State v. Mitchell D. Green

2023 WI 57SUPREME COURT OF WISCONSIN
CASE NO.: 2021AP267-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Mitchell D. Green,
Defendant-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 401 Wis. 2d 540, 974 N.W.2d 51(2022 – unpublished)
OPINION FILED: June 29, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 1, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: David L. Borowski
JUSTICES:
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court, in which ZIEGLER, C.J., ROGGENSACK, and KAROFSKY,
JJ., joined. ANN WALSH BRADLEY, J., filed a dissenting opinion,
in which DALLET, J., joined. HAGEDORN, J., filed a dissenting
opinion, in which DALLET, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, there were briefs
filed by John A. Blimling, assistant attorney general, with whom
on the briefs was Joshua L. Kaul, attorney general. There was an
oral argument by John A. Blimling, assistant attorney general.
For the defendant-appellant, there was a brief filed by
John T. Wasielewski and Wasielewski & Erickson, Milwaukee. There
was an oral argument by John T. Wasielewski.
2023 WI 57NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2021AP267-CR
(L.C. No. 2019CF914)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner,
FILED
v. JUN 29, 2023
Mitchell D. Green, Samuel A. Christensen
Clerk of Supreme Court
Defendant-Appellant.
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court, in which ZIEGLER, C.J., ROGGENSACK, and KAROFSKY,
JJ., joined. ANN WALSH BRADLEY, J., filed a dissenting opinion,
in which DALLET, J., joined. HAGEDORN, J., filed a dissenting
opinion, in which DALLET, J., joined.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 REBECCA GRASSL BRADLEY, J. The State charged
Mitchell D. Green with trafficking of a child, a class C felony,
among other offenses. See Wis. Stat. § 948.051(1) (2017–18).1
1All subsequent references to the Wisconsin Statutes are to
the 2017–18 version unless otherwise indicated. Wisconsin Stat.
§ 948.051(1) provides: "Whoever knowingly recruits, entices,
provides, obtains, harbors, transports, patronizes, or solicits
or knowingly attempts to recruit, entice, provide, obtain,
harbor, transport, patronize, or solicit any child for the
purpose of commercial sex acts, as defined in
s. 940.302 (1) (a), is guilty of a Class C felony."
No. 2021AP267-CR
At trial, the victim, S.A.B., testified that Green had driven
her to a hotel in Milwaukee, where she was forced to engage in a
sex act. After S.A.B. testified, Green called as a witness his
cousin, Jonathon Cousin, who testified that he, not Green, had
driven S.A.B. and another man, J.R., to the hotel.
¶2 After a recess for lunch, the trial court held a
hearing to address the State's concerns regarding Cousin's
testimony. Specifically, the State argued that Green presented
a third-party perpetrator defense through Cousin's testimony,
without notifying the State or seeking a ruling from the court
regarding the admissibility of that evidence under State v.
Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984)
(conditioning admissibility of third-party perpetrator evidence
on a showing of a motive, opportunity, and direct connection
between the third party and the crime charged). Green denied
offering Cousin's testimony for that purpose. The court
concluded Cousin's testimony was Denny evidence and therefore
should not have been presented to the jury without the defense
notifying the State in advance and the court ruling on its
admissibility. Because the jury heard that evidence without
either precondition being satisfied, the court determined a
mistrial was necessary.
¶3 Green filed a motion to dismiss the case with
prejudice, arguing retrial would violate his right against
double jeopardy under the Fifth Amendment to the United States
Constitution as incorporated against the States by the
Fourteenth Amendment. After the trial court denied Green's
2
No. 2021AP267-CR
motion, Green filed a motion for reconsideration, which the
court also denied. Green appealed, and the court of appeals
reversed. State v. Green, No. 2021AP267-CR, unpublished slip
op. (Wis. Ct. App. March 22, 2022).
¶4 Before this court, the State argues retrial would not
violate Green's right against double jeopardy because the trial
court exercised sound discretion in deciding manifest necessity
justified a mistrial. We agree; accordingly, we reverse the
decision of the court of appeals.
I. BACKGROUND
¶5 Prior to trial, Green filed a witness list naming
Cousin. Green's counsel had a written statement from Cousin,
but the State did not demand its production. In August 2019,
the State filed pretrial motions in limine, asking the circuit
court to prohibit Green "from introducing any other-acts
evidence involving a third-party perpetrator, unless and until
defendant satisfies his burden and such evidence is ruled
admissible by the court[.]" Green did not object to the State's
motions. At a final pretrial hearing, the court acknowledged
the "State had filed their motion in limine[.]" Milwaukee
Circuit Court Judge Janet Protasiewicz presided over the case
until the day of trial. Nothing in the record indicates the
court ruled on the State's motion in limine before the trial
scheduled to commence on January 27, 2020.
3
No. 2021AP267-CR
¶6 On the day of trial, Judge Protasiewicz spun2 the case
to Judge David Borowski. Three witnesses testified: S.A.B.;
Gerardo Orozco, a Milwaukee police officer; and Cousin. S.A.B.
was the prosecution's first witness. S.A.B. testified she "was
sex trafficked" between October 30, 2018 and December 4, 2018.
S.A.B. explained that she was forced to be part of a sex
trafficking ring and that Green——who S.A.B. knew as Money Mitch—
—was integral to the operation.
¶7 S.A.B. testified specifically to Green's involvement
in one trafficking incident alleged to have occurred during the
fall of 2018: "I got a call. It was a date. Money Mitch was
at JR's house, and I told JR that I had a date. Money Mitch was
like, well, I got a car. I can drive you. I said okay." After
that conversation, S.A.B. testified that Green picked her up and
drove her to a hotel in Milwaukee. S.A.B. recounted further
details from the night, testifying she "remember[ed] the date
because the guy spit in my mouth and I didn't appreciate that,
so I made him give me more money, and then when I went
downstairs I gave Money Mitch all the money."
¶8 After Officer Orozco testified, Green called his first
witness, Cousin, who testified Green had "nothing to do with"
Courts commonly stack cases for trial on the same day with
2
the expectation that parties will reach a plea agreement on the
scheduled trial date. When more than one case will proceed to
trial on the same day, the assigned judge will ask another judge
to preside over one of the trials to avoid delaying resolution
of the case. As in this case, the practice is referred to as
"spinning."
4
No. 2021AP267-CR
the events S.A.B. described; according to Cousin, he and not
Green had driven S.A.B. that night. Cousin testified that one
night in 2018, "I think October," a family member named Delmar
called Cousin to ask for a ride home. Cousin agreed to drive
Delmar home, provided Delmar paid him for gas. When Cousin
arrived, Delmar approached the car alone. Sitting in Cousin's
passenger seat, Delmar asked if two more people could ride with
them. Cousin agreed, "as long as I get my gas money." Cousin
denied knowing either S.A.B. or J.R.
¶9 With three passengers in Cousin's car, Cousin asked
Delmar where to take them. According to Cousin, Delmar told him
"just drop us off downtown[.]" Cousin testified "they didn't
tell me an exact destination. They just said downtown, and that
actually made me mad. I'm like well where are we going."
Because "they didn't tell me where they were going, I stopped in
front of the blue building." S.A.B. and J.R. exited the car,
but Delmar stayed in the car with Cousin and asked him to remain
parked until the two returned. Cousin agreed after Delmar
offered to give him more gas money.
¶10 According to Cousin, S.A.B. and J.R. returned to the
car no more than fifteen minutes later. While driving, Cousin
heard S.A.B. and J.R. conversing in the backseat "about a story
that happened[.]" Cousin heard S.A.B. say: "the guy asked me
to ask if he can spit in my mouth, . . . it's disgusting, I let
him do it, I threw up." After hearing this exchange, Cousin
"turned up [his] radio" because he did not "know what[] [was]
happening in that back seat."
5
No. 2021AP267-CR
¶11 The State did not object to Cousin's testimony on
direct examination. During cross-examination, when the State
asked Cousin about driving "a sex worker who is underage to a
hotel," Cousin replied he "had no recognition of what was going
on that night, so I was just doing it for the gas money." At
the conclusion of Cousin's testimony, the trial court recessed
for lunch.
¶12 The trial court met in chambers with each party's
counsel, as well as an attorney from the state public defender's
office whom the court asked to advocate on Cousin's behalf.
After an off-the-record discussion, the court recalled the case
to conduct a hearing on the record regarding the State's
concerns about Cousin's testimony. At the outset, the court
expressed concerns about Cousin's testimony, in which "arguably"
Cousin "said that he rather than the defendant committed the
child trafficking" although the court acknowledged "that's open
to interpretation, and technically [Cousin] denied that[.]" In
the court's view, Cousin may have incriminated himself without
counsel, and Green may have violated Denny by presenting
Cousin's testimony without notifying the State in advance or
seeking a ruling on its admissibility.
¶13 The trial court ultimately concluded Cousin's
testimony was "clearly" Denny evidence. The court characterized
Cousin's written statement as "literally . . . taking the fall
for . . . Green." Reading from Cousin's statement, the court
noted Cousin said, "JR asked me if I was giving [sic] money
would I give them a ride. Them being both of them, the pimp and
6
No. 2021AP267-CR
the alleged prostitute." Green's counsel argued "it never was
my intent to accuse a known third party who had motive and
opportunity of the crime that . . . Green is charged with." The
court responded, "if he's not being called for that reason,
counsel, why is he being called? . . . [T]hat would be
completely irrelevant." Addressing Green's counsel, the court
said "[i]t is Denny evidence clearly. You're offering him only
to get your client off." Although Green's counsel argued Cousin
"didn't incriminate himself" the court noted that Cousin
"admitted to every single element of the crime other than
saying, yeah, I knew it was a prostitute[.]" In the court's
view, "the State has enough to arguably get past probable cause
right now based on what [Cousin] said on the stand."
¶14 The trial court allowed each party to recommend how to
proceed, noting "I don't know how I could possibly unring the
bell. . . . I would have to tell [the jury] to disregard all
that testimony completely." The State argued the solution was
best left to the "sound discretion" of the court, while defense
counsel argued Cousin's testimony reflected he "provide[d] a
perfectly legal ride in exchange for gas money," which was not
Denny evidence; accordingly, "I don't think it's anything to
fix. [Cousin's] testimony is what it is, it's relevant, and the
jury should be allowed to weigh it."
¶15 After summarizing Cousin's testimony, the trial court
concluded it was "impossible to unring that bell." It reasoned:
I don't think there's any way that that bell can be
unrung, because of the gravity of the testimony,
7
No. 2021AP267-CR
because of Denny evidence, because there were only
three witnesses in this case, and clearly at this
point in time only will be three witnesses, the
victim——or alleged victim——[S.A.B], the officer,
and . . . Cousin.
And as the State said, the timing of the evidence was—
—happened to be right before lunch, the jury's now had
two hours to think about that evidence, and all of
them, I hope they're following my rules and are not
discussing the case. I'm sure they're not, but
they're all probably thinking in their head, holy cow,
that testimony . . . Cousin just gave, that's——they're
thinking one of two things, either, well, . . . Green
is clearly innocent based on that testimony, or
they're thinking, that's utter garbage
that . . . Green got his cousin to cover for him and
take the fall.
¶16 Consequently, the trial court ordered a mistrial.
"[I]f it's a Denny issue," the court reasoned, "it needed to be
vetted before trial." It continued:
I would have handled this differently if this had come
up at 11:00 rather than at 1:30 or 2:00. I would have
had the witness speak to an attorney, first of all. I
think he probably would not have testified . . . .
And more importantly, it's clearly Denny evidence that
the State has the right to know about and the State
has a right to respond to, and the court has a right
to know about, and the court is required to make a
ruling on before it comes out of a witness's mouth
during the middle of the trial.
¶17 After the court ordered a mistrial, Green filed a
motion to dismiss the case, arguing a retrial would violate his
Fifth Amendment right against double jeopardy. The circuit
court denied Green's motion, as well as his reconsideration
motion, and the court of appeals granted leave for an
interlocutory appeal.
8
No. 2021AP267-CR
¶18 The court of appeals reversed on four grounds. Green,
No. 2021AP267-CR. First, the trial court never held a hearing
on whether Cousin's testimony was admissible. Id., ¶18.
Second, the trial court later concluded Cousin's testimony was,
in fact, admissible. Id., ¶19. Third, the testimony was not
unfair to the State because the State had the opportunity to
investigate Cousin before trial and to demand production of his
statement but did not do so. Id., ¶20. Fourth, even if
Cousin's right to counsel was violated, any remedy would go to
Cousin, not the State. Id., ¶23.
II. STANDARD OF REVIEW
¶19 In this case, we must determine whether the trial
court erred in finding manifest necessity for a mistrial, in
light of the Green's Fifth Amendment protection from double
jeopardy. State v. Seefeldt, 2003 WI 47, ¶13, 261 Wis. 2d 383,
661 N.W.2d 822. In Illinois v. Somerville, 410 U.S. 458, 461
(1973), the United States Supreme Court applied United States v.
Perez, 9 Wheat. 579 (1824), "the fountainhead decision
construing the Double Jeopardy Clause in the context of a
declaration of a mistrial[.]" In Perez, Justice Joseph Story,
on behalf of the Court, formulated the "manifest necessity"
standard for ensuring retrials do not violate the defendant's
right against double jeopardy, which is dependent upon the trial
court exercising "sound discretion" in declaring a mistrial:
We think, that in all cases of this nature, the law
has invested Courts of justice with the authority to
discharge a jury from giving any verdict, whenever, in
their opinion, taking all the circumstances into
9
No. 2021AP267-CR
consideration, there is a manifest necessity for the
act, or the ends of public justice would otherwise be
defeated. They are to exercise a sound discretion on
the subject; and it is impossible to define all the
circumstances, which would render it proper to
interfere. To be sure, the power ought to be used
with the greatest caution, under urgent circumstances,
and for very plain and obvious causes . . . . But,
after all, they have the right to order the discharge;
and the security which the public have for the
faithful, sound, and conscientious exercise of this
discretion, rests, in this, as in other cases, upon
the responsibility of the Judges under their oaths of
office.
22 U.S. (9 Wheat.) at 580.
¶20 "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." Seefeldt, 261
Wis. 2d 383, ¶13 (citing State v. Barthels, 174 Wis. 2d 173,
184, 495 N.W.2d 341 (1993)). A rigid rule would not take into
account "all the circumstances" in which manifest necessity may
arise. Perez, 22 U.S. (9 Wheat.) at 580. The level of
deference accorded to these judgments therefore exists on a
spectrum. Seefeldt, 261 Wis. 2d 383, ¶25.
¶21 On one end, appellate courts give "great deference" to
circuit courts' judgments when "the jury is hopelessly
deadlocked." Wayne R. LaFave et al., Manifest necessity and
trial court discretion, 6 Crim. Proc. § 25.2(e) (4th ed. updated
Nov. 2022). In this scenario, "the trial judge is best able to
assess the risk that a verdict may result from pressures
inherent in the situation rather than the considered judgment of
all the jurors." Seefeldt, 261 Wis. 2d 383, ¶26 (citing Arizona
v. Washington, 434 U.S. 497, 509 (1978)). On the other end of
10
No. 2021AP267-CR
the spectrum, appellate courts apply "the strictest scrutiny" to
a trial court's mistrial order when "critical prosecution
evidence" is unavailable or when "there is reason to believe
that the prosecutor is using the State's superior resources to
harass the defendant or to achieve a tactical advantage." Id.,¶25 (citing Washington, 434 U.S. at 508).
¶22 The application of deference does not end the
appellate inquiry. Renico v. Lett, 559 U.S. 766, 775 (2010).
The trial court must weigh the decision to declare a mistrial by
also considering the defendant's interest in having the case
concluded before the jury called to decide it. Washington, 434
U.S. at 514 (quoting United States v. Jorn, 400 U.S. 470, 486
(1971) (plurality)). "In order to ensure that this interest is
adequately protected, reviewing courts have an obligation to
satisfy themselves that, in the words of . . . Justice Story,
the trial judge exercised 'sound discretion' in declaring a
mistrial." Id. "Perez itself noted that the judge's exercise
of discretion must be 'sound'" to justify a retrial. Renico,
559 U.S. at 775 (quoting Perez, 9 Wheat. at 580). In
Washington, the United States Supreme Court explained: "[i]f
the record reveals that the trial judge has failed to exercise
the 'sound discretion' entrusted to him, the reason for such
deference by an appellate court disappears." 434 U.S. at 510
n.28. "Sound discretion means acting in a rational and
responsible manner." Seefeldt, 261 Wis. 2d 383, ¶36; see also
Washington, 434 U.S. at 514 ("[I]f a trial judge acts
11
No. 2021AP267-CR
irrationally or irresponsibly, his action cannot be condoned."
(citations omitted)).
¶23 "The prohibition against retrial is not a mechanical
rule to be applied to prevent any second trial after the first
trial is terminated prior to judgment." Seefeldt 261
Wis. 2d 383, ¶18 (citing Somerville, 410 U.S. at 462). A
retrial is permissible "whenever, in [the circuit court's]
opinion, taking all the circumstances into consideration, there
is a manifest necessity" supporting a mistrial. Perez, 22 U.S.
at 580. "Manifest necessity" refers not to absolute necessity
but to a "high degree" of necessity. Washington, 434 U.S. at
506; Seefeldt, 261 Wis. 2d 383, ¶19 (citing Washington, 434 U.S.
at 505; Barthels, 174 Wis. 2d at 183).
¶24 A trial court exercises sound discretion in deciding
manifest necessity justifies a mistrial provided the court:
 gives "both parties a full opportunity to explain their
positions and consider[s] alternatives such as a curative
instruction or sanctioning counsel." State v. Moeck, 2005
WI 57, ¶43, 280 Wis. 2d 277, 695 N.W.2d 783;
 "accord[s] careful consideration to [defendant]'s interest
in having the trial concluded in a single proceeding."
Washington, 434 U.S. at 516; and
 "ensure[s] that the record reflects that there is an
adequate basis for a finding of manifest necessity."
Moeck, 280 Wis. 2d 277, ¶43.
A court does not exercise sound discretion if "the . . . court
fails to consider the facts of record under relevant law, bases
12
No. 2021AP267-CR
its conclusion on an error of law or does not reason its way to
a rational conclusion." Id. (quoting Seefeldt, 261 Wis. 2d 383,
¶36).
III. DISCUSSION
A. Double Jeopardy Principles
¶25 The right against double jeopardy has been
characterized as a "universal maxim" of a fair justice system.
See State v. Schultz, 2020 WI 24, ¶19, 390 Wis. 2d 570, 939
N.W.2d 524 (quoting 4 William Blackstone, Commentaries *335).
It is protected by the Fifth Amendment, which provides, in
relevant part: "No person shall . . . be subject for the same
offence to be twice put in jeopardy of life or limb[.]"
Jeopardy attaches "in a jury trial when the selection of the
jury has been completed and the jury is sworn." Seefeldt, 261
Wis. 2d 383, ¶16 (citing State v. Comstock, 168 Wis. 2d 915,
937, 485 N.W.2d 354 (1992)).
¶26 "[T]here was a time when English judges served
the . . . monarchs by exercising a power to discharge a jury
whenever it appeared that the Crown's evidence would be
insufficient to convict," and "the prohibition against double
jeopardy as it evolved in this country was plainly intended to
condemn this 'abhorrent' practice." Washington, 434 U.S. at507–08. As the United States Supreme Court has explained:
Even if the first trial is not completed, a second
prosecution may be grossly unfair. It increases the
financial and emotional burden on the accused,
prolongs the period in which he is stigmatized by an
unresolved accusation of wrongdoing, and may even
enhance the risk that an innocent defendant may be
13
No. 2021AP267-CR
convicted. The danger of such unfairness to the
defendant exists whenever a trial is aborted before it
is completed. Consequently, as a general rule, the
prosecutor is entitled to one, and only one,
opportunity to require an accused to stand trial.
Id. at 503–05 (citations omitted); see also Seefeldt, 261
Wis. 2d 383, ¶17. Provided the trial court exercises sound
discretion, retrial after declaring a mistrial based on manifest
necessity will not violate the defendant's double jeopardy
right.
B. The Trial Court Exercised Sound Discretion in Ordering a
Mistrial.
¶27 We need not pinpoint where this case falls on the
spectrum of deference to be accorded the trial court's
conclusion that manifest necessity existed. Applying even a
strict scrutiny, we conclude the record demonstrates the trial
court exercised sound discretion in declaring a mistrial based
on manifest necessity. The court ordered a mistrial because
"the State has the right to know about and . . . respond to"
testimony implicating a third-party perpetrator "and the court
is required to make a ruling on it before it comes out of a
witness' mouth during the middle of the trial." At the time the
court ordered a mistrial, Green did not dispute advance notice
of such Denny evidence was required. Rather than informing the
court that no rule or order barred the introduction of Denny
evidence, defense counsel maintained Cousin's testimony was not
Denny evidence at all. Under those circumstances, it was
reasonable for the trial court to believe a pretrial order had
been violated. All factors established under precedent support
14
No. 2021AP267-CR
the trial court's discretionary decision. We address them in
turn.
¶28 First, the record demonstrates the trial court gave
"both parties a full opportunity to explain their positions and
consider[ed] alternatives such as a curative instruction or
sanctioning counsel." Moeck, 280 Wis. 2d 277, ¶43 (citing
Seefeldt, 261 Wis. 2d 383, ¶36). During the lunch recess, the
court conferred in chambers with Green's counsel and the
prosecutor to discuss the issues presented by Cousin's surprise
testimony. The court then conducted a hearing to address the
State's concerns.
¶29 After hearing from both parties, the trial court
identified alternatives to mistrial. Although the court
explicitly considered issuing a curative instruction or striking
Cousin's testimony, it explained why those remedies could not
"unring the bell":
I don't know how I could possibly unring the bell. I
can give them——I would have to tell them to disregard
all that testimony completely. Because there was
nothing in there that wasn't Denny evidence. There
was nothing in there that didn't put him in the place
of . . . Green on the day in question.
. . . .
Candidly it's impossible to unring that bell. I would
have to tell the jury to completely ignore . . . 25
minutes of pretty compelling testimony
where . . . Cousin literally tries to take the fall
for his cousin. . . . That would be impossible.
. . . .
And most importantly, I don't think there's any way
that that bell can be unrung, because of the gravity
15
No. 2021AP267-CR
of the testimony, because of Denny evidence, because
there were only three witnesses in this case, and
clearly at this point in time only will be three
witnesses, the victim——or alleged victim——[S.A.B.],
the officer, and . . . Cousin.
The record establishes the court carefully considered the
options for remedying the introduction of Denny evidence without
advance notice to the State or the court first ruling on its
admissibility. The court declared a mistrial only after hearing
arguments of counsel and contemplating alternatives. Given the
gravity and timing of Cousin's testimony, the court concluded
those remedies were inadequate.
¶30 Next, the trial court "accorded careful consideration
to [Green]'s interest in having the trial concluded in a single
proceeding." Washington, 434 U.S. at 516. The court did not
confine its analysis to Denny alone; it also acknowledged each
party's right to a fair trial:
[B]oth sides have a right to a fair trial issue, and I
think the State's basically saying they're literally
caught by surprise with this testimony and the Denny
aspect of it, which does change trial strategy
potentially . . . .
It would also be unfair to the State. Both sides have
a right to a fair trial. The defendant, . . . Green,
has a right to a fair trial, and the State also has a
right to a fair trial.
With each party's fair trial rights in mind, the court explained
at length its decision to order a mistrial and why it rejected a
curative instruction as insufficient.
¶31 The record also "reflects that there is an adequate
basis for a finding of manifest necessity" to order a mistrial.
Moeck, 280 Wis. 2d 277, ¶43. As the trial court emphasized,
16
No. 2021AP267-CR
Cousin finished testifying "immediately before lunch." The
court considered the timing of Cousin's testimony to be
impactful:
[T]he timing of the evidence was——happened to be right
before lunch, the jury's now had two hours to think
about that evidence, and all of them, I hope they're
following my rules and are not discussing the case.
I'm sure they're not, but they're all probably
thinking in their head, holy cow, that
testimony . . . Cousin just gave, that's——they're
thinking one of two things, either, well, . . . Green
is clearly innocent based on that testimony, or
they're thinking, that's utter garbage
that . . . Green got his cousin to cover for him and
take the fall.
The court determined a mistrial was manifestly necessary because
the testimony and its timing precluded the effectiveness of a
curative jury instruction. In the court's estimation, the
prolonged break immediately following Cousin's testimony
unavoidably altered the jurors' take on the case and prejudiced
the State. The court observed the jurors as Cousin delivered
what the court deemed "pretty compelling" testimony. Appellate
courts cannot weigh the credibility of a witness much less
observe or gauge the jury's reaction to his testimony. Only the
trial court could assess the effect of the testimony on the
jury. In this case, the record reflects an adequate basis for a
finding of manifest necessity to order a mistrial.
¶32 Lastly, the trial court considered the relevant facts,
based its conclusion on applicable law, and reasoned its way to
a rational conclusion. See id. After hearing each party's
arguments, the court concluded Cousin's testimony was "clearly"
17
No. 2021AP267-CR
Denny evidence because the defense offered third-party testimony
to absolve Green of any wrongdoing. The record shows the
court's consideration of Denny and its applicability,
acknowledging factual nuances possibly distinguishing this case
from Denny:
[Denny] certainly is a different situation. That was
a homicide case and the presentation of how that issue
arose was different than this case. But Denny
discusses motive and opportunity and presenting
basically a——to the jury a plausible alternative——
that's my language——as to who committed a crime, or a
plausible theory of another person that committed a
crime.
The court proceeded to summarize Cousin's testimony in detail,
concluding its "only purpose" was "to take the fall
for . . . Green[.]" Before ultimately classifying Cousin's
testimony as within Denny's scope, the court emphasized "I would
have needed [Cousin's testimony] to be vetted [a] bit more. I
would have wanted to hear more of an argument and briefing from
both sides as to the Denny issues. It strikes me as very, very
problematic[.]" The court also noted it "is required to make a
ruling" on such evidence "before it comes out of a witness's
mouth during the middle of the trial."
¶33 Green principally argues the trial court based its
decision to order a mistrial on an error of law. Green
emphasizes the court "later determined that Denny did not
preclude this evidence. . . . If . . . Green were to be
retried, a second jury could hear this same testimony. Thus,
there was, in fact, no need to 'unring the bell.'"
18
No. 2021AP267-CR
¶34 The court's later determination on Denny is
irrelevant. On review, we consider whether the court exercised
sound discretion. At the time the court declared a mistrial,
the court believed the effect on the jury of introducing
unnoticed Denny testimony could not be remedied by a jury
instruction. The court demonstrated a reasoning process
grounded in the law.3
¶35 Adopting "mechanical rules," such as requiring a
circuit court to halt a criminal jury trial and hold a full
evidentiary hearing on the admissibility of evidence the trial
court determined should have been considered before the trial
commenced, would be inconsistent with precedent. The United
States Supreme Court has recognized that the application of
governing principles "to any particular set of facts" in
deciding whether to order a mistrial "entails an element of
judgment." See Renico, 559 U.S. at 785. Although the circuit
court may have later determined Cousin's testimony was in fact
admissible, the court nonetheless grounded its mistrial order in
the law, as applied to the particular facts of the case.
3Justice Brian Hagedorn claims the trial court "fail[ed] to
consider whether this evidence was admissible as an alternative
to ordering a mistrial[.]" Justice Hagedorn's dissent, ¶75.
This statement oversimplifies the issue and does not apply the
legal test established in Perez, which requires "taking all the
circumstances into consideration" rather than hyper-focusing on
just one. 22 U.S. (9 Wheat.) 579, 580 (1824). The trial court
considered competing arguments regarding whether the testimony
was Denny evidence. It then reasoned the Denny issue needed to
be vetted ahead of time because the prejudice of "surprise" was
too great. See Justice Hagedorn's dissent, ¶74.
19
No. 2021AP267-CR
¶36 Although this court in Seefeldt decided the trial
court erred in granting a mistrial in part because the trial
court had not assessed the admissibility of a witness' warrants,
261 Wis. 2d 383, ¶38, that type of evidence differs materially
from the Denny evidence introduced at trial in this case. As
the State argues, determining the admissibility of Denny
evidence could require an evidentiary hearing involving
testimony from other witnesses. Additionally, the trial court
said, "I would have wanted to hear more of an argument and
briefing from both sides as to the Denny issues."
Significantly, Seefeldt's holding was also based on the trial
court's failure to (1) afford the parties sufficient opportunity
to argue their positions; (2) take adequate time to consider the
parties' arguments; and (3) consider alternatives to mistrial.
Id. Collectively, those failures fell short of showing an
adequate basis for a finding of manifest necessity for a
mistrial. Id. None of those failures are present in this case.
Seefeldt did not impose a rigid rule conditioning the propriety
of a mistrial on a threshold determination of admissibility of
the evidence triggering the order. Appellate courts must apply
a "flexible standard," under which they "take 'all circumstances
into account.'" Somerville, 410 U.S. at 462 (quoting Wade v.
Hunter, 336 U.S. 684, 691 (1949)).
¶37 After the trial court ordered a mistrial, Green filed
a motion to dismiss on double jeopardy grounds, which the court
denied. Green filed a motion for reconsideration, arguing that
the State was not entitled to prior notice of the substance of
20
No. 2021AP267-CR
Cousin's testimony absent any demand for discovery by the State
or an applicable order in limine. The trial court declined to
reconsider its denial of Green's motion to dismiss, describing a
"culture" in the Milwaukee County court system of parties not
filing discovery demands and a common understanding among
counsel that certain types of evidence will be disclosed before
trial regardless.
¶38 Green contends the State's pretrial motion in limine
was not operative because, so far as the record shows, the
pretrial court never ruled on the motion. This fact is also
irrelevant. The trial judge rotated onto this case the morning
of trial, which was more than ninety days since the state filed
the motion in limine. Supreme Court Rule 70.364 requires judges
to rule on all motions within ninety days of receiving them.
Under those circumstances, and with neither party requesting a
ruling on any pending motions, it was not unreasonable for Judge
Borowski to presume Judge Protasiewicz had granted the motion——
and that Green was prohibited from springing on the State an
4 SCR 70.36(1)(a) provides:
Every judge of a circuit court shall decide each
matter submitted for decision within 90 days of the
date on which the matter is submitted to the judge in
final form, exclusive of the time the judge has been
actually disabled by sickness. If a judge is unable
to do so, within 5 days of the expiration of the 90-
day period the judge shall so certify in the record of
the matter and notify in writing the chief judge of
the judicial administrative district in which the
matter is pending, and the period is thereupon
extended for one additional period of 90 days. This
subsection applies to an assigned reserve judge.
21
No. 2021AP267-CR
alternative perpetrator of the crime. The trial court noted
that defense counsel "darn well knows that you can't spring a
witness on the State, especially a witness of this nature."
¶39 Green also contends Denny does not mandate advance
notice to the State; therefore, he argues the trial court erred
in concluding Green should have apprised the State of the
substance of Cousin's testimony before the trial. As the court
explained during the hearing on Green's motion for
reconsideration, however, the parties seemed to be operating
under the same understanding that is commonly shared among
attorneys practicing in the criminal court system in Milwaukee:
"I've seen similar situations, but even on my 17 years on the
bench, it's very, very rare that you have a situation like this
blow up in the middle of trial." Customarily, the court noted,
parties disclose all evidence before the trial commences:
You know all of us know that the movie My Cousin Vinny
was funny because of how ridiculous it was, and
there's a point in there where the lead actor, the
defense attorney, is like shocked that the State gave
him all the evidence. Well, right, because that's how
it works.
Although in retrospect it is clear the State never made a
discovery demand for Cousin's statement and the pretrial court
never ruled on the State's pretrial motions in limine, the
record shows defense counsel understood there were some
constraints on the introduction of Denny evidence. Instead of
arguing the absence of any rule or order prohibiting him from
introducing Denny evidence, defense counsel maintained Cousin's
testimony was not Denny evidence at all. Based on this record,
22
No. 2021AP267-CR
it was neither irrational nor irresponsible for the trial court
to believe a pretrial order had been violated, particularly when
defense counsel did not disabuse the court of that notion.5
¶40 Green suggests the availability of retrials is limited
to only certain categories of errors. In his response brief,
Green surveys a number of double jeopardy cases in which
mistrials were granted without the defendants' consent based on
defense counsel misconduct, concluding:
A review [of] these cases supports the generalization
that retrial is allowed only in circumstances where
either defense counsel's misconduct tainted the jury
by introducing evidence which the jury never should
have heard, e.g., Washington; or, the misconduct
necessitated counsel being a witness, e.g., Fosse
5 Justice Ann Walsh Bradley's dissent says this court
"allows the trial court to simply assume that a motion in limine
had been granted when the record contains no order or indication
that that is actually the case." Justice Ann Walsh Bradley's
dissent, ¶56. Not so. The standard of review limits this court
to determining whether the trial court soundly exercised its
discretion, which "means acting in a rational and responsible
manner." State v. Seefeldt, 2003 WI 47, ¶36, 261 Wis. 2d 383,
661 N.W.2d 822. Under the particular circumstances of this
case, it was neither irrational nor irresponsible for the trial
judge, to whom the case was spun the morning of trial, to
presume pretrial orders prohibited Green from introducing
unnoticed testimony incriminating an alternative perpetrator of
the crime, particularly when defense counsel did not correct the
court's presumption. Justice Ann Walsh Bradley also says the
court "lends its imprimatur to the trial court's treatment of
the State's motion in limine" and then accuses the court of "not
say[ing] on what basis a trial court can simply presume a motion
has been granted." Justice Ann Walsh Bradley's dissent, ¶¶64,
66. Of course, neither of Justice Ann Walsh Bradley's
assertions is true. We simply determine the trial court's
presumption was neither irrational nor unreasonable under the
circumstances surrounding the trial court's sound exercise of
its discretion, which we have explained in this opinion in great
detail.
23
No. 2021AP267-CR
(defense counsel became witness); Duckett (prosecutor
became witness).
Whatever patterns Green may observe, mistrials arise in a
multitude of situations and retrials are not restricted to
particular case scenarios. See, e.g., State v. Russo, 70
Wis. 2d 169, 171, 233 N.W.2d 485 (1975) (Double Jeopardy Clause
did not bar retrial of action dismissed after bench trial for
lack of jurisdiction because of defective information); State v.
Smith, 244 A.3d 296 (N.J. Super. Ct. App. Div. 2020) (mistrial
ordered due to the onset of the COVID-19 pandemic); United
States v. Garske, 939 F.3d 321 (1st Cir. 2019) (mistrial ordered
because a juror went missing); State v. Porter, 179 A.3d 1218,
1229 (R.I. 2018) (mistrial ordered because a spectator yelled
"How's that?" during defense's opening argument); Fields v.
State, 626 A.2d 1037, 1043 (Md. Ct. Spec. App. 1993) (mistrial
ordered because "a regrettable disagreement between the judge
and the prosecutor steadily escalated into an angry argument and
ultimately degenerated into a veritable shouting match of mutual
insults and displays of uncontrolled temper").
¶41 Most mistrial cases "escape meaningful
categorization[.]" Somerville, 410 U.S. at 464. Because some
reasons for mistrials dwell in those "secluded but exotic
corner[s] of the double jeopardy garden," courts have declined
to adopt categorical rules defining manifest necessity. Fields,
626 A.2d at 1038 (quoting West v. State, 52 Md. App. 624, 625,
451 A.2d 1228 (1982)); Jorn, 400 U.S. at 480 ("[T]his Court has,
for the most part, explicitly declined the invitation of
24
No. 2021AP267-CR
litigants to formulate rules based on categories of
circumstances which will permit or preclude retrial.").
Flexible rules ensure reviewing courts do not impede circuit
courts' duty to protect "the integrity of the trial."
Washington, 434 U.S. at 513. As the COVID-19 pandemic made
clear, a mistrial may be manifestly necessary in "varying and
often unique situations arising during the course of a criminal
trial." See Somerville, 410 U.S. at 462. We therefore decline
to adopt any categorical rules governing the permissibility of
retrials.
IV. CONCLUSION
¶42 A thorough review of the record reveals the court
exercised sound discretion in ordering a mistrial based on
manifest necessity. The court responsibly and deliberately
considered the impact on the jury of third-party perpetrator
evidence, which the defense introduced without the court first
ruling on its admissibility. The court gave both parties a full
opportunity to argue their positions, and took account of their
respective fair trial rights. Additionally, the court weighed
alternatives to a mistrial, including a curative instruction or
striking Cousin's testimony. After considering the facts of
record under relevant law, the court reasoned its way to a
rational conclusion. Although a different judge may have
handled the matter differently, the standard of appellate review
compels upholding the trial court's sound exercise of
discretion. Accordingly, retrial will not violate Green's Fifth
Amendment right against double jeopardy.
25
No. 2021AP267-CR
By the Court.—The decision of the court of appeals is
reversed.
26
No. 2021AP267-CR.awb
¶43 ANN WALSH BRADLEY, J. (dissenting). The circuit
court declared a mistrial after Jonathan Cousin testified that
he, and not Mitchell Green, drove the victim to a hotel where
she was forced to perform a sex act. In the circuit court's
view, this evidence was potentially inadmissible Denny1 evidence
that should not have been presented to the jury without prior
vetting by the court.
¶44 The circuit court stated that it was "impossible to
unring that bell," necessitating a mistrial. Majority op., ¶15.
But ultimately, Cousin's testimony was found to be admissible in
any future trial. In other words, there was no need to "unring"
any bells. Still, the majority somehow concludes that the trial
court exercised sound discretion when it declared a mistrial.
¶45 The majority's reasoning is a headscratcher. First,
it upholds the circuit court's declaration of a mistrial after
the jury heard admissible evidence. But how can hearing 25
minutes of unobjected-to admissible evidence justify a mistrial?
¶46 And if that isn't perplexing enough, it then proceeds
to err by reading into the record an order that the trial court
never made. Specifically, it premises its determination in part
1 State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App.
1984). "Denny 'created a bright line standard requiring that
three factors be present' for admissibility of evidence that an
alleged third-party perpetrator committed the crime." State v.
Griffin, 2019 WI App 49, ¶7, 388 Wis. 2d 581, 933 N.W.2d 681.
Namely, the defendant must demonstrate a "legitimate tendency"
that the third party committed the crime, that is, that the
third party had motive, opportunity, and a direct connection to
the crime. Id., ¶7.
1
No. 2021AP267-CR.awb
on a motion in limine that, the record reflects, had not been
ruled upon. Yet the majority, without citing any authority,
forgives this gap in the record with the unwarranted leap that
"it was not unreasonable for Judge Borowski to presume Judge
Protasiewicz had granted the motion." Id., ¶38.
¶47 The majority's hard-to-square conclusions expose Green
to double jeopardy,2 subjecting him to a second trial where the
evidence presented will presumably be identical to that
presented in the first. Its proffered reasoning should cause
the reader to pause and ponder how this can be so. Because it
certainly causes me to pause, I respectfully dissent.
I
¶48 Green was charged with trafficking a child,3 among
other offenses. In advance of trial, Green filed a witness
list, which contained the name Jonathan Cousin. Majority op.,
¶5. Although Green possessed a written statement from Cousin,
the State did not demand that it be produced. Id.
¶49 For its part, the State filed motions in limine prior
to trial. One of those motions sought a ruling as follows:
Prohibiting the defense from introducing any other-
acts evidence involving a third-party perpetrator,
unless and until defendant satisfies his burden and
such evidence is ruled admissible by the court
pursuant to State v. Scheidell, 227 Wis. 2d 285, 595
N.W.2d 661 (1999), State v. Sullivan, 216 Wis. 2d 768,
576 N.W.[2d] 30 (1998) and § 904.04(2) Stats.
2 See U.S. Const. amend. V.
3 Wis. Stat. § 948.051(1).
2
No. 2021AP267-CR.awb
Nothing in the record indicates that the circuit court ever
ruled on this motion before the trial began.
¶50 At trial, Cousin took the stand and testified that it
was he, and not Green, who drove the victim to a hotel where she
was forced to engage in a sex act. Cousin claimed that he had
no knowledge regarding the purpose of the excursion, and that he
was "just doing it for the gas money." Majority op., ¶11. The
State did not object to Cousin's testimony as it occurred, and
proceeded to cross-examine him.
¶51 After Cousin's testimony concluded, the court recessed
for lunch and met in chambers with counsel for Green and the
State, as well as an attorney the court asked to advocate for
Cousin. Id., ¶12. The court indicated its concern that "Cousin
may have incriminated himself without counsel, and Green may
have violated Denny by presenting Cousin's testimony without
notifying the State in advance or seeking a ruling on its
admissibility." Id.
¶52 Ultimately, the circuit court determined that Cousin's
testimony was "clearly Denny evidence," as the testimony
presented someone else "taking the fall" for Green. Id., ¶13.
It rejected Green's argument that there wasn't "anything to fix"
and then turned to the question of remedy. In the circuit
court's estimation, it was "impossible to unring that bell" that
resulted from Cousin's testimony. Id., ¶15. Accordingly, it
ordered a mistrial because it determined that Cousin's testimony
should not have been heard by the jury and that "it needed to be
vetted before trial." Id., ¶16.
3
No. 2021AP267-CR.awb
¶53 Green subsequently moved to dismiss the case, arguing
that any retrial would violate his Fifth Amendment right against
double jeopardy. The circuit court disagreed and denied the
motion, and Green sought leave to file an interlocutory appeal,
which the court of appeals granted.
¶54 The court of appeals reversed, disagreeing with the
circuit court on four points. It determined:
 The circuit court erred by failing to determine
whether Cousin's testimony was admissible before
declaring a mistrial. State v. Green, No. 2021AP267-
CR, unpublished slip op., ¶18 (Wis. Ct. App. Mar. 22,
2022).
 At a later hearing, the circuit court determined that
Cousin's testimony was admissible under Denny, so
there was no need to "unring the bell" after Cousin
testified. Id., ¶19.
 The State had an opportunity to investigate Cousin
prior to trial and did not avail itself of that
opportunity. Cousin was on Green's witness list five
months before trial, and the State did not make any
discovery demand. Id., ¶20. Relatedly, the motion in
limine did not prohibit Cousin's testimony because it
referenced only unknown-party and other-acts evidence,
not known-party. Id., ¶22.
 The question of whether Cousin should have had counsel
before his testimony did not create a manifest
necessity for a mistrial because any remedy for a
4
No. 2021AP267-CR.awb
violation of Cousin's right to counsel would flow to
Cousin, not to Green. Id., ¶23.
Ultimately, a unanimous court of appeals concluded that "there
was not a manifest necessity justifying a mistrial, and that a
new trial would violate Green's constitutional right against
double jeopardy." Id., ¶25.
¶55 The majority now reverses the court of appeals,
determining that the circuit court "exercised sound discretion
in ordering a mistrial based on manifest necessity." Majority
op., ¶42.
II
¶56 The root of the majority's error boils down to two
main missteps. First, the majority discounts the clearly
relevant fact that that Cousin's testimony was ultimately deemed
to be admissible. And second, without providing authority for
doing so, it allows the trial court to simply assume that a
motion in limine had been granted when the record contains no
order or indication that that is actually the case. I will
address each of these errors in turn.
A
¶57 A motion for mistrial is committed to the sound
discretion of the circuit court and is reviewed for an erroneous
exercise of discretion. State v. Ford, 2007 WI 138, ¶28, 306
Wis. 2d 1, 742 N.W.2d 61. This standard is admittedly
deferential to the circuit court. See State v. LaCount, 2008 WI
59, ¶15, 310 Wis. 2d 85, 750 N.W.2d 780.
5
No. 2021AP267-CR.awb
¶58 Nevertheless, a mistrial is a drastic remedy that must
be supported by "manifest necessity." "[G]iven the importance
of the constitutional protection against double jeopardy, the
State bears the burden of demonstrating a 'manifest necessity'
for any mistrial ordered over the objection of the defendant."
State v. Seefeldt, 2003 WI 47, ¶19, 261 Wis. 2d 383, 661
N.W.2d 822. A "manifest necessity" is a "high degree" of
necessity. Id. (citing Arizona v. Washington, 434 U.S. 497, 505
(1978); State v. Barthels, 174 Wis. 2d 173, 183, 495 N.W.2d 341(1993)).
¶59 The majority determines that the trial court exercised
sound discretion in declaring a mistrial because "[a]t the time
the court declared a mistrial, the court believed the effect on
the jury of introducing unnoticed Denny testimony could not be
remedied by a jury instruction." Majority op., ¶34. It claims
that "[a]dopting 'mechanical rules' such as requiring a circuit
court to halt a criminal jury trial and hold a full evidentiary
hearing on the admissibility of evidence the trial court
determined should have been considered before the trial
commenced, would be inconsistent with precedent." Id., ¶35. In
arriving at this conclusion, the majority seeks to distinguish
Seefeldt, 261 Wis. 2d 383, from the present case. But this
distinction falls flat and Seefeldt cuts the other way.
¶60 In Seefeldt, the circuit court declared a mistrial
after defense counsel discussed other acts evidence in the
opening statement in violation of a pretrial order prohibiting
the introduction of such evidence without first seeking a ruling
6
No. 2021AP267-CR.awb
on its admissibility. Id., ¶6. This court determined that the
circuit court was too hasty in granting a mistrial and did not
exercise sound discretion for two reasons. It reasoned that the
testimony likely would have ultimately been admissible and that
alternatives to mistrial were not sufficiently considered.
Specifically, this court concluded:
First, the existence of Bart's 15 warrants would
likely have been admissible during trial and the
record does not reflect that the judge considered
whether the evidence would ultimately be admissible.
Second, the trial judge did not provide sufficient
opportunity for the parties to present, and for the
judge to consider, arguments regarding whether a
mistrial should be ordered and the possible
alternatives to a mistrial.
Id., ¶38.
¶61 In the eyes of the majority, "[n]one of those failures
are present in this case." Majority op., ¶36. I disagree and
conclude that Seefeldt is on all fours with the present case.
To explain, just as in Seefeldt, the circuit court here did not
consider during trial whether the evidence would ultimately be
admissible. It essentially said that answering such a question
during the trial was not possible, and that it would have asked
for additional briefing on the subject, which was not practical
in the middle of a trial. And like in Seefeldt, here the
evidence was ultimately determined to be admissible.
¶62 In other words, the jury was not tainted by Cousin's
testimony at all. The evidence it heard was proper and
admissible. For this reason, like in Seefeldt "the record does
not contain an adequate basis for a finding of manifest
necessity." See Seefeldt, 261 Wis. 2d 383, ¶38.
7
No. 2021AP267-CR.awb
¶63 I recognize that the circuit court was in a
challenging position. Would it have been difficult for the
circuit court to determine admissibility on a short timeline?
Perhaps. But it was certainly possible to reach at least a
preliminary determination of likely admissibility. And the
constitutional protections against double jeopardy create a
strong enough interest4 that the court should have at least
tried.5
B
¶64 Compounding its error, the majority lends its
imprimatur to the trial court's treatment of the State's motion
in limine. The trial court treated the motion as granted
despite nothing in the record indicating that the pretrial court
had decided the motion one way or the other.
¶65 The majority rejects Green's argument that the motion
in limine filed by the State was not operative because the
record does not demonstrate that the circuit court ruled on the
motion. "Under those circumstances, and with neither party
4See State v. Martin, 121 Wis. 2d 670, 675-76, 360
N.W.2d 43 (1985) (describing the underlying idea behind the
double jeopardy clause 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" and stating that
the clause "assures finality and fairness in the administration
of the criminal justice system").
5 The procedure for which I advocate here is not uncommon.
Trials are often halted so legal issues can be argued outside
the presence of the jury, sometimes accompanied by proffered
witness testimony in the form of an offer of proof. A Denny
hearing in the circumstances presented here could have been
brief and routine.
8
No. 2021AP267-CR.awb
requesting a ruling on any pending motions, it was not
unreasonable for Judge Borowski to presume Judge Protasiewicz
had granted the motion . . . ." Majority op., ¶38. Such a line
of reasoning is unsupported by authority and requires the
majority to read into the record information that simply isn't
there.
¶66 Further, the majority does not say on what basis a
trial court can simply presume a motion has been granted. It
cites no authority that would allow it to conclude that the
circuit court was not "unreasonable" in assuming a motion had
been granted where nothing in the record indicates that this was
the case. Our review is limited to the record, and we are bound
by the record. State v. Aderhold, 91 Wis. 2d 306, 314, 284
N.W.2d 108 (Ct. App. 1979). No "presumption" can get around
this precept.
¶67 Many questions are raised by the majority's approach.
How far does this rule extend? What other motions can a judge
simply "presume" were granted by another judge? Would it have
been similarly "not unreasonable" if the circuit court had
presumed that the motion was denied? It may be true that the
State's motions in limine in a criminal trial are often rote and
are generally granted. But there is no indication in this
9
No. 2021AP267-CR.awb
record that it was here, leading the majority to simply read
something into the record that is not there.6
¶68 The State's argument on this point plays into its
larger insinuation that it was taken by surprise by Cousin's
testimony. But if it was indeed caught off guard, it was in the
end no one's fault but its own. Cousin's name was on Green's
witness list, and a written statement existed, which the State
never demanded in discovery. The State further allowed Cousin's
initial testimony to pass without objection and completed its
cross-examination before voicing any concern. See majority op.,
¶11. Even then, the State did not actually request a mistrial,
arguing only that the "solution was best left to the 'sound
discretion' of the court." Id., ¶14.
¶69 Under the circumstances here, a mistrial was not the
only solution. And it certainly was not a manifest necessity.
¶70 The double jeopardy clause demands that "the State
with all its resources and power should not be allowed to make
repeated attempts to convict an individual for an alleged
Even if the motion in limine were operative, the language
6
of that motion does not necessarily preclude the admission of
Cousin's testimony. Rather than citing Denny, the motion in
limine cited State v. Scheidell, 227 Wis. 2d 285, 595 N.W.2d 661(1999). As the court of appeals here recognized, Scheidell
addressed unknown-third-party evidence, not known-third-party
evidence, which is governed by Denny. State v. Green, No.
2021AP267-CR, unpublished slip op., ¶22 (Wis. Ct. App. Mar. 22,
2022). The Scheidell court was explicit that "Denny simply does
not apply" to evidence of allegedly similar crimes committed by
an unknown third party. Scheidell, 227 Wis. 2d at 297. There
is thus no apparent overlap between Denny and Scheidell such
that a citation to Scheidell in the motion in limine would
somehow encompass Denny evidence.
10
No. 2021AP267-CR.awb
offense, thereby subjecting him to embarrassment, expense and
ordeal compelling him to live in a continuing state of anxiety
and insecurity." State v. Kramsvogel, 124 Wis. 2d 101, 107-08,
369 N.W.2d 145 (1985). By allowing Green to be retried under
these facts, the majority erodes the manifest necessity standard
and conducts an end run around the protections afforded by the
double jeopardy clause.
¶71 For the foregoing reasons, I respectfully dissent.
¶72 I am authorized to state that Justice REBECCA FRANK
DALLET joins this dissent.
11
No. 2021AP267-CR.bh
¶73 BRIAN HAGEDORN, J. (dissenting). Our review of a
circuit court's decision granting a mistrial over the
defendant's objection is generally deferential, but far less so
than in other areas where we consider whether the court
erroneously exercised its discretion. See Oregon v. Kennedy,
456 U.S. 667, 672 (1982); State v. Seefeldt, 2003 WI 47, ¶¶35-
37, 261 Wis. 2d 383, 661 N.W.2d 822. This is because a
defendant's constitutional rights are at stake when a mistrial
is ordered. Kennedy, 456 U.S. at 671-72 (discussing U.S. Const.
amend. V). So the law is that a circuit court should not order
a mistrial unless a manifest necessity is shown, which is
defined as a high degree of necessity. Arizona v. Washington,
434 U.S. 497, 505-06 (1978); Seefeldt, 261 Wis. 2d 383, ¶19. As
part of this judgment call, a circuit court must consider
alternatives to a mistrial. Seefeldt, 261 Wis. 2d 383, ¶38. If
it does not, it has not applied the proper law and has
erroneously exercised its discretion. See id.¶74 This is a close case, but ultimately I conclude the
circuit court erred. The heart of the matter is that Denny1
evidence was introduced that caught the prosecutor and the court
by surprise. The circuit court determined this was too much of
a surprise because these issues are usually resolved before
trial.
¶75 The problem with the circuit court's decision is that
it did not consider an obvious and highly relevant alternative
1 State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App.
1984).
1
No. 2021AP267-CR.bh
to mistrial: the possibility that the evidence might actually
be admissible. As Justice Ann Walsh Bradley points out in her
dissent, we have the odd circumstance of a mistrial being
declared due to the introduction of evidence later deemed
admissible. This seems discordant with the command that a court
should order a mistrial only "with the greatest caution, under
urgent circumstances, and for very plain and obvious causes."
United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824).
While I do not want to supplant the broad discretion given to
circuit courts, I conclude that by failing to consider whether
this evidence was admissible as an alternative to ordering a
mistrial, the circuit court did not reasonably conclude a
mistrial was necessary. For these reasons, I respectfully
dissent.
¶76 I am authorized to state that Justice REBECCA FRANK
DALLET joins this dissent.
2
No. 2021AP267-CR.bh
1