from an order of the circuit court for Racine County, No.
2013CF1742 EUGENE A. GASIORKIEWICZ, Judge. Affirmed.
Neubauer, C.J., Gundrum and Hagedorn, JJ.
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.
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
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.
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.
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). 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. Then the jury was
again instructed to continue deliberations.
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.
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." Based on the deadlock, the
court called the jury into the courtroom, declared a
mistrial, and dismissed the jurors.
The State sought to retry the case on the same charges. In
response, Alvarado filed a motion to dismiss the
second-degree charge. 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
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