Double Jeopardy

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Darius Kavonta Smith

Case No.: 2019AP642-CR; 2019AP643-CR

Officials: BRASH, P.J.

Focus: Double Jeopardy

Darius Kavonta Smith appeals from nonfinal orders of the trial court denying his motion to bar a retrial of the charges against him on the ground that it would violate double jeopardy. A trial on those charges— disorderly conduct as an act of domestic abuse and misdemeanor bail jumping— was held in August 2018. It resulted in a mistrial after the court determined that statements made by the State during closing arguments were improper and prejudicial to Smith: the State commented on witnesses that had not been called by Smith, which could have been construed by the jury as shifting the burden of proof to Smith; the State also made reference to the fact that Smith’s counsel was a public defender, which could have had a prejudicial effect on Smith if the jury had a negative view of public representation.

In his motion to bar a retrial, Smith argued that a retrial would violate double jeopardy because the State’s comments amounted to prosecutorial overreach; thus, retrial is prohibited. The trial court disagreed, finding that the comments by the State were not made to intentionally prejudice the proceedings and cause a mistrial. It therefore denied Smith’s motion. We affirm.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.