a greater offense after a jury announces that it has voted against guilt on the greater offense.
Blueford was tried for capital murder.
Ineffective Assistance of Counsel; Multiplicity; Postconviction Discovery; Trial Judge Adopting State’s Brief in Toto
State v. Kelvin L. Crenshaw, 2010AP1960-CR, District 1, 8/2/11
court of appeals decision (not recommended for publication); for Crenshaw: Joseph E. Redding; case activity
Counsel wasn’t ineffective with respect to: failure to argue a theory of defense unsupported by the evidence; failure to introduce medical records asserted to show police bias in conducting the investigation; failure to object to the concededly erroneous inclusion of “party to a crime”
Sentence Credit, Previously Imposed Sentence, § 973.04; Double Jeopardy
State v. Charles Lamar, 2011 WI 50, affirming 2009 WI App 133; for Lamar: Donna L. Hintze, SPD, Madison Appellate; case activity
Sentence Credit, Previously Imposed Sentence, § 973.04
Two concurrent sentences were initially imposed following guilty pleas to aggravated battery and misdemeanor bail jumping, both as repeater. The Agg Batt plea was withdrawn on postconviction motion, but the bail jumping wasn’t challenged.
Counsel: Request for Substitute – Effective Assistance (Disclosure of Communications, et al.); Double Jeopardy: Bail Jumping
State v. Demetrius M. Boyd, 2011 WI App 25; for Boyd: Rebecca Robin Lawnicki; case activity; Boyd BiC; State Resp.; Reply
Request for New Counsel
An indigent defendant doesn’t have the right to counsel of choice, but does have the right to counsel with whom he or she can communicate effectively. When an indigent defendant requests change of counsel,
Multiplicity: § 948.40(1) (4)(a) as Lesser of § 940.02(2)(a); Contributing to Delinquency with Death as Result; Instructions – First-Degree Reckless Homicide; Prosecutorial Misconduct – “Haseltine”
State v. Patrick R. Patterson, 2010 WI 130, affirming 2009 WI App 181; for Patterson: David R. Karpe; Patterson BiC; State Resp.; Reply
Multiplicity – § 948.40(1) (4)(a) as Lesser Offense of § 940.02(2)(a)
Contributing to the delinquency of a minor with death as a result, § 948.40(1), (4)(a) is not a lesser offense of first-degree reckless homicide,