State v. James P. Killian ( 2023 )

2023 WI 52SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP2012-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Appellant-Petitioner,
v.
James P. Killian,
Defendant-Respondent.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 404 Wis. 2d 451, 979 N.W.2d 569PDC No: 2022 WI App 43 - Published
OPINION FILED: June 21, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 17, 2023
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Trempealeau
JUDGE: Rian Radtke
JUSTICES:
ZIEGLER, C.J., delivered the majority opinion of the Court, in
which ROGGENSACK, DALLET, HAGEDORN, and KAROFSKY, JJ., joined.
ANN WALSH BRADLEY, J., filed a dissenting opinion, in which
REBECCA GRASSL BRADLEY, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-appellant-petitioner, there were briefs
filed by Kara L. Janson, assistant attorney general, with whom
on the briefs was Joshua L. Kaul, attorney general. There was an
oral argument by Kara L. Janson, assistant attorney general.
For the defendant-respondent, there was a brief filed by
Todd E. Schroeder and Schroeder & Lough, S.C., La Crosse. There
was an oral argument by Todd E. Schroeder.
2023 WI 52NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP2012-CR
(L.C. No. 2019CF163)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Appellant-Petitioner,
FILED
v. JUN 21, 2023
James P. Killian, Samuel A. Christensen
Clerk of Supreme Court
Defendant-Respondent.
ZIEGLER, C.J., delivered the majority opinion of the Court, in
which ROGGENSACK, DALLET, HAGEDORN, and KAROFSKY, JJ., joined.
ANN WALSH BRADLEY, J., filed a dissenting opinion, in which
REBECCA GRASSL BRADLEY, J., joined.
REVIEW of a decision of the Court of Appeals. Reversed and
cause remanded.
¶1 ANNETTE KINGSLAND ZIEGLER, C.J. This is a review of
a published decision of the court of appeals, State v. Killian,
2022 WI App 43, 404 Wis. 2d 451, 979 N.W.2d 569, affirming the
Trempealeau County circuit court's1 order dismissing a criminal
complaint against James Killian as barred by double jeopardy.
We reverse.
1 The Honorable Rian Radtke presided.
No. 2020AP2012-CR
¶2 Killian argues the Fifth Amendment's Double Jeopardy
Clause prohibits the State from prosecuting the present case.
According to Killian, the State previously prosecuted him for
the offenses charged in this case because "[t]he evidence the
State intended to submit in the preceding trial was sufficient
to convict [Killian] of all the charges in the current case,"
and "the State intended to amend the charges against [Killian]
during the trial to include charges for which he is again placed
in jeopardy here." Because that case ended in a mistrial
intentionally provoked by the prosecutor——a judicial
determination the parties do not contest here——Killian argues
double jeopardy bars the State's prosecuting the present case.
Killian argues in the alternative that issue preclusion, under
both the Double Jeopardy Clause and the common law, bars the
present case.
¶3 We conclude that Killian's previous trial does not bar
the State from prosecuting the present case because the scope of
Killian's jeopardy in his trial did not include the offenses
with which he is now charged. The scope of jeopardy is
established by "the defendant's actual exposure to jeopardy in a
prior prosecution." State v. Schultz, 2020 WI 24, ¶31, 390
Wis. 2d 570, 939 N.W.2d 519. This requires that the defendant
faced a "risk of a determination of guilt" regarding a
particular offense. Serfass v. United States, 420 U.S. 377,
391-92 (1975). Killian was never exposed to the risk of
conviction for the offenses charged in the present case. As a
result, the offenses prosecuted in Killian's trial are not
2
No. 2020AP2012-CR
identical in law and in fact to the offenses charged in this
case, so double jeopardy does not bar the present prosecution.
¶4 We also conclude that issue preclusion under the
Double Jeopardy Clause and common law issue preclusion do not
bar the present prosecution. Issue preclusion under the Double
Jeopardy Clause requires a valid judicial determination of
ultimate fact, and none exists in this case because Killian's
trial ended in a mistrial. See Ashe v. Swenson, 397 U.S. 436(1970). Common law issue preclusion also does not bar this
prosecution. The circuit court's order dismissing with
prejudice the criminal complaint in the first case did not
decide the scope of Killian's jeopardy. Therefore, that issue
was never "actually litigated," and issue preclusion does not
bar the present prosecution. See Aldrich v. LIRC, 2012 WI 53,
¶88, 341 Wis. 2d 36, 814 N.W.2d 433.
¶5 We therefore reverse the court of appeals and remand
to the circuit court to consider Killian's unresolved argument
regarding prosecutorial vindictiveness.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶6 This case involves Killian's alleged sexual assaults
of two minors: Britney and Ashley.2 On March 17, 2015, the
State charged Killian in Case No. 2015CF47 with one count of
first-degree sexual assault of a child under the age of 12
2 "Britney" and "Ashley" are pseudonyms used in place of the
victims' names. The parties used these same pseudonyms in their
briefs. See Wis. Stat. (Rule) § 809.86(4) (2021-22). All
references to the Wisconsin Statutes are to the 2021-22 version
unless otherwise noted.
3
No. 2020AP2012-CR
contrary to Wis. Stat. § 948.02. The complaint alleged that,
"on or about Monday, August 18, 2014," Britney, then ten years
old, "was laying on a bed at [a] residence and [Killian] came
in, laid beside her and grabbed her buttocks." The probable
cause section further stated that during a forensic interview,
Britney reported "that Killian had squeezed her butt on five
different occasions starting when she was about eight years old"
and that Killian also "touched her 'boobies' underneath her
clothes" in 2014.
¶7 The State filed a second criminal complaint on
March 15, 2016, in Case No. 2016CF38, charging Killian with
repeated sexual assault of a child contrary to Wis. Stat.
§ 948.025. The complaint alleged, "from April 1994 through
December 1999," Killian sexually assaulted Ashley.
Additionally, the complaint's probable cause section stated
Ashley "had been sexually assaulted by [Killian], starting at
the age of six and ending at 17 years of age . . . start[ing] in
about January 1988 and end[ing] about December 1999."
¶8 The two cases were later joined for trial. On
October 5, 2016, prior to the cases being joined, the circuit
court3 held a hearing in Britney's case on the parties'
respective motions to admit or exclude other-acts evidence. The
circuit court granted the State's motion to admit evidence of
sexual assaults against Ashley that "occurred over a period of
time between January 1988 and December of 1999" to demonstrate
3 The Honorable Anna L. Becker presided.
4
No. 2020AP2012-CR
Killian's "motive, intent, preparation, absence of mistake or
accident, and plan." The court also addressed Killian's motion
to prohibit the State "from using evidence pertaining to other
crimes, wrongs, or acts." The State argued it planned to
introduce evidence of Killian's past interactions with Britney
to show Killian "groomed [Britney] by engaging in behavior that
include[d] asking her if he could be her boyfriend," "[b]uying
her gifts," and "[n]ormalizing the behavior of sleeping with her
in the bed together." Killian did not object to such evidence
of "grooming" but only to "other acts of sexual assault." The
State agreed it was "not alleging that [Killian] touched
[Britney] outside of anything that was alleged here." The State
then said it would not object, and the court granted Killian's
motion to exclude evidence of other acts of sexual assault
against Britney.
¶9 On June 15, 2017, four days before Killian's trial,
the State filed a motion for leave to amend the Information.
The proposed Amended Information included in Ashley's case one
count of incest with a child contrary to Wis. Stat. § 948.06.
The proposed Amended Information also expanded the charging
period for Britney's case from "on or about Monday, August 18,
2014" to "on or between January, 2014 to August 18, 2014."
¶10 The circuit court discussed the State's motion with
the parties in the morning on the first day of trial. Due to
the State's delay, the court denied the addition of the incest
charge. The prosecutor then commented that "maybe the proof at
the trial will be sufficient to convince the Court that more
5
No. 2020AP2012-CR
sexual intercourse occurred which would be a basis for this
charge." In response, the court reiterated how "the state's
lack of preparation should not prejudice the defendant" and made
clear, "I'm not going to allow [the amendment]."
¶11 As for the expanded charging period in Britney's case,
Killian's counsel expressed concern about how "the act that's
charged is a single act" and that the State was "attempting
to . . . expand the date range in the hopes that it would make
admissible evidence of other allegations that have not been
charged." Defense counsel also reminded the court of the other-
acts ruling in October and said, "So even if the date range were
widened, I would argue that at this point, it would be
inadmissible to bring in allegations of sexual contact." He
reiterated, "[W]e came here to defend an alleged sexual contact
that occurred on August 18th. And I think at the same time,
this raises concerns that are even more broad than this one
count." The prosecutor responded, "I think it's quite clear
that we do not have to prove the actual date of the allegation,"
and clarified, "[O]f course, [Killian is] correct. We are
charging one sole act." He further noted the possibility of
amending the Information:
Interestingly, it appears to me that if more acts are
disclosed at trial, the Information could be changed.
And it could, in fact, I think naturally prejudice the
defendant more. But I don't think that's unusual. It
happens at trial that more facts are accused and
Informations are changed and juries deliberate on
multiple issues.
6
No. 2020AP2012-CR
The circuit court clarified that the State was "not alleging
there were additional things that happened. . . . [I]t's the
same events or package that we've heard about all along.
Nothing new." The prosecutor confirmed but nonetheless
included, "If more facts are introduced at trial, the Court can
amend the Information and give that instruction to the jury."
¶12 The court allowed the expanded date range, but only
for purposes of establishing "when exactly [the alleged act of
grabbing Britney's buttocks] happened on the calendar." Defense
counsel sought clarification "that there can be no reference to
other alleged touching that would constitute sexual assault of
any kind," and the court agreed: "If there were intentions to
introduce those at trial, then those were required to have been
addressed and they were not addressed at all. So there's
already been a ruling on that."
¶13 The trial commenced later that same day. During the
prosecutor's opening statement, he told the jury Killian "would
rub himself on [Britney]." The prosecutor continued, describing
to the jury how, on one occasion, Killian "was rubbing himself
on [Britney]. And by himself, I mean his penis. Erect.
Rubbing on her. . . . It's an unmistakable course of conduct."
With regard to Ashley, the prosecutor told the jury they would
hear testimony that Killian "started molesting her at about 6 or
7 years old [1988–89] and didn't stop until she was about 17
[1999]. So approximately 10 years."
7
No. 2020AP2012-CR
¶14 On the second day of trial, just before Britney
testified, the prosecutor argued to the court that he could
introduce other acts of sexual assault against Britney:
I re-reviewed the Criminal Complaint. What is on
trial, the course of conduct, there was a motion in
limine filed by the defense regarding other acts. I
believe we could bring all that out. Look at the
court minutes. I don't think these are other acts. I
think they're a course of conduct. They're relevant.
They set the stage for our allegation of sexual
contact. And I think although there is one incident
charged, the state doesn't have to charge every
incident. The state had discretion. But in the
Complaint, the course of conduct is there. The
different things that she says happened.
Defense counsel objected to the State's introducing other acts
of sexual assault and reminded the court of its previous
ruling: "[I]f there's an other act that would constitute sexual
conduct, I'm going to be objecting and asking for a mistrial if
that comes out at any point in this trial because that's been
thoroughly litigated and decided as of yesterday again." The
prosecutor further argued that "the way to address this is let
[Britney] speak. . . . [I]f there's more information, more
charges can be brought. The [I]nformation can be changed." The
court rejected such a possibility. It reminded the prosecutor,
"[T]here was a ruling on that. . . . You're changing the game
on them. If you wanted to include that, then we should have
addressed that." The prosecutor continued, "Anything could
happen when she testifies. I don't know. But if she starts to
speak about a vagina rub or him rubbing his penis on her leg, I
can't control that. And if she does that, then I guess [defense
8
No. 2020AP2012-CR
counsel's] going to move for a mistrial." The court warned the
prosecutor, "It will be a mistrial because you didn't, again,
prepare for trial adequately until the last moment." The
circuit court reminded the parties that the offense "charged in
the Complaint . . . was the butt[-grab]," and the court
thoroughly explained its ruling because it was "concerned about
a mistrial":
[T]he state can bring in anything that they would like
to regarding other acts that are grooming type
activities but not other sexual assaults because those
should have been properly dealt with when we talked
about the motions that were filed for other acts. I
think these are clearly allegations that were other
acts of sexual assault that go to your concerns. But
that wasn't what the argument was when we had those.
So I don't think at this point, it's appropriate
to allow that in. I think there are other ways that
the Court has less prejudicial or the ability to make
this less confusing for the jury so that they
understand what the exact one is that's being accused
here which is the one dating back to August 18th.
¶15 After the court reaffirmed its other-acts ruling,
Britney took the stand. She testified first about Killian's
grooming behaviors, such as engaging her in conversations about
sex. The following exchange then took place:
Q. So so far, we've talked about mostly conversations
about sex, right?
A. Yes.
Q. Did you tell [your mother] something else relating
to a private part of your body?
A. When I told her that one day when we were in bed
he was rubbing my back and he rubbed -- he was rubbing
my stomach. So he rubbed up and he rubbed on my
9
No. 2020AP2012-CR
breasts. And then when he was done, he rubbed on my
private spot. It was just a swift rub.
Defense counsel objected and moved for a mistrial, which the
court granted. The court later found "that the prosecutor's
actions were intentional" and "designed to create another chance
to convict, and was an act done so as to allow the State another
'kick at the cat.'" The court therefore concluded that "the
State is barred from retrial in this matter due to prosecutorial
overreaching," and it dismissed the case with prejudice. The
State did not appeal the circuit court's decision, and it does
not dispute the circuit court's finding of prosecutorial
overreach.
¶16 On October 1, 2019, the State filed a new criminal
complaint against Killian in the case now before us. The
complaint contained the following counts:
Count 1: First-degree sexual assault of a child contrary
to Wis. Stat. § 948.02(1) (1989-90) against Ashley "in or around
1990 to 1991."
Count 2: First-degree sexual assault of a child contrary
to Wis. Stat. § 948.02(1) (1989-90) against Ashley "in or around
1990 to 1991."
Count 3: Incest with a child contrary to Wis. Stat.
§ 948.06(1) (1989-90) against Ashley "in or around 1990 to
1991."
Count 4: First-degree sexual assault of a child contrary
to Wis. Stat. § 948.02(1) (1991-92) against Ashley "in or around
1992 to 1993."
10
No. 2020AP2012-CR
Count 5: Incest with a child contrary to Wis. Stat.
§ 948.06(1) (1991-92) against Ashley "in or around 1992 to
1993."
Count 6: Incest with a child contrary to Wis. Stat.
§ 948.06(1) (1993-94) against Ashley "in or around 1993 to
1994."
Count 7: Incest with a child contrary to Wis. Stat.
§ 948.06(1) (1993-94) against Ashley "in or around 1994 to
1995."
Count 8: Incest with a child contrary to Wis. Stat.
§ 948.06(1) (1995-96) against Ashley "in or around 1995 to
1996."
Count 9: Incest with a child contrary to Wis. Stat.
§ 948.06(1) (1995-96) against Ashley "in or around 1996 to
1997."
Count 10: Repeated acts of sexual assault of the same
child contrary to Wis. Stat. § 948.02(1) (2011-12), "namely
[Britney]," "in or around June 2012, and no later than
August 17, 2014."
¶17 Killian thereafter filed a motion to dismiss the
State's new charges. He argued dismissal was required because
"this action violates Judge Becker's Order declaring that the
mistrial in Case No. 15-CF-47 was caused by prosecutorial
overreaching and that any retrial of this matter would violate
11
No. 2020AP2012-CR
the defendant's . . . right to be free from Double Jeopardy."4
In an oral ruling, the circuit court observed, "In a strict
comparison of the Complaints in 15-CF-48 (sic) and 19-CF-163 of
the charged offenses under Blockburger,[5] the time frames and
elements are different and would pass the Blockburger test."
The court nonetheless concluded the second prosecution violates
double jeopardy because "[t]he State's plan was to bring all of
the alleged acts into trial and then seek to amend the
Information after testimony to conform to the evidence." The
court also viewed the order dismissing the first prosecution as
"meant to encompass future prosecutions involving the same facts
alleged in 15-CF-47 where additional charges may be added in
future prosecutions." The circuit court therefore concluded
Killian's scope of jeopardy, "in light of the record, which
includes Judge Becker's order, includes all facts contained in
the Complaints that were later joined and amended, including
acts in the Complaints that were not specifically the basis for
the charged offenses in 15-CF-47, and also facts raised at
trial."
¶18 The State appealed, and the court of appeals affirmed.
The court of appeals concluded "that the circuit court properly
considered the entire record of the first prosecution to
determine whether Killian was in jeopardy for the offenses now
4Killian also has a prosecutorial vindictiveness argument
pending in the circuit court. The circuit court never ruled on
that issue, and it was not raised on appeal.
5 Blockburger v. United States, 284 U.S. 299 (1932).
12
No. 2020AP2012-CR
charged," and it "agree[d] with the circuit court in this case
that Killian was, in fact, in jeopardy of being convicted of the
offenses now charged." Killian, 404 Wis. 2d 451, ¶4. The State
petitioned this court for review, which we granted.
II. STANDARD OF REVIEW
¶19 "The issue of whether a person's right to be free from
double jeopardy has been violated presents a question of law
that we review de novo." State v. Trawitzki, 2001 WI 77, ¶19,
244 Wis. 2d 523, 628 N.W.2d 801. "The application of issue
preclusion to a set of facts is a question of law, which this
court reviews without deference to the lower courts." State v.
Canon, 2001 WI 11, ¶7, 241 Wis. 2d 164, 622 N.W.2d 270.
III. ANALYSIS
¶20 We begin our review by discussing general principles
of double jeopardy and how to ascertain a defendant's scope of
jeopardy in a previous trial. We then examine Killian's scope
of jeopardy in the previous trial and conclude the present
prosecution does not place him in jeopardy for any of the same
offenses. Finally, we conclude issue preclusion also does not
bar the present prosecution.
A. General Double Jeopardy Principles
¶21 Under the Fifth Amendment to the United States
Constitution, "No person shall be . . . subject for the same
offence to be twice put in jeopardy of life or limb . . . ."
U.S. Const. amend. V; see also Wis. Const. art. I, § 8, cl. 1
13
No. 2020AP2012-CR
("[N]o person for the same offense may be put twice in jeopardy
of punishment . . . .").6
¶22 "Over 40 years ago, we held that two prosecutions are
for the 'same offense,' and therefore violate the Double
Jeopardy Clause, when the offenses in both prosecutions are
'identical in the law and in fact.'" Schultz, 390 Wis. 2d 570,
¶22 (quoting State v. Van Meter, 72 Wis. 2d 754, 758, 242
N.W.2d 206 (1976)). Two offenses are not "identical in law"
where "each provision requires proof of a fact which the other
does not." Blockburger v. United States, 284 U.S. 299, 304
(1932). Further, offenses are not "identical in fact" where
"allegation of substitute facts, all of which furnish the same
legal element of the crime, . . . are either separated in time
or are of a significantly different nature in fact." State v.
Eisch, 96 Wis. 2d 25, 31, 291 N.W.2d 800 (1980) (footnote
omitted).
¶23 "[A] motion by the defendant for mistrial is
ordinarily assumed to remove any barrier to reprosecution, even
if the defendant's motion is necessitated by prosecutorial or
judicial error." United States v. Jorn, 400 U.S. 470, 485
(1971) (footnote omitted). However, as the United States
Supreme Court has held, "Only where the governmental conduct in
question is intended to 'goad' the defendant into moving for a
mistrial may a defendant raise the bar of double jeopardy to a
6"Our tradition is to view these provisions as identical in
scope and purpose." State v. Davidson, 2003 WI 89, ¶18, 263
Wis. 2d 145, 666 N.W.2d 1.
14
No. 2020AP2012-CR
second trial after having succeeded in aborting the first on his
own motion." Oregon v. Kennedy, 456 U.S. 667, 676 (1982). The
circuit court in Killian's first prosecution made a factual
finding that the prosecutor engaged in misconduct, a finding the
State did not appeal and does not dispute here. Therefore, any
offenses in the present prosecution that are identical in law
and in fact to an offense in the prior prosecution are barred by
double jeopardy.
¶24 Before we can analyze whether the offenses in this
prosecution are identical in law and in fact to any offenses in
the prior prosecution, we must first discern the scope of
Killian's jeopardy during that prior prosecution. It is a
"fundamental principle that an accused must suffer jeopardy
before he can suffer double jeopardy." Serfass, 420 U.S. at
393. "The ambit of the constitutional bar to subsequent
prosecution is coextensive with the scope of jeopardy created in
the prior prosecution." 22A C.J.S. Crim. Proc. & Rts. of
Accused § 618 (2023). If the offenses now prosecuted were not
previously within the scope of Killian's jeopardy, then
prosecuting those offenses in this case could not violate double
jeopardy.
B. Determining The Scope of Jeopardy.
¶25 Related to the scope of jeopardy is the method for
determining when jeopardy attaches. See Crist v. Bretz, 437
U.S. 28, 38 (1978) (quoting Bretz v. Crist, 546 F.2d 1336, 1343
(9th Cir. 1976)) ("[T]he time when jeopardy attaches in a jury
trial 'serves as the lynchpin for all double jeopardy
15
No. 2020AP2012-CR
jurisprudence.'"). "[T]he conclusion that jeopardy has attached
begins . . . the inquiry as to whether the Double Jeopardy
Clause bars retrial." Illinois v. Somerville, 410 U.S. 458, 467
(1973). "Jeopardy attaches when a person has been placed on
trial on a valid indictment or information before a court of
competent jurisdiction, has been arraigned and has pleaded, and
a jury has been impaneled and sworn, and charged with his
deliverance." State v. B——, 173 Wis. 608, 617, 182 N.W. 474(1921). In other words, jeopardy attaches when "an accused has
been subjected to the risk of conviction." Serfass, 420 U.S. at
392. "Without risk of a determination of guilt, jeopardy does
not attach, and neither an appeal nor further prosecution
constitutes double jeopardy." Id. at 391-92. It follows that
if a defendant was never subject to the "risk of a determination
of guilt" of an offense, then jeopardy never attached for that
offense, and it is not within the scope of jeopardy.7
¶26 In Serfass, the Supreme Court addressed whether
jeopardy attached where charges for "willfully failing to report
for and submit to induction into the Armed Forces" were
We recognize that our decision in State v. Schultz
7
contained a footnote stating, "The point at which jeopardy
attaches has nothing to say about the actual scope of jeopardy."
2020 WI 24, ¶24 n.13, 390 Wis. 2d 570, 939 N.W.2d 519.
However, that footnote merely explained that "[t]he time at
which jeopardy attaches does not lock in the scope of jeopardy."
Id. Though true the scope of jeopardy may change after the
point in time when jeopardy initially attaches, this does not
affect the method by which jeopardy must attach. Jeopardy may
expand to include additional offenses the same way it initially
attached: by placing the defendant at risk of a determination
of guilt of an additional offense.
16
No. 2020AP2012-CR
dismissed, prior to trial, because the "local board did not
state adequate reasons for its refusal to reopen [the
defendant's Selective Service] file." Id. at 379. The Court
noted that it "has consistently adhered to the view that
jeopardy does not attach, and the constitutional prohibition can
have no application, until a defendant is 'put to trial before
the trier of facts, whether the trier be a jury or a judge.'"
Id. at 388 (quoting Jorn, 400 U.S. at 479). Because the charges
were earlier dismissed, "[t]he District Court was without power
to make any determination regarding [defendant's] guilt or
innocence." Id. at 389.
¶27 The Court also rejected the argument that dismissal
"was the 'functional equivalent of an acquittal on the merits'
and 'constructively jeopardy had attached.'" Id. at 390.
Finding this argument "divorced from the procedural context,"
the court reemphasized that jeopardy attaches when "an accused
has been subjected to the risk of conviction" by "a trier
'having jurisdiction to try the question of the guilt or
innocence of the accused.'" Id. at 391-92 (quoting Kepner v.
United States, 195 U.S. 100, 133 (1904)).
¶28 The Supreme Court later doubled down on this rule in
United States v. Felix, 503 U.S. 378, 385 (1992). The criminal
defendant in Felix was first charged in the Western District of
Missouri with "attempting to manufacture [methamphetamine]
between August 26 and August 31, 1987," and the conduct
underlying the charge was the defendant's "order[ing] precursor
chemicals and equipment for the manufacture of methamphetamine
17
No. 2020AP2012-CR
to be delivered to him at Joplin, Missouri." Id. at 380. At
his trial, "the Government introduced evidence that [the
defendant] had manufactured methamphetamine in Oklahoma earlier
in 1987" in order to prove his "criminal intent with respect to
the items delivered in Missouri." Id. at 381. He was convicted
and later charged a second time in the Eastern District of
Oklahoma. Id. at 381-82. The conduct underlying some of the
charges in the Oklahoma case was the same conduct the government
used as evidence of intent in the Missouri case. Id. at 382-83.
¶29 The Court found no double jeopardy violation,
rejecting the notion "that if the Government offers in evidence
in one prosecution acts of misconduct that might ultimately be
charged as criminal offenses in a second prosecution, the latter
prosecution is barred under the Double Jeopardy Clause." Id. at
386. The Court's "precedents hold that a mere overlap in proof
between two prosecutions does not establish a double jeopardy
violation" and have explicitly "disclaimed any intention of
adopting a 'same evidence' test." Id. at 386 (citing Grady v.
Corbin, 495 U.S. 508, 521 & n.12 (1990); Gavieres v. United
States, 220 U.S. 338 (1911); Dowling v. United States, 493 U.S.
342 (1990)). Thus, the Court reaffirmed "the basic, yet
important, principle that the introduction of relevant evidence
of particular misconduct in a case is not the same thing as
prosecution for that conduct." Id. at 387.
¶30 Recently, we also weighed in on the question of how to
determine the scope of a defendant's jeopardy. In Schultz, 390
Wis. 2d 570, the defendant was charged in a criminal complaint
18
No. 2020AP2012-CR
with repeated sexual assault of a child during "late summer to
early fall of 2012." Id., ¶5. No evidence at trial indicated
any such acts of sexual assault occurred in October 2012, and
the prosecutor in closing argument stated "the assaults started
in July and ended in September 2012." Id., ¶¶8-9. The
defendant was acquitted but later charged again, this time with
sexual assault of a child under the age of 16 "on or about
October 19, 2012." Id., ¶11. The issue was whether the scope
of jeopardy in the trial included the offense of sexual assault
"on or about October 19, 2012."
¶31 In line with the Supreme Court's decisions in Serfass
and Felix, we focused our inquiry on "the defendant's actual
exposure to jeopardy in a prior prosecution." Schultz, 390
Wis. 2d 570, ¶31. We decided "examining the entire record,
including evidentiary facts adduced at trial," is relevant to
discerning the scope of jeopardy in a prior trial. Id., ¶32.
However, in reaching this conclusion, we also clarified that the
focus of the inquiry remains on the defendant's "actual exposure
to jeopardy," not on the parties' subjective understandings
concerning the scope of jeopardy. Id., ¶¶24-25, 31.
"Jeopardy," as we explained, includes "the actual danger to
which a person is exposed, as opposed to the danger a person
fears." Id., ¶31. It is not based "on the criminal defendant's
fears, beliefs, or perceptions regarding his exposure in the
first prosecution." Id. Furthermore, we declined the
invitation to adopt the "reasonable person" test for discerning
the scope of jeopardy espoused by the Second Circuit in United
19
No. 2020AP2012-CR
States v. Olmeda, 461 F.3d 271 (2d Cir. 2006). Schultz, 390
Wis. 2d 570, ¶¶45-50. The proposed test was "whether 'a
reasonable person familiar with the totality of the facts and
circumstances would construe the initial indictment, at the time
jeopardy attached in the first case, to cover the offense that
is charged in the subsequent prosecution.'" Id., ¶46 (quoting
Olmeda, 461 F.3d at 282). We rejected this test as unsupported
in the case law and contrary to the language of the Fifth
Amendment, which contemplates actual jeopardy, not perceived
jeopardy. Id., ¶¶47-49.
¶32 Killian relies heavily on the "entire-record" analysis
we used in Schultz. According to Killian, the present case
violates double jeopardy because "[t]he evidence the State
intended to submit in the preceding trial was sufficient to
convict [Killian] of all the charges in the current case." He
argues this evidence established jeopardy of conviction for "a
broad range of conduct beyond the charging document" because
"the State presented the conduct underlying the subsequent
prosecution not as other act evidence in the first trial but
with the intent to include the evidence as charges in an
amendment." See Wis. Stat. § 971.29(2).
¶33 We do not read Schultz to be quite so broad. We agree
with Killian, as we stated in Schultz, that "[i]t is the record
as a whole . . . which provides the subsequent protection from
double jeopardy, rather than just the indictment." Schultz, 390
Wis. 2d 570, ¶30 (quoting United States v. Roman, 728 F.2d 846,
854 (7th Cir. 1984)). However, when ascertaining the scope of
20
No. 2020AP2012-CR
jeopardy, the analysis must nonetheless focus on the defendant's
actual jeopardy——"the actual danger" of conviction. Id., ¶31;
Serfass, 420 U.S. at 391-92.
¶34 Schultz framed the question, as applied to the facts
of that case, as "whether the initial charge for repeated sexual
assault of a child during the timeframe of 'late summer to early
fall of 2012' includes the date charged in the second
prosecution for sexual assault of a child 'on or about
October 19, 2012.'" Schultz, 390 Wis. 2d 570, ¶33. To answer
this question, "[w]e beg[a]n our analysis with the complaint
charging [the defendant] in the initial prosecution." Id., ¶34.
After analyzing the complaint's language, along with a police
report incorporated by reference, we concluded the complaint
"clearly identifie[d] [the defendant's] scope of jeopardy in the
first prosecution at the time jeopardy attached." Id., ¶36. We
then continued to examine the record at trial, but only "to see
if anything suggest[ed] 'early fall' extended past mid-September
to include October 19, 2012." Id., ¶37. The focus of the
analysis was always on the defendant's actual jeopardy as
established by the language in the criminal complaint. The
trial record helped inform this analysis by providing evidence
of what exactly the complaint meant by "early fall."
¶35 Schultz never suggested that the trial record, and the
trial record alone, could expand the defendant's scope of
jeopardy beyond the jeopardy created by a fair reading of the
charging documents. After all, "[t]he defendant cannot be
convicted," and the court is "without jurisdiction to convict"
21
No. 2020AP2012-CR
the defendant, "of a crime for which he is not charged." State
ex rel. Winnie v. Harris, 75 Wis. 2d 547, 553, 249 N.W.2d 791(1977); see also Malaga v. United States, 57 F.2d 822, 825 (1st
Cir. 1932) ("Even though the evidence warranted it, the
respondent could not be convicted of an offense with which he
was not charged."); State v. Rogers, 545 P.2d 930, 932 (Ariz.
1976) ("It is basic that a person cannot be convicted of an
offense not charged against him by indictment or information.");
In re Hess, 288 P.2d 5, 7 (Cal. 1955) ("A person cannot be
convicted of an offense . . . not charged against him by
indictment or information, whether or not there was evidence at
his trial to show that he had committed that offense."). Were
we to conclude jeopardy could attach based on "[t]he evidence
the State intended to submit in the preceding trial" alone, this
would contravene the Supreme Court's holding in Felix "that a
mere overlap in proof between two prosecutions does not
establish a double jeopardy violation."8 503 U.S. at 386.
¶36 The fact that the information may be amended to
conform to the evidence presented at trial does not affect our
analysis. Under Wis. Stat. § 971.29(2),
At the trial, the court may allow amendment of the
complaint, indictment or information to conform to the
proof where such amendment is not prejudicial to the
defendant. After verdict the pleading shall be deemed
If we ascribed a broader meaning to our holding in
8
Schultz, 390 Wis. 2d 570, it would bar subsequent prosecutions
based simply on evidence related to uncharged crimes. Schultz
cannot be interpreted to bar a later prosecution based just on
that evidence.
22
No. 2020AP2012-CR
amended to conform to the proof if no objection to the
relevance of the evidence was timely raised upon the
trial.
But before the information may be amended to conform to the
evidence, such evidence must have been admitted at trial.
Evidence in a criminal trial is inadmissible unless it is
relevant to the defendant's guilt or innocence of a crime
charged at the time the evidence is introduced. See Wis. Stat.
§ 904.02 ("Evidence which is not relevant is not admissible.");
cf. State v. Alsteen, 108 Wis. 2d 723, 731, 324 N.W.2d 426(1982) (stating evidence "must be relevant to an issue in the
case to be admissible"). If evidence is relevant and therefore
admitted, then the defendant is in jeopardy insofar as that
evidence is being used to prove the charged offense. See Felix,
503 U.S. at 379. Even if that same evidence could be relevant
to proving some other offense, jeopardy for that offense does
not attach until the defendant faces the "risk of a
determination of guilt" with regard to that offense. Serfass,
420 U.S. at 391-92. Until the Information is actually amended,
there exists no such risk, and therefore no jeopardy.
¶37 Likewise, we disagree with Killian that a prosecutor's
introducing evidence merely with intent to bring additional
charges can expand the scope of jeopardy. We similarly rejected
analyzing the parties' states of mind as a method for discerning
the scope of jeopardy in Schultz. See 390 Wis. 2d 570, ¶¶24-25,
31, 49. Just like the proposed tests in Schultz, Killian's
proposed intent-based test runs contrary to the Fifth
Amendment's requirement of actual jeopardy. Regardless of the
23
No. 2020AP2012-CR
prosecutor's intentions, the Information could not be amended
without leave of the court. Wis. Stat. § 971.29(2).
¶38 We therefore hold that, where a trial ends in a
mistrial,9 the defendant's scope of jeopardy consists of those
offenses for which the defendant faced actual danger of
conviction, meaning the defendant was exposed to the "risk of a
determination of guilt" regarding those offenses.10 Serfass, 420
U.S. at 391-92. The inquiry should focus on the charging
documents, but the entire record may be examined if necessary to
confirm the scope of jeopardy as established by those charging
documents. Schultz, 390 Wis. 2d 570, ¶¶33–40. "[M]ere overlap
in proof between two prosecutions does not establish a double
jeopardy violation," Felix, 503 U.S. at 386, nor does the
prosecutor's intent. The inquiry must always focus on "the
defendant's actual exposure to jeopardy in a prior prosecution."
Schultz, 390 Wis. 2d 570, ¶31.
C. Whether Killian Was Twice Put In Jeopardy.
"[F]or purposes of barring a future prosecution, it is the
9
judgment and not the indictment alone which acts as a bar, and
the entire record may be considered in evaluating a subsequent
claim of double jeopardy." Schultz, 390 Wis. 2d 570, ¶30
(quoting United States v. Hamilton, 992 F.2d 1126, 1130 (10th
Cir. 1993)).
This "risk" refers to the possibility that a jury might
10
find the defendant guilty of the crime charged. It does not
refer to the possibility that a jury might consider conduct
which could constitute an otherwise uncharged offense. The
Constitution requires that there be actual as opposed to
hypothetical jeopardy. Id., ¶31.
24
No. 2020AP2012-CR
¶39 We now turn to the issue of whether Killian's second
prosecution violates double jeopardy. We conclude it does not.
¶40 Killian argues he was in jeopardy with regard to
certain offenses against Britney because, "[i]n the State's
opening in the first trial, the State explained it would present
evidence regarding 'a course of conduct,' including the
defendant 'touching her inappropriately' and 'rub[bing] [his
penis] on her." Killian also points to the prosecutor's
statement to the circuit court that he could present evidence of
"a breast rub . . . alleged humping, penis rubbing . . . also a
vaginal rub." "With respect to Ashley," Killian argues he was
in jeopardy because "the State explained to the empaneled jury,
the evidence will show that [Killian] sexually assaulted Ashley
from when she was about 6 years old until she was 17," from 1988
to 1999. According to Killian, the prosecutor's attempts to
introduce this evidence, combined with his intent to amend the
Information, constituted an "active pursuit of convictions in
front of an empaneled jury [which] created the actual jeopardy."
¶41 We disagree. A review of the entire record, with a
focus on Killian's actual exposure to jeopardy, reveals a far
more limited scope of jeopardy than Killian contends. Killian
was never in jeopardy of being convicted for these offenses
because he was never exposed to a risk of a determination of
guilt regarding these offenses.
¶42 The entire record demonstrates that the only alleged
offense against Britney for which Killian faced a possible
determination of guilt was the allegation that he grabbed
25
No. 2020AP2012-CR
Britney's buttocks. The Amended Information included one count
of sexually assaulting Britney "on or between January, 2014 to
August, 2014." The probable cause section of the original
complaint alleged Killian "grabbed her buttocks" in that time
period. During the October 5, 2016 motion hearing, the
prosecutor confirmed that the State was not alleging any acts of
sexual assault beyond touching Britney's buttocks, and the court
issued an order excluding evidence of other acts of sexual
assault against Britney. While discussing the Amended
Information on the first day of trial, the circuit court further
confirmed with the prosecutor that the State was "not alleging
there were additional things that happened." Any other acts of
sexual assault, the court emphasized, "were required to have
been addressed and they were not addressed at all." The court
repeated this ruling before Britney's testimony, and it granted
a mistrial when the prosecutor violated that ruling. The
circuit court made it abundantly clear that Killian was not at
risk of being convicted for any act of sexual assault against
Britney other than grabbing her buttocks.
¶43 As for the alleged offenses against Ashley, Killian
was in jeopardy of being convicted for committing repeated
sexual assault "from April, 1994 through December, 1999." The
court denied the State's motion to include a count for incest,
meaning that offense was never before the jury. Though the
prosecutor in his opening statement told the jury Killian
"started molesting [Ashley] since she was about 6 or 7 years old
[1988-89] and didn't stop until she was about 17 [1999]," this
26
No. 2020AP2012-CR
clearly goes beyond the date range in the Information. In
contrast with the Information in Schultz, there is no reading of
"April, 1994 through December, 1999" that also includes 1988 to
1993. The only time period the jury could consider was that
listed in the Information: "from April, 1994 through December,
1999."
¶44 Furthermore, the prosecutor's stated intention to
amend the Information and add more charges at the close of
evidence did not expand the scope of Killian's jeopardy. The
prosecutor's intent alone was insufficient to put Killian at
risk of a determination of guilt. The jury would have had no
ability find Killian guilty of any additional offenses unless
and until that amendment took place. No such amendment ever
took place, so jeopardy never attached.
¶45 Accordingly, we conclude the scope of Killian's
jeopardy in his trial included the following offenses: sexually
assaulting Britney by grabbing her buttocks "on or between
January, 2014 to August 18, 2014" contrary to Wis. Stat.
§ 948.02, and repeated sexual assault of Ashley "from April,
1994 through December, 1999" contrary to Wis. Stat. § 948.025.
¶46 Having ascertained the scope of Killian's jeopardy in
his first prosecution, we proceed to the question of whether
Killian's jeopardy in his second prosecution is identical in law
and in fact. To repeat, "two offenses are identical in law if
one offense does not require proof of any fact in addition to
those which must be proved for the other offense." State v.
Ziegler, 2012 WI 73, ¶60, 342 Wis. 2d 256, 816 N.W.2d 238.
27
No. 2020AP2012-CR
Offenses "are not identical in fact if the acts allegedly
committed are sufficiently different in fact to demonstrate that
separate crimes have been committed." Id.¶47 In the present prosecution, counts 3 and 5 through 9
are not identical in law to an offense in Killian's first
prosecution. Those counts allege Killian committed incest
against Ashley contrary to Wis. Stat. § 948.06. To prove
incest, the State must show the defendant "kn[ew] [the child
victim] is related, either by blood or adoption, and the child
is related in a degree of kinship closer than 2nd cousin."
§ 948.06. The crime of repeated sexual assault of a child under
Wis. Stat. § 948.025, charged in the first case, contains no
similar element. The crime of incest also requires proof that
the victim "ha[d] not attained the age of 18 years." Wis. Stat.
§ 948.01(1) (defining "child"). In contrast, repeated sexual
assault of a child requires proof that the victim "ha[d] not
attained the age of 16 years." Wis. Stat. §§ 948.025, 948.02.
The statute also requires proof of "3 or more violations." Id.Counts 3 and 5 through 9 charging Killian with committing incest
against Ashley therefore do not violate double jeopardy because
each offense "require[s] proof of a[] fact in addition to those
which must be proved for the other offense." Ziegler, 342
Wis. 2d 256, ¶60; see also State v. Swanson, No. 2015AP1521-CR,
unpublished slip op., ¶42 (Wis. Ct. App. Mar. 7, 2017)
(concluding Wis. Stat. §§ 948.06 and 948.025 are not identical
in law under the Blockburger test).
28
No. 2020AP2012-CR
¶48 Counts 1 through 5 do not violate double jeopardy
because they are not identical in fact to an offense in
Killian's first prosecution. Counts 1 through 5, which allege
offenses against Ashley, are factually different because they
cover different timeframes than the offense in Killian's first
prosecution. Whereas the timeframe in the first prosecution was
"April, 1994 through December, 1999," counts 1 through 5 allege
various offenses "in or around" 1990 to 1993. This precedes the
timeframe for the offenses against Ashley prosecuted in the
previous case, making these counts not identical in fact.
¶49 Count 10, the only count alleging an offense against
Britney, is also not identical in fact to an offense in the
previous case. The State prosecuted Killian in the first case
for grabbing Britney's buttocks "on or between January, 2014 to
August 18, 2014." Count 10 alleges Killian committed repeated
acts of sexual assault against Britney "in or around June 2012,
and no later than August 17, 2014." Though there is some
overlap in the time period and the complaint's probable cause
section alleges Killian "grabbed [Britney's] butt," the
complaint also alleges other acts of sexual assault. It alleges
Killian grabbed Britney's buttocks five times and that only one
of these times was on August 18, 2014. It also alleges Killian
"touched her 'boobies,'" "hump[ed]" her, and "touched her
'private part.'" These acts "are significantly different in
nature, involving different methods of intrusion and contact."
Ziegler, 342 Wis. 2d 256, ¶73. Count 10 is therefore not
identical in fact to an offense prosecuted in the previous case,
29
No. 2020AP2012-CR
and it does not violate double jeopardy to the extent it alleges
acts of sexual assault other than grabbing Britney's buttocks
"on or between January, 2014 to August 18, 2014."
¶50 Because no count in the present prosecution is
identical both in law and in fact with an offense charged in
Killian's previous prosecution, the present case is not a
prosecution for the same offense and does not violate Killian's
right against double jeopardy.
D. Issue Preclusion
¶51 Finally, Killian raises issue preclusion as a
potential bar to prosecution in this case. Specifically,
Killian argues that issue preclusion, as "ro[o]ted in the Double
Jeopardy Clause," bars the present prosecution because "the
trials would be identical, but for the State seeking to bolster
its case." He also argues that issue preclusion prevents the
State from bringing more charges because the circuit court's
order in the first case "clearly ruled that the State could not
bring these charges" and the State did not appeal that order.
¶52 Killian's first argument relies largely on the United
States Supreme Court's decision in Ashe, 397 U.S. 436. The
defendant in Ashe was charged with robbing one of six men
playing a poker game in a residential basement. Id. at 437.
"The trial judge instructed the jury that if it found that the
[defendant] was one of the participants in the armed
robbery . . . he was guilty under the law even if he had not
personally robbed [the victim]." Id. at 439. The jury found
the defendant not guilty. Id. "Six weeks later the [defendant]
30
No. 2020AP2012-CR
was brought to trial again, this time for the robbery of another
participant in the poker game . . . ." Id. The Court addressed
whether issue preclusion "is a part of the Fifth Amendment's
guarantee against double jeopardy" and therefore "no longer a
matter to be left for state court determination within the broad
bounds of 'fundamental fairness.'" Id. at 442-43. The Court
described the doctrine as "mean[ing] simply that when an issue
of ultimate fact has once been determined by a valid and final
judgment, that issue cannot again be litigated between the same
parties in any future lawsuit."11 Id. at 443. The Court
concluded issue preclusion barred the second prosecution because
the "jury determined by its verdict that the [defendant] was not
one of the robbers." Id. at 446.
¶53 The Supreme Court has recently described Ashe as
imposing a rigorous standard:
[Ashe's] test is a demanding one. Ashe forbids a
second trial only if to secure a conviction the
prosecution must prevail on an issue the jury
necessarily resolved in the defendant's favor in the
first trial. A second trial "is not precluded simply
because it is unlikely——or even very unlikely——that
the original jury acquitted without finding the fact
in question." To say that the second trial is
tantamount to a trial of the same offense as the first
and thus forbidden by the Double Jeopardy Clause, we
must be able to say that "it would have been
irrational for the jury" in the first trial to acquit
11 Ashe used the term "collateral estoppel" to describe this
doctrine. 397 U.S. 436 (1970). However, the Supreme Court "has
[since] observed, 'issue preclusion' is the more descriptive
term" as opposed to "collateral estoppel." Bravo-Fernandez v.
United States, 580 U.S. 5, 7 n.1 (2016).
31
No. 2020AP2012-CR
without finding in the defendant's favor on a fact
essential to a conviction in the second.
Currier v. Virginia, 585 U.S. , 138 S. Ct. 2144, 2150 (2018)
(citations omitted); see also Bravo-Fernandez v. United States,
580 U.S. 5, 12 (2016) (describing the inquiry as "what a jury in
a previous trial necessarily decided"). We have likewise
explained that issue preclusion applies to "an issue of ultimate
fact that is determined by a valid and full judgment." State v.
Vassos, 218 Wis. 2d 330, 343, 579 N.W.2d 35 (1998); Canon, 241
Wis. 2d 164, ¶13 ("[I]ssue preclusion . . . is a doctrine to
prevent prosecutorial misconduct and give finality to judicial
determinations made in one criminal transaction . . . ."). We
therefore conclude that a valid judicial determination of
ultimate fact is necessary for issue preclusion to apply under
Ashe. Because the jury in Killian's trial did not reach a
verdict, the doctrine is inapplicable to this case.12
Killian argues this conclusion "allows a prosecutor, upon
12
believing the trial is going badly, to intentionally goad the
defense into moving for a mistrial and then remain free from the
perils of issue preclusion, which is exactly what happened in
this case." This argument is based on an unknowable,
hypothetical verdict the jury might have issued, and it assumes
all charges relating to the same conduct must be brought in the
same prosecution.
The collateral-estoppel effect attributed to the
Double Jeopardy Clause, may bar a later prosecution
for a separate offense where the Government has lost
an earlier prosecution involving the same facts. But
this does not establish that the Government
"must . . . bring its prosecutions . . . together."
It is entirely free to bring them separately . . . .
United States v. Dixon, 509 U.S. 688, 705 (1993).
32
No. 2020AP2012-CR
¶54 Killian's second argument——that the circuit court's
order dismissing the first case with prejudice bars the present
prosecution——fails in a similar vein. "The [common law]
doctrine of issue preclusion . . . is designed to limit the
relitigation of issues that have been actually litigated in a
previous action." Aldrich, 341 Wis. 2d 36, ¶88. "An issue is
'actually litigated' when it is 'properly raised, by the
pleadings or otherwise, and is submitted for determination, and
is determined.'" Dostal v. Strand, 2023 WI 6, ¶24, 405
Wis. 2d 572, 984 N.W.2d 382 (quoting Randall v. Felt, 2002 WI
App 157, ¶9, 256 Wis. 2d 563, 647 N.W.2d 373).
¶55 In the circuit court's order following Killian's
trial, the court described the issue as "whether the Fifth
Amendment's protection against double jeopardy bars the retrial
of [Killian] because of prosecutorial overreaching in this
case." The court stated its findings as follows:
The Court finds that the prosecutor's actions were
intentional and the record shows that he knew his
actions would be prejudicial to the defendant. The
Court finds also that the prosecutor's conduct was
designed to create another chance to convict, and was
an act done so as to allow the State another "kick at
the cat" – a chance to prepare more thoroughly and
with a better understanding of the issues, a chance to
file different motions and obtain more favorable
pretrial rulings, and a chance to add more charges and
incriminating evidence into the record in the hopes of
solidifying the State’s chances of conviction.
The court then ordered "that the State is barred from retrial in
this matter due to prosecutorial overreaching" (emphasis added).
The circuit court's order addressed the issue of prosecutorial
33
No. 2020AP2012-CR
overreach. Nowhere did the circuit court analyze the scope of
Killian's jeopardy in his trial. The one question before the
circuit court, and the court's one ruling, concerned whether the
prosecutor engaged in overreach such that double jeopardy barred
retrial "in th[at] matter." The circuit court never determined
the scope of Killian's jeopardy in his trial. Accordingly, the
issue was not actually litigated, and common law issue
preclusion does not apply.
IV. CONCLUSION
¶56 We conclude that Killian's previous trial does not bar
the State from prosecuting the present case because the scope of
Killian's jeopardy in his trial did not include the offenses
with which he is now charged. The scope of jeopardy is
established by "the defendant's actual exposure to jeopardy in a
prior prosecution." Schultz, 390 Wis. 2d 570, ¶31. This
requires that the defendant faced a "risk of a determination of
guilt" regarding a particular offense. Serfass, 420 U.S. at
391-92. Killian was never exposed to the risk of conviction for
the offenses charged in the present case. As a result, the
offenses prosecuted in Killian's trial are not identical in law
and in fact to the offenses charged in this case, so double
jeopardy does not bar the present prosecution.
¶57 We also conclude that issue preclusion under the
Double Jeopardy Clause and common law issue preclusion do not
bar the present prosecution. Issue preclusion under the Double
Jeopardy Clause requires a valid judicial determination of
ultimate fact, and none exists in this case because Killian's
34
No. 2020AP2012-CR
trial ended in a mistrial. See Ashe, 397 U.S. 436 (1970).
Common law issue preclusion also does not bar this prosecution.
The circuit court's order dismissing with prejudice the criminal
complaint in the first case did not decide the scope of
Killian's jeopardy. Therefore, that issue was never "actually
litigated," and issue preclusion does not bar the present
prosecution. See Aldrich, 341 Wis. 2d 36, ¶88.
¶58 We therefore reverse the court of appeals and remand
to the circuit court to consider Killian's unresolved argument
regarding prosecutorial vindictiveness.
By the Court.—The decision of the court of appeals is
reversed, and the cause is remanded to the circuit court for
further proceedings consistent with this opinion.
35
No. 2020AP2012-CR.awb
¶59 ANN WALSH BRADLEY, J. (dissenting). As pretrial
rulings unfolded and trial testimony was introduced, the
woefully unprepared State realized that things were looking
bleak. So instead of allowing the jury to perform its function,
the prosecutor intentionally induced a mistrial in an attempt to
later refile charges against James Killian.
¶60 Importantly, the circuit court made a finding that the
"trial was going poorly" for the prosecutor and that "[t]he
prosecutor knew that if he retried the case, he might fare
better and the defendant could face more ominous
charges . . . ." It further found that "the prosecutor's
actions were intentional" and that his "conduct was designed to
create another chance to convict, and was an act done so as to
allow the State another 'kick at the cat.'"
¶61 The circuit court could see right through the State's
gamesmanship. According to the court, the ploy was designed to
afford "a chance to prepare more thoroughly and with a better
understanding of the issues, a chance to file different motions
and obtain more favorable pretrial rulings, and a chance to add
more charges and incriminating evidence into the record in the
hopes of solidifying the State's chances of conviction."
¶62 Attempting to circumvent these findings, the majority
opinion rewards the State's scheme, giving it just what it
sought through its egregious conduct. In the majority's view,
double jeopardy does not bar retrial "because the scope of
Killian's jeopardy in his trial did not include the offenses
with which he is now charged." Majority op., ¶3. In effect,
1
No. 2020AP2012-CR.awb
the majority's decision sends a direct signal to prosecutors who
are losing at trial: if you want a do-over, consider throwing
the trial.
¶63 The majority errs in two primary ways. First, it
sidesteps the circuit court's detailed factual findings,
disregarding the prosecutor's clear intent. Second, by focusing
singularly on the charging documents in determining the scope of
Killian's jeopardy, rather than examining the record as a whole,
the majority employs an analysis which this court explicitly
rejected in a recent case. See State v. Schultz, 2020 WI 24,
390 Wis. 2d 570, 939 N.W.2d 519.
¶64 Under a proper application of Schultz, I conclude that
jeopardy attaches where the prosecutor's desire to amend the
information based on the evidence at trial is clearly manifest
in the record and where the prosecutor purposely induced a
mistrial with the intent to later refile charges. Any other
result would allow the State to reap a windfall from its
intentional wrongdoing.
¶65 Because I would not lend judicial imprimatur to the
State's gambit in this case, I respectfully dissent.
I
¶66 Killian was charged with sexual assaults of two
minors, referred to as Britney and Ashley.1 Majority op., ¶6.
The complaint regarding Britney charged Killian with one count
of first-degree sexual assault of a child2 and alleged a single
1"Britney" and "Ashley" are pseudonyms. See Wis. Stat.
(Rule) § 809.86(4).
2 Wis. Stat. § 948.02.
2
No. 2020AP2012-CR.awb
assaultive act——that Killian "laid beside [Britney] and grabbed
her buttocks." Id.¶67 About a year after the complaint regarding Britney was
filed, the State filed an additional complaint against Killian
concerning acts against Ashley. Id., ¶7. In this second
complaint, the State charged Killian with repeated sexual
assault of the same child,3 alleging that Killian sexually
assaulted Ashley from "April 1994 through December 1999." Id.
¶68 After the cases were joined for trial, Killian brought
a motion to exclude other-acts evidence, while the State sought
to admit such evidence. Id., ¶8. Ultimately, the circuit court
denied the State's motion to admit other-acts evidence as to
other instances of assault against Britney.4 Id.
¶69 As trial approached, the State tried to add additional
charges by amending the information. Id., ¶9. On the day of
trial, the circuit court denied this motion, describing the
addition of new charges at such a late date as prejudicial.
Id., ¶10. As the parties and the circuit court discussed this
motion, the prosecutor confirmed that Killian was being charged
with "one sole act" with regard to Britney. Id., ¶11. But he
3 Wis. Stat. § 948.025.
4 The circuit court allowed the State to present evidence of
"grooming" behavior, but it did not allow the State to present
evidence of assaultive behavior other than Killian grabbing
Britney's buttocks as alleged in the complaint. Majority op.,
¶8. Additionally, the circuit court granted the State's motion
to admit evidence of sexual assaults against Ashley going back
to 1988 to demonstrate Killian's "motive, intent, preparation,
absence of mistake or accident, and plan." Id.3
No. 2020AP2012-CR.awb
reiterated his desire to later amend the information "if more
acts are disclosed at trial." Id.¶70 Despite the circuit court's admonition, from his
opening statement onward, the prosecutor continually described
other instances of alleged sexual assault committed by Killian
against Britney. Id., ¶13. Prior to Britney taking the stand,
the prosecutor yet again referenced the possibility that the
information could be amended to conform with the proof offered
and stated that "[a]nything could happen when she testifies."
Id., ¶14. As part of this discussion, the circuit court made
clear that a mistrial was a distinct possibility if any excluded
other-acts evidence surfaced. Id.
¶71 Britney took the stand and the prosecutor quickly
elicited such testimony. Id., ¶15. Defense counsel objected
and moved for a mistrial, which the circuit court granted. Id.
The circuit court later determined that the prosecutor's actions
were intentional, with the object being to retry the defendant.
Id.
¶72 Consistent with that object, the State subsequently
filed a new criminal complaint, this time charging Killian with
10 counts, relying on the other-acts evidence that was excluded
from the initial trial. Id., ¶16. Nine of these counts related
to Ashley, and included three counts of first-degree sexual
assault of a child and six counts of incest with a child.5 Id.
One count related to Britney, and charged Killian with repeated
sexual assault of the same child. Id.
5 Wis. Stat. § 948.06(1).
4
No. 2020AP2012-CR.awb
¶73 Killian moved to dismiss the new complaint on double
jeopardy grounds. Id., ¶17. The circuit court agreed with
Killian, and the court of appeals affirmed. It concluded that
"the circuit court properly considered the entire record of the
first prosecution to determine whether Killian was in jeopardy
for the offenses now charged." State v. Killian, 2022 WI App
43, ¶4, 404 Wis. 2d 451, 979 N.W.2d 569. Reviewing the record,
the court of appeals concluded that "Killian was, in fact, in
jeopardy of being convicted of the offenses now charged" in the
second complaint. Id.¶74 The State petitioned for review, and the majority now
reverses a unanimous decision of the court of appeals.
II
A
¶75 The majority concludes that "Killian was never exposed
to the risk of conviction for the offenses charged in the
present case." Majority op., ¶3. In the majority's view,
"Killian's previous trial does not bar the State from
prosecuting the present case because the scope of Killian's
jeopardy in his trial did not include the offenses with which he
is now charged." Id.¶76 The double jeopardy clause provides: "nor shall any
person be subject for the same offence to be twice put in
jeopardy of life or limb." U.S. Const. amend. V. At its core,
it recognizes the State's power and serves as a check on that
power:
The underlying idea, one that is deeply ingrained in
at least the Anglo-American system of jurisprudence,
5
No. 2020AP2012-CR.awb
is 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
and 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.
Green v. United States, 355 U.S. 184, 187-88 (1957).
¶77 This clause serves various purposes. It protects a
defendant from multiple trials and punishments for the same
offense, preserves the finality and integrity of judgments, bars
the government from a second chance to supply evidence it failed
to provide in the first proceeding, and protects a defendant's
right to have the trial completed by a particular tribunal.
State v. Martin, 121 Wis. 2d 670, 675, 360 N.W.2d 43 (1985).
¶78 However, the double jeopardy bar does not apply in all
situations. When a defendant requests a mistrial, and that
request is granted, the general rule is that the double jeopardy
clause does not bar a retrial. State v. Hill, 2000 WI App 259,
¶11, 240 Wis. 2d 1, 622 N.W.2d 34 (citing State v. Copening, 100
Wis. 2d 700, 709, 303 N.W.2d 821 (1981)). In such a situation,
the defendant exercises control over the mistrial decision and
in effect chooses to be tried by a different tribunal. Id.¶79 But this rule is not absolute. Where governmental
conduct is intended to goad the defendant into moving for a
mistrial, double jeopardy can be raised as a bar to a second
trial even after the defendant successfully ends the first.
Oregon v. Kennedy, 456 U.S. 667, 675-76 (1982).
¶80 Here, the prosecutor plainly "goaded" the defendant
into moving for a mistrial. The circuit court made such a
6
No. 2020AP2012-CR.awb
determination, supported by 21 factual findings. It observed
that the prosecutor clearly knew that things were not going his
way:
 "The prosecutor had multiple reasons to believe the
trial was going poorly even before the trial started
(medical subpoenas, excluded expert, excluded forensic
interview, improperly crafted proposal to
settle) . . . ."
The circuit court further found unbelievable the prosecutor's
claim that he unintentionally elicited the prohibited testimony:
 "The prosecutor claimed the error was an unintentional
mishap yet the prosecutor had clearly educated himself
that the only way he would be barred from retrial if a
mistrial was declared was if there was prosecutorial
overreaching and he discussed this research with the
defense team moments before the child was called to
testify. There would be no other purpose to call in
the defense counsel over lunch other than to lay out
what he intended to do if they objected to the
introduction and a mistrial was declared."
It also noted that the prosecutor was aware that another trial
may bring both additional charges and a better chance of
conviction:
 "The prosecutor knew that if he retried the case, he
might fare better and the defendant could face more
ominous charges 'because if she were to testify and
7
No. 2020AP2012-CR.awb
she goes and tells her story, Mr. Killian is facing
more charges.'"
Finally, the circuit court observed the State's failure to
prepare and the subsequent scramble to cover it up:
 "The State was not prepared for trial and realized
only the week prior to trial that there were a series
of sexual assaults alleged by the child. It then
requested leave to amend to include a date range,
hoping to get the entire set of acts included, by
sidestepping the prior ruling on [other-acts evidence]
to which it had previously failed to object."
¶81 Accordingly, the circuit court found that "the
prosecutor's actions were intentional and the record shows that
he knew his actions would be prejudicial to the defendant." It
continued: "The Court finds also that the prosecutor's conduct
was designed to create another chance to convict, and was an act
done so as to allow the State another 'kick at the cat' . . . ."
The circuit court thus determined that "the State is barred from
retrial in this matter due to prosecutorial overreaching."
¶82 The majority sidesteps the circuit court's findings.
It asserts that "Killian was never exposed to the risk of
conviction for the offenses charged in the present case" and
that "the offenses prosecuted in Killian's trial are not
identical in law and in fact to the offenses charged in this
case." Majority op., ¶3.
¶83 This "identical in law and in fact" formulation arises
from Blockburger v. United States, 284 U.S. 299 (1932). In
8
No. 2020AP2012-CR.awb
Blockburger, the United States Supreme Court determined that
"where the same act constitutes a violation of two distinct
statutory provisions, the test under the double jeopardy clause
is whether each provision requires proof of a fact which the
other does not." State v. Lechner, 217 Wis. 2d 392, 405, 576
N.W.2d 912 (1998). "Under this test, two offenses are different
in law if each statutory crime requires for conviction proof of
an element which the other does not require." Id. Offenses are
not identical in fact if a conviction for each offense requires
proof of an additional fact that conviction for the other
offenses does not, or if they are different in nature or
separated in time. Schultz, 390 Wis. 2d 570, ¶22. This test is
rather straightforward to apply, but a particular aspect of
Wisconsin law illustrates that the application of the test is
not without nuance.
¶84 In Wisconsin the State may move to amend the
information to conform to the evidence produced at trial. Wis.
Stat. § 971.29(2).6 Although the statute requires that any such
amendment not prejudice the defendant, the State's ability to
amend the information is fairly broad. "When an amendment to
the charging document does not change the crime charged, and
6 Wisconsin Stat. § 971.29(2) provides:
At the trial, the court may allow amendment of the
complaint, indictment or information to conform to the
proof where such amendment is not prejudicial to the
defendant. After verdict the pleading shall be deemed
amended to conform to the proof if no objection to the
relevance of the evidence was timely raised upon the
trial.
9
No. 2020AP2012-CR.awb
when the alleged offense is the same and results from the same
transaction, there is no prejudice to the defendant." State v.
DeRango, 229 Wis. 2d 1, 26, 599 N.W.2d 27 (Ct. App. 1999). But
this does not mean that an amendment cannot vastly expand the
jeopardy to which a defendant is subject. Indeed, precedent
indicates that amendment can even result in additional counts
that increase the maximum penalty a defendant may face. State
v. Wickstrom, 118 Wis. 2d 339, 349, 348 N.W.2d 183 (Ct. App.
1984).
¶85 What this means in practical terms is that in some
cases the charge or factual circumstance that is sent to the
jury for determination may be quite different from the charge or
factual circumstance set forth in the information at the
beginning of the trial. This is a key point: the charging
document does not reflect the definitive final charge. It is
subject to amendment, meaning that the jeopardy to which a
defendant is subject cannot be defined strictly by looking at
the charging document. See Schultz, 390 Wis. 2d 570, ¶30,
(citing United States v. Hamilton, 992 F.2d 1126, 1130 (10th
Cir. 1993) ("[F]or purposes of barring a future prosecution, it
is the judgment and not the indictment alone which acts as a
bar, and the entire record may be considered in evaluating a
subsequent claim of double jeopardy.").
B
¶86 In its laser-focus on the charging documents, the
majority misapplies our recent decision in State v. Schultz, 390
Wis. 2d 570. In Schultz, the question before the court was
10
No. 2020AP2012-CR.awb
whether a prosecution for a sexual assault "on or about October
19, 2012" was barred by double jeopardy when the defendant had
been previously acquitted for sexual assault in "late summer to
early fall of 2012." In framing the analysis, the Schultz court
concluded that we must examine "the entire record, including
evidentiary facts adduced at trial, in ascertaining whether a
defendant's double jeopardy rights have been violated by a
second prosecution." Id., ¶32. It emphasized that "it is the
record in its entirety that reveals the scope of jeopardy and
protects a defendant against a subsequent prosecution for the
same crime." Id.
¶87 In applying these principles to the facts before it,
the Schultz court rejected an approach that would merely compare
the charging documents to determine the scope of jeopardy. It
explained that such an approach would insufficiently protect the
defendant's double jeopardy rights and that we must examine the
record to determine whether any evidence supporting the charges
in the second case was introduced in the first:
Limiting our review to the complaint . . . would not
protect the defendant against double jeopardy if the
State introduced evidence of a sexual assault
occurring "on or about October 19" after jeopardy
attached. In order to ascertain whether the defendant
was exposed to double jeopardy in the second
prosecution, we examine the entire record of
proceedings in the first case to see if any evidence
of a sexual assault occurring "on or about October 19"
was introduced.
Id., ¶37.7
7 Setting forth the background that underlies this
conclusion, the Schultz court wrote:
11
No. 2020AP2012-CR.awb
¶88 This passage from Schultz explicitly indicates that
review of only the complaint fails to protect the defendant's
double jeopardy rights if the State introduces evidence of a
sexual assault outside the charging period. Id. ("Limiting our
review to the complaint . . . would not protect the defendant
against double jeopardy if the State introduced evidence of a
sexual assault occurring 'on or about October 19' after jeopardy
attached."). Such a scenario is just what we have in the
present case. Accordingly, we must look to the "entire record,"
and not merely compare charging documents. Yet despite the
Schultz court's admonition, the charging document is where the
majority's singular focus lies. See majority op., ¶35.
¶89 The entire record here points in one direction——that
the prosecutor repeatedly and consistently sought to amend the
information to add additional charges. Had this clear goal of
the prosecution come to pass, Killian would have faced the
possibility of conviction on those additional charges.
Even though the incorporated and attached police
report renders the complaint unambiguous, we also
review the record of the first trial to see if
anything suggests "early fall" extended past mid-
September to include October 19, 2012. We do so in
order to safeguard the defendant's constitutional
right against double jeopardy. The facts alleged
under the second complaint——a sexual assault "on or
about October 19"——would not, if proven, support a
conviction in the first prosecution. The complaint in
the first prosecution alleged repeated sexual assaults
during "late summer to early fall[,]" which the
attached and incorporated police report clarified to
have concluded in early to mid-September.
State v. Schultz, 2020 WI 24, ¶37, 390 Wis. 2d 570, 939
N.W.2d 519.
12
No. 2020AP2012-CR.awb
¶90 The majority focuses on "actual jeopardy" rather than
"perceived jeopardy." See, e.g., majority op., ¶31. But this
focus fails to recognize, as the United States Supreme Court
has, that the concept of "potential" is inherent in the double
jeopardy clause. Price v. Georgia, 398 U.S. 323, 326 (1970)
("The 'twice put in jeopardy' language of the
Constitution . . . relates to a potential, i.e., the risk that
an accused for a second time will be convicted of the 'same
offense' for which he was initially tried.").
¶91 In order to account for the State's ability to amend
the information to conform to the evidence at trial, I conclude
that in a situation as here, a straightforward application of
Schultz indicates that where the prosecutor's desire to amend
the information based on the evidence at trial is clearly
manifest in the record and where the prosecutor purposely
induced a mistrial with the intent to later refile charges,
jeopardy attaches.
¶92 The series of events with which we are confronted here
is not common. It is a thankfully rare occurrence that a
prosecutor will purposely induce a mistrial with the intent to
later refile charges. But in such a situation, examination of
the entire record dictates that a determination that jeopardy
attaches is appropriate and even necessary to protect a
defendant's double jeopardy rights.
¶93 By concluding that Killian's double jeopardy rights
were not violated, the majority rewards the State's
gamesmanship. The State purposely induced a mistrial with the
13
No. 2020AP2012-CR.awb
intent to get a chance to try again after preparing more
thoroughly. And it gets exactly what it wanted. This simple
fact alone should cause any fair-minded reader to pause. Unlike
the majority opinion, the application of our precedent presented
in this dissent would not countenance such an egregious
manipulation of the judicial machinery.
¶94 Contrary to the majority's assertions, Killian's first
trial placed him in jeopardy of conviction for the crimes
charged in the second complaint with regard to both Britney and
Ashley. The prosecutor was clear in his intent to seek
amendment of the information to conform with the evidence——
evidence that he hoped would contain proof of additional acts of
sexual assault against Britney and incest against Ashley. No
speculation is necessary to guess at the charges the prosecutor
would have sought.
¶95 The intention to amend the information was clear and
manifest in the record. As the circuit court found, "[t]here
were numerous Informations filed, with various charges, changing
dates, and changing penalties up to and during the trial
itself." For example, several days prior to trial, the
prosecutor filed an affidavit in support of a motion to amend
the information to allege a series of sexual assaults over a
period of time. Then, on the day of trial, he again referenced
amending the information in what the circuit court termed "an
attempt to back door the prior ruling to which he failed [to]
object." And immediately before Britney testified, the
prosecutor raised the possibility that "if she were to testify
14
No. 2020AP2012-CR.awb
and she goes and tells her story, Mr. Killian is facing more
charges." The prosecutor's repeated efforts and stated intent
to amend the information are manifest in this record.
¶96 Also clear from the record is the prosecutor's intent
to induce a mistrial. The circuit court found that the
prosecutor acted with specific intent to cause a mistrial and to
prejudice the defendant——findings which are supported by ample
evidence in the record. For these reasons, the entire record
indicates that jeopardy attached and double jeopardy bars
retrial.
¶97 For the foregoing reasons, I respectfully dissent.
¶98 I am authorized to state that Justice REBECCA GRASSL
BRADLEY joins this dissent.
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No. 2020AP2012-CR.awb
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