APPEAL from an order of the circuit court for Columbia County No. 2013CF350, DANIEL GEORGE, Judge.
Before Kloppenburg, P.J., Sherman and Blanchard, JJ.
¶1 Russell Troka appeals a non-final order denying his motion to dismiss four criminal counts arising from an alleged attack against A.Z. on double jeopardy grounds. Troka contends that the record does not reflect an adequate basis for a finding of manifest necessity warranting a mistrial over Troka's objection, and, therefore, to retry Troka would violate his rights under the Fifth Amendment to the United States Constitution and article I, section 8 of the Wisconsin Constitution against double jeopardy. We agree and reverse the circuit court's order.
¶2 According to the criminal complaint, Troka repeatedly hit A.Z. with a closed fist and put his hands around her neck, resulting in injuries to A.Z.'s face, forearms, and neck. The State charged Troka with five counts arising from this incident: attempted first-degree intentional homicide, strangulation or suffocation, substantial battery, disorderly conduct, and misdemeanor bail jumping.
¶3 The first day of trial included jury selection, opening arguments, and testimony by A.Z. The second day of trial included testimony by five law enforcement officers and two medical witnesses called by the State, and two medical witnesses called by Troka, plus the beginning of testimony from a third medical witness called by Troka.
¶4 The State's first medical witness, the emergency room doctor who examined A.Z. the day after the incident, diagnosed A.Z.'s injuries as strangulation and a nasal bone fracture, but he was not able to determine how much force was used, for how long A.Z. was strangled, or when her nose was broken. The second medical witness, the Sexual Assault Nurse Examiner who also examined A.Z. the day after the incident, testified that the injuries she observed were consistent with A.Z.'s report of being hit and strangled.
¶5 Troka's first medical witness was the radiologist who performed a CT scan of A.Z.'s neck. He testified that the CT scan revealed no traumatic injuries related to strangulation, that he observed no swelling around the throat or nasal area, and that he observed a nasal bone fracture but could not determine how old it was. Troka's second medical witness was the resident physician who performed an ear, nose, and throat examination of A.Z. He testified that he found no major soft tissue injury and no trauma to the airway or bruising of the vocal cords, that he observed external bruising to the neck but no other evidence of external injury, that his findings were consistent with A.Z.'s report of strangulation, and that he observed a nasal bone fracture but could not determine how old it was.
¶6 The third medical witness Troka called, Dr. Richard Tovar, had not examined A.Z. and was called as an expert on the nature and possible causes of A.Z.'s injuries solely from his review of the medical records. Tovar gave only preliminary testimony-about his education and experience as an emergency physician and medical toxicologist-before the prosecutor objected to continuation of Tovar's testimony. The basis for the objection was that the defense had not provided the State with a report or written summary of Tovar's testimony before trial, in violation of Wis.Stat. § 971.23(2m)(am), and therefore Tovar must be excluded as an expert witness.
¶7 The circuit court found that defense counsel's failure to provide the State with a report or written summary of Tovar's testimony before trial precluded the State from effectively rebutting that testimony, because the State had not been able to ask its own medical expert about Tovar's opinion testimony when that expert was on the stand and the State could not then call its expert in rebuttal because he had been released and was unavailable.
¶8 After two recesses to discuss the situation, defense counsel reported to the circuit court that, after conferring with Troka, the defense was prepared to withdraw Tovar as a witness because Tovar's testimony was not critical to the defense. Specifically, defense counsel explained:
[W]e're prepared to withdraw Dr. Tovar as a witness. We've talked to our client and evaluated it, and what he testified to we don't think is critical to our case so it's a decision that we're making strategically.... [A]lso, we were contemplating a curative instruction to the jury that we just withdrew Dr. Tovar-he hasn't given anything other than his background-and we decided to go on.
¶9 After a third recess, the State moved for a mistrial, and Troka objected. On the question of whether the defense could proceed to examine Tovar further, the circuit court reiterated its view that, to proceed with Tovar's expert opinion testimony beyond the mere introductory testimony that Tovar had already given would substantially prejudice the State, because the State would neither be able to anticipate nor be able to rebut the testimony that Tovar was about to give. Turning to the mistrial issue, the court agreed with the State's argument that, to proceed without Tovar's testimony as Troka proposed, would, if the jury returned a guilty verdict on any of the counts, set up a "very likely" successful appeal based on ineffective assistance of counsel, because Troka would be able to argue that his attorney's mistake in failing to turn over an expert report left Troka compelled to proceed without a critical expert witness. The court granted the State's motion for a mistrial, thereby terminating the trial, and scheduled a second trial.
¶10 Before the second trial, Troka filed a motion to dismiss on double jeopardy grounds, arguing that the State had failed to demonstrate a manifest necessity warranting a mistrial over Troka's objection. The circuit court held a hearing and denied the motion to dismiss on the ground that the mistrial had ...