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State v. Alvarado

Court of Appeals of Wisconsin, District II

July 26, 2017

State of Wisconsin, Plaintiff-Respondent,
v.
Anthony Alvarado, Defendant-Appellant.

         APPEAL from an order of the circuit court for Racine County, No. 2013CF1742 EUGENE A. GASIORKIEWICZ, Judge. Affirmed.

          Before Neubauer, C.J., Gundrum and Hagedorn, JJ.

          HAGEDORN, J.

         ¶1 Anthony Alvarado was charged with second-degree sexual assault. The case went to trial, and the jury was instructed to consider both second-degree sexual assault and the lesser included offense of third-degree sexual assault. After several hours of deliberation and multiple notes to the court, the jury sent a final note stating that all jurors "agree on not guilty for the second degree, " but "are hung on the third degree." The court concluded the jury was deadlocked and ordered a mistrial.

         ¶2 The State then sought to retry Alvarado, and he moved to dismiss the second-degree charge based on the double jeopardy provisions of the United States and Wisconsin constitutions. The circuit court denied his motion, and he sought leave to appeal the order. We grant Alvarado's petition for leave to appeal and conclude that retrial on the second-degree sexual assault charge does not offend double jeopardy.[1]

         ¶3 Alvarado does not argue that the circuit court erroneously exercised its discretion in ordering a mistrial or that the court should have instructed the jury on a partial verdict. Rather, Alvarado insists that the jurors' professed agreement on the second-degree sexual assault charge constituted a final verdict. We hold that it did not. Because the jury here was free to reconsider its stance on the second-degree sexual assault charge, the note was not a verdict of acquittal, and retrying Alvarado on the second-degree charge does not violate double jeopardy.

         BACKGROUND

         ¶4 The details of the alleged sexual assault are not relevant to this appeal. The jury deliberations and communications with the court are. The jury trial lasted two days, and only two witnesses testified: Alvarado and the alleged victim. After the close of evidence, the circuit court instructed the jury to consider second-degree sexual assault as well as the lesser included offense of third-degree sexual assault.

         ¶5 On the final day of trial, the jury began its deliberations at 11:10 a.m. Nearly three hours later, at 2:00 p.m., the jury sent a note to the judge indicating they were unable to reach a verdict. The court then called the jury back to the courtroom and read an instruction charging the jury to make an honest effort to resolve the issues and continue deliberations (WIS JI-CRIMINAL 520).[2] Deliberations continued for just under another hour until, at 2:55 p.m., the jury sent another note to the judge explaining that "[w]e are still unable to come to a unanimous decision." The court instructed the bailiff to tell the jury to continue to work for another half hour. Less than one-half hour later at 3:07 p.m., the court received yet another message from the jury. It read, "[I]f we find the defendant not guilty on second degree, do we have to be unanimous on third degree?" The court called the jury back into the courtroom a second time and read Wis JI- CRIMINAL 515, explaining that any verdict must be unanimous.[3] Then the jury was again instructed to continue deliberations.

         ¶6 At 3:35 p.m.-almost four and one-half hours after deliberations began-the jury sent a final note to the judge. The jury remained in the jury room, and the court read the note into the record. It read: "[W]e still cannot come to a unanimous decision. We all agree on not guilty for the second degree, but we are hung on the third degree." Upon this latest expression of disagreement, the court explained it was going to declare a mistrial:

At this point, I have read them the additional instruction 520 at two o'clock. It's now quarter to four. They've been back in the courtroom. I've re-instructed them about the unanimous verdict that must be reached in this matter.
The Court, quite frankly, does not believe there is any efficacy to keeping them out any longer and believes that a mistrial should be called.

         The court further expressed its opinion that allowing a partial verdict on the second-degree charge would be "inappropriate, " and "[i]t's going to be a mistrial on the entire case."[4] Based on the deadlock, the court called the jury into the courtroom, declared a mistrial, and dismissed the jurors.

         ¶7 The State sought to retry the case on the same charges. In response, Alvarado filed a motion to dismiss the second-degree charge.[5] He maintained that the jury's note was a verdict of acquittal, and principles of double jeopardy barred the State from trying him again on the second-degree charge. After a hearing, the circuit court denied Alvarado's motion and scheduled a trial. Alvarado filed a petition for leave to appeal to this court, which we now grant.[6]

         DISCUSSION

         ¶8 The Fifth Amendment of the United States Constitution provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." The Wisconsin counterpart-article I, section 8-is identical in scope and purpose. State v. Henning,2004 WI 89, ¶16 n.8, 273 Wis.2d 352, 363, 681 N.W.2d 871. Accordingly, "we are guided by the rulings of the U.S. Supreme Court." State v. Seefeldt,2003 WI 47, ¶15 n.4, 261 Wis.2d 383, 661 N.W.2d 822');">661 N.W.2d 822. Whether retrial violates ...


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