01-1969 State v. Seefeldt

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Defendant’s conviction must be reversed.

“For purposes of discussion, we will assume that Carroll’s remarks did indeed violate the pretrial order. The question we then need to answer is whether as a result of those remarks the State would have been denied a fair proceeding before an impartial jury.

Stated differently, did Carroll’s reference to the warrants cause the jury to hear information so inappropriate that the jury became incurably tainted? If the answer to this question is ‘yes,’ then the State would demonstrate the high degree of necessity required to overcome Seefeldt’s constitutional right against double jeopardy. As we explain below, however, the answer to the question is ‘no’ because the remarks simply exposed the jury to information that the defense was constitutionally entitled to present as evidence during trial. Under these circumstances, the remarks did not cause the jury to lose its impartiality and the State’s claim that it was prejudiced must fail.

“In sum, we assume that Carroll violated the pretrial order when he referred to the outstanding warrants. If, in fact, Carroll violated a clear and unambiguous pretrial order less than forty-five minutes after it was announced by the court, we do not condone Carroll’s action. He should be sanctioned. But, the violation of the order, by itself, does not constitute a manifest necessity to overcome Seefeldt’s constitutional right to have his trial completed by the first tribunal. A sanction-based mistrial that raises double jeopardy concerns will be affirmed only if the circumstances would preclude a fair trial by an impartial tribunal. Here, we have found no basis for concluding that the State would have been denied a fair proceeding; the jury heard only information concerning evidence that Seefeldt would have been constitutionally entitled to present in his defense.”

Judgment and order reversed.

Recommended for publication in the official reports.

DISSENTING OPINION: Snyder, J. “The seminal United States Supreme Court double jeopardy case addressing improper opening statements by defense counsel is Arizona v. Washington, 434 U.S. 497 (1978). Because the trial court’s grant of the prosecution’s motion for mistrial, over Seefeldt’s objection, is constitutionally firm under Washington, I respectfully dissent. I would affirm Seefeldt’s conviction and the trial court’s order denying double jeopardy relief.”

Dist II, Fond du Lac County, Weinke, J., Brown, J.

Attorneys:

For Appellant: Donald T. Lang, Madison

For Respondent: Michael R. Klos, Madison; Thomas L. Storm, Fond du Lac