State v. Hayes Johnson
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2000 WI 12 SUPREME COURT OF WISCONSIN Case No.: 97-1360-CR Complete Title of Case: State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Hayes Johnson, Defendant-Appellant. ON REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 223 Wis. 2d 85, 588 N.W.2d 330 (Ct. App. 1999-Published) Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: February 18, 2000 November 4, 1999 Circuit Milwaukee Diane S. Sykes JUSTICES: Concurred: Dissented: ABRAHAMSON, C.J. dissents (opinion filed). BABLITCH, J. joins dissent. Not Participating: SYKES, J. did not participate. ATTORNEYS: For the plaintiff-respondent-petition the cause was argued by Lara M. Herman, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general. For the defendant-appellant there was a brief by Russell D. Bohach and Brennan & Collins, Madison and oral argument by Russell D. Bohach. 2000 WI 12 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 97-1360-CR STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent-Petitioner, FEB 18, 2000 v. Cornelia G. Clark Acting Clerk of Supreme Court Madison, WI Hayes Johnson, Defendant-Appellant. REVIEW of a decision of the Court of Appeals. ¶1 JON P. WILCOX, J. Reversed. The State of Wisconsin petitions this court for review of a published decision of the court of appeals, State v. Hayes Johnson, 223 Wis. 2d 85, 588 N.W.2d 330 (Ct. App. 1998), which reversed an order denying the defendant s motion for postconviction relief. (1) whether likelihood of the defendant prosecutorial The case presents two issues: has established vindictiveness, which a realistic would give rise to a presumption of vindictiveness; and (2) whether the defendant has established actual prosecutorial vindictiveness. ¶2 The defendant, Hayes Johnson, was initially tried before a jury on a single count of first-degree sexual assault. The jury was unable to reach a verdict, and the trial court declared a mistrial. Before retrial, the prosecutor filed an No. 97-1360-CR amended information charging the defendant with two counts of first-degree sexual assault and one count of burglary, based on the same course of conduct as the initial charge. The prosecutor offered to withdraw the new charges in exchange for the defendant s guilty plea to a single count of first-degree sexual assault. The defendant rejected the plea offer and moved to dismiss on the ground that the filing of additional charges gave rise to a presumption of prosecutorial vindictiveness. The trial court denied the motion, holding that no presumption of vindictiveness arose from the addition of charges after the mistrial and that there was no other evidence of vindictiveness. ¶3 On retrial, the jury found the defendant guilty of both counts of sexual assault, but found him not guilty of the burglary charge. In a postconviction motion, renewed his prosecutorial vindictiveness claim. the defendant The trial court again denied the motion, and the defendant appealed. ¶4 The court institutional bias of appeals against reversed, retrials, concluding together that with the the prosecutor s addition of new charges and offer to withdraw them if the defendant would plead guilty, was sufficient to trigger the presumption of prosecutorial vindictiveness. ¶5 On review, we hold that the defendant did not establish a realistic likelihood of vindictiveness in this case and that apply. a We presumption also of determine vindictiveness that 2 the therefore defendant has does not failed to No. establish actual vindictiveness. We therefore 97-1360-CR reverse the decision of the court of appeals. I. ¶6 The relevant facts are as follows. In October 1994 the defendant was arrested after his girlfriend s five-year-old daughter complained that he had sexually assaulted her. At the preliminary hearing on October 24, 1994, the victim testified that the assault occurred when the defendant entered her bedroom and laid her body on top of his. She stated that during the assault he touched her vagina with his hand and with his penis. ¶7 The State filed an information charging the defendant with one count of first-degree sexual assault of a child in violation of Wis. Stat. § 948.02(1)(1991-92).1 The defendant rejected the State s offer to reduce the charge to second-degree sexual assault in exchange for the defendant s guilty plea. case proceeded to trial in the Circuit Court of The Milwaukee County, Judge Diane S. Sykes, on October 31, 1995. On November 3, to 1995, the jury stated that they were unable reach a verdict in the case, and the trial court ordered a mistrial. Neither party objected to the mistrial order. ¶8 indicated At a hearing on November 6, 1995, the defense attorney that the prosecutor intended 1 to file an amended All subsequent references to the Wisconsin Statutes refer to the 1991-92 volumes unless otherwise indicated. 3 No. information. The trial court set the case for 97-1360-CR retrial on December 4, 1995. ¶9 On November 14, 1995, the prosecutor filed an amended information charging the defendant with two counts of firstdegree sexual assault of a child in violation of Wis. Stat. § 948.02(1) (one count based on the defendant s touching of the victim s vagina with his finger, the other count based on the defendant s touching the victim with his penis), and one count of burglary in violation of Wis. Stat. § 943.10(1)(f) (based on the defendant s entry into the victim s bedroom with intent to commit a felony). In a motion accompanying the amended information, the prosecutor explained that under the facts of the case the defendant could properly be prosecuted for these three charges, and that the jury should have the opportunity to consider all of the appropriate charges relating to the course of conduct. ¶10 dismiss On November 28, 1995, the defendant filed a motion to the prosecutor s amended gave rise filing to a information, of additional presumption of alleging charges in part after prosecutorial the that the mistrial vindictiveness because a realistic likelihood of vindictiveness existed under the circumstances of the case. ¶11 On December 4, 1995, the prosecutor wrote a letter to the defendant offering to withdraw the amended information in 4 No. exchange for the defendant s agreement to single count of first-degree sexual assault.2 plead 97-1360-CR guilty I m writing to you regarding State v. Hayes Johnson, case number F94-3955. Attached please find the State s Brief in Opposition to the Defense Motion to Dismiss the Amended Information and a copy of the letter of transmittal to the Court. I also summarize herein our discussion of Saturday, December 2, 1995, regarding a possible resolution of this matter. As you know, your client is currently charged with: Two counts of First Degree Sexual Assault of a Child One count of Burglary. He faces 90 years in prison; if your client wishes to reduce his exposure, the State makes the following offer: Plead guilty to only one count of First Degree Sexual Assault of a Child; the State will withdraw the Amended Information, thereby dismissing the second count of First Degree Sexual Assault of a Child and the Burglary and recommend a Presentence Report; the State is willing to advise the Court that the State does not recommend the imposition of maximum sentence and to leave the sentence to the Court; you are free to argue for whatever sentence you feel is appropriate, including placement in a counselling program. Further, I will recommend that the sentence run concurrent to your client s probation revocation time. This letter, which the court of appeals quoted in its decision, see Johnson, 223 Wis. 2d at 88, was entered into the record before this court. 5 a The letter stated: Dear Mr. Wasserman: 2 to No. 97-1360-CR It is my hope that these very young children, only 5 and 7, can be spared additional Court intrusions in their young lives. That is why I am willing to offer to dismiss charges constituting 50 years of prison exposure, to recommend that the Court not impose the maximum sentence, to recommend concurrent time, to leave sentencing to the Court and you are free to make whatever recommendation you feel is appropriate. If we cannot reach a resolution that spares these young children from the trauma of another round of testifying, and if the defendant is convicted of some or all of the charges, it is the State s intention to affirmatively and strongly recommend the imposition of a very lengthy prison sentence which will keep the defendant in prison for many decades. I have no objection to your client entering his plea as an Alford plea, denying his guilt but accepting the State s offer to cut his losses. If your client wants to take advantage of the opportunity to be out of prison in a relatively short period of time, this offer is, in my judgment, his best bet to accomplishes [sic] that objective. Thank you for your attention to this matter. Sincerely, [signed] Gale G. Shelton ¶12 That same day, the trial court denied the defendant s motion to dismiss. jurisdictions The court relied on the case law of other holding that there is no presumption of prosecutorial vindictiveness when additional charges are filed after a mistrial caused by a hung jury. The court explained that the hung jury and mistrial put the parties back in the position they were in before the trial began. Because the prosecutor would clearly have had the discretion to file these charges before the trial, there 6 was no presumption of No. vindictiveness raised by filing them after the 97-1360-CR mistrial. Finding no other evidence of prosecutorial vindictiveness, the court denied the motion. ¶13 The defendant rejected the state s plea offer, and the case proceeded to retrial. the defendant guilty of On December 7, 1995, the jury found both counts of first-degree sexual assault, but not guilty of burglary. ¶14 in The defendant was subsequently sentenced to 20 years prison on each consecutively. count In a of sexual motion for assault, to postconviction be served relief, the defendant renewed his claim that the amended information should have been dismissed because of prosecutorial vindictiveness. The trial court denied the motion, and the defendant appealed. ¶15 The court of appeals reversed the trial court s order denying postconviction relief and remanded the case for further proceedings. The court concluded that the defendant had established both (1) that he had exercised a protected right, his right to a jury trial; and (2) that there was a realistic likelihood that the prosecutor had added new charges to punish him for exercising this right. Johnson, 223 Wis. 2d at 94. Specifically, the court determined that the institutional bias against amended retrials and information sufficient to vindictiveness. the in prosecutor s exchange trigger Id. at 95. a for offer a presumption to withdraw guilty plea of the were prosecutorial The State petitioned for review of this decision of the court of appeals. II. 7 No. ¶16 97-1360-CR In reviewing a prosecutorial vindictiveness claim, we are mindful of the fact that a prosecutor has great discretion in charging decisions and is generally answerable for those decisions to the people of the state and not the courts. State v. Karpinski, 92 Wis. 2d 599, 607-08, 285 N.W.2d 729 (1979). review a prosecutor s charging exercise of discretion standard. ¶17 decisions under an We erroneous Id. at 609. In order to decide whether a prosecutor s decision to bring additional vindictiveness in charges violation constituted of the prosecutorial defendant s due process rights, we first must determine whether a realistic likelihood of vindictiveness exists; if indeed it does exist, then a rebuttable presumption of prosecutorial vindictiveness applies. If we conclude that no presumption of vindictiveness applies, we next must determine whether the defendant has established actual prosecutorial vindictiveness. ¶18 The legal principles surrounding prosecutorial vindictiveness claims present questions of law that we review de novo. United States v. Contreras, 108 F.3d 1255, 1262 (10th Cir. 1997). fact However, we review the lower court s finding of regarding whether the defendant established vindictiveness under the clearly erroneous standard. actual Id. at 1262. A. ¶19 analysis. There is a dearth of Wisconsin precedent to guide our Wisconsin courts have examined claims of judicial vindictiveness in sentencing after appeal and reconviction. 8 See No. 97-1360-CR State v. Stubbendick, 110 Wis. 2d 693, 329 N.W.2d 399 (1983) and State v. Tarwid, 147 Wis. 2d 95, 433 N.W.2d 255 (Ct. App. 1988). The court of appeals has considered a claim of prosecutorial vindictiveness in a prosecutor s filing of an additional charge after a defendant s successful appeal. Wis. 2d 198, 430 N.W.2d 604 (Ct. State v. Edwardsen, 146 App. 1988). However, no previous Wisconsin case has examined a claim of vindictiveness arising before a defendant s successful appeal. We begin our analysis by examining the United States Supreme Court cases that established the legal doctrine of prosecutorial vindictiveness. ¶20 The legal principles surrounding prosecutorial vindictiveness developed in a series of United States Supreme Court cases recognizing the basic principle that it is a violation of due process when the state retaliates against a person for exercising a protected statutory or constitutional United States v. Goodwin, 457 U.S. 368, 372 (1982). right. ¶21 The Court first recognized this principle in the context of a judge s imposition of an increased sentence after a new trial, in North Carolina v. Pearce, 395 U.S. 711 (1969). The Court held that when a judge imposes an increased sentence after a defendant obtains a new trial upon appeal, the judge must set forth in the record affirmative reasons based upon objective information concerning part of the defendant. identifiable conduct Pearce, 395 U.S. at 726. on the In effect, Pearce applied a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence. Goodwin, 457 U.S. at 374. 9 No. ¶22 97-1360-CR The Court extended Pearce s reasoning to prosecutorial actions that result in increased punishment after a new trial in Blackledge v. Perry, 417 U.S. 21 (1974). The defendant in Blackledge was convicted of a misdemeanor assault charge in a bench trial before the district court. Id. at 22. After his conviction in district court, the defendant filed a notice of appeal requesting a new trial in superior court, which was his absolute right under North Carolina law. trial, the prosecutor obtained a new Id. Before the new grand jury indictment replacing the misdemeanor assault charge with a felony assault charge. Id. at 23. charge. Id. ¶23 In The defendant was convicted of the felony considering rights were violated, Clause is not whether the the defendant s offended Court noted by all that due the possibilities process Due Process of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of vindictiveness. Id. at 27. realistic in likelihood of vindictiveness existed the A case because the prosecutor had the means to discourage appeals by upping the ante against charge. Id. at 27-28. malice or bad faith the defendant with a more serious Although there was no evidence of actual on the part of the prosecutor, the apprehension of a retaliatory motive could not be allowed to deter the defendant s statutory right to appeal. Id. at 28. The Court did note that [t]his would clearly be a different case if the State had established that the new charge was based on new events and could not have been brought in the original 10 No. proceeding. Id. at 29 n.7. 97-1360-CR However, under the circumstances of the case, it was constitutionally impermissible for the State to bring the more serious charge in response to the defendant s appeal. ¶24 Id. at 28-29. The Court declined to extend the principles of Pearce and Blackledge to a prosecutor s pretrial filing of increased charges in Bordenkircher v. Hayes, 434 U.S. 357 (1977). The prosecutor in Bordenkircher carried out an explicit threat to file more serious charges against the defendant if the defendant refused to plead guilty to a less Bordenkircher, 434 U.S. at 358-59. serious offense. The Court held that the prosecutor s conduct did not violate the defendant s due process rights. ¶25 Id. at 365. The Court explained that both Pearce and Blackledge involved the State s unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original convictiona situation very different from the giveand-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power. Id. at 362, Carolina, 397 U.S. 790 (1970). quoting Parker v. North The due process violation at issue in Pearce and Blackledge lay not in the possibility that a defendant right, . . . retaliating conviction. might be deterred from the exercise of a legal but rather in the danger that the State might be against Id. the at accused 363 for (citations lawfully omitted). attacking No his similar element of retaliation against a defendant existed in the plea 11 No. 97-1360-CR bargain context so long as the accused is free to accept or reject the prosecution s offer. ¶26 Id. In reaching this conclusion, the Court was mindful of the prosecutor s great discretion in charging decisions. As long as probable cause supports the charged offenses: [T]he decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in [the prosecutor s] discretion . . . . To hold that the prosecutor s desire to induce a guilty plea is an unjustifiable standard, which, like race or religion, may play no part in his charging decision, would contradict the very premises that underlie the concept of plea bargaining itself. Id. at 364-65. Therefore, the Court held that no rigid constitutional rule of Id. at 365. prosecutorial vindictiveness applied. ¶27 The Court again declined to recognize a presumption of vindictiveness in Goodwin. defendant The the pretrial in context Goodwin was in United charged States with v. several misdemeanor and petty offenses based on his conduct during a traffic stop by a United States Park Policeman and was arraigned before a United States Magistrate. Goodwin, 457 U.S. at 370. After with initiating plea negotiations the prosecutor, the defendant decided to reject a guilty plea and requested a jury trial in district court. Id. at 371. The case was transferred to the district court, and an Assistant United States Attorney [AUSA] assumed the role of prosecutor. Id. The new prosecutor obtained an indictment charging the defendant with one felony and three related misdemeanors, and the defendant was convicted of the felony and one misdemeanor. 12 Id. The defendant moved to No. 97-1360-CR set aside his conviction on the ground that the filing of the felony charge retaliation. gave ¶28 rise to an impermissible appearance of Id. In considering the defendant s argument, the Court noted that [t]he imposition of punishment is the very purpose of virtually all criminal proceedings. punitive motivation governmental alone response to cannot criminal Id. at 372. distinguish conduct Thus, a justifiable from impermissible governmental response to non-criminal, protected activity. at 372-73. limited The to presumption cases in vindictiveness exists. ¶29 The presumption Court of of which vindictiveness a reasonable is Id. therefore likelihood of Id. at 373. further explained vindictiveness must caution in the pretrial setting. be that an with viewed Id. at 381. inflexible particular The prosecutor s initial charging decision may not reflect the extent to which an individual is legitimately subject to prosecution, and before trial, the prosecutor must remain free to exercise his or her broad discretion to determine which charges properly reflect society s interests. ¶30 The Court Id. at 382. then asserted by the defendant. examined the nature of the right After initiating plea negotiations, the defendant asserted his right to a jury trial. Id. Under Bordenkircher, the mere fact that a defendant refuses to plead guilty and forces the government to prove its case is insufficient to warrant a presumption that subsequent changes in the charging decision are unjustified. 13 Id. at 382-83. The No. Court also pointed out that the case would not 97-1360-CR involve a duplicative expenditure of resources or ask the prosecutor to do over what it thought it had already done correctly. Id. at 383 (citation omitted). ¶31 Finally, the court explained that [p]erhaps most importantly, the institutional bias against the retrial of a decided question that supported the decisions in Pearce Blackledge simply has no counterpart in this case. 383. and Id. at In sum, although a defendant in an appropriate case might prove that a prosecutor s charging decision was motivated by actual vindictiveness, a mere opportunity for vindictiveness is insufficient to justify the imposition of a prophylactic rule. Id. at 384. ¶32 Thus, the United States Supreme Court has set forth a prophylactic rule that a presumption of vindictiveness arises when a prosecutor files more serious charges against a defendant after the defendant appeals his conviction and wins a new trial. However, the Court has not extended this presumption to the pretrial context. B. ¶33 We now must apply these legal principles to the facts of this case. We begin by considering the defendant s argument that a presumption of vindictiveness has arisen in his case. The defendant establishing acknowledges that under the that he bears circumstances the of burden his case of a realistic likelihood of vindictiveness exists, giving rise to a presumption of vindictiveness. Br. of Def.-Appellant at 12. 14 No. ¶34 The relevant circumstances are as 97-1360-CR follows. The defendant s first trial on a single count of first-degree sexual assault ended in a mistrial when the jury was unable to reach a verdict. The prosecutor subsequently amended the information by adding two new charges against the defendant: a second count of first-degree sexual assault of a child, and a count of burglary. In the December withdraw the 4, 1995 the prosecutor information amended letter, and thereby offered dismiss to the additional charges in exchange for the defendant s guilty plea to the single count of first-degree sexual assault. The defendant declined the offer and was convicted of the two counts of first-degree sexual assault. ¶35 applied As United presumption a noted, of States Supreme prosecutorial Court cases vindictiveness have to the filing of increased charges after a successful appeal, but have not extended Court has this presumption never considered to a the pretrial vindictiveness context. The claim the in mistrial context. ¶36 Courts in other jurisdictions have pointed out that a mistrial does not fall clearly into either the pretrial or the post-trial category. See, e.g., United States v. Mays, 738 F.2d 1188, 1190 (11th Cir. 1984). In cases like the one before us, the observed Seventh Circuit has that [c]ourts have consistently held that no realistic likelihood of vindictiveness is found when a jury is deadlocked and both parties agree that a declaration of mistrial is a necessity. United States v. Whaley, 830 F.2d 1469, 1479-80 (7th Cir. 1987), abrogated in 15 No. 97-1360-CR part on other grounds by United States v. Durrive, 902 F.2d 1221 (7th Cir. 1990).3 Many state courts are in agreement.4 These courts generally reason that no appearance of vindictiveness is created when a prosecutor adds charges after a mistrial caused by a hung jury, because the defendant has exercised no protected right against which the prosecutor might retaliate. Mays, 738 F.2d at 1190 ( Mays did not pursue any right such as would instigate retaliatory action on the part of the prosecution. Thus, the additional charges cannot be characterized as having arisen from any exercise of a protected right. ). See also 3 See also Contreras, 108 F.3d at 1263-64 (10th Cir. 1997); United States v. Fiel, 35 F.3d 997, 1007-08 (4th Cir. 1994); United States v. Khan, 787 F.2d 28, 32 (2d Cir. 1986); United States v. Ruppel, 724 F.2d 507, 507 (5th Cir. 1984); United States v. Thurnhuber, 572 F.2d 1307, 1310 (9th Cir. 1977); Mays, 738 F.2d at 1190. See also United States v. Marrapese, 826 F.2d 145, 149 (1st Cir. 1987)(expressing doubt that a presumption of vindictiveness could apply to added charges after a mistrial caused by a hung jury and holding that in any case the prosecutor s explanation rebutted any likelihood of vindictiveness); Wayne R. LaFave and Jerold H. Israel, Criminal Procedure § 13.7 at 84 n.29.1 (Supp. 1991)(noting that there is a dispute as to whether a presumption applies in cases which are not entirely in a pretrial setting but in which there was not a conviction and appeal ). 4 State v. Wilkins, 534 So. 2d 705, 706 (Fla. 1988); Griffin v. State, 464 S.E.2d 371, 376 (Ga. 1995); Harris v. State, 481 N.E.2d 382, 385-86 (Ind. 1985); Woods v. State, 775 S.W.2d 552, 555-56 (Mo. 1989)(deciding in a review for plain error that the filing of more serious charge after a mistrial did not raise a recognizable presumption of vindictiveness); State v. Person, 781 S.W.2d 868, 871 (Tenn. Crim. App. 1989); Woodson v. State, 777 S.W.2d 525, 529 (Tex. Ct. App. 1989). But see Twiggs v. Superior Court, 667 P.2d 1165, 1173 (Cal. 1983)(concluding that a strong presumption of vindictiveness was warranted by the filing of an amended information after a mistrial caused by a hung jury). 16 No. Khan, 787 F.2d at 33 ( Defendant did nothing here 97-1360-CR that was likely to inspire the wrath of the prosecutor. ); Whaley, 830 F.2d at 1479 ( Appellant Whaley took no action; he exercised no statutory or constitutional right, and cannot now claim that he was penalized for exercising such a right. ); Marrapese, 826 F.2d at 149 ( [I]t is unlikely any retaliatory animus flowed from the first trial s ending in a mistrial; after all, the mistrial was due to a hung jury, not to any legal challenge by Marrapese. ). ¶37 holds The defendant concedes that the weight of authority that no presumption of vindictiveness arises when additional charges are brought after a mistrial caused by a hung jury. He argues, however, that a presumption of vindictiveness may arise when a prosecutor files additional charges after a mistrial caused by a hung jury if the defendant establishes a realistic likelihood of vindictiveness under the circumstances of the case. He contends that a realistic likelihood of vindictiveness exists in his case because a defendant after a mistrial caused by a hung jury is in the same position as a defendant on remand after reversal of his conviction of appeal. He also contends that, like a defendant who has successfully challenged his conviction by exercising the right to appeal, he seeks a second trial based upon the assertion of a protected legal rightthe right to a jury trial. ¶38 Like the great majority of federal courts, we find this reasoning unpersuasive. The presumption of vindictiveness that arose after the defendant s successful appeal in Blackledge 17 No. 97-1360-CR does not arise after a mistrial caused by a hung jury, because after a mistrial there is no realistic likelihood that the state is retaliating appeal. Court s rooted against the defendant s protected right to Subsequent to Blackledge, the United States Supreme prosecutorial vindictiveness in a relatively simple decisions proposition: have one punished for the exercise of a protected right. all may been not be Mays, 738 F.2d at 1190 (citing Ruppel, 724 F.2d at 508)(emphasis in original). In this case, there is no realistic likelihood that the defendant was being punished for exercising a protected right, because the defendant did not bring about the need for a retrial by exercising a protected right. The retrial was necessary because of the jury s inability to reach a verdict, not because of the exercise of any right by the defendant.5 5 Mays, 738 F.2d This is why all of the cases relied upon by the dissent, Those cases involved except for Twiggs, are distinguishable. mistrials granted upon the defendant's motion, to preserve fair trial rights. See In re Bower, 700 P.2d 1269, 1276 (Cal. 1985) (noting that the defendant was granted a mistrial "which was necessary to insure the fairness of the proceedings against him"); Murphy v. State, 453 N.E.2d 219, 223 (Ind. 1983) (noting that a mistrial was declared upon the defendant's motion because of the prosecutor's use of improper identification procedures tainted the trial); United States v. Jamison, 505 F.2d 407, 409, 416 (D.C. Cir. 1974) (noting that a mistrial was declared upon the defendant's motion because of ineffective assistance of counsel and declining to distinguish between attacks on the fairness of criminal proceedings before and after trial); United States v. D'Alo, 486 F.Supp. 954, 959 (D.R.I. 1980) ("The very same concern evident in the Supreme Court cases . . . exists in this case; the defendant is in effect being penalized for moving for a mistrial."). 18 No. at 1190; Khan, 787 F.2d at 33; Whaley, 830 F.2d 97-1360-CR at 1479; Marrapese, 826 F.2d at 149. ¶39 The defendant argues that he did cause the retrial by exercising a protected rightthe right to a jury trial. contends that a realistic likelihood of vindictiveness He was created by the prosecutor s efforts to persuade him to plead guilty and forego this right. We agree with the federal circuit courts that have consistently rejected this reasoning. ¶40 In United States v. Khan, the jury in the defendant s first trial on drug charges was unable to reach a verdict on any of the charges against him. Khan, 787 F.2d at 30. After the mistrial, the AUSA attempted to persuade the defendant to plead guilty to retrial. a single Id. lesser charge instead of proceeding to The AUSA specifically warned the defendant that a superseding indictment might be filed before the second trial. Id. The defendant rejected the plea offer, and the AUSA filed a superseding indictment containing additional charges. Id. defendant a then expressed interest in pleading charge, but the AUSA rejected this offer. Id. to The lesser At the second trial, the defendant was convicted on most of the counts. Id. The defendant challenged his convictions on the grounds that the filing of additional charges after the defendant rejected a plea The only case the dissent cites that actually recognized a realistic likelihood of vindictiveness when increased charges were brought after a mistrial that resulted from a hung jury, rather than the defendant's exercise of a protected right, is Twiggs, 667 P.2d at 1170. 19 No. 97-1360-CR offer gave rise to an unrebutted presumption of prosecutorial vindictiveness. ¶41 Id. at 30-31. The court rejected the defendant s claim, reasoning that: It was not the defendant s request for a trial that precipitated the possible duplication of resources and raised the spectre of the prosecution avenging the defendant s rightful exercise of a constitutional right. The root cause of these troubles was the jury s inability to agree on a verdict . . . . But the government did not object to a mistrial. . . . It is difficult to see how this would prompt a prosecutor to act vindictively towards a defendant; all agreed that the action taken by the Court was necessary under the circumstances. United States v. Thurnhuber, 572 F.2d 1307, 1310 (9th Cir. 1977). Defendant did nothing here that was likely to inspire the wrath of the prosecutor. Id. at 32-33. As to the defendant s argument that his rejection of a guilty plea might have sparked a vindictive response, the court thought government s that it probable was unrealistic response to a to assume defendant s that the choice to exercise his fundamental right to a trial would be to seek to penalize and deter, Goodwin, 458 U.S. at 381, 102 S.Ct. at 2492, even if that choice follows on the heels of a mistrial. Id. at 33. ¶42 The Tenth Circuit followed this reasoning in United States v. Morales, 108 F.3d 1213 (10th Cir. 1997). In that case, the jury at the defendant s first trial was unable to reach a verdict on charges of conspiracy to distribute marijuana and money laundering. Id. at 1216. Before retrial, and after the defendant rejected several plea offers, the United States 20 No. 97-1360-CR filed a superseding indictment increasing the charges against the defendant. Id. at 1220 and n.5. The court rejected the defendant s claim that the increased charges should have been dismissed because of prosecutorial vindictiveness. Id. at 1220. Citing Khan, the court explained that under Bordenkircher, in the give-and-take of plea bargaining there is no element of retaliation so long as a defendant remains free to accept or reject the offer. Id. at 1120 n.5 (citing Khan, 787 F.2d at 31). ¶43 We determine that the same reasoning applies to the defendant s case and conclude that the fact that the prosecutor filed the additional charges during plea negotiations does not create a realistic likelihood of vindictiveness. courts have noted, Bordenkircher confirmed the As the federal legitimacy of plea bargaining and found no element of retaliation in the giveand-take of plea negotiations. Bordenkircher, 434 U.S. at 363. The government s interest in persuading the defendant to enter a guilty plea therefore does vindictiveness before trial. not justify a presumption Goodwin, 457 U.S. at 384. of We find no reason that a different rule should apply after a mistrial caused by a hung jury. Accord Morales, 108 F.3d at 1220 n.5; Khan, 787 F.2d at 33; Mays, 738 F.2d at 1190. ¶44 The attempting to defendant establish makes that should apply in this case. a one additional presumption of argument in vindictiveness He contends that the lack of any legitimate reasons for filing the additional charges supports a 21 No. presumption of prosecutorial vindictiveness. 97-1360-CR Def.-Appellant s Br. at 18. ¶45 This argument misinterprets the law. As the defendant acknowledges earlier in his brief, Def.-Appellant s Br. at 12, the burden is on the defendant to establish a realistic likelihood of vindictiveness giving rise to a presumption of vindictiveness. Once a presumption of vindictiveness is established, the prosecutor may rebut it with an explanation of the objective circumstances that led the prosecutor to bring the additional charges. Marrapese, 826 F.2d at 149; Crozier v. Wyoming, 882 P.2d 1230, 1234 (Wyo. 1994); see also Stubbendick, 110 Wis. 2d at 698-99 (explaining that a trial judge may overcome the presumption of vindictiveness that is created when a defendant receives an increased sentence after a new trial by stating sufficient objective reasons for the sentence in the record). Because the defendant has failed to establish that a realistic likelihood of vindictiveness exists in his case, the burden has not yet shifted to the prosecutor to rebut a presumption of vindictiveness. ¶46 In conclusion, we reject the defendant s argument that a presumption of vindictiveness arose under the circumstances of this case. C. ¶47 does not whether Our conclusion that a exist case does in this prosecutorial presumption not vindictiveness defendant s due process rights. 22 end has of our vindictiveness inquiry violated into the As Goodwin notes, even when a No. 97-1360-CR presumption of vindictiveness does not apply, a defendant may still establish that the prosecutor s decision to add charges was actually motivated by a desire to retaliate against the defendant for doing something that the law plainly allowed him to do. Wis. Goodwin, 457 U.S. at 384; see also Stubbendick, 110 2d at exhibits abuse 699 actual of ( Where a sentencing vindictiveness, discretion. ). To that or too establish resentencing would actual record constitute an vindictiveness, there must be objective evidence that a prosecutor acted in order to punish the defendant for standing on his legal rights. Whaley, 830 F.2d at 1479 (citing Goodwin, 457 U.S. at 380-81). We reiterate that the lower court s finding of fact regarding whether the defendant established actual vindictiveness reviewed under the clearly erroneous standard. is Contreras, 108 F.3d at 1262. ¶48 At the trial court, the defendant relied only on his argument that a presumption of vindictiveness applied because of the increased charges. However, the trial court specifically determined that there was no evidence of vindictiveness in the absence of a presumption. In his brief to the court of appeals, the defendant argued that the facts of the case suggested actual vindictiveness, but the court of appeals did not need to address that issue because it applied a presumption of vindictiveness. Before this court, the defendant argues that the same circumstances that support a presumption of vindictivenessthe lack of any legitimate reasons for the new charges and the December 1995 letteralso establish actual vindictiveness. 23 No. ¶49 the 97-1360-CR We conclude that the trial court s determination that defendant failed to produce evidence establishing vindictiveness was not clearly erroneous. circumstances that vindictiveness the defendant essentially amount Almost all of the claims to actual establish allegations actual that the prosecutor failed to point to new information that led her to file the additional charges. out that there was For instance, the defendant points sufficient evidence to support the two separate sexual assault charges from the outset of the case, and that the prosecutor has not argued that additional information led her to file the additional charges. or new He also notes that the same prosecutor handled both trials, and that he did not commit any new crimes or other conduct that would affect the prosecutor s charging decision. ¶50 actual We are not vindictiveness. persuaded At the that time these of factors filing establish the amended information, the prosecutor explained that she believed that the jury should have the opportunity to hear all of the appropriate charges arising out of the course of conduct. In addition, in her brief in response to the defendant s motion to dismiss the amended information, the prosecutor expressly denied retaliatory motive and further explained that: [T]he State has reassessed it[s] presentation of the evidence, taking into account the additional witnesses developed between the mistrial and now and the development of the case during the first jury trial. . . . It is the State s view that the jury should hear the three charges in the Amended Information and 24 any No. 97-1360-CR that they most accurately fit the evidence presented on behalf of the State. Prosecutors have great discretion in charging decisions and are specifically authorized to proceed under any or all statutory provisions that apply to a particular course of conduct. Karpinski, 92 Wis. 2d at 607-08 (quoting Wis. Stat. § 939.65). We conclude that the prosecutor s belief that sufficient evidence exists to support a conviction of a new charge provides justification for the decision Crozier, 882 P.2d at 1233. 806, 811 (Ind. to file charges.6 additional See also Penley v. State, 506 N.E.2d 1987)(holding that a prosecutor s desire to increase the chances of conviction by adding a burglary charge before the perfectly defendant s permissible third trial on and within the of evidence on a rape charge prosecutor s was broad discretion). ¶51 The last piece which the defendant relies to establish vindictiveness is the prosecutor s December 1995 letter offering to withdraw the amended information exchange for a guilty plea to the original charge. in Although the letter does suggest that the prosecutor was strongly motivated to persuade the defendant to plead 6 guilty to the original The trial court rejected the defendant s argument that there was no testimony at the preliminary hearing to establish that the defendant lacked consent to enter the victim s bedroom. The defendant was ultimately acquitted of the burglary charge. We note that if there were a case in which a defendant established that a prosecutor erroneously exercised his or her discretion in deciding to bring a charge, such evidence would likely be relevant to the question of whether the addition of charges was motivated by actual prosecutorial vindictiveness. 25 No. 97-1360-CR charge, it is not evidence of prosecutorial vindictiveness. As previously discussed, Bordenkircher rejected the argument that a prosecutor s attempt to persuade a defendant to plead guilty by filing increased charges before trial constitutes prosecutorial vindictiveness. Filing additional charges in an attempt to obtain a guilty plea does no more than present[] the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution, and Bordenkircher, 434 does not violate the Due Process Clause. U.S. at 365. ¶52 Furthermore, vindictive reason obtain a plea. the for letter the itself prosecutor s suggests strong a non- motivation to In the letter, the prosecutor explains that she hopes that the defendant will plead guilty to spare the victim and her young sister from additional Court intrusions in their young lives and from the trauma of another round of testifying. ¶53 sister The prosecutor s desire to spare the victim and her from testifying at a second trial is supported by research documenting that testifying against abusers has many adverse effects on children. Amendment: Protecting See Julie A. Anderson, The Sixth Defendants Rights at the Expense of Child Victims, 30 J. Marshall L. Rev. 767, 777-79 (1997); L. Christine Brannon, The Trauma of Testifying in Court for Child Victims of Sexual Assault v. the Accused s Confrontation, 18 Law & Psychol. Rev. 439 (1994). Right to The negative emotional consequences of such experiences for children include 26 No. feelings of shame, Brannon at 442-43. to reexperience guilt, and Anderson at 779; Testifying in court may also cause the child feelings Brannon at 442. betrayal. 97-1360-CR of helplessness and powerlessness. Studies show that having to testify more than once is especially traumatic. Anderson at 777 n.61. The number of times a child must repeat the story of his or her abuse is one of the strongest predictors of trauma. Brannon at 441-42. Thus, there is evidence that the prosecutor s concern for the child victim and witness was well founded. ¶54 In addition, the prosecutor s desire to spare the children from another round of testimony was also in conformity with her statutory duty to child victims and witnesses. cases involving child legislature has appropriate action victims imposed on and witnesses, prosecutors to . . . minimize the the the duty length of In Wisconsin to take time the child must endure the stress of his or her involvement in the proceeding. Wis. Stat. prosecutor had been able § 971.105. to persuade In the this case, defendant if to the plead guilty, she would have eliminated the need for the child victim and witness to endure the harmful effects of testifying at the second trial. ¶55 children The defendant argues that the desire to prevent the from motivation, testifying because it is not shows a that legitimate the prosecutorial decision to file additional charges was motivated by a desire to persuade the defendant to plead guilty. Def.-Appellant s Br. at 28. However, as we have repeatedly explained, [t]o hold that the 27 No. 97-1360-CR prosecutor s desire to induce a guilty plea is an unjustifiable standard, which . . . may play no part in his charging decision, would contradict the very premises that underlie the concept of plea bargaining itself. Bordenkircher, 434 U.S. at 364-65. to The prosecutor s desire obtain a guilty plea therefore does not establish prosecutorial vindictiveness. ¶56 In conclusion, we determine that the trial court s decision that the defendant failed to produce objective evidence establishing his claim of actual prosecutorial vindictiveness was not clearly erroneous. III. ¶57 Having applied the relevant legal principles to the facts of this case, we hold that the defendant has failed to establish a presumption of prosecutorial actual prosecutorial vindictiveness. vindictiveness or We therefore reverse the decision of the court of appeals. By the Court. The decision of the court reversed. ¶58 Diane S. Sykes, J. did not participate. 28 of appeals is No. 97-1360.ssa ¶59 SHIRLEY a defendant When prosecutor has S. ABRAHAMSON, demonstrates, added a more CHIEF JUSTICE following serious a (dissenting). mistrial, charge or has that a brought additional charges based on the same course of conduct as the initial charge, I conclude that the defendant has established a realistic likelihood that the prosecutor acted vindictively. ¶60 Accordingly prosecutor in the I conclude present case that to the rebut realistic likelihood of vindictiveness. burden this is on finding the of a The State must explain what objective circumstances led the prosecutor to bring the new charges. a The prosecutor must explain his or her actions so that reasonable person would [not] think realistic likelihood of vindictiveness. that there existed a See Wayne R. LaFave and Jerold H. Israel, Criminal Procedure § 13.7(c) at 106 (2nd ed. 1999) (quoting United States v. Andrews, 663 F.2d 449 (6th Cir. 1980)).7 ¶61 In the present case, the second count of sexual assault and the burglary charge were added after the mistrial. These charges related to the same conduct for which the first sexual assault charge was brought. The State does not contest the defendant s contention that the prosecutor did not learn 7 In United States v. Andrews, 633 F.2d 449, 455-456 (6th Cir. 1980) (en banc), the government increased the charges after the defendants' pre-trial bail motion. The court stated, [W]e think that only objective, on-the-record explanations can suffice to rebut a finding of realistic likelihood of vindictiveness. Andrews, 633 F.2d at 456. 1 No. 97-1360.ssa anything new about this case after the prosecutor filed the onecount information on which the first trial was based. ¶62 The majority opinion errs by equating the situation presented by this case with a pre-trial scenario in which the prosecutor is properly afforded great latitude in deciding what charges to bring. reason that a The majority opinion states, [W]e find no different caused by a hung jury. rule should apply Majority op. at ¶ 43. after a mistrial A case in which no mistrial occurred is different from one in which a mistrial is declared. Saying the two are the same does not make them the same. ¶63 The majority s analysis does not properly account for what the U.S. Supreme Court has termed an institutional bias against re-trying cases. 368, 377 (1982). United States v. Goodwin, 457 U.S. While the present case resulted in a mistrial and not a conviction, the institutional bias recognized in Goodwin also applies in this case.8 8 In both a new trial after an The Goodwin analysis is instructive: In contrast, once a trial begins and certainly by the time a conviction has been obtained it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he should be prosecuted. Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision. United States v. Goodwin, 457 U.S. 368, 381 (1982); see also State v. Edwardsen, 146 Wis. 2d 198, 203, 430 N.W.2d 604 (Ct. App. 1988), stating: 2 No. 97-1360.ssa appeal and a new trial after a mistrial, a defendant s exercise of the protected right to trial forces a prosecutor to expend additional resources to re-try a case. ¶64 The consistent majority with its opinion holding. support in other courts. refers The rule to I several endorse cases also has In Twiggs v. Superior Ct. of San Francisco, 667 P.2d 1165 (Cal. 1983), the defendant endured a trial and a mistrial due to a hung jury and was, upon remand, offered a "plea bargain" by the prosecution. refused the offer and demanded a jury trial. The defendant The prosecutor added charges based on the defendant s prior felony convictions, which the prosecutor had known about before the first trial. The California Supreme Court said these circumstances "strongly suggest that the prosecutor unilaterally imposed a penalty in response to the retrial . . . ." defendant's insistence on Twiggs, 667 P.2d at 1171.9 facing a See also In re Institutional dislike of retrials rather than legitimate concerns for the public welfare might subconsciously motivate a vindictive judicial or prosecutorial response to a defendant's exercise of his right to obtain a retrial of a decided question. 9 The California Supreme Court explained: The same considerations that led the [U.S. Supreme] court to condemn such prosecutorial conduct in the context of a postconviction appeal are applicable when the defendant asserts his right to a retrial after a mistrial. As a prosecutor would have a considerable stake in discouraging appeals requiring trials de novo, so too would the prosecution in a case such as this have a great interest in discouraging defendant's assertion of a retrial, particularly since the 3 jury No. 97-1360.ssa Bower, 700 P.2d 1269 (Cal. 1985) (presumption of vindictiveness attached when the defendant was charged with a more severe crime after a mistrial); Murphy v. State, 453 N.E.2d 219, 227 (Ind. 1983) (same); United States v. Jamison, 505 F.2d 407, 413-16 (D.C. Cir. 1974) (same); United States v. D'Alo, 486 F. Supp. 954, 959-60 (D.R.I. 1980) (same). except Twiggs involved the Although all of these cases situation where the mistrial was granted on the defendant s motion, their applicability to this case is not diminished. In any mistrial situation there is a realistic likelihood that the prosecutor is adding charges to punish the defendant for exercising his or her protected right to proceed with a second trial. ¶65 I agree with the court of appeals that the cause be remanded to the circuit court for an evidentiary hearing. The prosecution was unable to obtain a conviction in the first trial. Here, the defendant has endured a trial and a mistrial due to a hung jury, and when he asserts his right to a jury retrial rather than plead guilty and accept a prison term, he is faced with the possibility of greater punishment than he could have received if the prosecution had secured a conviction, apparently as a result of pursuing his right to be tried by a jury on retrial. Such a situation calls for invoking the prophylactic rule enunciated in Perry to protect against both the possibility that defendant will be deterred from exercising a legal right, as well as the danger that the state might be retaliating against the defendant for maintaining his innocence and facing a retrial. Twiggs v. Superior Ct. of San Francisco, 667 P.2d 1165, 1170 (Cal. 1983). 4 No. 97-1360.ssa circuit court should determine whether the prosecutor has met its burden to rebut the finding of a realistic likelihood of vindictiveness. ¶66 For the reasons stated, I dissent. ¶67 I am authorized to state BABLITCH joins this dissent. 5 that JUSTICE WILLIAM A.
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