State v. Moeck

2005 WI 57, 695 N.W.2d 783, 280 Wis. 2d 277, 2005 Wisc. LEXIS 162

• Court: Wisconsin Supreme Court
• Decided: May 6, 2005
• Docket: 2003AP2-CR
• Status: Published

Opinions

SHIRLEY S. ABRAHAMSON, C.J.

¶ 1. This is a review of a published decision of the court of appeals¹ reversing a judgment of conviction and an order denying post-conviction relief of the Circuit Court for La Crosse County, Michael Kirchman, Judge. The judgment and order stem from a fourth trial in which Richard Moeck, the defendant, was convicted of two counts of first degree sexual assault, one count of false imprisonment, one count of robbery, and one count of intimidation of a victim. In denying the defendant's motion for post-conviction relief, the circuit court concluded that the defendant's fourth trial following a mistrial in the third trial did not violate double jeopardy protections.

¶ 2. The court of appeals reversed the circuit court's judgment of conviction and order denying post-conviction relief. The court of appeals concluded that there was not a manifest necessity caused by defense counsel's opening statement in the third trial sufficient to warrant a mistrial, and therefore the fourth trial violated the defendant's right to be free from double jeopardy.

¶ 3. Two issues are presented to this court. First, did the court of appeals err as a matter of law in rejecting the State's argument that the "law of the case" doctrine applied because on two prior occasions the court of appeals rejected the defendant's challenge to the circuit court's order for a mistrial in the third trial? Second, were the Double Jeopardy Clauses of the U.S. and Wisconsin Constitutions violated when the defendant was retried a fourth time following a mistrial in the third trial on the basis of defense counsel's opening statement?

¶ 4. We hold that the court of appeals did not err as a matter of law in holding that the "law of the case" doctrine did not apply to the defendant's most recent challenge in the court of appeals to the circuit court's order granting a mistrial in the defendant's third trial. We further hold that because the State did not meet its burden of showing a manifest necessity for the termination of the third trial, the circuit court erred in granting the State's motion for a mistrial. Accordingly wé agree with the court of appeals that the fourth trial violated the defendant's right to be free from double jeopardy. We therefore affirm the decision of the court of appeals.

I

¶ 5. In addressing the first issue, the application of the law of the case doctrine, we set forth a brief narration of the procedural posture of the instant case and then examine whether the law of the case doctrine bars the court of appeals from overturning its two earlier decisions affirming the circuit court's order declaring a mistrial.

A

¶ 6. The following facts are undisputed. The defendant has been prosecuted four times for allegedly sexually assaulting and robbing the complainant, C.S., on August 2, 1997.

¶ 7. The defendant's first trial was in January 1998. The defendant testified. The trial ended in a hung jury.

¶ 8. The defendant's second trial was in March 1998. The defendant testified. The jury convicted the defendant. The conviction was overturned by the court of appeals in October 1999, on the ground that the circuit court committed reversible error in denying the defendant's request for a mistrial after the circuit court, during voir dire, inadvertently mentioned the defendant's repeat offender status three times. The court of appeals held that the curative jury instruction was not sufficient to correct the error.

¶ 9. The defendant's third trial was in March 2000. The defendant did not testify. The circuit court granted the State's motion for mistrial at the close of all the evidence. The defendant objected to the motion for mistrial. The events surrounding the mistrial are the subject of this review.

¶ 10. The defendant's fourth trial was in November 2000 before a different circuit court judge than the defendant's three prior trials.

¶ 11. The defendant moved to dismiss the fourth trial on double jeopardy grounds, arguing that there was no manifest necessity for ordering the mistrial at the third trial. The circuit court denied the motion; the court of appeals granted the defendant's leave to appeal the nonfinal order and affirmed the circuit court's order denying the defendant's motion to dismiss the fourth prosecution.

¶ 12. The defendant did not testify at the fourth trial. The jury convicted the defendant on all counts.

¶ 13. After the jury returned verdicts in the fourth trial finding him guilty, the defendant filed a petition for a writ of habeas corpus in the court of appeals challenging the effectiveness of counsel on the pretrial interlocutory appeal. The court of appeals concluded that, even assuming deficient performance, the defendant failed to prove prejudice because "no amount of advocacy would have convinced this court [of appeals] that the trial court unreasonably exercised its discretion [in granting a mistrial]."

¶ 14. The defendant then filed a postconviction motion in circuit court, again challenging the fourth trial on double jeopardy grounds. The circuit court once again rejected the defendant's double jeopardy challenge.

¶ 15. On the defendant's appeal of the conviction and order, raising his double jeopardy challenge for the third time, the court of appeals agreed with the defendant's double jeopardy argument, reversing the judgment of conviction and the order denying the defendant's motion for post-conviction relief. We granted the State's petition for review.

¶ 16. This review is a review of the court of appeals decision reversing a judgment of conviction and order entered in the defendant's fourth trial.² With respect to the law of the case doctrine, we are reviewing the court of appeals' decision in the instant case to disregard its two prior rulings upholding the validity of the circuit court's declaring a mistrial in the third trial. As we have explained, the court of appeals had twice ruled in the State's favor on the validity of the circuit court's declaring a mistrial. On the defendant's third challenge to the mistrial on appeal from the judgment of conviction, the court of appeals ruled against the State.

B

¶ 17. We now determine whether the law of the case doctrine bars the court of appeals from overturning its earlier decisions affirming the circuit court's order declaring a mistrial.

¶ 18. The law of the case doctrine is a "longstanding rule that a decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal."³

¶ 19. The State argues that because the court of appeals twice ruled that the circuit court's discretionary grant of a mistrial in the third trial was not violative of due process, the court of appeals violated the law of the case doctrine in the present case. There is no question that the court of appeals "reversed itself" in the instant case when it ruled that the circuit court erred in granting a mistrial in the third trial.

¶ 20. In response to the defendant's first double jeopardy challenge, the court of appeals declared in September 2000 that there was manifest necessity for the mistrial in the third trial and therefore there was no double jeopardy violation.

¶ 21. In response to the defendant's second double jeopardy challenge, the court of appeals held in June 2002 that no double jeopardy violation resulted from the mistrial.

¶ 22. In response to the defendant's third double jeopardy challenge, the court of appeals reversed course, holding for the defendant that the fourth trial was a violation of the prohibition against double jeopardy.

¶ 23. According to the State, when the issue of the validity of the mistrial arose a third time in the court of appeals, the court of appeals should have adhered to its two prior rulings that the circuit court did not err in granting the mistrial. The State argues that the defendant's double jeopardy challenge should have failed once again.

¶ 24. The issue of whether the two prior decisions of the court of appeals establish the law of the case raises a question of law that this court determines independently of the court of appeals, benefiting from the analysis of the court of appeals.⁴

¶ 25. The State recognizes, and we agree, that the law of the case doctrine is not an absolute rule that must be inexorably followed in every case.⁵ Courts have the power "to disregard the rule of 'law of the case' in the interests of justice" and to reconsider prior rulings in a case.⁶ We have recognized that" 'cogent, substantial, and proper reasons exist'" under which a court may disregard the doctrine and reconsider prior rulings in a case.⁷

¶ 26. The court of appeals' third review in the instant case of the defendant's double jeopardy challenge to the circuit court's declaration of the mistrial was apparently based on the same standard of review as were its first two reviews.⁸ It had determined twice before that the circuit court had not erroneously exercised its discretion in granting the mistrial. The difference warranting the court of appeals' reversing itself is that in the instant case the court of appeals examined all the facts, not just an incomplete version of the facts as it had before.

¶ 27. The court of appeals had based its prior decision that the circuit court properly exercised its discretion only on the circuit court's written order. In the instant case the court of appeals properly considered and based its decision on the transcript of the circuit court's oral decision. The court of appeals candidly acknowledged in the instant case that its prior summary order rejecting the defendant's double jeopardy challenges erroneously failed to take into account the circuit court's oral decision to grant a mistrial. Instead, the prior order relied on only the circuit court's later written decision.

¶ 28. The oral decision, in contrast to the written decision, demonstrated that in declaring a mistrial the circuit court erred as a matter of law in failing to exercise its discretion and by abdicating its responsibility to the State.⁹

¶ 29. At the State's request we examined the circuit court's oral and written decisions and conclude, as did the court of appeals, that they are different. Thus, the facts upon which the court of appeals relied changed between its first two rulings on double jeopardy and its decision in the instant case.

¶ 30. The court of appeals'failure to examine fully the circumstances surrounding the circuit court's grant of the mistrial in the third trial provides a cogent, substantial, and proper reason for the court of appeals' disregarding the law of the case doctrine in the instant case. The court of appeals' admitted lapses in considering the defendant's double jeopardy challenge should not eviscerate the defendant's constitutional protections. Although the court of appeals used the abdication issue, which was highlighted by the transcript of the oral proceedings, as grounds for disregarding the law of the case doctrine, we conclude, as will be discussed below, that the circuit court's failure to consider fully the prosecutor's ability to countermand defense counsel's opening statement, as well as the court's ability to give a curative jury instruction, are cogent, substantial, and proper reasons for revisiting the double jeopardy challenge.

¶ 31. We therefore conclude that the court of appeals properly disregarded the law of the case doctrine in the instant case. The prudential law of the case doctrine is not a bar in the instant case to the court of appeals' reexamination of the defendant's double jeopardy challenge.

II

¶ 32. We turn now to the second issue presented, double jeopardy. We must determine whether "the circuit court erred [in the third trial] when it determined that the State met its burden of showing the requisite manifest necessity to support the mistrial order that terminated" the defendant's third trial.¹⁰ We examine in turn: (A) the constitutional protection against double jeopardy and the manifest necessity standard used to determine whether a mistrial should be ordered; (B) the level of deference to be applied to a circuit court's mistrial order; (C) the circumstances leading up to the granting of the mistrial; and (D) our application of the constitutional principles and standard of review to the circumstances of the case.

¶ 33. The Fifth Amendment of the U.S. Constitution¹¹ and Article I, § 8 of the Wisconsin Constitution¹² provide that a defendant may not be put in jeopardy twice for the same offense.¹³ We recently explored the constitutional doctrine of double jeopardy in State v. Seefeldt, 2003 WI 47, ¶¶ 15-19, 261 Wis. 2d 383, 661 N.W.2d 822. That decision guides this case.

¶ 34. "Jeopardy" means exposure to the risk of determination of guilt. It attaches when the selection of the jury has been completed and the jury is sworn. The parties here do not dispute that jeopardy attached in all four trials. The constitutional protection against double jeopardy "embraces the defendant's valued right to have his trial completed by a particular tribunal."¹⁴ The protection against double jeopardy thus limits the State's ability to request that a trial be terminated and then restarted with a different jury.

¶ 35. Underlying the protection against cumulative trials are the principles of fairness and finality. "The underlying idea, one that is deeply ingrained ... is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty."¹⁵ Courts have recognized that the double jeopardy protection may be subverted if a circuit court terminates a trial prior to verdict, thereby taking from an accused the opportunity to gain an acquittal when the prosecution has been less persuasive than anticipated.¹⁶

¶ 36. An accused's right to have a trial concluded by a particular tribunal can be, under certain circumstances, subordinated to the public interest in affording the State one full and fair opportunity to present its evidence to an impartial jury.¹⁷

¶ 37. A mistrial is warranted if the mistrial is "manifestly necessary." The State bears the burden to demonstrate that a" 'manifest necessity' [exists] for any mistrial ordered over the objection of the defendant."¹⁸ A "manifest necessity" warranting a mistrial is a high degree of necessity.¹⁹ The determination whether a manifest necessity exists is a fact-intensive question. If the State does not meet this burden, the State is not permitted to commence another trial against the accused.

¶ 38. The circuit court granted the State's motion for a mistrial in the third trial after the jury had been sworn, and the defendant objected to the State's motion. Accordingly, the circuit court's granting the mistrial implicated the double jeopardy clause. The State was thus required to demonstrate that there was a manifest necessity to terminate the third trial.

¶ 39. The defendant asserts that his constitutional right against double jeopardy was violated by his fourth trial because no manifest necessity existed for a mistrial after the close of evidence during the third trial.

B

¶ 40. Before reviewing the record to determine whether the State has met its burden, we address the level of deference this court must accord a circuit court's discretionary order declaring a mistrial.

¶ 41. The level of deference we accord a circuit court's order for a mistrial depends on the particular facts of each case.²⁰ There is a spectrum of deference to a circuit court's exercise of its discretion in granting a mistrial.²¹ In cases like the present one, in which a mistrial was ordered on the basis of defense counsel's opening statement, a circuit court's determination "is entitled to special respect."²²

¶ 42. The conclusion that a circuit court's exercise of discretion is entitled to special respect does not end the inquiry. Because of the constitutional implications of double jeopardy, an appellate court must satisfy itself that a circuit court exercised "sound discretion" in declaring a mistrial²³

¶ 43. This court has articulated various considerations that factor into determining whether a court exercised sound discretion. We have described sound discretion as "acting in a rational and responsible manner."²⁴ Sound discretion further includes "acting in a deliberate manner taking sufficient time in responding to a prosecutor's request for a mistrial."²⁵ Sound discretion requires giving both parties a full opportunity to explain their positions and considering alternatives such as a curative instruction or sanctioning counsel.²⁶ Sound discretion also requires that a circuit court ensure that the record reflects that there is an adequate basis for a finding of manifest necessity.²⁷ Finally, "[s]ound discretion is not exercised when the circuit court fails to consider the facts of record under the relevant law, bases its conclusion on an error of law or does not reason its way to a rational conclusion."²⁸

¶ 44. We conclude, as we did in Seefeldt, that "regardless of the level of deference to be applied in this case, the circuit court erred in terminating [the defendant's prior trial]."²⁹

C

¶ 45. We now examine the events at the third trial in the circuit court leading to the mistrial.

¶ 46. The incident that gave rise to the mistrial occurred early in the defendant's third trial. During opening arguments defense counsel discussed at length the defendant's anticipated trial testimony. Defense counsel told the jury that the defendant would testify that the victim was lying, that no assault or robbery occurred, that the victim offered to sell drugs to the defendant, that the victim stole money out of the defendant's wallet, and that the victim went to the police with a false accusation of sexual assault and robbery. The defense counsel thus painted the victim as a drug user and dealer, a liar, and a thief. The defense counsel presented the defendant's version of the events of August 2, 1997, as follows:

On this morning, ladies and gentlemen, what happened, Rich is asleep in his apartment. [C.S.] knocks on the door. Rich says it was 3:09 in the morning because there was a digital clock up on his refrigerator and he wakes up and he happens to notice the time. He recognizes [C.S.] from a meeting that they had a month ago at Kenny's Pub here in La Crosse and at that time they discussed casual marijuana use and Rich said, you know, if you're ever looking to sell some, you know, stop by. [C.S.] comes to Rich's apartment with marijuana looking to sell marijuana that night to Rich. He also asks if he can crash at his place and, in fact, he does spend the evening at Rich's apartment. The reason he stays there is 'cause he says he's tired and he's high at that point. He tells Rich that he had taken a couple hits of LSD just prior to him getting to his apartment.

The next morning they wake up and they discuss this marijuana and Rich says, well, I only want 20 or $30 worth. Rich then goes out into the hallway where the bathrooms are. He doesn't have a bathroom in his apartment. It's out in the hallway. He goes out there. He comes back in, and he notices that the money that was on the counter is now gone. It's missing, and he asks [S.], well, where's the money, and [S.] denies, well, I don't have the money. And he says, where's the money, and finally [S.] says, okay, I've got it, and he pulls it out of his sock and gives him his money. At that point Rich is mad and he kicks and pushes him out of the apartment, kicks him out of the building, out the back fire door which is just outside of his apartment door.

At that point [S.] is gone. Rich goes back into his apartment, grabs something to eat, goes back to sleep, and then he's awakened at 11 or a little after 11 o'clock by the police that morning and they execute a search warrant and Rich is arrested.

And that story, ladies and gentlemen, is the only story that's been consistent throughout this case. . . . (R.233:30-31.)

¶ 47. The prosecuting attorney objected several times during defense counsel's opening statement, but not to this description of the defendant's version of the events of August 2, 1997.

¶ 48. The victim and police officer testified and were subject to defense counsel's cross-examination. The cross-examination pointed out inconsistencies in the victim's statements and the weaknesses in the police officer's investigation, including failure to collect biological evidence and failure to interview neighbors or bar patrons who might corroborate the victim's story.

¶ 49. Although the defendant had testified at his first two trials, the defendant did not testify during the third trial.³⁰ The defendant's decision not to testify was apparently made at the close of the State's evidence. The defendant and his counsel apparently were confident that the State had failed to meet its burden of proof. As a result, the defendant did not present any evidence to substantiate defense counsel's opening statement of the defendant's version of the events. The defendant's version was thus presented to the jury through defense counsel's opening statement. The State had no opportunity to cross-examine the defendant.

¶ 50. During the jury instruction conference, the State requested a curative instruction to address defense counsel's opening statement. The State presented its view as follows:

Judge, and that's one that in this case [defense counsel] got up in his opening statement and he argued in the opening statement about facts that are in no way in evidence concerning the fact[s in that portion of the opening statement.]... I mean, he went through the whole scenario, and we have heard that scenario before when the defendant has testified at the previous trials. Now, however, the defendant has opted not to testify and all of that evidence is in there from the opening statement. There has been no evidence presented at all to corroborate that and now he doesn't put the defendant on to make any effort to corroborate it, so I think that's completely unethical, but aside from that, I think that there has to be an instruction to the jury that they are to disregard that and not consider any of that portion of the opening statement. (R.233:300.)

¶ 51. Defense counsel explained that he could not know when making his opening statement that the defendant would opt not to testify, especially given that the defendant had testified at two earlier trials conducted by another defense attorney.

¶ 52. The State, defense counsel, and the circuit court discussed the wording of a curative instruction.

¶ 53. The prosecuting attorney was concerned what, if any, argument she could make in response to defense counsel's unsubstantiated opening statement. The prosecuting attorney did not want to run the risk of making improper comments on the defendant's failure to testify, an error that might necessitate yet another trial. The prosecuting attorney sought clarification of what she would be allowed to say in closing argument. She explained:

I would have every intention of not being very kind to [defense counsel] in that closing argument regarding that, and I think I should have the opportunity to, you know, at least make that statement, that a fictional tale was presented and there has been no effort to support that with any evidence. He's basically slinging mud at a victim without any effort to support his statements.

¶ 54. In response, defense counsel suggested a curative instruction and stated that he doubted the jurors are "gonna hang their hat on something that I said ten hours ago." The circuit court reacted to defense counsel's remarks, saying: "It's not quite that simple . . . . "

¶ 55. Although defense counsel was willing to waive any objection to the prosecuting attorney's reference to the defendant's failure to testify, the defendant was not.

¶ 56. The circuit court acknowledged the State's dilemma: The defendant in effect put in his defense without testifying; the State was not able to cross-examine the defendant; and the extent to which the State could comment on the defendant's failure to testify without courting reversible error was unclear.³¹ The circuit court explained the dilemma as follows:

Yeah, it seems to me the State is in a bind, you know, and might well be entitled to a mistrial. This is the instruction I propose to try to correct that, but the State is gonna be in a bind in argument because they can't directly comment on the defendant not testifying.... (R.233.-302.)

¶ 57. After discussion among the prosecuting attorney, defense counsel, the defendant, and the circuit court, the circuit court explained that it was willing to give the jury an instruction that statements of the attorneys are not evidence. The circuit court also mentioned that the State might consider a motion for a mistrial. The circuit court concluded that "the State under the circumstances now would be entitled to a mistrial if they wanted one."

¶ 58. The circuit court then asked the State whether it wanted to proceed with a curative instruction or to seek a mistrial:

Do you want to go ahead or not? I mean, I told [the prosecutor], it's on the record, I'm not gonna take it back, I think under — the State under the circumstances now would be entitled to a mistrial if they wanted one. My logic for that is that scenario is in the jury's mind without subject, as we do in trials, to cross-examination. (R.233:306.)

¶ 59. The prosecutor, an assistant district attorney, conferred with the district attorney regarding whether to ask for a mistrial. The State then requested a mistrial, contending that a curative instruction would not erase the defendant's version of the events from the jurors' minds:

I think I'm gonna ask for a mistrial, Judge. I'm not gonna be able to erase those facts. I can't argue them on — in my oral argument because I didn't have a chance to cross-examine him about it. It's not even out there before the jury. (R.233:307.)

¶ 60. The circuit court then asked the State: "Is that your final answer . . . ?" The State responded "Yes." The circuit court declared a mistrial.

D

¶ 61. We now apply the principles of constitutional protection against double jeopardy and the standard of review to the facts of the case.

¶ 62. We approach this part of the opinion bearing in mind a concern about "gamesmanship" in opening statements. The trepidation is that a defense counsel or an accused will use an opening statement to furnish a defense unsupported by evidence. A savvy accused would then invoke his or her right not to testify. This tactic would result in the jury having heard the accused's unchallenged theory of the case, denying the State the opportunity to cross-examine the accused. The State does not contend that defense counsel was engaging in gamesmanship or sandbagging or acting in bad faith when defense counsel made opening statements at the defendant's third trial. Therefore, gamesmanship, sandbagging and bad faith by the defendant or defense counsel are not at issue in the instant case.

¶ 63. We agree with the State that defense counsel "should not allude to any evidence unless there is good faith and reasonable basis for believing such evidence will be tendered and admitted in evidence."³² The Rules of Professional Conduct for Attorneys also address this issue, providing that a lawyer shall not "in trial, allude to any matter that... will not be supported by admissible evidence."³³ We also agree with the State that it is unfair to an opposing party to allow an attorney to present to the jury statements not susceptible to proof but that are intended to influence the jury in reaching a verdict.³⁴

¶ 64. The circuit court and the State take the position that defense counsel's opening statement was improper because the evidence did not support the opening statement.

¶ 65. The State does not contend that defense counsel's opening statement was in bad faith, that is, the State does not contend that defense counsel had a reasonable basis to believe that his opening statement would not be supported by admissible evidence. The defendant's position in the present case is that defense counsel's opening statement was offered with the reasonable expectation that the defendant would testify and that the opening statement conformed to the defendant's testimony in the prior trials. Defense counsel asserted that he expected the defendant to testify (as the defendant had in prior trials), but he did not know in fact whether the defendant would testify.³⁵

¶ 66. Because this case does not raise the issue of an attorney's making an opening statement in bad faith, we do not address that circumstance.

¶ 67. The State understandably expresses irritation with defense counsel for not waiting until the outset of the defense case to present his opening statement. This simple measure could have prevented the mistrial. The circuit court expressed similar sentiments. We must recognize, however, that defense counsel had the right to make an opening statement when he did, as long as it was made in good faith, and that nothing would have kept his client from opting not to testify' at the last moment.

¶ 68. We agree with the State that a circuit court may, in an appropriate case, declare a mistrial on the basis of an opening statement that summarizes evidence that is not produced. We disagree with the State, however, that the circuit court exercised sound discretion in granting the mistrial in the defendant's third trial.

¶ 69. The circuit court did not exercise sound discretion, according to the defendant and the court of appeals, when the circuit court committed an error of law by abdicating its discretion to the State. The defendant argues and the court of appeals held that the State, not the circuit court, decided whether to grant a mistrial.³⁶ If this view of the record is accepted, the circuit court erred by not deciding the question of a mistrial, instead allowing the State to choose between a curative jury instruction and a mistrial.³⁷

¶ 70. We need not determine whether the circuit court abdicated its responsibility to the State or whether the circuit court was merely asking the State and the defense counsel about their respective views of a mistrial.

¶ 71. We conclude that the circuit court did not exercise sound discretion in declaring a mistrial when it failed to give adequate consideration to the State's ability to refer to the defendant's silence and to the effectiveness of a curative jury instruction. Although the circuit court expressed its belief that the State's response and a curative jury instruction could not rectify any prejudice caused by defense counsel's opening statement, this belief is unfounded.

¶ 72. We have described sound discretion as "acting in a rational and responsible manner."³⁸ Sound discretion is not exercised when a circuit court bases its declaration of a mistrial on an error of law. Sound discretion includes considering alternatives such as a curative jury instruction.

¶ 73. The circuit court erred as a matter of law in its assessment of the State's inability in closing argument to rebut the defense counsel's opening statement. The circuit court overstated the difficulty the prosecuting attorney would have in both commenting on the weakness of the opening statement and avoiding error by referring to the defendant's failure to testify.

¶ 74. The circuit court was correct that a prosecuting attorney ordinarily may not comment on an accused's decision not to testify.³⁹ There are circumstances, however, when an accused "opens the door" to a measured response by the prosecuting attorney.⁴⁰ The defendant opened the door in the instant case. It is impossible to draw "a bright line for all cases between permissible and impermissible comment;"⁴¹ whether a prosecutorial comment crosses over "into the forbidden area of comment on an accused's failure to testify"⁴² and "violates constitutional rights must be made case by case."⁴³ We conclude, however, under the circumstances of the instant case, that the circuit court did not give adequate consideration to the State's response and to a curative instruction.

¶ 75. The circuit court's error of law is evidenced by State v. Johnson, 121 Wis. 2d 237, 358 N.W.2d 824 (Ct. App. 1984), in which the court of appeals addressed a prosecutor's ability to comment on an accused's failure to testify after the accused gave his account of events during opening statements but later refused to testify. In Johnson, the defendant gave his own opening statement, but later did not take the stand in his own defense.

¶ 76. In closing remarks, the prosecutor in Johnson drew the jury's attention to the distinction between argument and evidence.⁴⁴ The court of appeals in Johnson affirmed the circuit court's allowing the prosecutor's closing arguments.⁴⁵ The court of appeals explained the validity of the prosecutor's statements in Johnson as follows:

The [prosecutor's closing] remarks were aimed at drawing the jury's attention to the distinction between arguments and evidence. This is in precise keeping with the thrust of the standard instruction concerning arguments of counsel. In both opening and closing statements, the prosecutor equated [the defendant's] statement with his own (the prosecutor's) and stressed that neither constituted evidence. Indeed, the prosecutor invited close juror attention to what both he and [the defendant] had to say.⁴⁶

¶ 77. The circuit court erred as a matter of law in the instant case by concluding that the prosecuting attorney could not effectively countermand defense counsel's opening statement.⁴⁷

¶ 78. The jury, after the prosecutor's closing argument and a curative jury instruction, could have been sufficiently admonished in the instant case that any unsubstantiated statements made by defense counsel in opening statements do not constitute evidence. Any prejudice to the State by defense counsel's opening statement would be outweighed by defense counsel's loss of credibility with the jury for his unsubstantiated opening statement.

¶ 79. We therefore conclude that in the instant case the prosecuting attorney's closing argument referring to defense counsel's opening statement as unsubstantiated, along with a curative jury instruction that opening and closing statements are arguments, not evidence, would have cured any possible prejudice resulting from defense counsel's opening statement. Accordingly, we conclude that it was unreasonable as a matter of law for the circuit court to conclude that there was a manifest necessity requiring a mistrial in the third trial.

* ‡ ‡ $

¶ 80. For the foregoing reasons, we hold that the court of appeals did not err as a matter of law in. holding that the "law of the case" doctrine did not apply to the defendant's third challenge in the court of appeals to the circuit court's granting a mistrial in the third trial. We further hold that because the State did not meet its burden of showing a manifest necessity for the termination of the third trial, the circuit court erred in granting the State's motion for a mistrial. Accordingly, we agree with the court of appeals that the fourth trial violated the defendant's protection against double jeopardy. We therefore affirm the decision of the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

¶ 81. PATIENCE DRAKE ROGGENSACK, J., did not participate.

1 State v. Moeck, 2004 WI App 47, 270 Wis. 2d 729, 677 N.W.2d 648.

2 Moeck, 270 Wis. 2d 729, ¶ 8.

3 Univest Corp. v. Gen. Split Corp., 148 Wis. 2d 29, 38, 435 N.W.2d 234 (1989).

4 State v. Wurtz, 141 Wis. 2d 795, 799, 416 N.W.2d 623 (Ct. App. 1987).

5 "[T]he law of the case doctrine is not a rule to which this court is bound by any legislative enactment, nor it is a rule to be inexorably followed in every case." Univest, 148 Wis. 2d at 38-39.

6 State v. Brady, 130 Wis. 2d 443, 448, 388 N.W.2d 151 (1986) (quoting McGovern v. Eckhart, 200 Wis. 64, 75, 227 N.W 300 (1929)). The United States Supreme Court has stated similar reasons. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988).

7 Univest, 148 Wis. 2d at 39 (quoting Brady, 130 Wis. 2d at 447 (citing McGovern, 200 Wis. at 78)).

8 The parties debate whether State v. Seefeldt, 2003 WI 47, 261 Wis. 2d 383, 661 N.W.2d 822, changed the deferential erroneous exercise of discretion standard for review the court had previously adopted in double jeopardy cases. The defendant argues that Seefeldt, issued after the two court of appeals decisions affirming the circuit court's denial of the defendant's double jeopardy challenge, changed the standard for review. The State counters that Seefeldt was not a change in the law and therefore should not be the basis for departure from the law of the case doctrine. We need not address this issue because the departure from the law of the case doctrine is justified on other grounds.

9 Moeck, 270 Wis. 2d 729, ¶ 21.

10 Seefeldt, 261 Wis. 2d 383, ¶ 13.

11 The Fifth Amendment to the U.S. Constitution provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb ...."

12 Article I, § 8 of the Wisconsin Constitution provides: "[N]o person for the same offense may be put twice in jeopardy of punishment. ..." This court has been guided by U.S. Supreme Court double jeopardy jurisprudence in construing Wisconsin's double jeopardy prohibition. Seefeldt, 261 Wis. 2d 383, ¶ 15 n.4 (citing State v. Barthels, 174 Wis. 2d 173, 181, 495 N.W.2d 341 (1993)).

13 Seefeldt, 261 Wis. 2d 383, ¶ 15.

14 Arizona v. Washington, 434 U.S. 497, 503 (1978) (internal quotation and citation omitted).

15 Green v. United States, 355 U.S. 184, 187-88 (1957). See also State v. Barthels, 174 Wis. 2d 173, 181-82, 459 N.W.2d 341 (1993) (quoting Green); State v. Comstock, 168 Wis. 2d 915, 937, 485 N.W.2d 354 (1992).

16 Green, 355 U.S. at 188.

17 Washington, 434 U.S. at 505.

18 Seefeldt, 261 Wis. 2d 383, ¶ 19.

19 Id. (citing Washington, 434 U.S. at 505; Barthels, 174 Wis. 2d at 183). This court has also cited approvingly Justice Story's articulation of the manifest necessity test: "Courts of justice [may] discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated." Barthels, 174 Wis. 2d at 183 (citing State v. Copening, 100 Wis. 2d 700, 709, 303 N.W.2d 821 (1981) (quoting United States v. Perez, 22 U.S. (9 Wheaton) 579, 580 (1824)).

20 Seefeldt, 261 Wis. 2d 383, ¶ 13 (citing State v. Barthels, 174 Wis. 2d 173, 184, 495 N.W.2d 341 (1993)).

21 Id., ¶ 25 (citing Washington, 434 U.S. at 507-08).

22 Id., ¶ 27 (quoting Washington, 434 U.S. at 510).

23 Washington, 434 U.S. at 514. "Regardless of the level of deference to be applied, 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 (citing Washington, 434 U.S. at 514 (1978)).

24 Seefeldt, 261 Wis. 2d 383, ¶ 36.

25 Id.

²⁶

27 Id., ¶ 37.

28 Id., ¶ 36.

29 Id., ¶ 14.

30 The defendant also did not testify at his fourth trial.

31 See Griffin v. California, 380 U.S. 609, 614-15 (1965) (the right to remain silent is violated when during a criminal trial the State comments on an accused's silence).

32 American Bar Ass'n, Standards for Criminal Justice— Prosecution Function and Defense Function, § 4-1 A, at 218-19 (3d ed. 1993).

33 SCR 20:3.4(e).

34 United States v. Dinitz, 424 U.S. 600, 612 (1976) (Burger, C.J., concurring).

35 The instant case can be compared with Arizona v. Washington, in which the defendant's opening argument referred to inadmissible evidence. Washington, 434 U.S. at 499-500.

36 Moeck, 270 Wis. 2d 729, ¶ 13.

37 Id., ¶ 23.

³⁸

39 Griffin v. California, 380 U.S. 609, 614-15 (1965).

40 United States v. Robinson, 485 U.S. 25, 31-34 (1988); State v. Keith, 216 Wis. 2d 61, 80-83, 573 N.W.2d 888 (Ct. App. 1997); State v. Johnson, 121 Wis. 2d 237, 247-49, 358 N.W.2d 824 (Ct. App. 1984).

41 State v. Edwardsen, 146 Wis. 2d 198, 215, 430 N.W.2d 604 (Ct. App. 1988).

⁴²

⁴³

44 In Johnson the relevant portion of the prosecutor's closing argument was as follows:

Let's reflect first upon the opening statement that was given by [the defendant]. First of all just as in my opening statement you understand that [the defendant] was not testifying. [The defendant] was not under oath, [the defendant] was not subjecting himself to cross examination in that opening statement. What he said he was entitled to say just as I was entitled to tell you what I did during my opening statement but it was not evidence, not when I said what I said and when [the defendant] said what he said but remember some of the things he said in that prepared statement he read. He said that the State would not he able to prove what he intended to do on that evening. I submit to you that we have proved beyond any doubt whatsoever what he intended to do that evening and we will review that evidence and see whether you don't agree with me on that.

Johnson, 121 Wis. 2d at 243-44 n.2.

45 See also Edwardsen, 146 Wis. 2d at 214 (when the accused comments on his own silence and gives factual reasons for that silence, the State does not violate the defendant's constitutional right by presenting other explanations to the jury; the State is commenting on unsworn testimony and not on the accused's right to silence).

46 Johnson, 121 Wis. 2d at 247-48.

47 The State argues that the circuit court was reasonable in declaring a mistrial rather than giving a curative instruction in light of the procedural history of the case. The court of appeals had held that a curative instruction was not sufficient in the second trial to correct the error caused by the circuit court's inadvertent reference during voir dire to the defendant's status as a repeat offender. The State argues that with a curative instruction the State risked a reversal for violation of the defendant's Fifth Amendment privilege against self-incrimination. Perhaps, but a reversal would enable the State to bring yet another prosecution. A mistrial here means the State cannot bring another prosecution.