The Wisconsin Court of Appeals recently decided two cases in which criminal defendants objected to efforts by the State to prosecute them twice for the same crime. Both the U.S. Constitution (in the Fifth Amendment) and the Wisconsin Constitution (in article I, section 8) prohibit double jeopardy. The defendant in the first case prevailed on his double-jeopardy claim. The defendant in the second case, however, did not. While both cases involve the same constitutional guarantee, the Court of Appeals decisions present an illuminating contrast in how the double-jeopardy prohibition works in practice.

In State v. Troka, 2014AP2470-CR (Apr. 21, 2016), the Court of Appeals held that the double-jeopardy prohibition bars the state from re-prosecuting Russell Troka. The state initially prosecuted Troka for attempted first-degree homicide, strangulation or suffocation, substantial battery, and disorderly conduct. See Troka, slip op. ¶ 2. (Troka pleaded no contest to a charge of bail jumping. See id. n.1.)

At trial, after the state presented and rested its case, Troka began presenting his defense. During the second day of trial, Troka called Dr. Richard Tovar as an expert witness to offer an opinion about the victim’s injuries and their possible causes. See id. ¶¶ 3, 6. Troka’s lawyer had failed to provide the prosecution with a summary of the opinions to which Dr. Tovar would be testifying. See id. ¶ 6. On that basis, after Dr. Tovar had answered questions about his background and experience, but before he said anything about the victim’s injuries or his opinions in the case, the prosecution objected that Dr. Tovar’s opinions should be excluded. See id.

Troka concedes that his lawyer failed to provide a summary of Dr. Tovar’s opinions and that, as a result, Dr. Tovar should not have been allowed to testify. See id. ¶ 22. The dispute is about what the court should have done next. Jeopardy attaches once the case has started (as soon as the jury is sworn in, if there’s a jury). See id. ¶ 14. And “[o]nce jeopardy attaches, prosecution of a defendant before a jury other than the original jury is barred unless: (1) there is a ‘manifest necessity’ for a mistrial; or (2) the defendant either requests or consents to a mistrial.” Id. ¶ 15 (quotation marks and citation omitted).

In Troka’s case, there had been two full days of trial, so jeopardy had attached. And “there is no dispute that the defense did not request or consent to a mistrial.” Id. Instead, Troka had suggested that Dr. Tovar’s testimony be discontinued; his lawyer characterized the testimony as not critical to the defense and proposed that the court tell the jury the defense had decided to move on with their case. See id. ¶¶ 8, 23. Additionally, on appeal, Troka argued that two of the remedies provided in the statute to cure the failure to provide a summary of the testimony were: granting a short continuance for the prosecution to prepare for Dr. Tovar’s testimony or, alternatively, allowing the testimony and then instructing the jury that it could draw an adverse inference from the defense’s failure to give advance notice to the state—would also have resolved the situation and allowed trial to continue.

The prosecution disagreed. It told the trial judge that Dr. Tovar was a critical defense witness and that excluding his testimony would provide possible grounds for Troka to get a conviction in this trial reversed on appeal. See id. ¶ 20. As a result, the prosecution argued, the only solution was to declare a mistrial. See id. ¶¶ 20, 27. Traditionally, only the party calling the witness may make the determination whether the witness is critical. And Troka’s lawyer made clear that Dr. Tovar was not a critical witness because the defense had two other medical experts it had properly disclosed and planned to call as witnesses. See id. ¶ 27. Nevertheless, “[t]he circuit court accepted the State’s argument in support of its mistrial motion,” even though “there was no basis for the circuit court to have concluded that the record as a whole established that Tovar’s testimony was critical.” Id. ¶¶ 21, 28.

Noting that “a circuit court should declare a mistrial only ‘with the greatest caution, under urgent circumstances, and for very plain and obvious causes,’” id. ¶ 29 (quoting State v. Mattox, 2006 WI App 110, ¶ 13), the Court of Appeals concluded that “the record does not adequately support the circuit court’s, or the State’s, reliance on the mere possibility of Troka having a successful ineffective assistance of counsel argument on appeal of a conviction, in order to find a manifest necessity for a mistrial,” id. ¶ 32. And, it follows that “because there was no manifest necessity for a mistrial, a second trial would violate Troka’s right to proceed with his original jury.” Id.

Thus, the Court of Appeals concluded the double-jeopardy prohibition applied, and ordered the state’s prosecution of Troka be dismissed. Id. ¶ 33.

While Troka arguably benefited from a series of events that began with his own lawyer’s procedural error in not disclosing Dr. Tovar’s opinions to the prosecution, the defendant in State v. Berry, 2015AP1195-CR (Apr. 26, 2016), did not fare as well in his double-jeopardy argument, even though the issues there began with a mistake by the State.

In 2014, Berry was a passenger in a car stopped by a Milwaukee police officer. See Berry, slip op. ¶ 2. Berry informed the officer that he held a valid Florida permit to carry a concealed handgun and that he was in possession of a gun. See id.

Berry was taken into custody on an outstanding unrelated warrant. See id. Court records indicated that he had previously been convicted of a felony and advised that his status as a felon prohibited him from possessing a firearm. See id. ¶ 3. The State charged him with being a felon in possession, which violates a state statute. See id.

Berry waived his right to a jury trial and proceeded with a bench trial. See id. In a bench trial, jeopardy attaches once the court begins to hear evidence. See id. ¶ 9. At trial, Berry stipulated to the following facts: (1) he had been convicted of a felony in 2004; (2) his conviction had not been reversed; and (3) he was in possession of a firearm when arrested in 2014. See id. ¶ 4. On the basis of these stipulated facts, the court convicted Berry of violating Wis. Stat. § 941.29(2)(a). See id.

After Berry’s conviction but before his sentencing, his lawyer discovered that Berry had not been convicted of a felony in 2004. See id. ¶ 5. Rather, he had pleaded guilty to a misdemeanor. See id. Once the court learned these facts, it vacated the judgment of conviction for being a felon in possession. See id. The court did not enter a judgment of acquittal, but instead dismissed the felon-in-possession charge with prejudice. See id.

The same day that the court vacated Berry’s conviction, the State brought a new charge against Berry. See id. ¶ 6. Whereas he had previously been charged (and convicted) under Wis. Stat. § 941.29(2)(a), which prohibits those who have been convicted of a felony from possessing a firearm, he was now charged under Wis. Stat. § 941.29(2)(b), which prohibits firearm possession of those who have been adjudicated delinquent as a juvenile. See id. The State relied on the same traffic stop from January 2014 as the predicate for the charge. See id. Berry sought to dismiss the new charge on double-jeopardy grounds. See id. The trial court denied his motion, and the Wisconsin Court of Appeals affirmed that decision. See id.

Where the State seeks to impose more than one penalty for the same behavior, courts engage in a two-part analysis: first, they consider whether the two offenses charged are identical in fact or law; then the determine whether the legislature intended to authorize multiple punishments. See id. ¶ 10 (citing State v. Eaglefeathers, 2009 WI App 2).

Under the first step, the Court of Appeals examined the elements the prosecution must prove to prevail under § 941.29(2)(a) and § 941.29(2)(b). See id. ¶ 11. Each charge requires two elements. The first element—that the defendant possessed a firearm—is common to both charges. But each charge has a distinct second element: under §941.29(2)(a), the defendant must have been previously convicted of a felony; under §941.29(2)(b), the defendant must have been previously adjudicated delinquent after April 21, 1994, for an act that, if committed by an adult, would be a felony. See id. Because the two charges have different second elements, they are not identical in law. See id.

Under the second step, “‘when multiple charged offenses are different in fact or in law, … the burden of proof [falls] on the defendant to show that the legislature intended to preclude cumulative punishments.’” Id. ¶ 12 (quoting Eaglefeathers, 2009 WI App 2, ¶ 15). Here, the two charges, at least as applied to Berry in this instance, were identical in fact. And the Court of Appeals held that Berry failed to show that the legislature intended not to allow an individual to be punished under both subsections of § 941.29(2). See id. ¶ 13.

As a result, the Court of Appeals concluded, Berry was not subjected to double jeopardy when the State first prosecuted him on one charge and then on the other. See id. ¶ 17.

Taken individually, both Troka and Berry are interesting decisions. Troka benefitted from the double-jeopardy prohibition, even though his mistrial arose from his own lawyer’s failure to make a necessary pretrial disclosure. Berry, by contrast, did not benefit from the double-jeopardy prohibition, even though it was the State that initially charged him under the wrong statutory section based on inaccurate court records. Read in tandem, these cases provide a good overview of double-jeopardy law—whether tried to a jury or a judge, whether involving violent crimes or regulatory violations, whether arising from mistrials or developments after conviction. And they show that application of the double-jeopardy prohibition does not always reach intuitive outcomes.

Find a Professional