Appendix — Wisconsin v. Moeck
Supreme Court brief2005
Ask Donna
What actually matters in this document.
Text
INDEX TO APPENDIX
Page
Wisconsin Supreme Court Decision
in State of Wisconsin v. Richard A. Moeck,
2005 W157, _Wis.2d__, 695 N.W..2d 783 ..........0..... Al-62
Wisconsin Court of Appeals Decision
in State of Wisconsin v. Richard A. Moeck,
2004 WI App 47, 270 Wis. 2d 729,
I ig ia os cach bvnekceu icainsscisesnossadee A63-74
Opening Statement by Defense Counsel
II GE LUNI ooo cscs sc cscccsccdesscsccncosccesssesses A75-85
Discussion and Oral Decision by Tnal
Court on Motion for Mistrial...........................:.....0....6. A85-92
Trial Court’s Written Memorandum
Decision and Order in State of Wisconsin
v. Richard Moeck, No. 97-CF-468 ...........::cccsesceeceeeeseees A93-96
Al
No. 2003AP2-CR 2005 WI 57
(L.C. No. 97 CF 468)
STATE OF WISCONSIN IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner, FILED
V. May 6, 2005
Richard A. Moeck, Cornelia G. Clark
Clerk of Supreme Court
Defendant-Appellant.
REVIEW of a decision of the Court of Appeals.
Affirmed.
q1 SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.
This is a review of a published decision of the court of
appeals’ reversing a judgment of conviction and an order
denying post-conviction relief of the Circuit Court for La
Crosse County, Michael Kirchman, Judge. The judgment
and order stem from a fourth tnal in which Richard Moeck,
the defendant, was convicted of two counts of first degree
sexual assault, one count of false imprisonment, one count of
robbery, and one count of intimidation of a victim. In
denying the defendant's motion for post-conviction relief, the
circuit court concluded that the defendant's fourth tnal
following a mistrial in the third trial did not violate double
jeopardy protections.
' State v. Moeck, 2004 WI App 47, 270 Wis. 2d 729, 677
N.W.2d 648.
A2
{2 The court of appeals reversed the circuit court's
_Judgment of conviction and order denying post-conviction
relief. The court of appeals concluded that there was not a
manifest necessity caused by defense counsel's opening
statement in the third trial sufficient to warrant a mistrial,
and therefore the fourth trial violated the defendant's nght to
be free from double jeopardy.
43 Two issues are presented to this court. First, did
the court of appeals err as a matter of law in rejecting the
State's argument that the "law of the case” doctrine applied
~ because on two prior occasions the court of appeals rejected
‘the defendant's challenge to the circuit court's order for a
mistrial in the third tnal? Second, were the Double Jeopardy
Clauses of the U.S. and Wisconsin Constitutions violated
when the defendant was retried a fourth time following a
mistrial in the third trial on the basis of defense counsel's
opening statement?
§4 We hold that the court of appeals did not err as a
matter of law in holding that the "law of the case" doctrine
did not apply to the defendant's most recent challenge in the
court of appeals to the circuit court's order granting a mistnal
in the defendant's third trial. We further hold that because
the State did not meet its burden of showing a manifest
necessity for the termination of the third tnal, the circuit
court erred in granting the State's motion for a mistnal.
Accordingly we agree with the court of appeals that the
fourth trial violated the defendant's mght to be free from
double jeopardy. We therefore affirm the decision of the
court of appeals.
I
45 In addressing the first issue, the application of the
law of the case doctrine, we set forth a brief narration of the
procedural posture of the instant case and then examine
whether the law of the case doctrine bars the court of appeals
A3
from overturning its two earlier decisions affirming the
circuit court's order declaring a mistrial.
A
{6 The following facts are undisputed. The defendant -
has been prosecuted four times for allegedly sexually
assaulting and robbing the complainant, C.S., on August 2,
1997.
{7 The defendant's first trial was in January 1998. The
’ defendant testified. The trial ended in a hung jury.
98 The defendant's second tnal was in March 1998.
The defendant testified. The jury convicted the defendant.
The conviction was overturned by the court of appeals in
October 1999, on the ground that the circuit court committed
reversible error in denying the defendant's request for a
mistrial after the circuit court, during voir dire, inadvertently
mentioned the defendant's repeat offender status three times.
The court of appeals held that the curative jury instruction
was not sufficient to correct the error.
{9 The defendant's third trial was in March 2000. The
defendant did not testify. The circuit court granted the
State's motion for mistrial at the close of all the evidence.
The defendant objected to the motion for mistrial. The events
surrounding the mistrial are the subject of this review.
{10 The defendant's fourth tial was in November 2000
before a different circuit court judge than the defendant's
three prior tnals.
411 The defendant moved to dismiss the fourth trial on™
double jeopardy grounds, arguing that there was no manifest
necessity for ordering the mistrial at the third trial. The
circuit court denied the motion; the court of appeals granted
the defendant's leave to appeal the nonfinal order and
A4
affirmed the circuit court's order denying the defendant's
motion to dismiss the fourth prosecution.
412 The defendant did not testify at the fourth tnal.
The jury convicted the defendant on all counts.
413 After the jury returned verdicts in the fourth trial
finding him guilty, the defendant filed a petition for a writ of
habeas corpus in the court of appeals challenging the effec-
tiveness of counsel on the pretnal interlocutory appeal. The
court of appeals concluded that, even assuming deficient per--
formance, the defendant failed to prove prejudice because
"no amount of advocacy would have convinced this court [of
appeals] that the trial court unreasonably exercised its dis-
cretion [in granting a mistrial]."
414 The defendant then filed a postconviction motion in
circuit court, again challenging the fourth tial on double
jeopardy grounds. The circuit court once again rejected the
defendant's double jeopardy challenge.
415 On the defendant's appeal of the conviction and
order, raising his double jeopardy challenge for the third
time, the court of appeals agreed with the defendant's double
jeopardy argument, reversing the judgment of conviction and
the order denying the defendant's motion for post-conviction
relief. We granted the State's petition for review.
416 This review is a review of the court of appeals
decision reversing a judgment of conviction and order
entered in the defendant's fourth trial.” With respect to the
law of the case doctrine, we are reviewing the court of
appeals’ decision in the instant case to disregard its two prior
rulings upholding the validity of the circuit court's declaring
* Moeck, 270 Wis. 2d 729, 98.
AS
a mistrial in the third trial. As we have explained, the court
of appeals had twice ruled in the State's favor on the validity
of the circuit court's declaring a mistrial. On the defendant's
third challenge to the mistrial on appeal from the judgment
of conviction, the court of appeals ruled against the State.
B
417 We now determine whether the law of the case
doctrine bars the court of appeals from overturning its earlier
decisions affirming the circuit court's order declaring a
mistnal.
418 The law of the case doctrine is a "iongstanding rule
that a decision on a legal issue by an appellate court estab-
lishes the law of the case, which must be followed in all
subsequent proceedings in the trial court or on later appeal."*
419 The State argues that because the court of appeals
twice ruled that the circuit court's discretionary grant of a
mistrial in the third trial was not violative of due process, the
court of appeals violated the law of the case doctrine in the
present case. There is no question that the court of appeals
"reversed itself" in the instant case when it ruled that the
circuit court erred in granting a mistrial in the third tnal.
{20 In response to the defendant's first double jeopardy
challenge, the court of appeals declared in September 2000
that there was manifest necessity for the mistrial in the third
tnal and therefore there was no double jeopardy violation.
> Univest Corp. v. Gen. Split Corp., 148 Wis. 2d 29, 38,
435 N.W.2d 234 (1989).
A6
421 In response to the defendant's second double jeop-
ardy challenge, the court of appeals held in June 2002 that no
double jeopardy violation resulted from the mistrial.
4/22 In response to the defendant's third double jeopardy
challenge, the court of appeals reversed course, holding for
the defendant that the fourth tral was a violation of the
prohibition against double jeopardy.
423 According to the State, when the issue of the valid-
ity of the mistnal arose a third time in the court of appeals,
the court of appeals should have adhered to its two prior
rulings that the circuit court did not err in granting the
mistrial. The State argues that the defendant's double jeop-
ardy challenge should have failed once again.
724 The issue of whether the two pnor decisions of the.
court of appeals establish the law of the case raises a ques-
tion of law that this court determines independently of the
court of appeals, benefiting from the analysis of the court of
appeals.
425 The State recognizes, and we agree, that the law of
the case doctrine is not an absolute rule that must be inex-
orably followed in every case. Courts have the power "to
disregard the rule of ‘law of the case’ in the interests of
* State v. Wurtz, 141 Wis. 2d 795, 799, 416 N.W.2d 623
(Ct. App. 1987).
> "(T]he law of the case doctrine\is not a rule to which
this court is bound by any legislative enactment, nor it is a
rule to be inexorably followed in every case." Univest, 148
Wis. 2d at 38-39.
A7
justice" and to reconsider prior rulings in a case.° We have
recognized that "cogent, substantial, and proper reasons
exist™ under which a court may disregard the doctrine and
reconsider prior rulings in a case.’
426 The court of appeals’ third review in the instant
case of the defendant's double jeopardy challenge to the
circuit court's declaration of the mistrial was apparently
based on the same standard of review as were its first two
reviews.® Jt had determined twice before that the circuit
court had not erroneously exercised its discretion in granting
the mistrial. The difference warranting the court of appeals’
reversing itself is that in the instant case the court of appeals
° State v. Brady, 130 Wis. 2d 443, 448, 388 N.W.2d 151
(1986) (quoting McGovern v. Eckhart, 200 Wis. 64, 75, 227
N.W. 300 (1929)). The United States Supreme Court has
stated similar reasons. See Christianson v. Colt Indus.
Operating Corp., 486 U.S. 800, 817 (1988).
’ Univest, 148 Wis. 2d at 39 (quoting Brady, 130 Wis.
2d at 447 (citing McGovern, 200 Wis. at 78)). .
® The parties debate whether State v. Seefeldt, 2003 WI
47, 261 Wis. 2d 383, 661 N.W.2d 822, changed the defer-
ential erroneous exercise of discretion standard for review
the court had previously adopted in double jeopardy cases.
The defendant argues that Seefeldt, issued after the two court
of appeals decisions affirming the circuit court's denial of the
defendant's double jeopardy challenge, changed the standard
for review. The State counters that Seefeldt was not a
change in the law and therefore should not be the basis for
departure from the law of the case doctrine. We need not
address this issue because the departure from the law of the
case doctrine is justified on other grounds.
A8 .
examined all the facts, not just an incomplete version of the
facts as it had before.
27 The court of appeals had based its prior decision
that the circuit court properly exercised its discretion only on
the circuit court's written order. In the instant case the court
of appeals properly considered and based its decision on the
transcript of the circuit court's oral decision. The court of
appeals candidly acknowledged in the instant case that its
prior summary order rejecting the defendant's double jeop-
ardy challenges erroneously failed to take into account the
circuit court's oral decision to grant a mistrial. Instead; the
prior order relied on only the circuit court's later written
decision.
428 The oral decision, in contrast to the wnitten deci-
sion, demonstrated that in declaring a mistrial the circuit
court erred as a matter of law in failing to exercise its
discretion and by abdicating its responsibility to the State.”
q29 At the State's request we examined the circuit
court's oral and written decisions and conclude, as did the
court of appeals, that they are different. Thus, the facts upon
which the court of appeals relied changed between its first
two rulings on double jeopardy and its decision in the instant
case.
430 The court of appeals' failure to examine fully the
circumstances surrounding the circuit court's grant of the
mistrial in the third trial provides a cogent, substantial, and
proper reason for the court of appeals’ disregarding the law
of the case doctrine in the instant case. The court of appeals’
admitted, lapses in considering the defendant's double jeop-
ardy challenge should not eviscerate the defendant's constitu-
* Moeck, 270 Wis. 2d 729, 921.
A9
tional protections. Although the court of appeals used the
abdication issue, which was highlighted by the transcript of
the oral proceedings, as grounds for disregarding the law of
the case doctrine, we conclude, as will be discussed below,
that the circuit court's failure to consider fully the prose-
cutor's ability to countermand defense counsel's opening
‘statement, as well as the court's ability to give a curative jury
instruction, are cogent, substantial, and proper reasons for
revisiting the double jeopardy challenge.
931 We therefore conclude that the court of appeals
properly disregarded the law of the case doctrine in the
instant case. The prudential] law of the case doctrine is not a
bar in the instant case to the court of appeals’ reexamination
of the defendant's double jeopardy challenge.
II
432 We turn now to the second issue presented, double
jeopardy. We must determine whether "the circuit court
erred [in the third tnal] when it determined that the State met
its burden of showing the requisite manifest necessity to sup-
port the mistrial order that terminated” the defendant's third
trial.'° We examine in turn: (A) the constitutional protection
against double jeopardy and the manifest necessity standard
used to determine whether a mistrial should be ordered; (B)
the level of deference to be applied to a circuit court's mis-
trial order; (C) the circumstances leading up to the granting
of the mistrial; and (D) our application of the constitutional
principles and standard of review to the circumstances of the
case.
' Seefeldt, 261 Wis. 2d 383, 913.
Al0
A
433 The Fifth Amendment of the U.S. Constitution’
and Article I, § 8 of the Wisconsin Constitution’? provide
that a defendant may not be put in jeopardy twice for the
same offense.'> We recently explored the constitutional
doctrine of double jeopardy in State v. Seefeldt, 2003 WI 47,
915-19, 261 Wis. 2d 383, 661 N.W.2d 822. That decision
guides this case. :
934 "Jeopardy" means exposure to the nsk of deter-
mination of guilt. It attaches when the selection of the jury
has been completed and the jury is sworn. The parties here
do not dispute that jeopardy attached in all four trials. The
constitutional protection against double jeopardy "embraces
the defendant's valued right to have his trial completed by a
particular tribunal."'* The protection against double jeop-
ardy thus limits the State's ability to request that a trial be
terminated and then restarted with a different jury. :
'' The Fifth Amendment to the U.S. Constitution pro-
vides: "[N]or shall any person be subject for the same
offence to be twice put in jeopardy of life or limb... .”
'2 Article I, § 8 of the Wisconsin Constitution provides:
"[N]o person for the same offense may be put twice in jeop-
ardy of punishment...." This court has been guided by
U.S. Supreme Court double jeopardy jurisprudence in con-
struing Wisconsin's double jeopardy prohibition. Seefeldt,
261 Wis. 2d 383, 915 n.4 (citing State v. Barthels, 174 Wis.
2d 173, 181, 495 N.W.2d 341 (1993)).
'> Seefeldt, 261 Wis. 2d 383, 415.
'4 Arizona v. Washington, 434 U.S. 497, 503 (1978)
(internal quotation and citation omitted).
All
435 Underlying the protection against cumulative tnals
are the principles of fairness and finality. "The underlying
idea, one that 1s deeply ingrained . . . 1s that the State with all
its resources and power should not be allowed to make
repeated attempts to convict an individual for an alleged
offense, thereby subjecting him to embarrassment, expense
and ordeal ai? compelling him to live in a continuing state
of anxiety and insecurity, as well as enhancing the possibility
that even though innocent he may be found guilty."'° Courts
have recognized that the double jeopardy protection may be
subverted if a circuit court terminates a trial prior to verdict,
thereby taking from an accused the opportunity to gain an
acquittal when the prosecution has been less persuasive than
anticipated.'®
436 An accused's right to have a trial concluded by a
particular tibunal can be, under certain circumstances, sub-
ordinated to the public interest in affording the State one full
and fair opportunity to present its evidence to an impartial
jury.
937 A mistrial is.warranted if the mistrial is "manifestly
necessary." The State bears the burden to demonstrate that a
"manifest necessity’ [exists] for any mistrial ordered over the
objection of the defendant.”'® A “manifest necessity" war-
'> Green v. United States, 355 U.S. 184, 187-88 (1957).
See also State v. Barthels, 174 Wis. 2d 173, 181-82, 459
N.W.2d 341 (1993) (quoting Green); State v. Comstock, 168
Wis. 2d 915, 937, 485 N.W.2d 354 (1992).
'© Green, 355 U.S. at 188.
'” Washington, 434 U.S. at 505.
'8 Seefeldt, 261 Wis. 2d 383, 919.
Al2
ranting a mistrial is a high degree of necessity.'? The
determination whether a manifest necessity exists is a fact-
intensive question. If the State does not meet this burden,
the State is not permitted to commence another trial against
the accused.
438 The circuit court granted the State's. motion for a
mistrial in the third tnal after the jury had been sworn, and
the defendant objected to the State's motion. Accordingly,
the circuit court's granting the mistnal implicated the double
jeopardy clause. The State was thus required to demonstrate
that there was a manifest necessity to terminate the third
trial.
q39 The defendant asserts that his constitutional right
against double jeopardy was violated by his fourth trial
because no manifest necessity existed for a mistrial after the
close of evidence during the third tnal.
B
{40 Before reviewing the record to determine whether
the State has met its burden, we address the level of defer-
'? Id. (citing Washington, 434 U.S. at 505; Barthels, 174
Wis. 2d at 183). This court has also cited approvingly
Justice Story's articulation of the manifest necessity test:
"Courts of justice [may] discharge a jury from giving any
verdict, whenever, in their opinion, taking all the circum-
stances into consideration, there is a manifest necessity for
the act, or the ends of public justice would otherwise be
defeated." Barthels, 174 Wis. 2d at 183 (citing State v.
Copening, 100 Wis. 2d 700, 709, 303 N.W.2d 821 (1981)
(quoting United States v. Perez, 22 U.S. (9 Wheaton) 579,
580 (1824))).
Al3
ence this court must accord a circuit court's discretionary
order declaring a mistrial.
941 The level of deference we accord a circuit court's
order for a mistrial depends on the particular facts of each
case.” There is a spectrum of deference to a circuit court's
exercise of its discretion in granting a mistrial.”’ In cases
like the present one, in which a mistnal was ordered on the
basis of defense counsel's opening statement, .a circuit court's
determination "is entitled to special respect."
942 The conclusion that a circuit court's exercise of
discretion is entitled to special respect does not end the
inquiry. Because of the constitutional implications of double
jeopardy, an appellate court must satisfy itself that a circuit
court exercised "sound discretion" in declaring a mistrial.”
943 This court has articulated various considerations
that factor into determining whether a court exercised sound
discretion. We have described sound discretion as "acting in
a rational and responsible manner."”* Sound discretion fur-
ther includes "acting in a deliberate manner taking sufficient
2° Seefeldt, 261 Wis. 2d 383, 13 (citing State v.
Barthels, 174 Wis. 2d 173, 184, 495 N.W.2d 341 (1993)).
21 Id. 925 (citing Washington, 434 U.S. at 507-08).
22 Td., ¥27 (quoting Washington, 434 U.S. at 510). -
2? Washington, 434 U.S. at 514. "Regardless of the level
of deference to be applied, an appellate court must, at a mini-
mum, satisfy itself that the circuit court exercised sound
discretion in ordering a mistrial." Seefeldt, 261 Wis. 2d 383,
413 (citing Washington, 434 U.S. at 514 (1978)).
24 Seefeldt, 261 Wis. 2d 383, 936.
Al4
time in responding to a prosecutor's request for a mistrial."”°
Sound discretion requires giving both parties a full oppor-
tunity to explain their positions and considering alternatives
such as a curative instruction or sanctioning counsel.”°
Sound discretion also requires that a circuit court ensure that
the record reflects that there is an adequate basis for a
finding of manifest nec-ssity.”’ Finally, "[s]ound discretion
is not exercised when the circuit court fails to consider the
facts of record under the relevant law, bases its conclusion
on an-error of law or does not reason its way to a rational
conclusion.””®
44 We conclude, as we did in Seefeldt, that "regardless
of the level of deference to be applied in this case, the circuit
court erred in terminating [the defendant's prior trial]."”"
G
945 We now examine the events at the third trial in the
circuit court leading to the mistrial.
946 The incident that gave rise to the mistnal occurred
early in the defendant's third tial. During opening argu-
ments defense counsel discussed at length the defendant's
anticipated trial testimony. Defense counsel told the jury
that the defendant would testify that the victim was lying,
that no assault or robbery occurred, that the victim offered to
ae” |
26 Id.
* te a37.
28 Td, 136.
29 Td. 914.
Al5
sell drugs to the defendant, that the victim stole money out of
the defendant's wallet, and that the victim went to the police
with a false accusation of sexual assault and robbery. The
defense-counsel thus painted the victim as a drug user and
dealer, a liar, and a thief. The defense counsel presented the
defendant's version of the events of August 2, 1997, as
follows:
On this morning, ladies and gentlemen, what hap-
pened, Rich is asleep in his apartment. [C.S.]}
knocks on the door. Rich says it was 3:09 in the
morning because there was a digital clock up on
his refrigerator and he wakes up and he happens to
notice the time. He recognizes [C.S.] from a
meeting that they had a month ago at Kenny's Pub
here in La Crosse and at that time they discussed
casual marijuana use and Rich said, you know, if
you're ever looking to sell some, you know, stop
by. [C.S.] comes to Rich's apartment with man-
juana looking to sell marijuana that night to Rich.
He also asks if he can crash at his place and, in
fact, he does spend the evening at Rich's apart-
ment. The reason he stays there is ‘cause he says
he's tired and he's high at that point. He tells Rich
that he had taken a couple hits of LSD just prior to
him getting to his apartment.
The next moming they wake up and they discuss
this marijuana and Rich says, well, I only want 20
or $30 worth. Rich then goes out into the hallway
where the bathrooms are. He doesn't have a
bathroom in his apartment. It's out in the hallway.
He goes out there. He comes back in, and he
notices that the money that was on the counter is
now gone. It's missing, and he asks [S.], well,
where's the money, and [S.] denies, well, I don't
have the money. And he says, where's the money,
Al6
and finally [S.] says, okay, I've got it, and he pulls it
out of his sock and gives him his money. At that
point Rich is mad and he kicks and pushes him out
of the apartment, kicks him out of the building, out
the back fire door which is just outside of his
apartment door. ¥
At that point [S.] is gone. Rich goes back into his
apartment, grabs something to eat, goes back to
sleep, and then he's awakened at 11 or a little after
‘11 o'clock by the police that moming and they
execute a search warrant and Rich is arrested.
And that story, ladies and gentlemen, is the only
story that’s been consistent throughout this case.
...(R.233:30-31.)
947 The prosecuting attorney objected several times
during defense counsel's opening statement, but not to this
description of the defendant's version of the events of August
2, 1997.
948 The victim and police officer testified and were
subject to defense counsel's cross-examination. The cross-
examination pointed out inconsistencies in the victim's state-
ments and the weaknesses in the police officer's inves-
tigation, including failure to collect biological evidence and
failure to interview neighbors or bar patrons who might
corroborate the victim's story.
949 Although the defendant had testified at his first two
trials, the defendant did not testify during the third trial.°°
The defendant's decision not to testify was apparently made
at the close of the State's evidence. The defendant and his
°° The defendant also did not testify at his fourth trial.
Al7
counsel apparently were confident that the State had failed to
meet its burden of proof. As a result, the defendant did not
present any evidence to substantiate defense counsel's open-
ing statement of the defendant's version of the events. The
defendant's version was thus presented to the jury through
defense counsel's opening statement. The State had no
opportunity to cross-examine the defendant.
450 During the jury instruction conference, the State
requested a curative instruction to address defense counsel's
opening statement. The State presented its view as follows:
Judge, and that's one that in this case [defense coun-
sel] got up in his opening statement and he argued
in the opening statement about facts that are in no
way in evidence concerning the fact[s in that
portion of the opening statement.]...I mean, he
went through the whole scenario, and we have
heard that scenario before when the defendant has ~
testified at the previous trials. Now, however, the
defendant has opted not to testify and all of that
evidence is in there from the opening statement.
There has been no evidence presented at all to
corroborate that and now he doesn't put the
defendant on to make any effort to corroborate it, so
I think that's completely unethical, but aside from
that, I think that there has to be an instruction to the
jury that they are to disregard that and not consider
any of that portion of the opening statement.
(R.233:300.)
{51 Defense counsel explained that he could not know
when making his opening statement that the defendant would
opt not to testify, especially given that the defendant had
testified at two earlier tnals conducted by another defense
attorney.
- Al8
952 The State, defense counsel, and the circuit court
discussed the wording of a curative instruction.
453 The prosecuting attomey was concerned what, if
any, argument she could make in response to defense
counsel's unsubstantiated opening statement. The prose-
cuting attorney did not want to run the risk of making
improper comments on the defendant's failure to testify, an
error that might necessitate yet another trial. The prose-
cuting attorney sought clarification of what she would be
allowed to say in closing argument. She explained:
I would have every intention of not being very kind
to [defense counsel] in that closing argument
regarding that, and I think I should have the oppor-
tunity to, you know, at least make that statement,
that a fictional tale was presented and there has
been no effort to support that with any evidence.
He's basically slinging mud at a victim without any
effort to support his statements.
954 In response, defense counsel suggested a curative
instruction and stated that he doubted the jurors are "gonna
hang their hat on something that J said ten hours ago." The
circuit court reacted to defense counsel's remarks, saying:
"It's not quite that simple... ."
455 Although defense counsel was willing to waive any
objection to the prosecuting attorney's reference to the defen-
dant's failure to testify, the defendant was not.
956 The circuit court acknowledged the State's
dilemma: The defendant in effect put in his defense without
testifying; the State was not able to cross-examine the
defendant; and the extent to which the State could comment
on the defendant's failure to testify without courting
Al9
31
reversible error was unclear. The circuit court explained
the dilemma as follows:
Yeah, it seems to me the State is in a bind, you
know, and might well be entitled to a mistrial. This
is the instruction I propose to try to correct that, but
the State is gonna be in a bind in argument because
they can't directly comment on the defendant not
testifying .... (R.233:302.)
457 After discussion among the prosecuting attorney,
defense counsel, the defendant, and the circuit court, the
circuit court explained that it was willing to give the jury an
instruction that statements of the attorneys are not evidence.
The circuit court also mentioned that the State might
consider a motion for a mistrial. The circuit court concluded
that "the State under the circumstances now would be
entitled to a mistrial if they wanted one." ;
458 The circuit court then asked the State whether it
wanted to proceed with a curative instruction or to seek a
mistnial: :
Do you want to go ahead or not? I mean, I told [the
prosecutor], it's on the record, I'm not gonna take it
back, I think under—the State under the circum-
stances now would be entitled to a mistrial if they
wanted one. My logic for that 1s that scenario is in
the jury's mind without subject, as we do in trials, to
cross-examination. (R.233:306.)
>! See Griffin v. California, 380 U.S. 609, 614-15 (1965)
(the nght to remain silent is violated when during a criminal
trial the State comments on an accused's silence).
A20
459 The prosecutor, an assistant district attorney, con-
ferred with the district attorney regarding whether to ask for
a mistrial. The State then requested a mistnal, contending
that a curative instruction would not erase the defendant's
version of the events from the jurors' minds:
I think I'm gonna ask for a mistnal, Judge. I'm not
gonna be able to erase those facts. I can't argue
them on—in my oral argument because I didn't
have a chance to cross-examine him about it. It's
not even out there before the jury. (R.233:307.)
460 The circuit court then asked the State: "Is that your
final answer ...?" The State responded "Yes." The circuit
court declared a mistrial.
D
{61 We now apply the principles of constitutional pro-
tection against double jeopardy and the standard of review to
the facts of the case.
{62 We approach this part of the opinion bearing in
mind a concern about "gamesmanship” in opening state-
ments. The trepidation is that a defense counsel or an
accused will use an opening statement to furnish a defense
unsupported -by evidence. A savvy accused would then
invoke his or her right not to testify. This tactic would result
in the jury having heard the accused's unchallenged theory of
the case, denying the State the opportunity to cross-examine
the accused. The State does not contend that defense counsel
was engaging in gamesmanship or sandbagging or acting in
bad faith when defense counsel made opening statements at
the defendant's third tnal. Therefore, gamesmanship, sand-
bagging and bad faith by the defendant or defense counsel
are not at issue in the instant case.
A21
{63 We agree with the State that defense counsel
"should not allude to any evidence unless there is good faith
and reasonable basis for believing such evidence will be
tendered and admitted in evidence."*? The Rules of Pro-
fessional Conduct for Attorneys also address this issue,
providing that a lawyer shall not "in tnal, allude to any
matter that... will not be supported by admissible evi-
dence."*? We also agree with the State that it is unfair to an
opposing party to allow an attorney to present to the jury
statements not susceptible to proof but that are intended to
influence the jury in reaching a verdict.**
464 The circuit court and the State take the position that
defense counsel's opening statement was improper because
the evidence did not support the opening statement.
465 The State does not contend that defense counsel's
opening statement was in bad faith, that is, the State does not
contend that defense counsel had a reasonable basis to
believe that his opening statement would not be supported by
admissible evidence. The defendant's position in the present
_ case is that defense counsel's opening statement was offered
with the reasonable expectation that the defendant would
testify and that the opening statement conformed to the
defendant's testimony in the pnor tnals. Defense counsel
asserted that he expected the defendant to testify (as the
*? American Bar Ass'n, Standards for Criminal Justice—
Prosecution Function and Defense Function, § 4-7.4, at 218-
19 (3d ed. 1993).
33 SCR 20:3.4(e).
** United States v. Dinitz, 424 U.S. 600, 612 (1976)
(Burger, C.J., concurring).
A22
defendant had in pmior trials), but he did not know in fact
whether the defendant would testify.*°
466 Because this case does not raise the issue of an
attorney's making an opening statement in bad faith, we do
not address that circumstance.
467 The State understandably expresses irritation with
defense counsel for not waiting until the outset of the
defense case to present his opening statement. This simple
measure could have prevented the mistrial. The circuit court
expressed similar sentiments. We must recognize, however,
that defense counsel had the nght to make an opening
statement when he did, as long as it was made in good faith,
and that nothing would have kept his client from opting not
to testify at the last moment.
{68 We agree with the State that a circuit court may, in
an appropriate case, declare a mistrial on the basis of an
opening statement that summarizes evidence that is not
produced. We disagree with the State, however, that the
circuit court exercised sound discretion in granting the
mistrial in the defendant's third trial.
469 The circuit court did not exercise sound discretion,
according to the defendant and the court of appeals, when the
circuit court committed an error of law by abdicating its
discretion to the State. The defendant argues and the court
of appeals held that the State, not the circuit court, decided
whether to grant a mistrial.°° If this view of the record is
*° The instant case can be compared with Arizona v.
Washington, in which the defendant's opening argument
referred to inadmissible evidence. Washington, 434 US. at
499-500. -
© Moeck, 270 Wis. 2d 729, 913.
A23
accepted, the circuit court erred by not deciding the question
of a mistrial, instead allowing the State to choose between a
curative jury instruction and a mistrial.*”
470 We need not determine whether the circuit court
abdicated its responsibility to the State or whether the circuit
court was merely asking the State and the defense counsel
about their respective views of a mistrial.
971 We conclude that the circuit court did not exercise
sound discretion in declaring a mistrial when it failed to give
adequate consideration to the State's ability to refer to the
defendant's silence and to the effectiveness of a curative jury
instruction. Although the circuit court expressed its belief
that the State's response and a curative jury instruction could
not rectify any prejudice caused by defense counsel's
opening statement, this belief is unfounded.
972 We have described sound discretion as "acting in a
rational and responsible manner."** Sound discretion is not
exercised when a circuit court bases its declaration of a
mistrial on an error of law. Sound discretion includes con-
sidering alternatives such as a curative jury instruction.
{73 The circuit court erred as a matter of law in its
assessment of the State's inability in closing argument to
rebut the defense counsel's opening statement. The circuit
court overstated the difficulty the prosecuting attomey would
have in both commenting on the weakness of the opening
statement and avoiding error by referring to the defendant's
failure to testify.
3” Td. , 423.
38 Seefeldt, 261 Wis. 2d 383, 936.
A24
{74 The circuit court was correct that a prosecuting
attorney ordinarily may not comment on an accused's
decision not to testify.” There are circumstances, however,
when an accused "opens the door" to a measured response by
the prosecuting attorney.” The defendant opened the door in
the instant case. It is impossible to draw "a bright line for all
cases between permissible and impermissible comment;"*!
whether a prosecutorial comment crosses over "into the for-
bidden area of comment on an accused's failure to testify"””
and "violates constitutional rights must be made case by
case."“? We conclude, however, under the circumstances of
the instant case, that the circuit court did not give adequate
consideration to the State's response and to a curative
instruction.
975 The circuit court's error of iaw is evidenced by
State v. Johnson, 121 Wis. 2d 237, 358 N.W.2d 824 (Ct.
App. 1984), in which the court of appeals addressed a
prosecutor's ability to comment on an accused's failure to
testify after the accused gave his account of events during
opening statements but later refused to testify. In Johnson,
the defendant gave his own opening statement, but later did
not take the stand in his own defense.
*° Griffin v. California, 380 U.S. 609, 614-15 (1965).
4° United States v. Robinson, 485 U.S. 25, 31-34 (1988);
State v. Keith, 216 Wis. 2d 61, 80-83, 573 N.W.2d 888 (Ct.
App. 1997); State v. Johnson, 121 Wis. 2d 237, 247-49, 358
N.W.2d 824 (Ct. App. 1984).
‘' State v. Edwardsen, 146 Wis. 2d 198, 215, 430
N.W.2d 604 (Ct. App. 1988).
ad
43 Tg.
A25
476 In closing remarks, the prosecutor in Johnson drew
the jury's attention to the distinction between argument and
evidence.” The court of appeals in Johnson affirmed the
circuit court's allowing the prosecutor's closing arguments.*°
““In Johnson the relevant portion of the prosecutor's
closing argument was as follows:
Let's reflect first upon the opening statement that
was given by [the defendant]. First of all just as in
my opening statement you understand that [the
defendant] was not testifying. [The defendant] was
not under oath, [the defendant] was not subjecting
himself to cross examination in that opening
statement. What he said he was entitled to say just
as I was entitled to tell you what I did during my
opening statement but it was not evidence, not when
I said what I said and when [the defendant] said
what he said but remember some of the things he
said in that prepared statement he read. He said that
the State would not be able to prove what he
intended to do on that evening. I submit to you that
we have proved beyond any doubt whatsoever what
he intended to do that evening and we will review
that evidence and see whether you don't agree with
me on that.
Johnson, 121 Wis. 2d at 243-44 n.2.
*° See also Edwardsen, 146 Wis. 2d at 214 (when the
accused comments on his own silence and gives factual rea-
sons for that silence, the State does not violate the defen-
dant's constitutional night by presenting other explanations to
the jury; the State is commenting on unsworm testimony and
not on the accused's right to silence).
A26
The court of appeals explained the validity of the prose-
cutor's statements in Johnson as follows:
The [prosecutor's closing] remarks were aimed at
drawing the jury's attention to the distinction be-
tween arguments and evidence. This is in precise
keeping with the thrust of the standard instruction
concerning arguments of counsel. In both opening
and closing statements, the prosecutor equated [the
defendant's] statement with his own (the prose-
cutor's) and stressed that neither constituted evi-
dence. Indeed, the prosecutor invited close juror
attention to what both he and [the defendant] had to
say.”°
477 The circuit court erred as a matter of law in the
instant case by concluding that the prosecuting attorney
could not effectively countermand defense counsel's opening
statement. *”
46 Johnson, 121 Wis. 2d at 247-48.
*’ The State argues that the circuit court was reasonable
in declaring a mistnal rather than giving a curative instruc-
tion in light of the procedural history of the case. The court
of appeals had held that a curative instruction was not
sufficient in the second tral to correct the error caused by the
circuit court's inadvertent reference during voir dire to the
defendant's status as a repeat offender. The State argues that
with a curative instruction the State risked a reversal for
violation of the defendant's Fifth Amendment privilege
against self-incrimination. Perhaps, but a reversal would
enable the State to bring yet another prosecution. A mistrial
here means the State cannot bring another prosecution.
A27
478 The jury, after the prosecutor's closing argument
and a curative jury instruction, could have been sufficiently
admonished in the instant case that any unsubstantiated
statements made by defense counsel in opening statements
do not constitute evidence. Any prejudice to the State by
defense counsel's opening statement would be outweighed by
defense counsel's loss of credibility with the jury for his
unsubstantiated opening statement.
979 We therefore conclude that in the instant case the
prosecuting attorney's closing argument referring to defense
counsel's opening statement as unsubstantiated, along with a
curative jury instruction that opening and closing statements
are arguments, not evidence, would have cured any possible
prejudice resulting from defense counsel's opening state-
ment. Accordingly, we conclude that it was unreasonable as
a matter of law for the circuit court to conclude that there
was a manifest necessity requiring a mistrial in the third trial.
* * * *
480 For the foregoing reasons, we hold that the court of
appeals did not err as a matter of law in holding that the "law
of the case" doctrine did not apply to the defendant's third
challenge in the court of appeals to the circuit court's
granting a mistnal in the third tral. We further hold that
because the State did not meet its burden of showing a
manifest necessity for the termination of the third trial, the
circuit court erred in granting the State's motion for a
mistrial. Accordingly, we agree with the court of appeals
that the fourth trial violated the defendant's protection
against double jeopardy. We therefore affirm the decision of
the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
A28
981 PATIENCE DRAKE ROGGENSACK, J., did not
participate.
982 JON P. WILCOX, J. (dissenting). I dissent. In
the words of the United States Supreme Court:
Unless unscrupulous defense counsel are to be
allowed an unfair advantage, the trial judge must
have the power to declare a mistrial in appropriate
cases. The interest in orderly, impartial procedure
would be impaired if he were deterred from
exercising that power by a concem that any time a
reviewing court disagreed with his assessment of
the trial situation a retrial would automatically be
barred.
Arizona v. Washington, 434 U.S. 497, 513 (1978). In
Washington, the trial judge granted a mistrial after the jury
was exposed to improper comments during defense counsel's
opening statement. Jd. at 499-501. When reviewing the trial
judge's decision to grant a mistnal, the Court concluded:
"[T]he overriding interest in the evenhanded administration
of justice requires that we accord the highest degree of
respect to the trial judge’s evaluation of the likelihood that
the impartiality of one or more jurors may have been
affected by the improper comment.” /d. at 511. Further, the
Court warned of the serious consequences that would follow
if "retrial of the defendant were barred whenever an appellate
court views the ‘necessity’ for a mistrial differently from the
trial judge[.]" Jd. at 509-10.
483 Following the deferential standard of review set
forth in Washington and the standard for manifest necessity,
I would uphold the circuit court's order granting a mistrial as
a proper exercise of discretion. Here, the main thrust of
defense counsel's opening statement was that the victim was
a liar and that the defendant would inform the jury as to what
really happened the night in question. Defense counsel then
A29
went on to explain in great detail the defendant's version of
events and relayed the testimony his client had provided in
the previous trials. In addition, counsel informed the jury as
to the details of the defendant's personal and family life. As
the circuit court summarized: "It was a detailed statement of
dope and out the door and the money and everything else."
No other defense was presented during the opening state-
ment. However, the defendant never testified, and no other
witness substantiated the version of events presented during
the opening statement. Further, defense counsel later ad-
mitted to the court that he was unsure if the defendant would
take the stand at the time he made his opening remarks.
184 Thus, the defense was able to fully present its
theory of the case to the jury without presenting any evi-
dence to support that theory or subjecting the defendant to
cross-examination. Regardless of whether defense counsel's
opening statement was made in good faith, the fact remains
that the defendant was able to present his entire theory of the
case without actually introducing any evidence.
985 The circuit court considered these facts, the effect
the opening statement may have had upon the jury, and the
prosecution's ability to make an adequate closing statement
in light of the defendant's refusal to testify. The circuit court
considered the possibility of issuing a curative instruction
and gave both parties an opportunity to present their posi-
tions. See State v. Williams, 2004 WI App 56, 9929-31 &
n.3, 270 Wis. 2d 761, 677 N.W.2d 691. The circuit court
was cognizant of the prosecutor's inability to adequately
counter the effects of defense counsel's opening statement
during his closing, given the nature of the statement and the
defendant's invocation of his Fifth Amendment nights.
Therefore, the circuit court concluded that a manifest neces-
sity justified a mistrial.
A30
Defense counsel aired improper and highly preju-
dicial evidence before the jury, the possible impact
of which the trial judge was in the best position to
assess. The tnal judge did not act precipitately in
response to the prosecutor's request for a mistnal.
On the contrary, evincing a concern for the possible
double jeopardy consequences of an erroneous
ruling, he gave both defense counsel and the prose-
cutor full opportunity to explain their positions on
the propriety of a mistrial. |
Washington, 434 U.S. at 514-16.
486 Despite the fact that the circuit court could have
issued a curative instruction informing the jury that state-
ments of counsel are not evidence, I would not second-guess
the decision of the circuit court to not do so. Here, defense
counsel did not simply allude to the testimony of a minor
witness who never testified; he presented the entire defense
theory of the case to the jury without actually presenting any
evidence. A curative instruction may be appropriate in some
cases to remedy the effects of an improper comment during
opening statements. In this case, however, there is no pos-
sible way a curative instruction would have sufficed to
remove the prejudice from the jury, given the nature and
extensiveness of defense counsel's reference to the defen-
dant's prior testimony and the prosecutor's inability to com-
ment on the defendant's refusal to testify.
487 This case involves an allegation of a sexual assault
of one man by another. Defense counsel informed the jury
that the defendant was a family man with children and a
stable job as a construction worker. He repeatedly referred
to the testimony his client had previously provided. He
discussed at length the defendant's version of the events the
night in question. He discussed in detail how the defendant
and victim allegedly met, as well as their subsequent activ-
A31
ities, which included a sale of drugs at the defendant's
apartment and a disagreement over money. Defense counsel
instructed the jurors: "Remember, Rich says he pushes him
out. He kicks him out of the building." Defense counsel
repeatedly referred to the defendant's version of events as
“the only story that's been consistent throughout this case.”
The only witness that was to substantiate this story was the
defendant himself. Yet, the defendant never testified and,
consequently, none of these supposed facts were ever
presented to the jury.
488 While it may be possible to effectively inform a
jury to disregard a minor statement or small piece of
inappropriately admitted evidence, State v. Collier, 220 Wis.
2d 825, 838, 584 N.W.2d 689 (Ct. App. 1998), instructing a
jury to ignore the entire opening statement of defense
counsel when the defense never puts on a case in chief is like
asking a person to not think of the proverbial pink elephant.
As the circuit court explained, it was not sufficient to simply
provide a curative instruction to the jury in this case because
"[t]hey have a reasonable alternative in their minds now
before them with no evidence.”
489 When an appellate court reviews a circuit court
decision to grant a mistrial, the circuit court's failure to
consider a curative instruction is relevant only if such an
instruction was available and practical. . See id. at 837-38.
Further, it is not the failure to provide a curative instruction
that renders a mistnal an erroneous exercise of discretion;
rather, it is the circuit court's failure to give reasoned
consideration to the possibility of a curative instruction.
Williams, 270 Wis. 2d 761, §31 n.3.
990 If the facts of record reflect the uncertain utility and
effectiveness of a curative instruction, this court has all the
more reason to defer to the circuit court's ultimate decision
on whether to grant a mistnal:
A32
[The trial judge] is the judge most familiar with the
evidence and the background of the case on tnial.
He [or she] has listened to the tone of the argument
as it was delivered and has observed the apparent
reaction of the jurors. In short, he [or she] is far
more "conversant with the factors relevant to the
determination" than any reviewing court can pos-
sibly be.
Id., 427 (quoting Washington, 434 U.S. at 514) (first alter-
ation added).
491 Moreover, I disagree with the majority's assertion
that "[t]he circuit court erred as a matter of law in the instant
case by concluding that the prosecuting attorney_could not
effectively countermand defense counsel's opening state-
ment." Majority op., 777. The majonty suggests that the
prosecuting attorney had some leeway in commenting on the
defendant's refusal to testify in light of defense counsel's
opening statement and that the ability of the prosecutor to so
comment is not susceptible to bright line rules. Majority op.,
474. However, I doubt that the State would receive the
benefit of such latitude and uncertainty had it in fact chosen
that course and the case was before the court on that very
issue. See majonty op., 477 n.47 ("The State argues that
with a curative instruction the State risked a reversal for
violation of the defendant's Fifth Amendment privilege
against self-incrimination. Perhaps, but a reversal would
enable the State to bring yet another prosecution."). There-
fore, I would affirm the circuit court's decision to grant a
mistrial in this case.
992 Finally, I wish to express my concern that the
majority opinion opens the door to gamesmanship by
unscrupulous and savvy defendants who, after assuring their
counsel that they will testify, invoke their Fifth Amendment
rights following counsel's full presentation of their version of
A33
events to the jury. This court should not condone such sand-
bagging tactics. As the circuit court aptly stated, if defense
counsel is unsure that his client is willing to testify at the
time of opening statement, then he should wait until the end
of the State's case to make his opening statement.
793 I am authonzed to state that Justice DAVID T.
PROSSER joins this opinion.
q94 DAVID T. PROSSER, J. (dissenting). The
“supreme court is a law-defining, law-developing court. Cook
v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997)
(citing State ex rel. La Crosse Tribune v. Circuit Court, 115
Wis. 2d 220, 229-30, 340 N.W.2d 460 (1983)). In this
capacity it is expected to address "real and significant”
. questions of federal and _ state constitutional law.
Wis. Stat. § (Rule) 809.62(1)(a) (2003-04).' But the court
acts only to resolve actual controversies. It was not designed
to announce principles of law beyond the facts of a particular
case or to render advisory opinions. State v. Robertson, 2003
WI App 84, 932, 263 Wis. 2d 349, 661 N.W.2d 105 (citing
State ex rel. Ellenburg v. Gagnon, 76 Wis. 2d 532, 535, 251
N.W.2d 773 (1977)); State v. Witkowski, 163 Wis. 2d 985,
988, 473 N.W.2d 512 (Ct. App. 1991). Thus, the court's
legal pronouncements must be tied to the facts in a case as
they are, not as the court might like them to be.
{95 The present case is extremely troubling because the
court appears more interested in announcing principles of
constitutional law than in wrestling with inconvenient facts.
As a result, the court ends up making unsupported assump-
tions, misconstruing facts, ignoring ugly realities, denigrat-
' All references to the Wisconsin Statutes are to the
2003-04 version unless otherwise indicated.
A34
ing the work of honorable people, and ultimately reaching a
flawed conclusion. For all these reasons, I respectfully
dissent.
FACTUAL BACKGROUND
496 This case involves an alleged senes of sexual
assaults by Richard A. Moeck, then 49, against C.S., a 23-
year-old male, in the early morning hours of August 2, 1997.
C.S. claimed that Moeck induced him to come up to Moeck's
apartment for a drink and then threatened to kill him with a
12-inch knife if he did not disrobe and submit to multiple
degrading assaults. C.S. asserted that he was held hostage
for more than four hours and was threatened, slapped,
repeatedly assaulted, and robbed.
997 Moeck was charged with a number of offenses,
including two counts of first-degree sexual assault, one count
of false imprisonment, one count of robbery, and one count
of intimidation of a witness.
498 The case has been tried four times. The first trial in
January 1998 ended in a hung jury. The second tnal in
March 1998 resulted in conviction on five counts. These
convictions were subsequently reversed by the court of
appeals.
999 The third trial in March 2000 is the subject of this
review. As the majority correctly states, the circuit court
granted the State's motion for mistrial at the close of the
evidence. Majority op., 99. The fourth tnal in November
2000 again resulted in conviction of the defendant on five
counts.
¥100 Moeck had a long cnminal history dating back to
1960. He had numerous convictions including felonies.
Some of his prior offenses had similarity to the alleged
offenses against C.S. Thus, when Moeck testified in his own
A35
defense, he was subject to cross-examination and devastating
impeachment.
9101 Moeck testified at the first tnal and acknow!-
edged in direct examination that he had been convicted of a
crime six times. The prosecutor did not refer to this admis-
sion in her cross-examination or her closing argument. This
is the trial that ended in a hung jury.
4102 Moeck also testified at his second tial. Again he
acknowledged in direct examination that he had been
convicted of six cnmes and also admitted that he had been
less than truthful to a law enforcement officer during an
incident in Green County. At this second tnal, the prose-
cutor emphasized both of Moeck's admissions in cross-
examination and in her closing argument. In her closing, she
said: "When you talk about a motive to lie, well, the
defendant has been convicted of six crimes in the past and he
also has admitted that he has given false information to
police in the past.”
4103 By the time of the third tnal, the State had
accumulated more damaging information about Moeck
through a presentence investigation (PSI).? For example,
? This character evidence would not normally be admis-
sible to prove conduct in conformance therewith. Wis. Stat.
§ 904.04(2). However, when the defendant chooses to place
his character in issue, the defendant “opens the door” to
rebuttal evidence about his character. Wis. Stat.
§ 904.04(1)(a); State v. Pulizzano, 155 Wis. 2d 633, 658, 456
N.W.2d 325 (1990); 7 Blinka Wisconsin Practice: Wisconsin
Evidence § 404.4 at 133 (2d ed. 2001). Defense counsel
effectively put Moeck's character in issue during his opening
argument by referring to Moeck's children and the length of
time Moeck had been marned. Professor Blinka uses this
(footnote continued)
A36
Distnct Attorney Scott Horne used information from the PSI
at the sentencing hearing after the second tnal. He told the
court that in one incident in Florida, Moeck had "assaulted a
victim with a weapon, took his wallet and tied him to a tree."
In another incident in Illinois in 1993, Moeck invaded a
home "while masked, slapped a woman, ultimately stabbed
her in the hand and leg.” Moeck had threatened a range of
people, from his former wife to police officers and court
personnel. ©
4104 The case against Moeck was complicated by the
fact that C.S. also had criminal convictions (five at the time
_* the third tnal) as well as some inconsistencies in his prior
testimony. Thus, the pivotal issue for the jury was the credi-
bility of the victim versus the credibility of the defendant.
Moeck's attorney at the third tnal, Timothy Gaskell,
acknowledged as much when he wrote: "The thrust of the
case has always been whether the alleged victim...is a
credible witness.”
4105 These dynamics were fully understood by the
defendant, his attorney, the prosecutor, and ie court at the
opening of the third tal. Attorney Gaskell, who replaced
Attomey Fabio Burgos after Moeck fired him, gave an
opening statement in which he presented the defendant's
entire account of events, but then offered no evidence to
support his story. The defendant did not testify, as he had
before, and thereby escaped the cross-examination and
impeachment he had faced in the first two tnals. Gaskell
also stressed in his opening that C.S. had been inconsistent in
precise example (the defendant's status as a "family man") as
a situation in which the prosecution might be allowed to
introduce responsive character evidence. Jd.
A37
his prior testimony but that Moeck's account had not varied
when he testified.
4106 The court granted the State's motion for a mistnal
after the defendant failed to produce evidence to corroborate
the opening statement and after the State contended that it
could not neutralize the prejudice it had suffered by cau-
tionary instructions and closing argument. This discretion-
ary decision by the circuit court was twice affirmed by the
court of appeals, before it was reversed.
9107 The legal issues now before the court cannot be
separated from these background facts. The circuit court had
a complete grasp of these background facts and was aware
from personal observation that the defendant's personality
changed dramatically when the jury was not present.”
LAW OF THE CASE
9108 The first issue concerns the law of the case
doctrine. The majority explains that the law of the case
doctrine is a “longstarding rule that a decision on a legal
issue by an appellate court establishes the law of the case,
which must be followed in all subsequent proceedings in the
trial court or on later appeal.” Majority op., 418 (quoting
Univest Corp. v. Gen. Split Corp., 148 Wis. 2d 29, 38, 435
N.W.2d 234 (1989)). Nevertheless, the law of the case
doctrine is not 2n absolute rule. Majority op., 925. It can be
set aside in the interests of justice "whenever cogent,
> For instance, the court removed the defendant from the
courtroom because of his shouting and disruption during a
sentencing hearing. In Arizona v. Washington, 434 U.S. 497,
513-14 (1978), the Court noted that the tral judge "is the
judge most familiar with the evidence and the background of
the case on tal.”
A38
substantial, and proper reasons exist." McGovern v. Eckhart,
200 Wis. 64, 75, 78, 227 N.W. 300 (1929).
4109 The majority opinion conveys the impression that
the court of appeals considered this issue only once prior to
its decision in the present appeal. Majority op., 4926-28. In
reality, though, the court of appeals twice affirmed La Crosse
County Circuit Judge Dennis Montabon's decision to grant
the State a mistmal in Moeck's third tnal. The court of
appeals initially considered Moeck's argument in September
2000 when, shortly before the fourth trial, the defendant
moved to dismiss the case on double jeopardy grounds.
When his motion was denied by Judge Montabon, the
defendant sought an appeal of the court's nonfinal order.
Majority op., 11.
4110 In his petition to the court of appeals, Attorney
Gaskell attached several documents. The documents
included a 3-page excerpt of his opening statement and the
complete 11l-page transcript of the instructions conference.
This short transcript contained the entire discussion of the
State's motion for mistnal.
9111 In this appeal, Assistant Attomey General James
M. Freimuth repeatedly referred to the discussion at the
instructions conference and cited pages from the defendant's
petition and attached documents. Freimuth concluded, on
page 18 of his Response to Petition For Leave to Appeal,
that "the excerpt of the record provided by defendant in the
present case fully supports the trial court's exercise of
discretion in granting the State's motion for mistrial based on
defense misconduct." (Emphasis added.)
4112 Upon reviewing these papers, a court of appeals
panel consisting of Judges Charles Dykman, William Eich,
and Patience Roggensack entered a summary order affirming
the circuit court. The order read in part:
A39
[B]ased on our review of the petition and the
attached documents, we conclude that the State's
... proposal of granting leave to appeal and sum-
marily affirming would best serve the interest of
judicial economy. We further conclude that the trial
court's memorandum decision and order identifies
and applies the proper legal standards to the
relevant facts and reaches the correct conclusion.
(Emphasis added; citation omitted.)
The court of appeals then attached the circuit court's written
decision to its order.
9113 The court of appeals reviewed the same issue
again in June 2002. After his conviction at the fourth tral,
the defendant filed a petition for a wnt of habeas corpus in
the court of appeals. The petition challenged the effective-
ness of Moeck's counsel in the earlier pretrial interlocutory
appeal. Majority op., 913. Once again, the defendant's
papers included the complete transcnpt of the instructions
conference.
9114 A _ panel consisting of Judges Dykman,
Roggensack, and Paul Lundsten entered an order denying the
writ. The order read in part:
Moeck petitioned for leave to appeal from the
trial court's order permitting a retrial and denying
his motion to dismiss the charges, claiming double
jeopardy. We granted the petition... but sum-
marily affirmed the tral court's ruling on double
jeopardy.
In Moeck's present petition he contends that
had appellate counsel adequately argued the issue
[on the interlocutory appeal], he would have
prevailed.... The trial court's decision to allow a
A40
retrial was discretionary. This court will summarily
affirm an exercise of discretion only if the record is
clear that the discretion was properly exercised.
See Wisconsin Court of Appeals Internal Operating
Procedures, Section VI, Sub. 1. In short, no amount
of advocacy would have convinced this court that
the tnal court unreasonably exercised its discretion.
It was clear that the court did not. (Emphasis
added.)
§115 Moeck then pursued a direct appeal of his con-
viction and the denial of his post-conviction motion for |
relief, raising the same double jeopardy issue that the court
had decided previously. In this third "appeal," the panel
consisted of Judges Dykman, Margaret Vergeront, and Paul
Higginbotham. In its opinion reversing Moeck’s conviction
on double jeopardy grounds, the court stated:
Pnor to his fourth tnal, Moeck moved to
dismiss the complaint on double jeopardy grounds.
The trial court denied the motion in a wnitten
opinion. Moeck petitioned this court for leave to
appeal. We granted the petition and summarily
affirmed, reasoning that the trial court's wmitten
opinion “applie[d] the proper legal standard to the
relevant facts and reache[d] the correct conclusion."
However, we failed to review the transcript showing
the trial court's reasoning when it granted the
State's request for a mistrial.
* Moeck petitioned for review in this court, but his
petition was denied on September 26, 2002. This petition
also contained the relevant transcript.
A4l
State v. Moeck, 2004 WI App 47, 96, 270 Wis. 2d 729, 677
N.W.2d 648 (emphasis added). The court of appeals added:
When we reviewed Moeck’s petition for review, we
examined Judge Montabon's written order and not
his oral decision on the State's motion for a mis-
trial. Though the two are similar in some respects,
the oral decision makes clear that the trial court left
the mistrial decision up to the State. The trial court
would have given a curative instruction had the
State requested that instead of a mistrial. And the
court reasoned that the defense counsel's failure to
produce evidence promised in opening statement
necessitated a mistrial. Had we reviewed the tran-
script, we would have observed this.
Id., 421 (emphasis added).
4116 The court's assertion that it did not examine the
transcript of the circuit court's oral decision in the first
appeal in 2000 is extraordinary. It is an assertion about what
Judge Dykman, Judge Eich, and Judge Roggensack con-
sidered in reviewing Moeck's interlocutory appeal.
4117 Although the judge who wrote the decision was
admittedly a member of all three panels, he was not
empowered to write about what Judge Eich and Judge
Roggensack thought and considered four years earlier. The
other two members of the third panel were not involved in
the earlier cases.
4118 There is absolutely no evidence that either Judge
Eich or Judge Roggensack has ever confirmed the court's
statement that they never considered the short transcript that
was before them. The court's 2000 order contradicts the
court's 2004 statement because it asserts that the court
reviewed the defendant's "petition and attached documents.”
A42
4119 Moving to this court, the majority opinion states
that the cogent, substantial, and proper reason for disre-
garding the law of the case doctrine is that "(t]he court of
appeals had based its prior decisions that the circuit court
properly exercised its discretion only on the circuit court's
written order." Majority op., 927. The texts of the two court
of appeals orders demonstrate that this is not correct. The
majority goes on: "The court of appeals candidly acknowl-
edged ... that its prior summary order rejecting the defen-
dant's double jeopardy challenges erroneously failed to take
into account the circuit court's oral decision to grant a
mistrial." Jd. Again the majority is not correct. The court of
appeals did not make any such representation about its
second order.
4120 It is astonishing for this court to assert that Judge
Roggensack (twice), Judge Eich, and Judge Lundsten never
considered a short transcript that was central to the issue in
front of them before they made their decisions, particularly
when the court of appeals' summary orders state otherwise
and the defendant attached the relevant document to his
filings on both occasions. Judge Roggensack should have
had an interest in the case because she wrote the opinion
reversing Moeck's convictions in the second trial for failure
to grant his request for a mistrial.
9121 By affirming the court of appeals, this court is
ratifying a dangerous new procedure in which one judge's
subjective memory of a transaction that occurred four years
earlier is permitted to override the plain language of a
contemporary court order. For us to conclude that this ques-
tionable procedure constitutes a cogent, substantial, and
A423
proper reason for setting aside the law of the case is nothing
less than a lethal blow to finality in our courts.”
4122 The court of appeals gave an additional reason for
disregarding the law of the case doctrine, namely, that "the
oral decision makes clear that the trial court left the mistrial
decision up to the State." Moeck, 270 Wis. 2d 29, 421.
"The record shows that the trial court allowed the State to
determine whether there was manifest necessity to terminate
the third tnal. Such discretion resides only with the judi-
ciary." /d., 413.
4123 - My reading of the transcript is very different.
The third jury trial was conducted on March 15, 2000.
Evidence in that trial concluded about 5:30 p.m. Thereafter,
the court excused the jury and met in the courtroom with
Assistant Distnct Attorney Robyn Matousek, defense
attommey Gaskell, and the defendant. In this meeting, the
defendant confirmed that he did not wish to testify, and
defense counsel requested and was granted an instruction
that the defendant had an-absolute constitutional night not to
testify. This discussion was followed by a short recess.
4124 When the parties returned, the court furnished
copies of proposed instructions. The State requested an
additional instruction to deal with defense counsel's opening
statement. The prosecutor complained vehemently that
defense counsel "went through the whole scenario” [of the
defendant's account] in his opening statement, including an
assertion that the defendant had testified at the previous
trials, then failed to present any evidence to corroborate what
he had said. "[S]o I think that's completely unethical," the
>The majority never satisfactonly explains why the
second court of appeals order should be disregarded.
A44
prosecutor argued, "but aside from that, I think that there has
to be an instruction to the jury that they are to disregard that
and not consider any of that portion of the opening state-
ment."
4125 Attorney Gaskell insisted that opening statements
are not evidence, and that he had a nght to tell a jury what he
believed a defendant would say without losing the constitu-
tional night not to put that defendant on the stand.
4126 Judge Montabon disagreed. "You can't tell the
jury what the evidence is gonna show and then don't show
it," he said. Moments later, the court added: "{I]t seems to
me the State is in a bind... and might well be entitled to a
mistrial.° This is the instruction I propose to try to correct
that, but the State is gonna be in a bind in argument because
- they can't directly comment on the defendant not testifying."
Judge Montabon then suggested the following instruction:
"The jury is not to consider any statement of certain facts
made in opening statements when such facts were not
supported by evidence received during the course of this
trial."
4127 The prosecutor immediately. responded: "Can I
have about five minutes? I would like to confer with
{District Attorney] Horne about whether or not I should be
asking for a mistrial in this case." Matousek took the judge's
proposed instruction with her.
4128 When she returned, Matousek explained that she
met with C.S. to determine whether he was willing to go
°In State v. Copening, 100 Wis. 2d 700, 709, 303
N.W.2d 821 (1981), the court observed: "[I]t is not infre-
quent that a tnal court discerns sua sponte the necessity for a
mistrial."
A45
through a fourth tnal. He was. "I need to make clear,
though, before I make [a] decision to request a mistrial . . .
exactly how far would the Court be allowing me to go as far
as statements in a closing argument commenting on ...
basically a fictional tale presented in the opening statement
. and no evidence presented and no effort to present
evidence to support that?" She emphasized that she had
"every intention” of not being very kind to Attorney Gaskell.
"I think I should have the opportunity to... at least make
[the] statement, that a fictional tale was presented.... He's
basically slinging mud at a victim without any effort to
support his statements."
4129 Gaskell fought back. "Opening statements are
_ not evidence.... If we actually in any way, shape, or form
believe that the jury is gonna hang their hat on something
that I said ten hours ago, I think that's an absurd notion.
They're gonna base it on whether they believe [C.S.] or not."
(Emphasis added.)
4130 The court replied: "It's not quite that simple, Mr.
Gaskell. They [the jury] have a reasonable alternative in
their minds... with no evidence whatsoever to support it.
Reasonable or not, they have an alternative."
9131 "I haven't had a chance to do any cross-examina-
tion,” the prosecutor complained. "I can't include that in...
any part of my closing argument as | have in the past two
trials."
4132 In further discussion, the court opined that the
prosecutor could say there was no proof of what defense
counsel had said "as long as you don't say . . . the defendant
didn't get up here and tell us that, or words to that effect...
[I]f you say, the defendant didn't get up here and say this, we
will likely be trying it again.”
A46
4133 The court added: "I read about [attorney] miscon-
duct [in] opening statements. It's clear{,] I think[,] that the
Court can grant a mistrial.”
4134 Attorney Gaskell then appeared to compromise:
Mr. Gaskell: ~
Ms. Matousek:
The Defendant:
Mr. Gaskell:
The Defendant:
Mr. Gaskell:
I think if Ms. Matousek -- if she wants
to argue... that we didn't present any
supporting evidence based on my open-
ing statement, I mean, to move this
thing along --
Are you waiving any objection to that?
No.
As long as --
No. Nope.
Well, Your Honor, I think you're nght,
as long as she doesn't say, the defen-
dant didn't get up on the stand and say
that -- I mean, I think she can say that I
indicated that in opening statement and
that I didn't present any testimony to
back that up or evidence to back that
up.
q135 At this point, the record shows open conflict
between the defense counsel and the defendant. The defense
counsel appears to be making a concession that the defendant
is unwilling to make.
The Court:
Ms. Matousek:
[to the prosecutor] Do you want to go
ahead or not?... [T]he State under the
circumstances now would be entitled to
a mistrial if they wanted one.
I think I'm gonna ask for a mistnal,
Judge. I'm not gonna be able to erase
A47
those facts. I can't argue them . . . in my
oral argument because I didn't have a
chance to cross-examine [the defendant]
about it. It’s not even out there before
the jury.
The Court: Motion for a mistrial is granted.
4136 The transcript shows that the court several times
suggested that the State was entitled to a mistrial if the State
wanted one. Against this background, the question was
whether the State wanted a mistrial or whether it wanted to
proceed. Although the State took the position that it had
been prejudiced, it unquestionably retained the option
whether to go forward or seek a new trial. As a result, it was
meaningless for the court of appeals to conclude that "the
trial court left the mistrial decision up to the State." Moeck,
270 Wis. 2d 729, 921. Surely, this court is not holding that
when the State has been prejudiced, the court may declare a
mistrial even though the State does not want one.
4137 The court of appeals also said that "the trial court
allowed the State to determine whether there was manifest
necessity to terminate the third trial." /d., 413. That would
be meaningful, but that conclusion is not supported by the
record. The State gave reasons why it wanted a mistrial and
the court granted the mistrial.
4138 Whether the court made the correct ruling is a
different question from whether the court abdicated its
discretion to the prosecutor. Two court of appeals decisions
concluded that Judge Montabon made the correct decision in
granting the State's motion for a mistrial. I see no cogent,
substantial, and proper reason based on facts why the court
of appeals' prior rulings should not be considered the law of
the case. The circuit court did not abdicate its discretion; it
A48
recognized that the S:ate had options and permitted the State
to select an option.
MANIFEST NECESSITY
4139 The majonty’s decision to disregard the law of the
case doctrine makes it necessary to address the second issue,
whether the fourth tnal violated the defendant's nght against
double jeopardy beczuse no "manifest necessity" for a mis-
trial existed after the close of evidence in the third tnal. The
majority concludes that the State did not meet its burden of
showing a "manifest necessity” for terminating the third tnal,
and, thus, the circuit court erred in granting a mistnal.
Majonity op., 480.
9140 Justice Wilcox has authored a powerful dissent,
which I join, but there are additional details about the evi-
dence and the majority's opinion that deserve comment.
49141 This case involves a vulnerable victim. At the
time of the third trial, C.S. had five criminal convictions and
a pattern of making misstatements to law enforcement. His
checkered history fully justified a challenge to his credibility,
but it did not excuse assaults on his person. The prosecutor
acknowledged these problems in her opening statement, and
explained that C.S. had to relive the incident in several
different testimonies.
4142 The defendant's opening statement was 17 pages
in length. As the maority accurately states, the State did not
object to the defendant's version of events because it was
consistent with Moeck's prior testimony. The State would
likely have objected to the substance of the story had it
known the defendant would offer no evidence to support his
narrative. The State's three objections actually reinforced the
defendant's story because each one focused on the argumen-
tative nature of coursel's remarks, not the substance of his
allegations. The court responded to the objections with
A49
comments such as "Tell them what: your evidence will show”
and "You will have ample opportunity to argue."
4143 The defendant's opening statement told the jury
that "the evidence is gonna be significantly different” from
the events described in the State's opening, and "here are
some of the things that are gonna be significantly different.”
4144 Shortly thereafter, defense counsel stated that
"[C.S.] has testified ...at previous hearings in this matter.
Rich has done the same thing, and the only person in this
case that has been consistent with their story and with their
testimony is Rich." (Emphasis added.)
4145 This comment distinguishes the present case from
most others in which defense counsel makes an improper
opening. The State could not dispute the fact that Moeck
had testified twice before. This fact, once revealed, was
reinforced by every reference to previous trials. It could not
be erased by a cautionary instruction and could not be
discussed in the prosecutor's closing argument without
reminding the jury that the defendant had not testified at this
tnal. Thus, when the defense attorney relayed Moeck's
version of the encounter with C.S., it had much greater
- credibility than it would have had in an opening at a first
trial.
4146 Attorney Gaskell also volunteered that Moeck is
"a 250-pound construction worker. He's been married twice
before. He's got three children and those marriages lasted
approximately 17 years."’ Moments later he skillfully con-
trasted this uncontested information with the statement that,
"This evidence could easily be seen as character evi-
dence. See supra n.2. Because Moeck did not actually tes-
tify, the State had no opportunity to rebut this "evidence,"
further justifying the court's decision to grant a mistnial.
ASO
"You're not gonna hear any evidence in regards to any kind
of homosexual: activity or any homosexual materials that
were either found in Rich's apartment or nobody else is
gonna come up here and say, ‘yeah...Rich Moeck's a
homosexual.’ There's . . . gonna be no evidence in regards to
that.”
4147 Attorney Gaskell's prediction proved to be cor-
rect. -Because he was familiar with the first two tnials,
Gaskell was able to effectively demolish a straw man (which
the jury would have noted), present the defendant's story of
the incident, and avoid any cross-examination or impeach-
ment of the defendant.
9148 When Gaskell repeatedly argued that "the only
person in this case that has been consistent with their story
and with their testimony is Rich," however, he was not being
completely candid. One example illustrates the point.
9149 At the first trial, Moeck contended that he met
C.S. at Kenny's Pub, a tavern in La Crosse, that he and C:S.
were drinking at the bar, that C.S. asked Moeck if he wanted
to go outside in the back of the tavern and smoke a joint.
They did, according to the story, and Moeck told C.S. that he
might want to buy some pot once in a while. "After we got
to talking, I told him where I lived and that's how he knew
where I lived." Moeck provided this background as his
explanation for how and why C.S. knocked on his apartment
door at 3:09 on a Saturday morning.
4150 On cross-examination, the prosecutor attacked the
plausibility of this story and obtained a concession that C.S.
did not write down Moeck's address. Moeck also said he
lived in one of several apartments above Spanky's Tavern.
In closing argument, the prosecutor declared:
{[Yjou hear from the defendant that he had met
{C.S.] about a month before, [had a conversation
ES ET Se et Tre er a te
A51
with him] in a bar...told him that he lived up
above Spanky's and a month later after having no
other contact with him, [C.S.] comes to the defen-
dant's apartment. How /[C.S.] knew which apart-
ment it was when there are four or five different
apartments on that particular floor is beyond me.
Maybe he went knocking at all] different ones at 3 in
the morning, but J think it's pretty farfetched to
believe that [C.S.] knew exactly which apartment to |
go to to try to Sell this marijuana to the defendant.
[C.S.] didn't even remember exactly what apartment
number it was when he testified on the stand....
[W]e're to believe that [C.S.] was able to remember,
not only that but he was able to remember and
locate the defendant after having had two hits of
LSD and so he's supposed to be able to find his way
to an apartment that he's never been to. (Emphasis
added.)
9151 In the second trial, Moeck headed off part of this
attack on his credibility by "remembering” new facts:
Q: And when you described where you lived, how
did you put that to him?
A: Well, I told him what door to go in. He knew
where Spanky's was, so I told him what door to
go in, right next door to Spanky's, and to go up
to the first floor and my apartment was the last
one on the left. (Emphasis added.)
9152 On cross-examination, he volunteered this infor-
mation:
Q: Did you see [C.S.] write down the information
about where you lived?
A: No, but I told him how to get to my apartment.
A52
4153 If the defendant had been subject to cross-
examination, the implausibility and inconsistency in his
testimony would have been exposed. That, of course, never
happened. Instead, Attorney Gaskell was able to spend 13
pages of his opening statement on discrepancies and incon-
sistencies in the victim's testimony and then followed that up
with vigorous cross-examination of the victim at trial.
49154 Attacking the credibility of a victim's testimony is
a legitimate trial tactic. Telling the defendant's side of the
story in an opening statement, then failing to corroborate a
word of that story with testimony is not legitimate, especially
when the story escapes all adversary challenge at trial.
9155 The "central purpose of a cnminal tnal is to
decide the factual question of the defendant's guilt or inno-
cence." Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986).
"To this end it is important that both the defendant and the
prosecutor have the opportunity to meet fairly the evidence
and arguments of one another." United States v. Robinson,
485 U.S. 25, 33 (1988).
4156 These principles were foreshadowed in Arizona v.
Washington, 434 U.S. 497 (1978), a case involving an
improper opening statement by defense counsel. Washing-
ton is discussed extensively by the majority and the dissent
of Justice Wilcox. However, the majority opinion down-
plays the deference the Washington Court said ought to be
given to a circuit court's exercise of discretion in granting a
mistrial in these circumstances. The Washington Court said:
[T]}he trial judge ordered a mistrial because the
defendant's lawyer made improper and prejudicial
remarks during his opening statement to the jury.
A53
We recognize that the extent of the possible
bias [affecting the impartiality of the jury] cannot be
measured, and that the District Court was quite
correct in believing that some trial judges might
have proceeded with the tnal after giving the jury
appropniate cautionary instructions. In a strict,
literal sense, the mistrial was not "necessary."
Nevertheless, the overriding interest in the even-
handed administration of justice requires that we
accord the highest degree of respect to the tnal
judge's evaluation of the likelihood that the
impartiality of one or more jurors may have been
affected by the improper comment.
An improper opening statement unquestionably
tends to frustrate the public interest in having a just
judgment reached by an impartial tribunal. Indeed,
such statements create a nsk, often not present in
the individual juror bias situation, that the entire
panel may be tainted. The trial judge, of course,
may instruct the jury to disregard the improper
comment.... [This] action[], however, will not
necessarily remove the risk of bias that may be
created by improper argument. ... [T]he trial judge
must have the power to declare a mistnal in
appropriate cases. The interest in orderly, impartial
procedure would be impaired if he were deterred
from exercising that power by a concern that any
time a reviewing court disagreed with his assess-
ment of the trial situation a retrial would auto-
matically be barred. The adoption of a stringent
standard of appellate review in this area... would
seriously impede the trial judge in the proper
performance of his "duty, in order to protect the
integrity of the trial, to take prompt and affirmative
A54
action to stop... professional misconduct” (citing
United States v. Dinitz, 424 U.S. 600, 612 (1976)).
Washington, 434 U.S. at 510-513 (emphasis added).
4157 The Court acknowledged that a tnal judge was
required to exercise sound discretion in declaring a misiial,
id. at 514, but Justice Stevens, wniting for the Court,
indicated that this meant not acting "irrationally or irrespon-
sibly," as opposed to going through a long checklist of
inquiries and alternatives as the prerequisite for establishing
sound discretion. /d. "Neither party has a right to have his
case decided by a jury which may be tainted by bias." Jd. at
516. "The state trial judge's mistrial declaration is not sub-
ject to collateral attack . . . simply because he failed to find
‘manifest necessity’ in those words or to articulate on the
record all the factors which informed the deliberate exercise
of his discretion." Jd. at 517 (emphasis added).
4158 The majority appears to interpret State v. Seefeldt,
2003 WI 47, 261 Wis. 2d 383, 661 N.W.2d 822, as creating a
checklist for establishing sound discretion and a stringent
standard of review. This is unwarranted. Seefeldt was
decided on less egregious facts than the present case, in
circumstances more amenable to corrective action and
cautionary instruction. Seefeldt was also grounded in
Washington and State v. Barthels, 174 Wis. 2d 173, 184, 495
N.W.2d 341 (1993). It should not be reinterpreted here to
establish new requirements that did not exist five years ago.
9159 In Washington, the Court started with the premise
that defense counsel's comment in the opening statement was
not proper. Washington, 434 U.S. at 511. By contrast, the
majority in the present case starts with the proposition that
the opening statement was proper when delivered. To sup-
port this proposition, the majority makes the following
statements:
AS5
1. "The defendant's decision not to testify was
apparently made at the close of the State's evi-
dence." Majonty op., §49 (emphasis added).
2. "The defendant and his counsel apparently
were confident that the State had failed to meet its
burden of proof.” Jd. (emphasis added).
3. "As a result, the defendant did not present
any evidence to substantiate defense counsel's
opening statement of the defendant's version of the
events." Jd. (emphasis added).
4. "Defense counsel explained that he could
not know when making his opening statement that
the defendant would opt not to testify, especially
given that the defendant had testified at two earlier
tnals conducted by another defense attorney." /d.,
q51.
5. “Defense counsel asserted that he expected
the defendant to testify (as the defendant had in
prior trials), but he did not know in fact whether the
defendant would testify." /d., 165.
{160 The problem with these statements is that the first
three are pure speculation and the last two are not sub-
stantiated by the record. At no point in the instructions
conference did defense counsel make a statement that he
expected the defendant to testify. In fact, at no point in his
17-page opening statement did counsel say words such as
"Rich Moeck will testify that... ," whereas he did make
such statements about C.S. and about a La Crosse police
officer. The defendant's opening statement is so carefully
constructed and so detailed in its recitation of the victim's
inconsistencies that it is hard to imagine that defense counsel
was oblivious to whether the defendant would testify. When
AS6
counsel was accused to his face by the prosecutor of being
unethical, he answered with generalities, not specifics.
4161 If defense counsel actually expected the defen-
dant to testify, he may have been misled by the defendant
himself. The defendant spoke up personally when the prose-
cutor asked if the defense was waiving any objection to a-
pointed closing argument about the failure of the defense to
produce evidence.
Ms. Matousek: Are you waiving any objection to
that?
The Defendant: No.
Mr. Gaskell: —_Ass long as --
The defendant. No. Nope.
4162 This blunt exchange is reminiscent of a colloquy
that occurred at a sentencing hearing after the second tnal
when the defendant fired his first attorney: ~
The Court: You don't wish to have Mr. Burgos
represent you?
The Defendant: Nope. _
The Court: Do you want another lawyer--
The Defendant: Nope.
The Court: -- to represent you?
The Defendant: Nope.
4163 Shortly thereafter, the defendant attempted to pre-
vent the district attorney from speaking. "Nope, he can't say
nothing. He ain't got nothing to say." Eventually, the court
A57
removed the defendant from the courtroom for vulgarity,
shouting, and disruption.®
4164 Thus, there is good reason to dispute the
majority's position that the defendant's opening statement
was proper when it was delivered.” The State persuasively
argues that the defendant's opening was "a textbook example
of how not to present an opening statement to the jury." It
quotes the late Chief Justice Warren Burger that:
An opening statement has a narrow purpose
and scope. It is to state what evidence will be pre-
sented, to make it easier for the jurors to understand
what is to follow, and to relate parts of the evidence
and testimony to the whole; it is not an occasion for
argument. To make statements which will not or
cannot be supported by proof is, if it relates to
significant elements of the case, professional
misconduct. Moreover, it is fundamentally unfair to
an opposing party to allow an attorney, with the
® At one point, the defendant said: "Yeah, I'm not going
to sit here and listen to the State's bullshit so just take me
out.”
* The majority appears to draw a distinction between an
opening statement that is proper when delivered and an
opening statement that is made in bad faith. In this case, the
defendant's opening statement was prejudicial to the State
irrespective of whether it was delivered in bad faith. It was
not less prejudicial because it was arguably proper when
delivered. In light of the defendant's failure to testify, the
opening statement inflicted the same irreparable damage on
the State's case regardless of when it became clear that the
statement was impermissible.
A58
standing and prestige inherent in being an officer of
the court, to present to the jury statements not
susceptible of proof but intended to influence the
jury in reaching a verdict.
United States v. Dinitz, 424 U.S. 600, 612 (1976) (Burger,
C.J., concurring).
4165 There is real danger that the court is rewriting the
rules of what is acceptable comment in an opening statement
and how a tnal judge may respond to counsel error. The
majority concludes that "the circuit court did not exercise
sound discretion in declaring a mistrial when it failed to give
adequate consideration to the State's ability to refer to the
defendant's silence and to the effectiveness of a curative jury
instruction." Majority op., §71. It asserts that the circuit
court's belief that a response in closing argument and a
curative jury instruction would not rectify the prejudice to
the state was “unfounded.” Jd.
4166 Taking these points in reverse order, the court
suggests that "a curative jury instruction that opening and
closing statements are arguments, not evidence, would have
cured any possible prejudice resulting from defense counsel's
opening statement." Jd., 979. This determination seriously
miscalculates the extraordinary circumstances of this case.
4167 The notion of a cautionary instruction must be put
in context. Before the State and defense counsel gave open-
ing statements in this case, the court addressed the jury,
saying:
The State must prove every fact necessary to find
the defendant guilty. The State must prove those
facts through evidence. There are two kinds of
evidence. First, there is what the witnesses say on
the witness stand. Second, there are exhibits which
A59
are received into evidence. The arguments of the
lawyers are not evidence.
In- considering your verdict, disregard every-
thing except the evidence received during this trial
and the law contained in my instructions. (Empha-
sis added.)
7168 At the close of some tnals, the court gives Wis
JI—Criminal 157, "Remarks of Counsel” which reads in
part: "Remarks of the attorneys are not evidence. If the
remarks suggested certain facts not in evidence, disregard the
suggestion.” Attorney Gaskell argued that this instruction
was the correct instruction to give the jury.
4169 There is presently a jury instruction on "Opening
Statements," Wis JI—Criminal 101, which reads: "The law-
yers will now make opening statements. The purpose of an
opening statement is to give the lawyers an opportunity to
tell you what they expect the evidence will show so that you
will better understand the evidence as it is introduced during
the trial. I must caution you, however, that the opening
statements are not evidence." This instruction was not given
before opening argument. The instruction did not read the
same way in March 2000, and an earlier version may not
have been available to the court because it was relatively
new.
4170 As noted above, the court proposed an instruction
that read: "The jury is not to consider any statement of
certain facts made in opening statements when such facts
were not supported by evidence received during the course
of this tnal.". This was the only proposed instruction under
consideration in the conference that went beyond Wis JI—
Criminal 157.
-
A60
4171 The truth is, this instruction would not have
undone the damage of defense counsel's opening statement.
First, as worded, it applied to both the defense and the State.
Secona, it was not materially different from the boilerplate
instructions cited above. Third, it was highly unlikely to
erase the jury's understanding that the defendant had been
married, had three children, had testified before, and had a
story that conflicted with the victim's story. As the circuit
court patiently explained, the jury had a "reasonable alter-
native in their minds." Consequently, I do not see how any
court could conclude that the circuit judge was acting
irrationally or irresponsibly in believing that this cautionary
instruction would not solve the problem.
4172 The suggestion of a "measured response" in the
State's closing argument is also problematic. The court mys-
teriously pronounces that "[t]here are circumstances ...
_when an accused ‘opens the door’ to a measured response by
the prosecuting attorney [and t]he defendant opened the door
in the instant case." Majonty op., 74. However, the major-
ity provides no guidance for future cases as to when that
"door" opens, or what a similarly situated prosecutor could
permissibly say during her closing argument.'” In fact, the
State could not have pointed to any explicit language in the
defendant's opening statement in which defense counsel
promised that the defendant would testify. Instead, the court
' When relying on the "invited response doctrine,” the
prosecution treads on extremely thin ice. Even when her
response is invited, the prosecutor must take care not to
"unfairly prejudice” the defendant under the totality of the
circumstances. United States v. Young, 470 U.S. 1, 12
(1985). The Court has also advised prosecutors to request a
curative instruction in lieu of an oral response to perceived
impropriety on the part of the defense. /d. at 13.
A6él
— _—
hints at the possibility of a response on the defendant's
silence, then pulls back with the observation that the
propriety of prosecutorial comment must be decided "case by
case." Jd. This observation can only have a chilling effect
on a prosecutor's rebuttal.'' The majority is more com-
fortable relying on prosecutorial remarks that draw "the
jury's attention to the distinction between argument and
evidence." Jd., 976. However, such comments would be far
more effective in a case in which the defendant himself gave
the opening statement (see State v. Johnson, 121 Wis. 2d
237, 242, 358 N.W.2d 824 (Ct. App. 1984)), than here,
where the defense counsel was the culprit and had the
assurance of an instruction stressing the defendant's absolute
constitutional nght not to testify.
4173 The prosecutor inquired what she could say about
the defense attorney's fictional tale. She declared that she
had "every intention" not to be kind to Attorney Gaskell.
And the majority now asserts that, "Any prejudice to the
State by defense counsel's opening statement would be
outweighed by defense counsel's loss of credibility with the
jury for his unsubstantiated opening statement.” Majority
op., 178.
'' Under any circumstances, the prosecutor must tightly
_circumscribe her comments during closing argument. For
example, the Supreme Court has held that a comment such as
"(t]hese things [the defendant] has not seen fit to take the
stand and deny or explain" is improper. Griffin v. California,
380 U.S. 609, 611 (1965). Even a comment that the prose-
cution's case is unrebutted-or undisputed may be seen as
impermissible if, as here, the defendant is the only witness
who could conceivably rebut or dispute the prosecution's
case. See United States v. Cotnam, 88 F.3d 487, 497 (7th
Cir. 1996).
A62
4174 However, the more effective the prosecutor's
commentary, the more likely Moeck would have had a claim
for ineffective assistance of counsel if he were convicted.
See Barrow v. Uchtman, 398 F.3d 597, 606-07 (7th Cir.
2005), and United States ex rel. Hampton v. Leibach, 347
F.3d 219, 257-60 (7th Cir. 2003), for the proposition that
unfulfilled promises by defense counsel to present personal
testimony from a criminal defendant are highly suspect
under Strickland v. Washington, 466 U.S. 668 (1984).
4175 During the instructions conference, the court
weighed cautionary instructions, the possibility of prose-
cutorial comment in the closing argument, and the nature of
the prejudice to the State. The court heard contrasting views
from the two sides. The court saw and heard the defendant
refuse to waive objection to prosecutonal comment. The
court had read case law on improper comment in opening
statements and had asked the court reporter to read back a
portion of the opening statement.
9176 Against this background, the majonty's con-
clusory determination that the circuit court erred as a matter
of law in its exercise of discretion is a virtual repudiation of
the sound policies outlined in Arizona v. Washington. The
Double Jeopardy Clause of the United States Constitution
does not mandate this result.
4177 For the foregoing reasons, I respectfully dissent.
4178 I am authorized to state that Justice JON P.
WILCOX joins this opinion.
A63
COURT OF APPEALS | 2004 WI App 47
DECISION
DATED AND FILED
February 5, 2004
Comelia G. Clark
Clerk of Court of Appeals
Appeal No. 03-0002-CR Cir. Ct. No. 97CFG00468
STATE OF WISCONSIN IN COURT OF APPEALS
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
RICHARD A. MOECK,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit
court for La Crosse County: MICHAEL KIRCHMAN,
Judge. Reversed.
Before Dykman, Vergeront and Higginbotham, JJ.
41. DYKMAN, J. Richard A. Moeck appeals from a
judgment of conviction and an order denying postconviction
relief. He asserts that his fourth trial constituted double jeop-
ardy because there was no manifest necessity to order a
mistrial in his third trial.' We agree that the fourth trial vio-
'Moeck also argues: (1) the State's thirty-three month delay
in testing evidence violated his nghts to due process, to present a
defense, against self-incrimination, and to compulsory process
(footnote continued)
A64
lated Moeck's constitutional protection against double jeop-
ardy and reverse.
BACKGROUND
2. This case has an extensive history. Moeck was
tried four times on charges including two counts of sexual
assault, false impnsonment, intimidating a victim, and rob-
bery. We omit the details of these charges because they are
not probative of the issues on appeal. We focus on the third
trial, where the pertinent facts concern Moeck's opening
statement and the tnal court's deliberation regarding the
mistrial. Moeck's third trial was held before Judge Dennis
Montabon.
3. Moeck's opening statement provided an alternate
theory for what happened during the alleged assault. His
counsel told the jury that the alleged victim arrived at
Moeck's home in the middle of the night under the influence
of drugs and asked for a place to sleep, but no sexual acts
occurred between him and the alleged victim. Moeck never
presented any evidence at trial, however, to support this
alternate theory. After the State rested its case, Moeck
decided not to testify. His counsel asserted that he did not
know Moeck would not testify until after the State presented —
its case.
under the Fifth, Sixth, and Fourteenth Amendments to the United
States Constitution and art. 1, secs. 7 and 8 of the Wisconsin
~ Constitution; (2) the State's closing argument violated these same
rights; and (3) his counsel was ineffective. He also brings to our
attention State v. Zimmerman, 2003 WI App 196, 266 Wis. 2d
1005, 669 N.W.2d 762, review denied, 2004 W120, _ Wis. 2d
___, 675 N.W.2d 805 (Wis. Jan 23, 2004) (No.-02-3097) decided
after briefing was completed. Because the double jeopardy issue is
dispositive, we need not address these arguments or consider
Zimmerman.
A65
94. At the close of the trial, the State requested that the
trial court instruct the jury to disregard the unsupported
theory Moeck proffered in the opening statement. Moeck |
asserted that the court could resolve the problem with a jury
instruction.
—
45. The trial court considered Moeck's opening state-
ment improper, reasoning that a defendant cannot tell a jury
what the evidence will show and then not show it. It main-
tained that Moeck should have reserved his opening state-
ment until after the State's case if he was considering not
testifying. The tnal court believed that the State was "in a
bind in argument because they can't directly comment on the
defendant not testifying" because of the nght not to incrimi-
nate oneself. The tral court then proposed a jury instruction
to resolve the impropnety, which read: "Remarks of the
attorneys are not evidence. If the remarks implied the
existence of certain facts not in evidence, disregard any such
implication and draw no inference from the remarks." How-
ever, it gave the State the option of choosing between the
jury instruction and a mistrial:
THE COURT: Do you want to go ahead or
not? I mean, I told [the State], it's on the record, I'm
not gonna take it back, I think under—the State
under the circumstances now would be-entitled to a
mistrial if they wanted one. My logic for that is that
scenario is in the jury's mind without subject, as we
do in trials, to cross-examination.
[THE STATE]: I think I'm gonna ask for a
mistrial, Judge. I'm not gonna be able to erase those
facts. I can't argue them on—in my oral argument
because I didn't have a chance to cross-examine him
about it. It's not even out there before the jury.
The trial court declared a mistrial.
A66
46. Prior to his fourth trial, Moeck moved to dismiss
the complaint on double jeopardy grounds. The trial court
denied the motion in a written opinion. Moeck petitioned
this court for leave to appeal. We granted the petition and
summarily affirmed, reasoning that the trial court's written
opinion "applie{d] the proper legal standard to the relevant
facts and reache[d] the corréct conclusion." However, we
failed to review the transcript showing the tnal court's
reasoning when it granted-the State’s request for a mistrial.
47. At the hearing on Moeck's motion to dismiss,
Moeck told Judge Montabon that he wanted a speedy tnal,
and complained that he had been subjected to prosecution for
over three years. Because the tnal court's calendar was
filled, the case was assigned to Judge’ Michael Kirchman. At
Moeck's fourth trial, the jury convicted him of all charges.
In motions after verdict, Moeck asserted that the fourth tral
constituted double jeopardy. Judge Kirchman denied the
motion in a written opinion.
STANDARD OF REVIEW
48. This appeal requires us to review whether the trial
court erred when it determined there was a manifest neces-
sity to terminate the third tnal. We must first determine
which trial court decision we review. Moeck's notice of
appeal shows that he is appealing from the judgment of
conviction, sentence, and order denying postconviction -
relief, which are all Judge Kirchman's decisions. Ordinarily,
we would review those decisions. But State v. Seefeldt, 2003
WI 47, 913, 261 Wis. 2d 383, 661 N.W.2d 822 (citation
omitted), holds otherwise:
A circuit court's exercise of discretion in ordering a
mistrial is accorded a.level of deference that varies
depending on the particular facts of the case.
Regardless of the level of deference to be applied,
A67
an appellate court must, at a minimum, satisfy itself
that the circuit court exercised sound discretion in
ordering a mistrial.
This language from Seefeldt leaves no alternative to review-
ing the transcript of Judge Montabon's decision when he
granted the State's request for a mistrial, despite the fact that
we are reviewing a judgment of conviction and an order
~ rendered by Judge Kirchman.
q9. We adhere to the following guidelines when
reviewing the trial court's discretion:
Sound discretion means acting in a rational and
responsible manner. Sound discretion includes,
without limitation, acting in a deliberate manner
taking sufficient time in responding to a prose-
cutor's request for a mistrial. It requires giving both
parties a full opportunity to explain their positions
and considering alternatives such as a curative
instruction or sanctioning counsel. Sound discre-
tion is not exercised when the circuit court fails to
consider the facts of record under the relevant law,
bases its conclusion on an error of law or does not
reason its way to a rational conclusion.
Id., 436. The Wisconsin Supreme Court applied these guide-
lines in Seefeldt, 261 Wis. 2d 383. The court did not specify
exactly what level of deference it gave the trial court's
decision "because, regardless of the level of deference, [it]
determine[d] that the circuit court did not exercise sound
discretion in ordering the mistrial." Jd., 934. It clarified,
though, that cases where the prosecutor requests a mistrial do
not always require strict scrutiny. /d., 933. It declared such
a rule too broad; rather, the level of deference depends on the
facts of the case. /d.
A68
410. For the reasons discussed below, we conclude that
the trial court erroneously exercised its discretion; even great
deference would not alter our conclusion.
DISCUSSION
4911. Moeck asserts that the fourth tnal violated his
night against double jeopardy because there was no manifest
necessity to terminate the third tnal. He offers séveral rea-
sons for why the opening statement was lawful. Primarily he
argues that his attorney made his opening statement with the
reasonable expectation that Moeck would testify. He notes
that he had testified in two of his other tnals. He also argues
that a curative instruction would have adequately dispelled
any prejudice resulting from the opening statement. He
claims the trial judge did not make a reasoned determination
that a mistrial was necessary, as opposed to a curative
instruction.
412. We turn to Seefeldt for-guidance on this issue. In
that case, the State moved for a mistrial because the
defendant violated a pretrial order by mentioning other acts
evidence in his opening statement. The trial court granted
the State's motion because it determined a curative instruc-
tion could not remove the prejudicial impact of the
statement. /d., 99: The supreme court concluded that the
trial judge did not exercise sound discretion because the
defendant's controversial statements "would likely have been
admissible during trial and the record does not reflect that
the judge considered whether the evidence would ultimately
be admissible.” Jd., 938. Additionally, it found the tnal
court's deliberation to be inadequate:
[T}he trial judge did not provide sufficient oppor-.
tunity for the parties to present, and for the judge to
consider, arguments regarding whether a mistnal
should be ordered and the possible alternatives to a
mistrial. .
A69
Id. ~The brief hearing the trial court held did not allow the
parties "a full opportunity to explain their positions on the
propriety of a mistrial." Jd., 942. It also considered the trial
court's reaction to the violation of the pretrial order to be
severe:
We recognize that it appears that defense
counsel violated a pretrial order when he made the
statements .... However, this is not a basis for a
mistrial unless the violation creates that high degree
of necessity required by the double jeopardy
clause. ...
Further, although the tnal judge expressed his
belief that no cautionary instruction could cure the
improper comment, this belief seems to be un-
founded because the evidence was likely admis-
sible.... [T]he record does not reflect that the tnal
judge explored alternatives to granting a mistrial,
such as imposing sanctions on defense counsel.
Id., 9940-41.
q13. Applying Seefeldt, we conclude the trial court
erred by not exercising its discretion. The record shows that
the trial court allowed the State to determine whether there
was manifest necessity to terminate the third trial.? Such
discretion resides only with the judiciary. Further, the record
does not support a determination that there was a high degree
of necessity for a mistrial.’ The trial court did not consider
*The trial court asked the State: "Is that your final answer, °
Ms. Matousek?" When the State's attorney answered, “yes,” the
court declared a mistnal.
"The Supreme Court refined its definition of ‘manifest
necessity’ ... [and} held that while the word need not be
interpreted literally, a ‘high degree’ of necessity must be found
(footnote continued)
A70
the alternative of imposing sanctions on counsel, if a
sanction was warranted. The record also shows that the trial
court would have considered its proposed jury instruction a
proper cure, if the State wished to pursue that alternative.
414. The State asserts that a jury instruction would not
have cured the opening statement because it would have
reminded the jury that Moeck did not testify.’ The State
provides no authority for this argument. Moeck contends
Frazier v. Cupp, 394 U.S. 731, 89 S. Ct. 1420 (1969)
controls this issue. In that case, the prosecutor failed to
produce evidence he forecasted in his opening statement
because a witness invoked his privilege against self-
incrimination. /d. at 733. The Supreme Court reasoned that
a curative instruction may suffice when the error was "no
more than an objective summary of evidence which the
prosecutor reasonably expected to produce." /d. at 736. It
considered persuasive the fact that the jury was told the
opening statement was not evidence. Jd. at 735. The Wis-
consin Supreme Court has likewise reasoned that "improper
remarks by a prosecutor are not necessarily prejudicial where
objections are promptly made and sustained and where
curative instructions and admonitions are given by the
court." Hoppe v. State, 74 Wis. 2d 107, 120, 246 N.W.2d
122 (1976). We consider these principles applicable here,
where defense counsel has made assertions in an opening
statement which were not borne out by the evidence. In light
of the constitutional safeguards against prosecutorial miscon-
‘before concluding that a mistrial is appropriate.” State v.
Barthels, 174 Wis. 2d 173, 183, 495 N.W.2d 341 (1993) (quoting
Arizona v. Washington, 434 U.S. 497, 506, 98 S. Ct. 824 (1987)).
“We find it curious that the State complains of harm to the
defendant though the defendant would have been satisfied with the
instruction.
A71
duct, it is illogical that a prosecutor, but not defense counsel,
may cure such a statement with a jury instruction.
415. Accordingly, we conclude a proper jury instruction
would have resolved the issue. We also disagree with the
State's confention that it was unable to address the unsup-
ported assertions in its closing statement. The State could
have quoted the proposed jury instruction to stress that
opening statements are not evidence the jury could use in
deliberations. This comment would not have violated
Moeck's privilege against self-incrimination as the State
suggests. An attorney's failure to produce promised evidence
is not lost on a jury. The result can be devastating.
416. The State also argues that the tnal court gave the
parties ample opportunity to discuss the impact of the
improper argument. It distinguishes Seefeldt, where the trial
court declared a mistrial immediately following the offend- ——_____.
ing argument, because the tnal court here waited until the
close of Moeck's evidence to declare a mistrial. We do not
consider this distinction persuasive. Here, the trial court held
a brief hearing immediately at the close of evidence, which is
the first time the trial court knew that no evidence supported
Moeck's statements. It declared the mistrial that same day,
as in Seefeldt. And it let-the State decide whether the court
should grant a mistrial.
417. Seefeldt recognized the importance of fair delib-
eration on the issue of manifest necessity. Here, there was
little deliberation because the tral court left the mistrial
decision up to the State. The hearing in this case falls short -
of allowing the parties a full opportunity to argue the
propriety of a mistrial. ae
418. The State also argues that the parties were able to
fully present their positions at the hearing in front of Judge
Montabon regarding Moeck's motion to dismiss. However,
the purpose of giving the parties an adequate, pre-mistnal
A72
opportunity to argue their positions is to make sure that the
court considers all aspects in exercising its discretion. An
opportunity to argue after that decision has been made and
the jury dismissed does not serve that purpose. Even though
Moeck and the State were able to argue their positions later,
that does not change the fact that the tnal court delegated the
mistrial decision to the State after initially concluding that a
curative instruction would have sufficed.
419. Finally, the State urges us to apply the law of the
case doctrine. It argues that we have already rejected
Moeck's double jeopardy challenges in his interlocutory
appeal and postconviction habeas corpus action and that
Moeck has not offered anything new to warrant a different
result in this action. Moeck contends that we should not
bind him to the law of the case because the Wisconsin
Supreme Court decided Seefeldt after our prior rulings. He
also notes that our prior rulings were summary dispositions
that did not have the benefit of full briefing.
420. The law of the case doctrine is a “longstanding
rule that a decision on a legal issue by an appellate court
establishes the law of the case, which must be followed in all
subsequent proceedings in the tnal court or on later appeal."
Univest Corp. v. Gen. Split Corp., 148 Wis. 2d 29, 38, 435
N.W.2d 234 (1989) (citation omitted). We are not bound to
follow the doctrine, however. /d. at 38-39 (clarifying the
doctrine is not "a rule to be inexorably followed in every
case"). We may disregard it in the interest of justice or "in
certain circumstances when ‘cogent, substantial, and proper
reasons exist."" Jd. at 39 (citation omitted).
421. Those circumstances are present here. When we
reviewed Moeck's petition for review, we examined Judge
Montabon's written order and not his oral decision on the
State’s motion for a mistrial. Though the two are similar in
some respects, the oral decision makes clear that the tnal
A73
court left the mistrial decision up to the State. The tnal court _
would have given a curative instruction had the State
requested that instead of a mistnal. And the court reasoned
that defense counsel's failure to produce evidence promised
in opening statement necessitated a mistrial. Had- we
reviewed the transcript, we would have observed this.
q22. In sum, we conclude that the record does not
support a determination that there was manifest necessity to
terminate the third trial. There was no such necessity: a
curative instruction would have sufficed and the State could
have reminded the jury that the tnal court would instruct
them that defense counsel's statements were not evidence.
The State could have embellished and commented upon this
instruction at length without infnnging on or even men-
tioning Moeck's right not to incriminate himself.
423. We do not reach the underlying issue of whether a
defendant's attorney may mention facts in an opening state-
ment and then fail to support those facts at tnal because the
defendant fails to testify. The State does not address this
issue on appeal, though defendant's decision not to testify
was the reason the State gave at tnal for desiring a mistnial.
Thus, we have no guidance on how the defendant's ultimate
decision whether to testify squares with his attorney's pretrial
decision to make an opening statement before the State
presents its case. See State v. Albright, 96 Wis. 2d 122, 133
n.8, 291 N.W.2d 487 (1980) ("The defendant should be
given the ultimate decision on waiving the nght to testify.").
Forcing a defendant to choose between testifying and a
mistrial because counsel has made an opening statement
forecasting the defendant's testimony raises a question the
parties have not briefed. Nog have the parties fully bnefed
whether defense attorneys must forego opening statements
because they are not positive that their clients will testify.
Instead, we conclude that the tnal court erroneously exer-
cised its discretion because, like the trial court in Seefeldt, it
A74
did not-exercise its discretion when it allowed the State to
chose between a curative instruction and a mistrial, and by
~ failing to explore alternatives to a mistrial.
By the Court.—Judgment and order reversed.
924. VERGERONT, J. (concurring). I wnite separately
to comment on an issue referred to in {23—-whether counsel
acted improperly, as the trial court stated, in giving Moeck's
version of events in opening argument and then not pre-
senting evidence of that version. Although Moeck argues
that the trial court erred in concluding this was improper, the
State does not develop an argument in support of the tnal
court's conclusion. That is one reason we should not address
the issue. However, the more important reason in my
view—one that the majority opinion does not mention—is
that under State v. Seefeldt, 2003 WI 47, 4940-41, 261 Wis.
2d 383, 661 N.W.2d 822, even if a defense counsel's conduct
is improper, that is not a basis for a mistrial unless that
conduct creates the high degree of necessity required by the
double jeopardy clause. In Seefeldt the court held that
defense counsel's statements in violation of a pretrial court
order were not a basis for a mistnal unless the violation
created that high degree of necessity required by the double
jeopardy clause. J/d., J40. Thus, whether or not defense
counsel here should have done something other than what he
did—and I am not suggesting that he should have—the trial
court still had an obligation to exercise its discretion by
exploring alternatives to a mistrial. See id., 941. I agree
with the majority opinion that the trial court here did not do
that.
925. As for the reference in 923 to a defendant's nght
not to testify, neither the triai court nor the State has
suggested that Moeck did not have the night not to testify. I
therefore see no reason to merition this issue.
126. For these reasons, I respectfully concur.
A75
[Opening Statement by Defense Counsel]
MR. GASKELL [defense counsel]: . . .
Ms. Matousek just gave her opening statement, ladies
and gentlemen, and if her opening statement was consistent
with what you're gonna hear today, we wouldn't even be
here, but the evidence is gonna be significantly different and
here are some of the things that are gonna be significantly
different.
Number one, she didn't talk about any physical
evidence. There is no physical evidence that this crime
occurred. You're gonna hear also, ladies and gentlemen, that
there was absolutely no investigation done, none by this
officer (indicating), no investigation.
You're gonna hear Chris Sader, the alleged victim in this
case, tell not two stories, sometimes three stories, three
different stories regarding the same specific detail. Chris
Sader has testified, as Ms. Matousek said, at previous
hearings in this matter. Rich has done the same thing, and
the only person in this case t that has been consistent with
their story and with their testimony is Rich (indicating).
That consistent story is that he’s a 250-pound construction
worker. He's been married twice before. He's got three
children and those marmiages lasted approximately 17 years.
On this moming, ladies and gentlemen, what happened,
Rich is asleep in his apartment. Chris Sader knocks on the
door. Rich says it was 3:09 in the morning because there
was a digital clock up on his refrigerator and he wakes up
and he happens to notice the time. He recognizes Chris
Sader from a meeting that they had a month ago at Kenny's
Pub here in La Crosse and at that time they discussed casual
marijuana use and Rich said, you know, if you're ever
looking to sell some, you know, stop by. Chris Sader comes
to Rich's apartment with marijuana looking to sell marijuana
A76
that night to Rich. He also asks if he can crash at his place
and, in fact, he does spend the evening at Rich's apartment.
The reason he stays there is ‘cause he says he's tired and he's
high at that point. He tells Rich that he had taken a couple
hits of LSD just prior to him getting to his apartment.
The next moming they wake up and they discuss this
marijuana and Rich says, well, I only want 20 or $30 worth.
Rich then goes out into the hallway where the bathrooms are.
He doesn't have a bathroom in his apartment. It's out in the
hallway. He goes out there. He comes back in, and he
notices that the money that was on the counter is now gone.
It's missing, and he asks Sader, well, where's the money, and
Sader denies, well, I don't have the money. And he says,
where's the money, and finally Sader says, okay, I've got it,
and he pulls it out of his sock and gives him his money. At
that point Rich is mad and he kicks and pushes him out of
the apartment, kicks him out of the building, out the back fire
door which is just outside of his apartment door.
At that point Sader is gone. Rich goes back into his
apartment, grabs something to eat, goes back to sleep, and
then he's awakened at 11 or a little after 11 o'clock by the
police that morning and they execute a search warrant and
Rich is arrested.
And that story, ladies and gentlemen, is the only story
that's been consistent throughout this case. You're not gonna
hear any evidence in regards to any kind of homosexual
activity or any homosexual materials that were either found
in Rich's apartment or nobody else is gonna come up here
and say, yeah, I've had a — Rich Moeck's a homosexual.
There's gonna — gonna be no evidence in regards to that.
Theres going to be no evidence in regards to a motive
to rob, take $40 or $50 from Chris Sader. The police execute
a search warrant and they find $790 in cash in his apartment.
Chris Sader is gonna say, well, he stole two $10 bills from
A77
me. Well, in that $792 in cash there is no $10 bills that are
found. In the $792 of cash, no $10 bills are found.
The story you're gonna hear, ladies and gentlemen, is
Chris Sader alleges that he had contact with Rich on the
street, that they had some conversation about pool, and they
also had — supposedly Rich says two or three different times,
do you have anything on you, do you have anything on you.
Well, Chns Sader is gonna say, well, I assumed he was
talking about drugs and, no, I told him I don't do that stuff
and I don't do drugs, and then they walk back to Rich's
apartment, according to Sader, through back alleys, dark
back alleys. Rather than just walking down Third Street and
go up Third Street to the entrance to his apartment, they go
through the back alleys and up a dark fire escape, according
to Sader. They get to the fire escape and somehow the fire
escape (sic) opens up. It doesn't have a handle on the
outside. There is no key to get in that fire escape door.
Somehow they get in that door.
He tells the officer different times as to the reason he
went there. First he says — he tells the officer that morning,
well, he said we were just gonna go dnnk some beer, and
then he testifies later on, well, he said he was gonna have a
party there and he was kind of curious as to who he was so,
therefore, I went with him. Then the next story is, well, no,
he said that there was gonna be a party there with a bunch of
people and there was a pool table there.
So, he's walking dark alleys with somebody that's just
asked him about drugs, told him about a party and a pool
table. They get up to the apartment. There is no party.
There is no pool table, but that doesn't strike him as being
odd and a situation that he should immediately leave.
Then we have Chris Sader telling us that for the next
four and a half hours he's traumatized. He's struck numerous
times and, again, his testimony about being struck changes.
A78
One time it was six or seven times each time I looked at him.
The next time, no, it was just six or seven times total. The
next time it was, well, I was just hit two or three times. But
through these threats, through being struck, through this
alleged sexual assault, he's able to maintain an erection for
four and a half hours.
Then we get to the end of this alleged assault, this
alleged robbery. Chris Sader previously has testified that
he's finally told that, okay, leave, you know, he's ordered out
of the apartment by Rich after being assaulted for four and a
half hours. He's finally told, you can go, get out of here, and
he says, well, just a minute, I've got a knot in my shoe; I
can't go yet; I've got a knot in my shoe (indicating).
Then he says that he picks his wallet up and somehow
notices that $40 is missing, and rather than taking his shoe
and his wallet and just running and getting the heck out of
there, he argues not once, but twice, with him (indicating),
where is my money; give me my money; I want my money.
Then he says he goes to the bottom of this fire escape.
Remember, Rich says he pushes him out. He kicks him out
of the building. He goes out the fire escape. At the bottom
of the fire escape, rather than just running and getting out of
there, again he wants us to believe that he was more con-
cerned about his bike than he was getting out of there
because he says, well, I got to get my bike, and he doesn't
have any problem getting the combination undone, getting
his lock off, and leaving.
Now, let's put this in perspective. The parking lot out
here where you maybe parked this morning, just on the other
side of that parking lot is where we're talking about. That's
where Spanky's is. That's where Rich's apartment is. We're
talking about a block from this building, and the police
department is a half a block that way (indicating), but rather
than grabbing his shoe and grabbing his wallet and just
A79
running, he wants to sit there and argue with this guy that
just assaulted him for four and a half hours. Does any of that
make any sense?
There are between 30 — and I call them chapters. There
is between 30 and 35 different chapters to this story, okay.
And in those 30 to 35 chapters, in the majority, probably 90
percent of those chapters, Chns Sader has told different
stories about the same detail. Nothing has been consistent in
this whole case.’ I want to touch base on just a few of them
and, ladies and gentlemen, some of these chapters are cer-
tainly more significant than others, and I grant you that, but
even the ones we may say, well, gee, that's not really sig-
nificant, well, it's inconsistent. Building blocks, ladies and
gentlemen. How do you prove somebody that's been falsely
accused, how do you prove them innocent?
He's either biking downtown up and down the sidewalks
or he's walking his bike downtown as he told the police offi-
cer. Okay. Big detail? No. Is it inconsistent? Absolutely.
The meeting location. Where did-these two meet when
Mr. Sader alleges that he saw him on the street that night?
His first testmony and his first report that he gives to the
officer is it happened between Tom's Turkey and Happen-
ings, which is a bar, and I believe that's just again two, three,
maybe four blocks from where we are night this morning.
He says that meeting happened between Happenings and
Tom's Turkey. Happenings is north of Tom's Turkey. Then
he says, well, it was on the corner south of Tom's Turkey,
story number two. Then he says it was south of Tom's
Turkey, a block south of there, and then he says it was at
least a block south, at least a block south of Tom's Turkey.
Well, the next block down, ladies and gentlemen, is .12
miles. That's approximately 211 yards, two football fields.
MS. MATOUSEK: Objection.
A80
THE COURT: Yeah. ‘
MS. MATOUSEK: This is argument.
THE COURT: Tell them what your evidence will show.
Don't argue about it at this point.
MR. GASKELL: That 1s what the evidence is gonna
show, Your Honor. Ms. Matousek indicated that and what
Mr. Sader has previously testified to is that he was either on
the right sidewalk or the left sidewalk when he heard Rich
say, hey, you. Well, he's either across the street from him or
he testifies on one occasion that he was on the same side as
Rich and he's actually the one that came up to him on the
sidewalk, biked nght up to him and approached him, and
then allegedly Rich says, hey, you. So, he's either night next
to him saying, hey, you, or he's across the street being
hollered at, hey, you.
Throughout all of this you will never hear Chns Sader
say that he can even describe the shirt that Rich was wearing
that night. He can't describe the color. He can't descnbe
whether is it a sweatshirt; is it a pullover; is it a button-up; is
it a pullout. He can't describe it and he's gonna say and he's
testified previously, that shirt stayed on. The only thing that
allegedly came off were Rich's pants. And the reason he
can't describe the shirt 1s because when he showed up at
Rich's and tried to sell drugs, Rich was asleep in his under-
wear and wasn't wearing a shirt that night.
Well, why go to this place? As I've said, he said, well,
he was going one time to drink beer. One time he was going
to go to the place because he was curious. Another time it
was a party, people, pool table.
The couch that he sat on. There is two couches in Rich
Moeck's apartment. He tells the officer that he sat on the
couch and the kitchen area was directly behind that couch is
what he told the officer. Then his testimony changes, well,
A81
no, I was on a different couch. So, we've got a couch. We
don't know which couch he is sitting on. Then the State
says, well, he was sitting at an angle like this (indicating)
watching a TV on the end of the couch after he's, again,
walked these back alleys, gone up this dark fire escape, no
pool table, no people, but he sits on the edge of the couch
and he doesn't pay any attention supposedly to what's going
on behind him and he sits there and he just, pays attention to
the TV set (indicating). He doesn't have any discussion with
Rich. He doesn't pay any attention to what he's doing.
The TV. One time he testified and I believe it's his — the
written statement, that Rich turned the TV on. Another time
he testifies he turned it on. Another time he testifies that
Rich told him to tun the TV on. Another time, last time, he
says, well, I don't remember who turned the TV on. Again,
is that important? Is that truly significant to this? Well, sure
it is. It's a lot easier to tell the truth all the time than try to
remember what you said before.
The magazines that are allegedly tossed down on this —
this mattress while he is down there. In one sentence he says
singular, he tossed a magazine down on the mattress, and in
the next sentence he’s talking about, well, no, it was a hand-
ful of magazines. He's flip-flopping back and forth through-
out his testimony, previous testimony.
The oral sex that is allegedly performed. He tells the
officer that the first time that it was performed was when he
was standing up. He was standing up and fellatio was per-
formed on him after he disrobed. The officer's report says,
and then after that happened, then he was ordered down on
this mattress, but then he turns around and says, no, that's not
night, that's not what happened; all of the oral sex happened
on the mattress. Then the officer — we talked somewhat at
jury selection about impressions and interpretations, and the
officer has previously testified that, well, it was my impres-
A82
sion that he was standing up when he told me this. Well, it's
— it's directly in his report that it happened — that happened
first, then he's ordered down to the mattress.
The robbery. Chris Sader again has testified previously
and you will hear it again today, that the robbery happens
when-he's up against the wall at the end of the — at the end of
this whole thing. Okay. The other testimony is that he was
down on the mattress and this happened, this robbery
happened after the first time that oral sex was performed.
Now, how can that be? How do you not know where it
happens?. How do you not know if it was nght at the
beginning of this incident or if it was nght at the end of the
evening after four and a half hours.
The money. He doesn't know how much money he lost.
He tells the officer, I lost $40. The denominations were a
twenty and two tens. Then he says it was between 50 and
60. Another time he testifies, well, it's between 40 and 60.
Then all of a sudden now, I don't recall what the denomi-
nations were. Well, of course, he doesn't recall what the
denominations —
MS. MATOUSEK: I'm going to object as argu-
mentative. This is going way beyond what the evidence will
show.
THE COURT: Tell them what you believe the evidence
will show. You will have ample opportunity to argue. Go
ahead.
MR. GASKELL: In regards to what the evidence is
gonna show, ladies and gentlemen, is that in his previous
testimony, in his previous statements in regards to the
marijuana is that he told the officer he had a puff, one
singular puff of a marijuana cigarette. In his wmitten state-
ment, in his written statement after he talks to the officer that
moming. the evidence is gor:.1 show that he wrote in his
A83
written statement he had three puffs of marijuana. Then he's
testified that, well, it was either two or three puffs of man-
juana, and then also in regards to this he's gonna tell you,
well, that Rich held it up to him so he could puff on this
marijuana cigarette one time, and then another time he's
gonna tell us and he's testified previously that Rich handed
him this marijuana cigarette.
The paper sack that allegedly Rich walks out of the
apartment with that morning. One time, and the evidence
will show, that Mr. Sader previously testified that the knife
was in the sack, and then you will find that his testimony
again changes and he says, no, I didn't see anything in the
sack, nothing was sticking out of the sack.
He goes to the hospital after this is all done. The officer
takes him there. He says, no, I'm not interested in talking to
anybody about this, but more critical is that the evidence will
show a complete lack of investigation from this — this point
forward. There are no tests that are run at the hospital. You
will hear about no examinations that were done at the
hospital, no sexual assault examinations. You will hear that
Chris Sader went directly from Rich — allegedly from Rich's
apartment straight to the police department, didn't change
clothes, didn't shower in between. No saliva swabs taken, no
DNA run, complete loss of physical evidence because they
simply didn't do it.
You're gonna hear Mr. Sader testify about past lies that
he's told to police officers. One of those was in January of
1995. One of those was two weeks later, February of 1995, a
completely different incident. You're gonna hear him testify
that he lied to his roommate in a roommate interview.
You're gonna hear that just — just over three months ago,
November of 1999, again another incident with law
enforcement where he completely lied to them.
A84
\
In regards to the law enforcement officer, you're going
to hear that he never questioned any of the inconsistencies
between what was in his report, what Sader verbally told
him, and what was in his written report, never questioned
those at all, never questioned Mr. Sader about, well, was it —
was it one puff or was it three puffs like he'd written here.
Well, you told me you were struck numerous times but you
never wrote that in your report, and there is other incon-
sistencies that weren't discussed or even questioned.
The law enforcement officer is going to get up here
today, because he's done it previously, and he's gonna tell
you about his interpretations, his impressions, and his
paraphrasing in his police report, and he has to do that
because the alleged victim's story, the details, are wholly
inconsistent. You're gonna hear that law enforcement simply
took his story at face value and did nothing more.
There was nothing found in the search warrant. Ms.
Matousek indicated a couple knives were found. Yes, they
were, but they were small knives compared to this 12-inch
knife that Mr. Sader talks about. There was a women's
magazine, a nude women's magazine that was found as well
as I believe they refer to it as a pamphlet that was found in
the apartment, but Mr. Sader has never identified those
magazines as ones that he looked at. There is no drugs found
in the apartment, nor is there any drug paraphernalia, even a
roach clip, even a paper, no hint at all of any drugs or drug
paraphernalia in the place.
The officer is gonna tell you this morning that, yeah,
there were trash cans and there were dumpsters in the — at
the bottom of the fire escape in this back alley, and he's
gonna tell you that, well, he just kind of peeked into the
dumpsters to see if there was anything in there, but he never
bothers getting his hands dirty, never bothers looking for any
physical evidence that may be back in that back alley, if you
A85
believe Chris Sader, because he found nothing in the search
warrant. He never searches — there is three bathroom areas
out in that hallway. He never searches any of those. He
never talks to any neighbors; did you see anything; did you
hear anything.
What you are gonna hear this moming, ladies and
gentlemen is — and I don't know what you are gonna hear
from Mr. Sader, I-truly don't. I'm not sure which detail he's
gonna Cling to this morning, which story he's gonna go with
this morning, but I do know that he has been totally
inconsistent which means he's lied under oath in the past, and
you're gonna hear that the police officer ran with those and
did absolutely no investigation when there was physical
evidence or witnesses that was there. They want you to hang
him on Mr. Sader's story. You're gonna find, as I do, that it's
not truthful, that he has habitually lied to the police officers
in the past —
MS. MATOUSEK: Objection, this is argumentative
again.
THE COURT: Sustained.
MR. GASKELL: At the end of this case, ladies and
gentlemen, end this for Rich, acquit of all these charges.
Thank you.
[Discussion and Oral Decision on Motion for Mistrial}
THE COURT: Please be seated. Very well, the record
should show we are in the courtroom outside the presence of
the jury, that counsel have been furnished with copies of .
proposed jury instructions. Does the State have any objec-
tion to the instructions as proposed?
MS. MATOUSEK: No, but I do have an additional one
that I would like to request ~
THE COURT: What?
MS. MATOUSEK: - Judge, and that's one that in this
case Mr. Gaskell got up in his opening statement and he
argued in the opening statement about facts that are in no
way in evidence concerning the fact that the defendant was
asleep. At — at 3:09 Sader knocks on the door. He recog-
nizes Sader from Kenny's Pub. Sader was there to sell
marijuana. He had told the defendant he had had hits of LSD
and needed a place to sleep. There was money missing. I
mean, he went through the whole scenario, and we have
heard that scenario before when the defendant has testified at
the previous trials. Now, however, the defendant has opted
not to testify and all of that evidence is in there from the
opening statement. There has been no evidence presented at
all to corroborate that and now he doesn't put the defendant
on to make any effort to corroborate it, so I think that's
completely unethical, but aside from that, I think that there
has to be an instruction to the jury that they are to disregard
that and not consider any of that portion of the opening
statement.
THE COURT: Mr. Gaskell?
MR. GASKELL: Yeah, realizing —
THE COURT: Huh?
MR. GASKELL: Opening statements, first of all, aren't
evidence, number one. Number two, when we make a deci-
sion to put the defendant on the witness stand or not is sub-
sequent to the State's or during the State's case. Unethical? |
can't tell what I believe my defendant is gonna testify — what
my client is gonna testify to? Of course, I can do that. We
still have a constitutional nght not to take the witness stand
at the end of that.
THE COURT: There is no pattern instruction.
A87
MS. MATOUSEK: No.
THE COURT: Well, Mr. Gaskell, I don't think your
statement of the law is correct. You can't tell the jury what
the evidence is gonna show and then don't show it.
MR. GASKELL: Well, Your Honor, I don't — I don't
think that's — I don't think that's accurate either. If I'm
presenting a case and IJ don't know whether, in fact, my client
is gonna get up on the witness stand or not ~
THE COURT: Then you can't give his - his or her
version of the events. 3
MS. MATOUSEK: You've got to wait till closing to do
that.
THE COURT: If there is going to be no evidence.
(Pause.)
MR. GASKELL: Your Honor, I do note under 1296,
bail jumping is included in the last paragraph.
THE COURT: Where?
MR. GASKELL: Under 1296. These aren't — mine isn't
numbered anyway, so I don't know what page, but under
1296.
THE COURT: Oh, I see what you mean.
(Pause.) Yeah, it seems to me the State is in a bind, you
know, and might well be entitled to a mistrial. This is the
instruction I propose to try to correct that, but the State is
gonna be in a bind in argument because they can't directly
comment on the defendant not testifying —
MS. MATOUSEK: Right.
THE COURT: - so... The jury is not to consider any
statement of certain facts made in opening statements when
A&8
such facts were not supported by evidence received during
the course of this trial, is the instruction I would propose.
MS. MATOUSEK: Can'I have about five minutes? |
would like to confer with Mr. Home about whether or not I
should be asking for a mistrial in this case.
THE COURT: Fine.
MS. MATOUSEK: Thank you.
THE COURT: Do you want to take this down so you
can show him?
MS. MATOUSEK: Yes, I would. Thank you.
THE COURT: Show him what I proposed. It's the
second one.
MS. MATOUSEK: Thank you.
(A recess was taken.)
THE COURT: Very well, the record should again
reflect we are in the courtroom outside the presence of the
jury.
MS. MATOUSEK: Judge, I had a chance to talk with
Chris Sader. He's indicated to me that he's willing to do this
a fourth time if need be. I need to make clear, though, before
I make that decision to request a mistrial, is exactly how far
would the Court be allowing me to go as far as statements in
a closing argument commenting on the fact that there were,
you know, basically a fictional tale presented in the opening
statement and there was no evidefice presented and no effort
to present evidence to support that? I would have every
intention of not being very kind to Mr. Gaskell in that
closing argument regarding that, and I think I should have
the opportunity to, you know, at least make that statement,
that a fictional tale was presented and there has been no
A89
effort to support that with any evidence. He's basically
slinging mud at a victim without any effort to support his
statements. ke
THE COURT: Mr. Gaskell?
MR. GASKELL: Your Honor, the jury instruction 157
talks specifically about, remarks of attorneys are not evi-
dence, and if they implied the existence of certain facts not
in evidence, that the jury is supposed to disregard any imphi-
cation and draw no inference from those facts. Opening
statements are not evidence, Your Honor. If we actually in
any way, shape, or form believe that the jury is gonna hang
their hat on something that I said ten hours ago, I think that's
an absurd notion. They're gonna base it on whether they
believe Chris Sader or not.
THE COURT: It's not quite that simple, Mr. Gaskell.
They have a reasonable alternative in their minds now before
them with no evidence whatsoever to support it. Reasonable
or not, they have an alternative.
MS. MATOUSEK: I haven't had a chance to do any
cross-examination. I can't include that in any — any part of
my closing argument as I have in the past two tnals.
THE COURT: I'm not as wise as the combined wisdom
of the Supreme Court, but it would seem to me as long as
you don't say, you know, the defendant didn't get up here and
tell us that, or words to that effect, you're all nght, as long as
there is absolutely no evidence about it, no proof.
MS. MATOUSEK: I can say there was absolutely no
evidence or no proof rather than directing — directly saying
the defendant didn't get up here and say this?
THE COURT: I think if you say, the defendant didn't
get up here and say this, we will likely be trying it again.
That's the best I can do off the top of my head. I read about
A90
misconduct during opening statements. It's clear I think that
the Court can grant a mistrial. The one was a defendant's
case where a court granted a mistrial after it was shown
while the jury was deliberating that with apparently absolute
certainty that two of the defense witnesses committed per-
jury, and the other one was about prosecutorial misconduct.
That's what I can find that's close, but I mean —
MR. GASKELL: I think if Ms. Matousek — if she wants
to argue that there is no — that we didn't present any support-
ing evidence based on my opening statement, I mean, to
move this thing along —
MS. MATOUSEK: Are you waiving any objection to
that?
THE DEFENDANT: No.
MR. GASKELL: As long as —
THE DEFENDANT: No. Nope.
THE COURT: I'm gonna make it real simple —
MR. GASKELL: Well, Your Honor, I think you're
right, as long as she doesn't say, the defendant didn't get up
on the stand and say that — I mean, I think she can say that I
indicated that in opening statement and that I didn't present
any testimony to back that up or evidence to back that up.
THE COURT: I think she can under the circumstances,
too. Do you want this other instruction also?
MS. MATOUSEK: Yes.
THE COURT: Do you want to go ahead or not? I
mean, I told her, it's on the record, I'm not gonna take it
back, I think under — the State under the circumstances now
would be entitled to a mistrial if they wanted one. My logic
A91
for that is that scenario is in the jury's mind without subject,
as we do in trials, to cross-examination.
(Pause.)
MS. MATOUSEK: I think I'm gonna ask for a mistrial,
Judge. I'm not gonna be able to erase those facts. I can't
argue them on — in my oral argument because I didn't have a
chance to cross-examine him about it. It's not even out there
before the jury.
THE COURT: Any comment, Mr. Gaskell?
MR. GASKELL: I think I have already made my
comments, Your Honor. The Court believes that a mistrial is
appropriate in this matter. I disagree with that. I think that a
jury instruction resolves that matter, and as a matter of fact,
the standard jury instruction —
THE COURT: Is that your final answer, Ms. Matousek?
MS. MATOUSEK: Yes.
THE COURT: I should also note for the record so it's
on the record, I had the court reporter read back to me what
was said. It was a detailed statement of dope and out the
door and the money and everything else. It's my opinion,
Mr. Gaskell, that, I don't know if you want to call it mis-
conduct, unethical, or whatever, you can't state in opening
statements that this is what happened and have no evidence
thereafter to show what happened.
MR. GASKELL: Well, Your Honor, we still have a
right to make a decision after the State presents its case.
THE COURT: Yeah, then you don't talk about your
version of the facts in the opening statement if you are not
certain you're gonna prove them. "Comments may not
include facts — this is from the Benchbook. I mean, it's basic
law. "Comments may not include facts attorney in good
A92
faith doesn't expect to prove." And if you don't know at the
time you make your opening statement that your client is
going to testify, it's not made in good faith if you relate to the
jury what he’s gonna say. It's as simple as that.
MR. GASKELL: You are saying that a decision can't be
made subsequent to opening statement?
THE COURT: You can reserve your opening statement
till after the State’s case. It's standard procedure. Motion for
a mistrial is granted.
THE BAILIFF: Bring the jury in?
THE COURT: Huh?
THE BAILIFF: Bring the jury in?
THE COURT: No, I will go talk to them.
MR. GASKELL: Your Honor, can I address bail, or
how quickly are you going to turn around and —
THE COURT: I don't know. It won't be very quick if I
do it. I have to decide in my own mind whether I have
enough left to do this another time regarding Mr. Moeck, so
. They will let you know. The bail will stay where it is.
A93
STATE OF WISCONSIN CIRCUIT COURT LA CROSSE COUNTY
BRANCH 3
STATE OF WISCONSIN,
Plainuff, MEMORANDUM
v. DECISION AND ORDER
RICHARD MOECK,
Defendant. Case No. 97-CF-468
This matter is before the Court on defendant’s motion to
dismiss pursuant to the Wisconsin State Constitution and the
United States Constitution, which prohibits the state from
putting a defendant in jeopardy twice for the same offense.
Arizona v. Washington, 434 U.S. 497, 503 (1978). The
defendant argues that the granting of a mistrial based on the
opening statement made by defense counsel was an abuse of
discretion and that a curative instruction to the jury would
have been appropriate. Because the Court finds that there
was a manifest necessity to grant a mistrial, the defendant’s
motion to dismiss is denied.
FACTS
On March 15, 2000, Richard Moeck was tried for the
third time on charges including two counts of sexual assailt,
false impmsonment, intimidating a victim, and robbery. A
jury was impaneled and the defendant was represented by
attorney Timothy Gaskill. In Mr. Gaskill’s opening state-
ment, he presented facts to the jury regarding the defense’s
version of the events in question.
Mr. Gaskill presented the following facts in his opening
statement. The defendant was asleep in his apartment; Mr.
Sader came to the defendant’s apartment at 3:09 a.m.; the
defendant recognized Mr. Sader from a meeting they had had
a month ago at Kenny’s Pub where they had discussed casual
marijuana use; at this meeting the defendant said, “you
A94
know, if you’re ever looking to sell some, you know, stop
by”; Mr. Sader came to the defendant’s apartment with
marijuana looking to sell it to the defendant; Mr. Sader asked
if he could “crash” at the defendant’s apartment because he
was tired and high; Mr. Sader told the defendant he had
taken a couple hits of LSD just before arriving at the defen-
dant’s apartment; the next morning the defendant and Mr.
Sader both awoke and discussed the sale of marijuana; upon
coming back from the bathroom, the defendant noticed that
money on the counter was gone; Mr. Sader denied taking the
money but after more questioning by the defendant, Mr.
Sader admitted-to taking it and gave it back to the defendant;
the defendant got mad and kicked Mr. Sader out of the build-
ing; Mr. Sader was gone; the defendant ate something and
went back to sleep; the police came to the defendant’s apart-
ment around 11 o’clock, awoke the defendant, executed a
search warrant, and arrested the defendant.
At trial, the defendant did not testify and Mr. Gaskill
failed to present any evidence of the facts that he provided to
the jury in his opening remarks. Before the jury instruction
was given, the State of Wisconsin, represented by Attomey
Robyn Matousek, requested a mistrial. The State argued that
the defense introduced an alternative version of the events ~~
but failed to provide any proof of those events at tnal. The
Court granted the State’s motion. The defendant now makes
this motion to dismiss on the grounds of double jeopardy.
DISCUSSION
“{T]he Supreme Court has permitted limited exceptions
to the general prohibition against double jeopardy when the
trial is termin
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.