State v. Rave

385 Wis.2d 847

926 N.W.2d 504 (Table)

2019 WI App 8

STATE of Wisconsin, Plaintiff-Respondent,

v.Caleb J. RAVE, Defendant-Appellant.

Appeal No. 2017AP2281-CR

Court of Appeals of Wisconsin.

DATED AND FILED January 31, 2019

PER CURIAM.

¶1 Caleb Rave appeals a judgment of conviction for one count of first-degree child sexual assault and an order denying his postconviction motion to set aside the judgment. An initial, partial trial ended when the circuit court declared a mistrial. A second, completed trial resulted in the conviction. The court declared the mistrial after discovering, during the initial trial, that a significant set of evidentiary issues that the court was required to resolve before trial had not been resolved. After Rave was convicted at the second trial, he filed a post-conviction motion based on the Double Jeopardy Clause of the federal and state constitutions,¹ which was denied by the circuit court. Rave makes two closely related arguments on appeal. He argues that (1) the court erroneously exercised its discretion in declaring a mistrial because there was not a manifest necessity calling for a mistrial, and (2) he was denied effective assistance of counsel because his trial attorney failed to move to dismiss the charges against him before the second trial on the ground of double jeopardy. We reject Rave’s arguments and affirm.

BACKGROUND

¶2 The State filed a criminal complaint charging Rave with three counts of first-degree sexual assault of a child under the age of 13, with three alleged victims, J.A.B., Z.J.C., and C.M.G., each a violation of WIS. STAT . § 948.02(1)(e) (2015-16).² As part of the State’s investigation, each alleged victim was interviewed, and each interview was captured in an audiovisual recording.

¶3 In compliance with WIS. STAT. § 908.08(2)(a), the State filed a notice of intent to introduce the recordings. Section 908.08 allows for the admission of recorded child witness interviews that meet specified requirements, which must be found by the circuit court before they may be played at a trial. Under § 908.08(1), a circuit court "may admit into evidence" in any criminal trial "the audiovisual recording of an oral statement of a child who is available to testify." Section 908.08(2)(b) requires that the court conduct a pre-trial hearing to rule on the admissibility of such recordings, establishing a set of predicate findings involving various characteristics of the child and the recording. These characteristics include the child’s health, age, and familial relationship to those involved in the underlying proceeding. Sec. 908.08(2)(b), (3) - (4). "At or before the hearing, the court shall view the [recorded] statement" or statements. Sec. 908.08(2)(b).

¶4 Contending that WIS. STAT. § 908.08(3) required predicate findings that could not be established, Rave moved to suppress each recording. The circuit court held a hearing to consider this motion, in addition to other pretrial motions that are not pertinent to this appeal.³

¶5 At this hearing, the parties disputed whether the recordings demonstrated that the alleged victims understood the difference between the truth and a lie, which is one predicate for admission. See WIS. STAT. § 908.08(3)(c). The court noted that Rave intended to call an expert regarding interviews of alleged child victims of crime to support his contention that the statements in the recordings were unreliable.

¶6 After Rave’s counsel summarized aspects of what Rave’s expert would testify to regarding the recordings, Rave’s counsel and the court had the following exchange:

THE COURT: But [the expert] will not take the stand and say that in her professional judgment and in her expert opinion that the standards of the statute have not been met?

[RAVE’S COUNSEL]: No.

THE COURT: Then your motion to suppress is denied.

The parties now agree that the court failed to properly assess whether the recordings were admissible under the requirements of WIS. STAT . § 908.08. Surprisingly, neither side at the hearing called to the court’s attention the fact that it had not applied the proper standards, but had instead addressed only a collateral expert issue.

¶7 At the initial jury trial, without contemporaneous objection by the defense, the court permitted the State to play the recording of the interview of Z.J.C. for the jury. After the court excused the jury for the lunch break, the court and the parties reviewed the history of the pretrial hearing regarding the recordings. This included a discussion of whether the court had complied with the requirements of WIS. STAT . § 908.08 prior to allowing the State to play the recording of the Z.J.C. interview. The court determined that the statute had not been complied with. Neither side now disputes that determination.

¶8 The court then made a finding that the Z.J.C. recording was admissible, consistent with WIS. STAT . § 908.08. Rave’s counsel observed that the court made these findings regarding the Z.J.C. recording only after the video had already been shown to the jury. The court asked Rave’s counsel if she was moving for a mistrial, and she answered no. The court excused the parties. After the break, but before calling the jury back into the courtroom, the court declared a mistrial based on its determination that it was "presented with a situation where there [would be] clear error proceeding with the trial without the Court having complied with [§] 908.08."

¶9 Two days later, the court held a second evidentiary hearing regarding the admissibility of the recordings. The court explained that it had not previously understood, including at the time of the prior evidentiary hearing on the recordings, that such recordings are admissible under WIS. STAT. § 908.08 only if the circuit court first finds that the predicates in § 908.08(3) are met. Applying the standards under § 908.08, the court found that all three recordings would be admissible at a second trial. Neither side now challenges these determinations.

¶10 The second, ultimately completed, trial was held approximately one month after the second evidentiary hearing. The jury found Rave not guilty of first-degree sexual assault of J.A.B. and guilty of first-degree sexual assault of C.M.G. The circuit court dismissed the charge related to Z.J.C. based on a deadlocked jury.⁴

¶11 After Rave was sentenced on the single count of conviction, he filed a post-conviction motion to vacate the judgment of conviction on two grounds, both of which he renews on appeal: that there was no manifest necessity for the court to declare a mistrial; and that he was denied his constitutional right to effective assistance of counsel because his trial attorney did not move, before the second trial, to dismiss the charges on the ground that a second trial would violate his constitutional right against being subject to double jeopardy. The court denied Rave’s post-conviction motion. Rave appeals.

DISCUSSION

¶12 We conclude that, under the unusual circumstances presented here, there was a manifest necessity for the court to declare a mistrial sua sponte. There was a manifest necessity to ensure that the jury was not presented with inadmissible evidence that went to the heart of each charge—whether that might be the complete version of all three recordings, some portions of some, or no portion of any—after the court had the opportunity to consider reasoned, supported arguments from both sides. Our conclusion that a mistrial was justified dictates the outcome on the ineffective assistance of counsel issue, because a double jeopardy motion would have been meritless. Accordingly, we affirm the sua sponte mistrial declaration and the postconviction motion ruling.

¶13 "The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects a criminal defendant from repeated prosecution for the same offense." State v. Lettice , 221 Wis. 2d 69, 80, 585 N.W.2d 171 (Ct. App. 1998). Mistrials do not necessarily violate the double jeopardy clause even though they allow for more than one trial on the same offense. "If the trial is terminated over the defendant’s objection and without his or her consent, such as upon ... [a] court’s sua sponte decision, then retrial is barred unless the proceedings were terminated because of manifest necessity."⁵ Id .; see also United States v. Dinitz , 424 U.S. 600, 606-07 (1976) (the question is "whether ‘there [was] a manifest necessity for the (mistrial), or the ends of public justice would otherwise be defeated.’ ") (quoted source omitted). "A ‘manifest necessity’ warranting a mistrial is a high degree of necessity." State v. Moeck , 2005 WI 57, ¶37, 280 Wis. 2d 277, 695 N.W.2d 783 (footnote and quoted source omitted).

¶14 "The level of deference we accord a circuit court’s order for a mistrial depends on the particular facts of each case. There is a spectrum of deference to a circuit court’s exercise of its discretion in granting a mistrial." Id. , ¶41 (footnotes omitted). Among those " ‘trial problems which may warrant a mistrial and which vary in their amenability to appellate scrutiny,’ " a deadlocked jury or defense counsel’s improper arguments " ‘fall[ ] in an area where the trial judge’s determination is entitled to special respect.’ " State v. Seefeldt , 2003 WI 47, ¶27, 261 Wis. 2d 383, 661 N.W.2d 822 (quoting Arizona v. Washington , 434 U.S. 497, 510 (1978) ).

¶15 Although we may in some circumstances afford "special respect" to a mistrial decision, we nevertheless must satisfy ourselves that "the circuit court exercised sound discretion in ordering a mistrial." Seefeldt , 261 Wis. 2d 383, ¶13. Various considerations are pertinent:

We have described sound discretion as "acting in a rational and responsible manner."... Sound discretion requires giving both parties a full opportunity to explain their positions and considering alternatives such as a curative instruction or sanctioning counsel. Sound discretion also requires that a circuit court ensure that the record

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