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court of appeals decision (1-judge, not for publication); for Rodebaugh: Bryon J. Walker; case activity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, the circuit court declared a mistrial. The issue here is whether the circuit court erred when it determined that the prosecutor met his burden of showing a “manifest necessity” supporting a mistrial without prejudice. See State v. Seefeldt, 2003 WI 47, ¶¶16, 20, 261 Wis. 2d 383, 661 N.W.2d 822. For the reasons below, I conclude that the circuit court erred.
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¶16 The State argues that a manifest necessity existed because the prosecutor took all appropriate steps to ensure E.S.’s appearance and had even met with E.S. two days prior to trial, at which time E.S. said she would appear. This argument fails to address two simple facts. Regardless of the steps the prosecutor took to ensure E.S.’s appearance, there was good reason to suspect that E.S. might not appear and nothing prevented the prosecutor from checking on E.S.’s status prior to the time the jury was sworn. If the prosecutor had done so, and learned that E.S. was more than an hour late, he could have asked the court to delay swearing in the jury to give deputies some time to locate E.S. or, in the alternative, requested that the jurors be dismissed before jeopardy attached.[3]
¶17 I stress that this is not a circumstance in which the prosecutor sought to gain advantage or in any way intentionally disregarded Rodebaugh’s double jeopardy rights. Rather, it appears to be a situation in which the prosecutor was insufficiently mindful of those rights. However, regardless of the prosecutor’s thoughts or intentions, I cannot ignore the lack of a high degree of necessity for the mistrial. So far as I can tell, this situation could easily have been avoided.
The court notes that, while review of the circuit court’s conclusion of “manifest necessity” for mistrial is undoubtedly deferential, “there is a question regarding the level of deference” accorded that conclusion, ¶11 – “strict scrutiny” or “something less.” However, there’s no necessity for resolution: the State concedes strict scrutiny as the applicable standard, and in any event the court would reach the same result on these facts even with a high level of deference, id.
The appeal is interlocutory – the court grants leave to appeal as part of its decision on the merits, but doesn’t go into the details, ¶1 n. 1. Though mistrial lies at the heart of the appeal, the matter formally arises on review of denial of Rudebaugh’s subsequent motion to bar retrial. Rudebaugh’s Br., pp. 1-2. Because that denial didn’t “dispose[] of the entire matter in litigation” (which is to say, the prosecution will continue), it’s not a “final” order appealable as of right, § 808.03(1), and must instead satisfy criteria for permissive appeal, § 808.03(2). Leave to appeal is very rarely granted, save limited instances such as double jeopardy claims, State v. Jenich, 94 Wis. 2d 74, 97a-c, 288 N.W.2d 114 (1980) (“Given the serious constitutional questions raised by claims of double jeopardy, review of such orders will often be necessary to protect the accused from ‘substantial or irreparable injury’ — one of the three criteria for testing the appropriateness of review under sec. 808.03(2).”). As Michael Heffernan puts it, in his leading treatise, “the supreme court has recommended that the court of appeals grant petitions for leave to appeal pretrial orders denying motions to dismiss on double-jeopardy grounds,” Appellate Practice and Procedure in Wisconsin, Ch. 9 p. 4 (5th Ed. 2011). (Juvenile waiver is treated similarly, State ex rel. A.E. v. Green Lake County Cir. Ct., 94 Wis. 2d 98, 105d, 288 N.W.2d 125 (1980).) The petitioner must also show substantial likelihood of success on the merits, State v. Webb, 160 Wis. 2d 622, 632-33, 467 N.W.2d 108 (1991) – here, of course, the court’s conclusion that Rodebaugh was entitled to relief on the merits satisfied that standard.
