State v. Mitchell D. Green

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 22, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP267-CR Cir. Ct. No. 2019CF914

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MITCHELL D. GREEN,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
DAVID L. BOROWSKI, Judge. Reversed and cause remanded with directions.

Before Brash, C.J., Donald, P.J., and White, J.
No. 2021AP267-CR

¶1 DONALD, P.J. Mitchell D. Green appeals a nonfinal order denying
reconsideration of a motion to dismiss on double jeopardy grounds.1 Green
contends that the circuit court erred in finding a manifest necessity to grant a
mistrial, and if Green were to be retried, it would be a violation of his
constitutional right against double jeopardy. We agree, and therefore reverse.

BACKGROUND

¶2 Green went to trial on three counts: trafficking of a child, physical
abuse of a child, and disorderly conduct with the use of a dangerous weapon. At
trial, the State called two witnesses: S.A.B. and Milwaukee Police Officer
Gerardo Orozco.

¶3 Relevant to this appeal, S.A.B. testified that, between October 30,
2018 and December 4, 2018, when she was seventeen years old, she was sex
trafficked by a man named Kimeo Conley. During that time period, on one
occasion, Green drove her to a prostitution meeting with a client at a hotel. S.A.B.
said that although she did not remember the specific date, it stood out to her
because the client spit in her mouth during the meeting. Officer Orozco testified
about his work with the Human Trafficking Task Force and his investigation
regarding Green. Following Officer Orozco’s testimony, the State rested.

¶4 Green’s first witness was his cousin, Jonathan Cousin, who was
identified on the defense’s witness list and named as a witness at the start of the
trial. Cousin testified that he was the one who gave S.A.B. the ride on the evening

1
This court granted leave to appeal. See WIS. STAT. RULE 809.50(3) (2019-20). All
references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.

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No. 2021AP267-CR

she described. Cousin explained that he gave a man named Delmar, S.A.B., and
J.R.2 a ride downtown in exchange for gas money. According to Cousin, when
they arrived downtown, Delmar asked Cousin to wait in exchange for more
money, and Cousin agreed. About 15 minutes later, S.A.B. and J.R. returned to
the car and S.A.B. mentioned a man spitting in her mouth to J.R. Cousin testified
that he was not told what the purpose of the ride downtown was and was just
driving for gas money. The State then cross-examined Cousin. After the
completion of the State’s cross-examination, the circuit court took a break for
lunch.

¶5 After the break, the circuit court stated that there had been an off-
the-record discussion for about five minutes in which the State expressed concern
about Cousin’s testimony, and that the court shared some of that concern. The
State explained that it was not notified that Green intended to use Cousin as a
Denny witness, there was no Denny investigation, no Denny motion hearing, and
no ruling on the admissibility of the evidence. See State v. Denny, 120 Wis. 2d
614, 357 N.W.2d 12 (Ct. App. 1984). The State also commented that Cousin had
essentially admitted to his involvement in trafficking S.A.B. without having been
advised by counsel. In response, Green argued that Cousin was not admitting that
he committed a crime.

¶6 The circuit court stated that it saw two main issues with Cousin’s
testimony: (1) whether Cousin “did or did not need … counsel before he testified”
and (2) “the Denny issue, which wraps together with the whole … both sides have

2
According to S.A.B., J.R. was also involved in trafficking her.

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No. 2021AP267-CR

a right to a fair trial issue, and I think the State’s basically saying they’re literally
caught by surprise with this testimony[.]”

¶7 After additional discussion between the parties and the circuit court
on the record, the State indicated that it would leave it to the court’s discretion as
to how to proceed. Green argued that there was not “anything to fix,” Cousin’s
testimony was relevant, and the jury should be allowed to weigh the testimony.
Green also asserted that he had timely named the witnesses and the State had the
option to use its resources to interview the witnesses about their statements.

¶8 The circuit court stated that it was “impossible” to tell the jury to
ignore twenty-five minutes of “pretty compelling testimony where … Cousin
literally tries to take the fall[.]” The court stated that it was “unfair to the State”
and that “I’m not sure that I would have allowed ... Cousin to testify. I would
have needed it 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.” The court stated
that there was no way that the “bell can be unrung, because of the gravity of the
testimony, because of [the] Denny evidence, [and] because there were only three
witnesses in this case[.]”

¶9 The circuit court, sua sponte, found that “the circumstances
require[d] a mistrial.” The court stated that the matter would be reset for a new
trial date, and that the Denny issue should be resolved before the second trial. The
court stated that had this come up earlier, it would have had Cousin speak to an
attorney and Cousin probably would not have testified. The court stated that it
was “clearly Denny evidence” and the State and the court had a right to know
about it in advance.

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No. 2021AP267-CR

¶10 After the mistrial, Green filed a motion to dismiss the case, arguing
that a retrial would violate his constitutional right against double jeopardy. The
State responded, arguing that the mistrial was necessary.3 A hearing was held, and
the court denied the motion to dismiss.

¶11 Subsequently, Green moved the circuit court to reconsider its
decision. Green also moved to present Denny evidence at the upcoming trial. The
State argued that the court should deny Green’s motion to reconsider, and that
Green had failed to meet his burden under the Denny test. A hearing was held,
and the court ruled that Cousin’s testimony was admissible under Denny. The
court denied the motion for reconsideration.

¶12 Green filed a petition for leave to appeal, which we granted.
Additional relevant facts will be discussed below.

DISCUSSION

¶13 The Fifth Amendment to the United States Constitution and
Article I, § 8 of the Wisconsin Constitution provide that a defendant may not be
put in jeopardy twice for the same offense. State v. Moeck, 2005 WI 57, ¶33, 280
Wis. 2d 277, 695 N.W.2d 783.

¶14 “‘Jeopardy’ means exposure to the risk of determination of guilt.”
State v. Seefeldt, 2003 WI 47, ¶16, 261 Wis. 2d 383, 661 N.W.2d 882. It attaches
when jury selection has been completed and the jury is sworn. Id. “Once

3
In its response to the motion to dismiss, the State also argued that Green’s attorney
should be removed from the case. Green’s first attorney eventually withdrew in light of the
State’s request and new counsel was appointed.

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No. 2021AP267-CR

jeopardy attaches, prosecution of a defendant before a jury other than the original
jury … is barred unless: (1) there is a ‘manifest necessity’ for a mistrial; or (2) the
defendant either requests or consents to a mistrial.” State v. Mattox, 2006 WI App
110, ¶12, 293 Wis. 2d 840, 718 N.W.2d 281 (citation omitted).

¶15 At issue in this case is whether there was a “manifest necessity” for a
mistrial. “A ‘manifest necessity’ warranting a mistrial is a high degree of
necessity.” Moeck, 280 Wis. 2d 277, ¶37 (citation omitted). Whether a manifest
necessity exists is a fact-intensive question. Id. A circuit court should declare a
mistrial “only ‘with the greatest caution, under urgent circumstances, and for very
plain and obvious causes.’” Mattox, 293 Wis. 2d 840, ¶13 (citation omitted).

¶16 On review, “an appellate court must, at a minimum, satisfy itself that
the circuit court exercised sound discretion in ordering a mistrial.” Seefeldt, 261
Wis. 2d 383, ¶13. Sound discretion

requires that the [circuit court] ensure that the record
reflects there is an adequate basis for a finding of manifest
necessity. As such, sound discretion is more than a review
to ensure the absence of a mistake of law or fact. Rather, a
review for sound discretion encompasses an assurance that
an adequate basis for the finding of manifest necessity is on
the record.

Id., ¶37.

¶17 Green argues that the circuit court’s decision to grant a mistrial was
not supported by a manifest necessity. We agree with Green, and conclude that
the circuit court did not exercise sound discretion.

¶18 First, at the time the circuit court granted the mistrial, the court did
not determine whether Cousin’s testimony was admissible. The court indicated
that Cousin’s testimony was “clearly Denny evidence” and expressed a desire for

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No. 2021AP267-CR

additional vetting; however, the court did not rule on admissibility. At the
conclusion of its decision, the court stated that whether Cousin’s testimony was
admissible should be determined before the second trial. In this case, whether
Cousin’s testimony was admissible was “critical.” See Seefeldt, 261 Wis. 2d 383,
¶40. If the evidence was admissible, then there was not any “jury taint” creating a
manifest necessity for a mistrial. Id. Accordingly, we conclude that in this case,
the circuit court erred by failing to determine whether Cousin’s testimony was
admissible before declaring a mistrial.

¶19 Second, and relatedly, here, the circuit court did find that Cousin’s
testimony was admissible under Denny at a later hearing. Accordingly, contrary
to the circuit court’s suggestion, there was no need to “unring the bell” after
Cousin testified. Given the circuit court’s conclusion that Cousin’s testimony was
admissible, it did not taint the jury. See Seefeldt, 261 Wis. 2d 383, ¶40.

¶20 Third, in its decision granting a mistrial, the circuit court indicated
that Cousin’s testimony was unfair to the State, and that the State had a right to
know about Cousin’s testimony before trial. The State, however, had an
opportunity to investigate Cousin before trial. Cousin’s name and address were
provided on the defense’s witness list, which was filed five months in advance of
the trial. The State also had the right to demand any “written or recorded
statement” of Cousin. See WIS. STAT. § 971.23(2m)(am). The State did not do
so.4 Moreover, at the start of trial, the defense identified Cousin as a witness it
intended to call. At that point, or before Cousin took the witness stand, the State

4
No State discovery demand appears in the record. At the hearing on the motion for
reconsideration, the State noted that a discovery demand is typically sent with the discovery.
However, the State had no personal knowledge that one was provided in this case.

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No. 2021AP267-CR

could have requested an offer of proof regarding the nature of Cousin’s testimony.
Again, the State did not do so.

¶21 The State points to its pretrial motion in limine. The motion in
limine provides:

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. 30 (1998) and [WIS.
STAT.] § 904.04(2)[.]

¶22 We disagree with the State that the motion in limine prohibited
Cousin’s testimony. Scheidell addresses other-acts evidence committed by an
unknown third party. Id., 227 Wis. 2d at 287-88. This case, however, does not
involve an unknown party or other-acts evidence. As Green observes, Cousin was
a known party and both the State’s evidence and Cousin’s testimony are about the
same act and differ only in the identity of the driver. Further, even if we assume
the motion in limine prohibits Cousin’s testimony, the record does not reflect that
there was ever a court ruling or order entered regarding the motion in limine.

¶23 Fourth, the question of whether Cousin should have had counsel
before his testimony did not create a manifest necessity for a mistrial. By the time
this issue was raised, Cousin had already testified. Cousin’s testimony could not
be erased by terminating Green’s trial. If Cousin’s right to counsel was violated—

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No. 2021AP267-CR

and we do not make any conclusions in that regard here—any potential remedy
would go to Cousin.5

¶24 Lastly, we note that the State suggests that Green’s position “would
eviscerate any ability for courts to require defendants to present Denny evidence
through pretrial proceedings.” We disagree. The circuit court could have entered
a pretrial scheduling order requiring the disclosure of Denny evidence in advance
of the trial. Likewise, the State could have sought an order or ruling from the
circuit court prohibiting the use of any Denny evidence without advance
disclosure. Neither of these actions occurred here.

¶25 Therefore, based on our review of the record, we conclude that there
was not a manifest necessity justifying a mistrial, and that a new trial would
violate Green’s constitutional right against double jeopardy. See Mattox, 293
Wis. 2d 840, ¶19. Accordingly, we reverse, and on remand direct that the
complaint be dismissed with prejudice.

By the Court.—Order reversed and cause remanded with directions.

Not recommended for publication in the official reports.

5
The circuit court also suggested that Cousin might not have testified had he been given
counsel. However, this is speculation. As stated above, at the time the right to counsel issue was
raised, Cousin had already testified.

9