text:
    State of Wisconsin, Plaintiff-Respondent, v. Yediael Yokrawn Backstrom, Defendant-Appellant.
    Court of Appeals

      No. 2005AP1270-CR.

      Submitted on briefs April 4, 2006.

      Decided May 9, 2006.

    2006 WI App 114
    (Also reported in 718 N.W.2d 246.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Timothy A. Provis, Port Washington.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general and Jeffrey J. Kassel, assistant attorney general.
    Before Wedemeyer, PJ., Fine and Curley, JJ.
   WEDEMEYER, P.J.

¶ 1. Yediael Yokrawn Back-strom appeals from a judgment entered after a jury found him guilty of one count of second-degree sexual assault of a child, contrary to Wis. Stat. § 948.02(2) (2003-04). He contends the trial court erroneously exercised its discretion in denying his motion seeking to suppress the statement he made to the prosecutor admitting sexual contact with the thirteen-year-old victim, VJ. He argues that the prosecutor's failure to re-advise him of his Miranda rights before questioning him violates his privilege against self-incrimination. Because the record demonstrates that Backstrom recalled and understood his Miranda rights from the full and proper recitation twenty-one hours earlier, the prosecutor was not required to formally re-advise him. Accordingly, we affirm the judgment.

BACKGROUND

¶ 2. On July 13, 2003, at approximately 11:10 a.m., Backstrom was arrested in his home and taken to the police administration building. The arrest was based on the following facts reported by VJ., then thirteen years old. She stated that on June 28, 2003, she had been babysitting her cousin Rhonda's six children. Backstrom lived with Rhonda and was the biological father of three of her children. Sometime later in the evening, Backstrom drove VJ. home. When they got to VJ.'s home, he parked the car and began asking VJ. questions about sex. He then asked her if she wanted to have sexual intercourse and she said yes. He told her to get into the backseat of the car and pull down her pants. She complied. He then pulled down his pants, put a condom on his penis and had one act of penis-to-vagina sexual intercourse. Afterwards, V.J. exited the car, and he told her not to tell anyone.

¶ 3. VJ. also reported that a few days before July 4th, she was at Rhonda's house watching a movie. She said everyone fell asleep except for her and Backstrom. He motioned for VJ. to go into the bathroom. He followed her into the bathroom and asked her to perform oral sex. She told him no and then he told her to turn around and bend over. He then put a condom on and proceeded to have vaginal sexual intercourse with her from behind.

¶ 4. When Backstrom was brought to the police administration building to be questioned about these incidents, he was advised of his Miranda rights by Detective James Andritsos. The notification of his rights occurred at about 1:00 p.m. on July 13, 2003. Backstrom told Andritsos that he understood each of the rights read to him and that he was willing to speak with the detective. Backstrom denied having any sexual contact with VJ. After about one hour of discussion, Backstrom was placed in the jail.

¶ 5. The next morning, Assistant District Attorney Jane Carroll told Andritsos that she wanted to speak with Backstrom. Carroll had reviewed the accounting of the facts from the detective and had spoken with the victim. Carroll indicated that she wanted to assess Backstrom's credibility. At about 9:43 a.m., An-dritsos brought Backstrom, who was in custody, to Carroll's office. Andritsos remained in the office while Backstrom and Carroll spoke. Carroll informed Back-strom who she was and that she was reviewing the case against him to decide what, if anything, he would be charged with. She also asked Backstrom if he recalled Andritsos advising him of his rights on the preceding day. Backstrom answered affirmatively. Carroll also asked Backstrom if he remembered what his rights were. Backstrom replied that he did. Carroll then told Backstrom that all of those rights still applied, that he did not have to speak with her if he did not want to, that he had the right to have an attorney present, and he had a right to all of the other things that Andritsos had advised him of the day before. Backstrom indicated that he understood all of that. Backstrom indicated that he would speak with Carroll and did so for approximately fifteen to twenty minutes. During this conversation, he admitted having sexual contact with VJ. in his car. He denied having any sexual contact with her in the bathroom.

¶ 6. Subsequently, Backstrom was charged with two counts of second-degree sexual assault of a child. He entered a not guilty plea and filed a motion seeking to suppress the statement he made to Carroll. The trial court conducted a Miranda-Goodchild hearing to review the sufficiency of the Miranda warnings and assess the voluntariness of the statement Backstrom gave during his interview with the prosecutor. At the conclusion of the hearing, the trial court concluded that the Miranda warnings given to Backstrom by Andritsos on July 13th were properly, adequately and sufficiently given. The trial court noted that there was no dispute that the Miranda rights were given directly from the Department of Justice card. With respect to the conversation the next day with Carroll, the trial court made the following findings:

After being brought into Ms. Carroll's office, [Back-strom] sat across the desk from her. She introduced herself as an assistant district attorney and someone who would determine what if any charges would be filed against him or issued against him. The detective remained in the room during that entire time which lasted approximately 15 to 20 minutes. She specifically asked the defendant if he remembered Detective Andritsos. The defendant acknowledged that he did. She specifically then asked him if he remembered — or did he remember being told by Detective Andritsos or words to . .. that effect, and I'll let her statements in the record be the accurate finding here because I adopt them since they are uncontroverted, and I found them credible when Ms. Carroll stated them asking the defendant if he remembered being advised of his constitutional rights the day before in the interview with that detective. The defendant indicated that he did. She reviewed a couple of those rights, not all of them. She reviewed for example the right that he didn't have to talk to her and that he could have an attorney present during the conversation. She did not reference he could stop talking to her whenever he wanted, he could obtain an attorney or one would be appointed for him, and so on. She asked if he understood those rights. He responded that he did. She told him that those rights still apply today. The record indicates — and I so find — that he understood that.

¶ 7. Based on these findings, the trial court concluded that under the totality of circumstances, the prosecutor was not required to formally re-advise Back-strom of his Miranda rights. The trial court also concluded that the statement Backstrom made was a voluntary statement.

¶ 8. The case proceeded to trial and Backstrom was convicted of the first count relating to the incident in his car. Judgment was entered. He now appeals.

DISCUSSION

¶ 9. Backstrom raises a single issue in this appeal: whether his constitutional rights were violated when the prosecutor failed to formally re-advise him of his Miranda rights before conducting the interview in her office. In reviewing a motion to suppress an inculpatory statement, our standard of review is mixed. See State v. Turner, 136 Wis. 2d 333, 343-44, 401 N.W.2d 827 (1987). We will uphold a trial court's findings of historical or evidentiary facts as long as they are not clearly erroneous; however, we independently determine whether those facts resulted in a constitutional violation. Id.

¶ 10. The parties agree that Miranda warnings are required before a defendant may be questioned by a prosecuting attorney. The parties, however, disagree as to whether the Miranda requirement was satisfied under the facts and circumstances presented in this case. Backstrom, citing State v. DeWeese, 582 S.E.2d 786 (W. Va. 2003), contends that the waiver he gave to Andritsos twenty-one hours before talking to the prosecuting attorney should not be considered effective, and thus, his statement should have been suppressed. The State responds that, based on Wisconsin case law, the Miranda warnings Backstrom received the day before giving his statement to Carroll, as refreshed by Carroll in her office, were sufficient to satisfy the constitutional requirements. See State v. Jones, 192 Wis. 2d 78, 532 N.W.2d 79 (1995); State v. Fillyaw, 104 Wis. 2d 700, 312 N.W.2d 795 (1981); Grennier v. State, 70 Wis. 2d 204, 234 N.W.2d 316 (1975).

¶ 11. Based on the record presented, we conclude that the trial court did not err in failing to suppress Backstrom's statement. The trial court's findings, which are supported by the testimony from the Miranda-Goodchild hearing, are not clearly erroneous. The record demonstrates that Backstrom was properly advised of his Miranda rights during his conversation with Andritsos on July 13th and that he agreed to waive those rights. He then was reminded of those rights the next morning when he was brought into Carroll's office. Backstrom himself admitted during his trial testimony that he remembered Carroll asking him if he recalled Andritsos advising him of the Miranda warnings, and that he said he did in fact recall being read his rights.

¶ 12. Given this factual backdrop, we now review pertinent case law of this state. In Grennier, the defendant was arrested by a Milwaukee police officer, who read him his Miranda warnings several times during the morning of January 23, 1973. Id., 70 Wis. 2d at 207. The defendant was read his rights for the final time at 10:45 a.m. Id. Then, he was taken to the Oak Creek Police Department and questioned by detectives there starting at 12:40 p.m. Id. at 207-08. The Oak Creek detectives again advised the defendant of his Miranda warnings; however, the defendant later argued that the warnings given in Oak Creek were constitutionally insufficient. Id, at 212. It was undisputed that the Miranda warnings given by the Milwaukee police were sufficient. Id. at 213.

¶ 13. Our supreme court held that, under these circumstances, the confession given to the Oak Creek detectives was admissible. Id. That conclusion was based in part on the holding in Blaszke v. State, 69 Wis. 2d 81, 230 N.W.2d 133 (1975), wherein the court held that when Miranda rights are properly administered, it is not necessary to re-administer the Miranda warnings at a subsequent interrogation if it is undisputed that the defendant understood his rights. Grennier, 70 Wis. 2d at 213 (citing Blaszke). "It would be strange indeed for this court to hold that, where within the space of a few hours a defendant has been properly advised of his rights, a subsequent confession would be vitiated by an admonition that was somewhat less than technically perfect." Id.

¶ 14. In applying the Grennier rule of law to this case, we conclude, under the totality of the circumstances, that it was not necessary for Carroll to formally re-advise Backstrom of his Miranda rights. It is undisputed that Backstrom had been advised of his rights the day before, and he clearly indicated to Carroll in her office that he remembered those rights and understood those rights. Under these circumstances, we conclude that Backstrom's constitutional rights were not violated and therefore the statement he made to Carroll was admissible.

¶ 15. Similarly, the holdings in Fillyaw and Jones also support our conclusion that the Miranda warnings Backstrom received were constitutionally sufficient. In Fillyaw, the defendant contended that the statement he gave to police on February 3, 1977, should have been suppressed because the recital of the Miranda warnings that preceded that interrogation was incomplete. Fillyaw, 104 Wis. 2d at 723. Our supreme court rejected his argument because he had been given correct Miranda warnings three times the previous day. Id. at 723-25.

These prior recitals of the Miranda rights are clearly significant in determining whether a defendant has been adequately informed of his constitutional rights. It is not necessary to repeatedly recite the Miranda warnings during an investigation of the same person for the same crime in order to satisfy the constitutional requirement that the defendant be apprised of his rights.

Id. at 725.

¶ 16. In Jones, the defendant was twice advised of his Miranda rights on the morning of May 17, 1991, by a sheriffs deputy and an intake worker. Jones, 192 Wis. 2d at 86-90. Later that morning, a captain in the sheriffs department interviewed the defendant. Id. at 90-91. Before commencing the interview, the captain asked the defendant if he had been informed of his rights and the defendant acknowledged that he had. Id. at 91. The captain then asked if the defendant understood that those same rights still applied and the defendant said that he did. Id. On appeal, the defendant claimed that the captain should have re-read the Miranda warnings prior to the interrogation. Id. at 99. Once again, our supreme court rejected this argument based on the well-established law in Fillyaw. Jones, 192 Wis. 2d at 99. The court held that the circumstances in Jones were sufficient to satisfy the constitutional rights of the defendant. Id.

¶ 17. Based on this pertinent case law, we conclude under the totality of the circumstances, that Baekstrom was properly advised of his rights, that he understood his rights, and that the trial court did not err in denying his motion seeking to suppress the statement he made during his interview with Carroll.

By the Court. — Judgment affirmed.

       An amended judgment was entered after the original judgment making revisions to the restitution award. The amended restitution award is not pertinent to the issue on appeal.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

        See Miranda v. Arizona, 384 U.S. 436 (1966).

       Backstrom was originally charged with only one count of second-degree sexual assault of a child; however, an amended information was filed ultimately charging him* with two counts of second-degree sexual assault of a child.

        See State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 N.W.2d 753 (1965).

       Backstrom's waiver during the initial interview is significant. If he had declined to speak with Andritsos, we would need to review different case law. See State v. Turner, 136 Wis. 2d 333, 343-44, 401 N.W.2d 827 (1987).

       Backstrom suggests that we review this case based on the criteria set forth in a West Virginia case, State v. DeWeese, 582 S.E.2d 786 (W Va. 2003). Because pertinent Wisconsin case law exists to resolve the issue in this case, we need not resort to reliance on foreign cases.


source: Caselaw Access Project

author: SNYDER, P.J.

license: Public Domain

text:
    In the Matter of the Guardianship of Nicholas C. L., a minor: Nicholas C. L., Martin L., and Marlene L., Petitioners-Appellants, v. Julie R. L., Respondent-Respondent.
    Court of Appeals

      No. 2005AP1754.

      Submitted on briefs March 7, 2006.

      Decided May 10, 2006.

    2006 WI App 119
    (Also reported in 719 N.W.2d 508.)

      On behalf of the petitioners-appellants, the cause was submitted on the briefs of Raymond E. Krek, Joann L. Miller, and Shawna L. Lee of Krek & Associates, S.C., Jefferson, and Christopher D. Walther of Walther Law Offices, S.C., Milwaukee.

      On behalf of the respondent-respondent, the cause was submitted on the brief of Thomas M. Bartell, Jr., and Michael A. Baird of Stupar, Schuster, & Cooper, S.C., Milwaukee.
    A nonparty brief was filed by Michael J. Finn of Law Office of Michael Finn, Hartland.
    Before Snyder, EJ., Nettesheim and Anderson, JJ.

       Petition to review denied 10-10-06.

   SNYDER, P.J.

¶ 1. Nicholas C.L., Martin L., and Marlene L. appeal from an order dismissing Martin and Marlene's petition for guardianship of Nicholas. They contend that the circuit court erred in several respects, including applying an incorrect standard of law, imposing an improper burden of proof, and erroneously exercising its discretion when ruling on the credibility of witnesses. The record demonstrates that this was extremely contentious litigation, fraught with tragic circumstances, emotional pleas, and disquieting reports from experts. Nonetheless, we find no error in the circuit court's application of the law, consideration of the evidence, or determinations of credibility. We affirm the court's order for dismissal.

FACTS AND PROCEDURAL BACKGROUND

¶ 2. This case involves a custody battle between paternal grandparents and the biological mother of Nicholas. Julie R.L. and Kevin L. were married and had three children: Nicholas, born on 8/3/1989, Caleb, born on 4/26/1991, and Jared, born on 7/29/1993. In March 2003, Julie filed for divorce, and Kevin moved in with his parents, Martin and Marlene. Following the divorce, Kevin received primary placement of Nicholas, and Julie received primary placement of the two younger sons, Caleb and Jared.

¶ 3. Julie continued to be involved in Nicholas' life but was concerned about his progress at school and rumors that Nicholas was experimenting with drugs and alcohol. On December 4, 2004, Julie filed a petition to reverse placement and have Nicholas live with her. One month later, on January 3, 2005, Kevin was killed in a snowmobile accident. After Kevin's death, Nicholas refused to move back in with Julie.

¶ 4. Julie took Nicholas to counseling sessions to help him work through his grief over the death of his father. She also asked that the counselor address issues regarding her relationship with Nicholas. Following one of the counseling sessions, Julie called the counselor to report that Nicholas had threatened to jump out of her car because he did not want to live with her. Julie made repeated calls to talk to Nicholas, but none were returned until she threatened to call the police. Shortly thereafter, Julie began researching various schools for Nicholas, including military schools and "therapeutic boarding schools." Julie enrolled Nicholas in a Montana boarding school called Spring Creek Lodge Academy (SCL). She hired a transport service, which picked Nicholas up on January 31, 2005, and took him to SCL.

¶ 5. On February 4, 2005, Nicholas' paternal grandparents, Martin and Marlene, filed a petition for guardianship pursuant to Wis. Stat. ch. 880 (2003-04). On February 9, 2005, attorney Michael Finn was appointed guardian ad litem (GAL) for Nicholas. On March 18, the court appointed Raymond Krek as Nicholas' attorney.

¶ 6. A bench trial ensued and lasted three days. The circuit court heard testimony from Dr. Jeffrey Polczinski, Dr. Marc Ackerman and Dr. Thomas Moran, all psychologists who had examined Nicholas. Marlene, Martin, and Julie all testified, and Nicholas' deposition was admitted into evidence. Also, several people associated with SCL testified, including the principal, Nicholas' day-to-day supervisor, the family representative coordinator, and a therapist providing services to Nicholas while he was at SCL. The court also heard from several witnesses who were friends or acquaintances of the family and testified as to their observations of the relationship between Nicholas and Julie or other family relationships. After all evidence was presented and closing arguments concluded, the court rendered its decision dismissing the guardianship petition. Nicholas, Martin, and Marlene appeal.

DISCUSSION

¶ 7. Nicholas and his grandparents raise multiple issues on appeal. We can sort them into four primary categories. First, they challenge the legal standard applied by the court in deciding not to transfer custody to the grandparents. In the event we determine the court applied the proper standard, they challenge the court's application of that standard to the facts of the case. Next, they contest the court's credibility determinations. Finally, they contend that the court heavily relied on the GAL, who failed to represent Nicholas' best interests. We take each issue in turn.

Wisconsin Stat. ch. 880 Guardianship and the Barstad Standard

¶ 8. The first issue presented is whether Barstad v. Frazier, 118 Wis. 2d 549, 348 N.W.2d 479 (1984), an action under Wis. Stat. ch. 767, presents the applicable legal standard for a guardianship action under Wis. Stat. § 880.09. Of particular concern here is the right of a minor over fourteen years old to nominate a guardian under § 880.09(1) and to object to the nomination of a parent under § 880.09(2):

Nomination; selection of guardians. The court shall consider nominations made by any interested person and, in its discretion, shall appoint a proper guardian, having due regard for the following:
(1) Nomination by minor A minor over 14 years may in writing in circuit court nominate his or her own guardian, but if the minor is in the armed service, is without the state, or if other good reason exists, the court may dispense with the right of nomination.
(2) Preference. If one or both of the parents of a minor, a developmentally disabled person or a person with other like incapacity are suitable and willing, the court shall appoint one or both of them as guardian unless the proposed ward objects. The court shall appoint a corporate guardian under s. 880.35 only if no suitable individual guardian is available.

¶ 9. Nicholas argues that the circuit court's reliance on Barstad ignores the fact that the legislature granted the minor a voice in Wis. Stat. § 880.09(1). Nicholas, who was over the age of fourteen at the time his grandparents petitioned for guardianship, submitted an affidavit to the court nominating his grandparents, Martin and Marlene, as his preferred guardians. In his affidavit, Nicholas also catalogued many struggles he had in his relationship with Julie and told the court he did not want to live with her. Nicholas contends that the proper standard to be applied here is the best-interest-of-the-child standard, which would honor the minor's legislatively created right to nominate a guardian and to object to the biological parent preference.

¶ 10. In Barstad, the court determined that:

[T]he rule to be followed in custody disputes between parents and third parties is that a parent is entitled to custody of his or her children unless the parent is either unfit or unable to care for the children or there are compelling reasons for awarding custody to a third party.

Barstad, 118 Wis. 2d at 568. The court further explained:

Under ordinary circumstances, a natural parent has a protected right under both state law and the United States Constitution to rear his or her children free from governmental intervention. Absent compelling reasons narrowly defined, it is not within the power of the court to displace a fit and able parent simply because in the court's view someone else could do a "better job" of "parenting."

Id. at 567-68.

¶ 11. Nicholas points out that the Barstad decision was not unanimous. In her concurrence, Justice Abra-hamson wrote, "I do not join the majority in reaching out and addressing constitutional issues not necessary to the decision of the case." Id. at 571. Nicholas argues that, under Justice Abrahamson's concurrence, "the test could have been singular, the best-interest-of-the[-]child [Wis. Stat.] § 767.24 statutory standard; thus eliminating the compelling circumstances component addressing the constitutional right of parental custody."

¶ 12. Nicholas points to two cases to demonstrate that a best-interest-of-the-child standard should be applied to a Wis. Stat. ch. 880 guardianship proceeding. First, he cites Anna S. v. Diana M., 2004 WI App 45, 270 Wis. 2d 411, 678 N.W.2d 285, which states, "the circuit court's decision on guardianship and placement involves a determination of [the child's] best interests." See id., ¶ 7. Placed in context, however, Anna S. lends no support for Nicholas' position. In Anna S., the child's father was deceased, and the birth mother was incarcerated. Id., ¶¶ 2-3. There, the need for a guardian was established, and the best-interest-of-the-child analysis was properly applied in determining which nonparent would serve as guardian.

¶ 13. Nicholas also cites to Brezinski v. Barkholtz, 71 Wis. 2d 317, 237 N.W.2d 919 (1976). The court there stated that the "conclusion is inescapable that the best interests test be followed. Nothing in the guardianship section indicates otherwise, although preference is given to certain nominations." Id. at 328. However, in Brezinski, the mother of the minor children died of gunshot wounds at her residence. Id. at 319. The father of the children took them to the police station the same day and was incarcerated and charged with the murder of his wife. Id. The hearing there was directed at the choice of a guardian, not whether a guardian was necessary in the first place. See id. at 327.

¶ 14. Nonetheless, Barstad clearly rejects the best-interest-of-the-child test in custody disputes between a parent and a third party and instead favors a test that makes it more difficult to separate a child from a parent. See Barstad, 118 Wis. 2d at 556 (custody disputes between parents and other relatives cannot be judged on a "best interest" standard). More recently, our supreme court has confirmed that "[a] person who is not a biological or adoptive parent may not bring an action to obtain custody of a minor unless the biological or adoptive parent is 'unfit or unable to care for the child' or there are compelling reasons for awarding custody to a nonparent." Holtzman v. Knott, 193 Wis. 2d 649, 664-65, 533 N.W.2d 419 (1995) (citing Barstad, 118 Wis. 2d at 568).

¶ 15. Our application of the Barstad standard to a Wis. Stat. ch. 880 guardianship petition does not run afoul of the legislature's intent to give a voice to minors over the age of fourteen. Indeed, Wis. Stat. § 880.09(1) does direct the circuit court to afford "due regard" to the minor's nomination of his or her own guardian. That presupposes, however, that the need for a guardian has been established. If it is determined that the birth parent is fit and able to care for the child and no compelling reasons exist to appoint a nonparent guardian, then the minor's nomination of a guardian becomes a moot exercise. The circuit court recognized this and explained:

[T]he provision in Wisconsin statutes that provides a right of nomination to a minor of 14 years of age or older; it does not come into play here unless the Court finds that there is a need for a guardianship. To be put another way, only if the Court finds unfitness or compelling circumstances, and best interests requiring someone other than the mother to be appointed a guardian, only then would the Court turn to the nomination of Nicholas....

¶ 16. Any standard that does not consider a parent's constitutional rights would be incomplete. Were we to conclude otherwise, parents would routinely have their parental rights stripped from them simply because a third party might be better situated to tend to the needs of the child. The due process clause of the Fourteenth Amendment prevents this by protecting "the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 66 (2000). We will not employ any analysis that disregards the constitutionally protected right of the parent.

¶ 17. In Howard M. v. Jean R., 196 Wis. 2d 16, 24, 539 N.W.2d 104 (Ct. App. 1995), we addressed the best-interest-of-the-child standard in the context of Wis. Stat. 767.325(1)(b), which mandates consideration of the best interest of the child for revisions of legal custody and physical placement orders after two years have passed from the date of the initial order. We explained that "to conclude that 767.325(l)(b) provides the proper test for termination of minor guardianship proceedings where the contest is between a parent and a third party, we would then have to conclude that 767.325(l)(b) is unconstitutional in that setting.". Howard M., 196 Wis. 2d at 24. Likewise, if we were now to conclude that guardianship proceedings under Wis. Stat. 880.09 are guided solely by the best interest of the child where the dispute is between a parent and a third party, we would then have to conclude that the statute violates a parent's constitutionally protected right to make decisions regarding how to raise his or her children. We are to interpret statutes so as to avoid a finding of unconstitutionality. See Basinas v. State, 104 Wis. 2d 539, 546, 312 N.W.2d 483 (1981).

Compelling Circumstances Under Barstad

¶ 18. Nicholas also argues that the circuit court misapplied the Barstad standard. Specifically, he argues that compelling circumstances for appointing his grandparents as his guardians existed as a matter of law. Barstad states, "Compelling reasons include abandonment, persistent neglect of parental responsibilities, extended disruption of parental custody, or other similar extraordinary circumstances that would drastically affect the welfare of the child." Barstad, 118 Wis. 2d at 568. Whether compelling reasons to award custody to a third person exist is a mixed question of fact and law. See Howard M., 196 Wis. 2d at 20. We separate mixed questions of fact and law into two components: findings of fact will not be set aside unless clearly erroneous, and questions of law are reviewed de novo. Wis. Stat. § 805.17(2); Abbas v. Palmersheim, 2004 WI App 126, ¶ 6, 275 Wis. 2d 311, 685 N.W.2d 546.

¶ 19. Nicholas contends that the circuit court, in its determination that compelling circumstances did not exist, "essentially required Nicholas and his grandparents to prove all of the listed reasons [in Barstad]." Nicholas argues that the extended "[s]everence" of the parent-child relationship in and of itself constituted a compelling circumstance as a matter of law. The circuit court, however, stated:

In the court's view the... strongest theory advanced by the petitioners relates to combining the effect of the extended disruption with what Dr. Acker-man referred to as fringe parenting techniques. That is, if we add up the extended disruption to every negativity about [Julie's] parenting or conduct relative to Nicholas, taken as a whole do those circumstances result in a situation where there is a drastic, negative effect on the welfare of the child, and a compelling circumstance justifying a guardianship to the nonparent.

The court went on to review specific aspects of Dr. Ackerman's analysis, Dr. Moran's analysis, Julie's parenting techniques, and the practices at SCL. After exhaustive review of the evidence, the circuit court concluded:

Although the Court [is] not in agreement with quite a number of the ... estrangement points, or the fringe parenting techniques, or the marginal abusive claims of Dr. Ackerman and others here, that still is insufficient to reject the conclusion that the substantial interruption of [the] parent-child relationship, coupled with parenting is insufficient. Because even without any smoking guns or bombshells the substantial enough accumulation of little things could add up to enough to produce a compelling circumstance harmful to Nicholas.
I have considered that, but I reject that conclusion as being unsupported by the evidence as the Court, as the fact finder interprets it.

¶ 20. The court stated at the outset of its oral ruling that "the case law has not [set forth] a comprehensive list of every possible compelling circumstance, [however] a number of potentially compelling circumstances have been mentioned in the cases." The court did not treat the Barstad examples as mandatory factors but rather as a guide in assessing whether compelling reasons supported the appointment of a third-party guardian. This is a proper application of the law to the facts.

¶ 21. Nicholas asks us to review the evidence and come to a different conclusion than the circuit court, arguing that the evidence clearly demonstrates compelling circumstances for severing Julie's relationship with Nicholas. He emphasizes his close relationship with his grandparents, previous confrontations with Julie, his extended separation from Julie, and what he perceives as Julie's utter disregard for his plight at SCL. Whether the facts fulfill a particular legal standard is a question of law that we review de novo. See State v. Brown, 2005 WI 29, ¶ 34, 279 Wis. 2d 102, 693 N.W.2d 715. Here the record does indeed demonstrate a tumultuous relationship between Julie and Nicholas and an extended separation as well; nonetheless, the evidence shows consistent attempts by Julie to keep in contact with Nicholas, to provide for his physical well-being, to obtain counseling for him, to focus on his academic performance, and to address suspected alcohol or drug experimentation behavior by Nicholas. Furthermore, the extended separation cannot be attributed to Julie alone. We agree with the circuit court's conclusion that the extended estrangement between Nicholas and Julie was likely the result of a combination of things Julie did, Nicholas' father did, and perhaps some things Nicholas' grandparents did.

¶ 22. "Absent compelling reasons narrowly defined, it is not within the power of the court to displace a fit and able parent simply because in the court's view someone else could do a 'better job' of 'parenting.'" Barstad, 118 Wis. 2d at 567-68. Rather, the proper inquiry is whether extraordinary circumstances that drastically affect the welfare of the child compel the court to transfer custody from the parent to a third party. See id. at 568. Our review of the record reveals that extraordinary circumstances, such that a court would be compelled to override the constitutionally protected rights of a parent, did not exist.

Evidentiary Rulings of the Circuit Court

¶ 23. Nicholas and his grandparents challenge the circuit court's determination that Nicholas' testimony was not credible. However, the trial court is the ultimate and final arbiter of the credibility of witnesses, and we must accept the trial court's credibility determination. See Kimberly Area Sch. Dist. v. Zdanovec, 222 Wis. 2d 27, 50, 586 N.W.2d 41 (Ct. App. 1998). An appellate court will not overrule a circuit court's credibility determination absent a finding that it is "inherently or patently incredible," or "in conflict with the uniform course of nature or with fully established or conceded facts." Chapman v. State, 69 Wis. 2d 581, 583, 230 N.W.2d 824 (1975) (footnotes omitted). The record provides us with substantial insight into the circuit court's assessment. With regard to Nicholas' credibility, the court stated:

I want to comment on Nicholas' testimony in his deposition. I suppose the words I'm about to use may seem negative, and they're not so much negative as descriptive, we're talking about a child, albeit one who is 15 years old. I found the substantial amount of Nicholas' testimony to be fairly characterized as whining. He didn't like certain food his mom provided. He didn't like that the pizza was vegetable pizza sometime[s]. He didn't like [that] he was punished for stealing candy at the roller rink, or taking an extra half glass of milk....
Nicholas has a strong motivation here with respect to his testimony, to try and get his way ....
In light of his age level, his testimony, and his motivation I have reached the conclusion that he in many respects has exaggerated, edited, or misreported facts. And I don't find him especially credible ... where his testimony is contrary to his mother, others, and generally I tend to believe his mother.

We will not quarrel with this credibility determination.

¶ 24. Nicholas also contends that under Cahill v. Cahill, 26 Wis. 2d 173, 178-79, 131 N.W.2d 842 (1965), the circuit court "is not at liberty to disregard the unimpeached, unequivocal and uncontradicted testimony of [Dr. Ackerman and Dr. Moran]." However, in Cahill, our supreme court wrote: "We are not prepared to state that the trier of the fact is absolutely bound by the uncontradicted testimony of an expert." Id. at 178. In deciding what weight to afford the experts' testimony, the circuit court explained as follows:

Dr. Ackerman puts great weight on, basically he relies without question I would say in what Nicholas reported about the history, conduct of the household, as it relates to his mother. And yet I find Nicholas’ testimony to not be reliable. So, Dr. Ackerman's strong reliance on what Nicholas had to say . . . causes some undermining of the weight of his other opinions.
Dr. Ackerman ... spoke of a need or desire to use the least restrictive placement or treatment necessary or appropriate to address an issue. And, of course, that is a legal standard the courts are often bound under, juvenile court placements, for example; criminal sentencing, for example, when it comes to incarceration. However, I want to make it clear because this is another distinction between Dr. Ackerman's opinion on a psychological basis, and the legal rules the Court follows: A parent is not bound to use the least restrictive methodology, treatment, or placement in handling their own child....
Now with respect to Dr. Moran he obviously has strong expertise in educational psychology. I found his testimony helpful in understanding Nicholas' public school grades and progress, and what that situation was. Like Dr. Ackerman he obviously is as skeptical or disapproving of some things that are legal in this state like corporal punishment, and the Court needs to take account of that and how to weigh his testimony, and how to weigh Dr. Ackerman's testimony.

The court provided a clear explanation of the disconnect between the psychological school of thought employed by the experts and the legal rules applicable to parents in the state of Wisconsin. It also explained that the experts' opinions were based on information provided by Nicholas, which the court considered suspect. We are satisfied that the circuit court's rejection of portions of the experts' testimony reflected a proper exercise of its discretion.

Role of the Guardian ad Litem

¶ 25. Finally, Nicholas and his grandparents take issue with the GAL's performance and with the court's reliance on the GAL's recommendations. They contend that "the circuit court's reliance... was misplaced, because the guardian ad litem exceeded his statutory role of being an advocate for the best interest of Nicholas, instead advocating for Julie's rights." The role of the GAL is not addressed in the guardianship statutes, but in the chapter on actions affecting the family it is defined as follows:

"The guardian ad litem shall be an advocate for the best interests of a minor child as to paternity, legal custody, physical placement, and support. The guardian ad litem shall function independently ... and shall consider, but shall not be bound by, the wishes of the minor child or the positions of others as to the best interests of the minor child.

Wis. Stat. § 767.045(4).

¶ 26. The GAL appointed in this guardianship action was the same GAL who participated in the divorce action between Julie and Kevin. He was familiar with the family dynamic. The GAL communicated Nicholas' wishes to the court. He acknowledged that he did not necessarily endorse the program at SCL. Further, he agreed with Dr. Ackerman's statement that Julie "cares deeply about what happens with her son, and wants what is best for him." The GAL concluded that Nicholas' best interests would not be served by granting the grandparents' petition for guardianship.

¶ 27. Though the GAL's recommendation to the court supported Julie's position, the GAL did not function as an "advocate for Julie's rights" as characterized by Nicholas. Nicholas seems to believe that the GAL was bound to advocate for his choice of guardian. That, however, is not the GAL's responsibility. Rather, "[advocating [for the best interests of the child] may require advocating something contrary to the child's wishes." Wiederholt v. Fischer, 169 Wis. 2d 524, 536, 485 N.W.2d 442 (Ct. App. 1992). Based on his investigation and experience, Nicholas' GAL did not believe that there were compelling circumstances that justified transferring custody to Nicholas' grandparents.

¶ 28. Nicholas asserts that the circuit court, "by its own admission, relied heavily on the guardian ad litem's personal analysis of the law as applied to this case." He references the court's oral ruling in which the court stated:

I also want to remark at this point that I found [the GAL's] closing argument remarks that went to the policy and effect of granting guardianships to other than parents, grandparents in this case, against the expressed desire of a parent, I found his remarks on the whole subject to be quite apropos.

We refuse to equate the court's characterization of the GAL's argument as "apropos" with evidence of heavy reliance. The circuit court's treatment of all of the evidence in this case is exhaustive. It fills more than fifty pages of transcript and addresses many facets of Julie's relationship with Nicholas, the grandparents' role in the relationship, the impact of Kevin's death on Nicholas, Nicholas' experiences at SCL, the experts' reports and recommendations, and much more. The court's thorough, thoughtful analysis contradicts Nicholas' suggestion that the court simply substituted the GAL's judgment for its own.

Other Issues

¶ 29. Nicholas and his grandparents presented six separate issues for our consideration. Those not directly addressed are resolved by our foregoing analysis. To the extent that we have not specifically addressed an argument raised in the appeal, the argument is deemed rejected. See State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978).

CONCLUSION

¶ 30. In a custody dispute triggered by a Wis. Stat. ch. 880 petition for guardianship, where the dispute is between a birth parent and a nonparent, the threshold inquiry is whether the parent is unfit, unable to care for the child, or whether there are compelling reasons for awarding custody to the nonparent. Cf. Barstad, 118 Wis. 2d at 567-68; Holtzman, 193 Wis. 2d at 664-65. The circuit court properly applied this standard to the evidence and determined that extraordinary circumstances that drastically affect the welfare of the child, such that the court would be compelled to award guardianship to the grandparents, did not exist. The court's discretionary rulings regarding the evidence are supported by the record facts and are explained in a rational way on the record. The GAL properly considered the best interests of Nicholas based on his research and experience and made his recommendation accordingly. There is no evidence in the record that the court simply adopted the GAL's opinion as its own. After a full review of the facts and the law, we detect no error underlying the circuit court's order.

By the Court. — Order affirmed.

       Nicholas joined in Martin and Marlene's petition for guardianship, and they submitted a joint brief on appeal. In this opinion, an argument attributed to one of them should be understood to be the collective argument of all three.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise indicated.

       Our supreme court acknowledged that, although grandparents are in a closer relationship with a minor than many third parties, "as between a parent and a grandparent we hold that to deprive a parent of custody the principles one would apply to third parties are applicable." Barstad v Frazier, 118 Wis. 2d 549, 555, 348 N.W.2d 479 (1984).

       We recognize that the caseload in the circuit courts often impedes extensive treatment of multiple issues; therefore, we commend the circuit court for its meticulous and comprehensive on-the-record rationale. This case presents important issues regarding the rights of parents and the well-being of their children. The circuit court's analysis demonstrates a keen understanding of the claims made and the impact of its ruling on the parties involved.


author: CURLEY, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Otis G. Mattox, Defendant-Appellant.
    Court of Appeals

      No. 2005AP936-CR.

      Oral argument January 3, 2006.

      Decided May 16, 2006.

    2006 WI App 110
    (Also reported in 718 N.W.2d 281.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Scott D. Obernberger of Obernberger & Associates, LLC, of Milwaukee, with oral argument by Scott D. Obernberger.

    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Maura F.J. Whelan, assistant attorney general, with oral argument by Maura F.J. Whelan.

   CURLEY, J.

¶ 1. Otis G. Mattox appeals a nonfinal order denying his motion to dismiss the criminal charge of first-degree reckless injury while armed with a dangerous weapon, contrary to Wis. Stat. §§ 940.23(l)(a) and 939.63(1)(2) (2003-04), on double jeopardy grounds. Mattox submits that the trial court's reasons for declaring.a mistrial over his and the State's objections did not rise to the level of a manifest necessity, and, if he were to be retried, it would be a violation of 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 trial court's order.

I. Background.

¶ 2. According to the criminal complaint, on the evening of May 9, 2004, Maddox was at the residence of Roy Johnson, whom Maddox had known for years. A physical altercation ensued between Mattox and Johnson after Mattox referred to Johnson's girlfriend, Rhonda Jones, as a "bitch." During the fight, Mattox pulled out a kitchen knife and stabbed Johnson repeatedly. The altercation ended when Jones hit Mattox on the head with a hard object. After the police arrived, Mattox was arrested and subsequently charged with one count of first-degree reckless injury, while armed with a dangerous weapon. Mattox pled not guilty and Attorney Michael Schnake was appointed to represent him.

¶ 3. On September 7, 2004, Schnake filed a motion to exclude testimony based on the State's lack of response to Schnake's June 30, 2004, request that the State provide "any reports on prior no process cases regarding Mr. Roy Johnson and Ms. Rhonda Jones." The following day, the day on which a jury trial was to begin, a Miranda-Goodchild hearing was held. At the hearing, Schnake alleged that the State had failed to respond to his request to provide information about any prior, uncharged contact Johnson or Jones had with police. Schnake argued this was a sufficient reason for excluding testimony from both Johnson or Jones. Schnake was primarily concerned with the potential testimony of Jones. Following a lengthy debate between Schnake, the prosecutor, and the trial court over the legal basis for the request, the trial court denied Schnake's discovery motion, motion to exclude testimony and alternative motion for adjournment of the trial.

¶ 4. Schnake renewed his objection to the judge's ruling on the discovery motion immediately prior to the voir dire panel's entry into the courtroom. After the jury was impaneled, Schnake renewed his objection once more, stating that there may be both McMorris and Whitty evidence involving Jones. Again, there ensued a lengthy debate over whether Schnake had established sufficient legal grounds for his objections. The prosecutor indicated that he did not intend to call Jones either in his case-in-chief or as a rebuttal witness, and such debate was unnecessary. The prosecutor also indicated that he had not been uncooperative with Schnake in regards to his discovery requests. The court agreed that this debate was irrelevant because Schnake could have obtained the prior contact information on his own, and barred Schnake from further discussion about discovery, stating: "[I]f I hear about it one more time, I'm going to find you in contempt." Prior to Schnake's opening statement, he was again reminded not to mention the discovery dispute.

¶ 5. During his opening statement, Schnake showed the jury enlarged Milwaukee Police Department booking photos of Johnson and Jones. He later made reference to evidence "regarding prior convictions of [Jones] ...This caused the trial court to halt the opening statement and call a sidebar. At sidebar, the judge reprimanded Schnake for his conduct and terminated his opening statement. At that point, both the appellant and the defense indicated a desire to continue with the trial and no request for a mistrial was made.

¶ 6. The trial continued, and during Schnake's cross-examination of Johnson, the jury was excused when Schnake inquired about Morris-type evidence of reputation. Schnake had referenced the potential existence of McMorris evidence, but had never formally made an offer of proof. The court ruled the line of questioning improper, and thus inadmissible, because Schnake had not moved for the admission of such evidence prior to trial. Again, the court reprimanded Schnake for "playing games," and precluded him from mentioning McMorris evidence in the future.

¶ 7. The last State witness to testify was Detective John Karlovich, who had interviewed Mattox following the altercation with Johnson. Prior to Schnake's cross-examination of Karlovich, the trial court denied Schnake permission to inquire as to whether Karlovich had been disciplined, absent a good faith basis for such an inquiry. The court warned that if Schnake violated the court's order, he would be taken into custody. On re-direct examination, the prosecutor asked Karlovich if he would be demoted or admonished if a person he interviewed gave a statement supporting a self-defense theory. On re-cross examination, Schnake asked about demotions, and specifically, whether Karlovich had ever been demoted on the job. The court excused the jury and stated that Schnake's question amounted to "contemptuous and influent [sic] behavior" which "seriously destroyed the order, authority, and dignity of th[e] Court...." Schnake stated that he had not intended to "disrespect your Honor," but rather had asked the question in response to the prosecutor's earlier inquiries about demotions. The court found Sehnake in contempt of court.

¶ 8. Counsel was appointed for Sehnake and new counsel was appointed for Mattox. Mattox and Sehnake, through their respective counsel, as well as the prosecutor, all expressed their desire to continue the trial, despite the court's finding of contempt. The court disagreed and explained that although the court thought the jury could decide the case either way, a mistrial was necessary for several reasons: (1) if convicted, Mattox's conviction would probably be overturned on appeal because of Mattox's attorney's ineffectiveness, as evidenced by his contemptuous behavior; (2) continuing the trial would subject the trial court to accusations of being vindictive, and the court did not want either "to put [it] self in a position to bend over backwards to rule" in Mattox's favor or be "strong-armed into trying to resolve every dispute in the defendant's favor"; (3) the trial court would be accused of being unfair and impartial, and the trial court felt that continuing on with the trial would reflect poorly on its reputation, as it believed it had a reputation for being "extremely fair and impartial in all its dealings"; and (4) continuing the trial would not be in Mattox's or anyone else's best interest.

¶ 9. Following the mistrial, Mattox filed a motion to dismiss on double jeopardy grounds. The trial court held a hearing on the motion and took the matter under advisement. Several weeks later, and some six months after the mistrial was called, the trial court gave its decision in open court denying the motion. In denying the motion, the trial court explained that there would have been an appearance of unfairness if the court had to rule against Schnake for the remainder of the case, and, for the first time, the trial court suggested that Schnake's behavior had prejudiced the jury against Mattox, thereby creating a manifest necessity for the mistrial. Mattox now appeals the denial of his motion to dismiss.

II. Analysis.

¶ 10. Mattox submits that the trial court erroneously exercised its discretion when, sua sponte, it declared a mistrial.

The trial court's exercise of discretion in making this sua sponte determination is ordinarily entitled to considerable deference on review by an appellate court. Gori v. United States, 367 U.S. 364 (1961). This is because the unusual prejudicial development resulting in mistrial is of a type whose effect is best assessed by the trial court's first-hand observation. It is appropriately left to the exercise of trial court discretion; and on review the test is whether, under all the facts and circumstances, giving deference to the trial court's first-hand knowledge, it was reasonable to grant a mistrial under the "manifest necessity" rule.

State v. Copening, 100 Wis. 2d 700, 709 10, 303 N.W.2d 821 (1981).

¶ 11. Both the Fifth Amendment to the United States Constitution and article I, section 8 of the Wisconsin Constitution protect an accused from being placed in jeopardy twice for the same offense. As explained in State v. Moeck, 2005 WI 57, ¶ 35, 280 Wis. 2d 277, 695 N.W.2d 783, "[u]nderlying 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."

Id. (quoting Green v. United States, 355 U.S. 184, 187 88 (1957)) (footnote omitted). "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." Id. (footnote omitted).

¶ 12. "Jeopardy" in this context "means exposure to the risk of determination of guilt." State v. Comstock, 168 Wis. 2d 915, 937, 485 N.W.2d 354 (1992). It attaches in a jury trial when the selection of the jury has been completed and the jury is sworn. Id. Consequently, the protection against double jeopardy includes a defendant's "valued right to have his trial completed by a particular tribunal." Wade v. Hunter, 336 U.S. 684, 689 (1949); Washington, 434 U.S. at 503. However, there are circumstances when a new trial may be conducted once a mistrial has been declared. "Once jeopardy attaches, prosecution of a defendant before a jury other than the original jury, excluding any contemporaneously empanelled and sworn alternates, is barred unless: (1) there is a 'manifest necessity' for a mistrial; or (2) the defendant either requests or consents to a mistrial." Watkins v. Kassulke, 90 F.3d 138, 141 (6th Cir. 1996).

¶ 13. The doctrine of manifest necessity was established in United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824), where the court held that a trial court could declare a mistrial when "taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated." Id. at 580 (quoted by State v. Barthels, 174 Wis. 2d 173, 183, 495 N.W.2d 341 (1993); Copening, 100 Wis. 2d at 709). This tool should be used only "with the greatest caution, under urgent circumstances, and for very plain and obvious causes." Id. A court must find a "high degree" of necessity before concluding that a mistrial is appropriate. Washington, 434 U.S. at 506.

¶ 14. We first observe that the trigger for the mistrial was the contempt finding leveled against Mattox's trial attorney, as the mistrial was declared shortly after the contempt finding was made.

THE COURT: What happened — just so that the record is clear for you, [Attorney for Schnake] — is that at the beginning of the proceedings this morning, Mr. Schnake indicated to mé his intention of asking questions of Detective Karlovich about all of his prior experiences, both professional and personal relating to possible disciplinary actions and possible demotions and anything else that may have come up in the course of his tenure at the Milwaukee Police Department.
And I told him very clearly at that time that that would not be tolerated by the Court unless he can show me by an offer of proof that Detective Karlovich had been in any way demoted or disciplined by the Milwaukee Police Department. He told me he had no such information, and I said that those questions are not to be asked, because just by asking those questions puts in the minds of the jury that there's a possibility that there's a problem. And I ordered him specifically not to do that.
I then went on to tell Mr. Schnake that if you violate my order, you will be found in contempt, and you will be jailed. The reason why I did that is because Mr. Schnake throughout the course of this trial has violated numerous court orders. And I've given him opportunities to apologize, to purge himself of those violations, and I have not up until now made a finding of contempt.
Then in the course of re-cross of Detective Karlov-ich, Mr. Schnake asked Detective Karlovich whether he's ever been demoted in his job in specific violation of the Court's order.

However, as this court observed in the opinion reversing the trial court's contempt finding, Schnake properly questioned the detective after the door was opened by the State:

This line of questioning, addressed as it was to motive, is wholly different from what the trial court had earlier forbidden: asking about whether Karlovich had been disciplined, in order to imply from the mere asking of the question that Karlovich had a bad work record as a police officer and was, therefore, a less-then-credible witness. The latter line of inquiry was improper; what Schnake actually asked before he was held in summary contempt was not.
The question for which the trial court held Schnake in contempt was not, in its context, contempt; it was both consistent with Mattox's legitimate theory of defense, and was also a proper response to the prosecutor's immediately preceding questions on redirect ....

Schnake v. Circuit Ct. for Milw. County, No. 04 2471, unpublished slip op., ¶¶ 9, 13 (WI App May 17, 2005). Consequently, the trial court erred as a matter of law in its assessment that Mattox's attorney engaged in contemptible behavior, inasmuch as no contemptible act occurred. Thus, the contempt finding cannot be considered to have created a manifest necessity prompting a mistrial. Additionally, nowhere in the trial court's initial comments do we find any mention of the words "manifest necessity" or any equivalent wording that would require a mistrial over Mattox's (and the prosecutor's) objections. Indeed, the trial court did not appear to be judging the decision to grant a mistrial sua sponte against any legal test.

¶ 15. Moreover, our review of the trial court's initial explanation for the mistrial does not reveal a reason which rises to the level of a manifest necessity. The trial court's concern that if Mattox was convicted, there was a "ninety percent" chance that the case could be overturned on appeal because of his attorney's ineffectiveness, does not meet the Perez test of manifest necessity being a "very plain and obvious cause." First, as noted, the trial court premised its finding on its belief that Schnake had engaged in a contemptible act when he had not. Second, without the mistaken contempt finding, we infer from the fact that the trial court declined to find Schnake in contempt earlier, that Schnake's earlier missteps prior to the finding of contempt did not rise to the level of being contemptible. We also cannot find that the trial court's concern about its reputation qualifies as a manifest necessity. We are mindful that the trial court felt it was being placed in an awkward situation. However, the trial was close to a conclusion. The last of the State's witnesses was on the stand when the mistrial was announced. It appears as though the only remaining witness was Mattox himself. The trial court could have easily completed the tried without having to "bend over backwards" for Mattox's attorney or be exposed to a charge of vindictiveness. Indeed, while it may have been unpleasant to preside over the trial under the existing conditions, we cannot conclude that being perceived as "looking bad" is a manifest necessity. Although there is one sentence in the three pages of the transcript explaining the trial court's decision to call a mistrial, where the trial court stated that the mistrial was in "Mattox's best interest," the trial court never explained why this was true. Thus, our review of the record made at the time of the mistrial reveals no manifest necessity.

¶ 16. We have also reviewed the trial court's decision denying Mattox's motion seeking dismissal of the charge on double jeopardy grounds. In this oral decision, given some six months after the mistrial was declared, the trial court correctly identified that the test for allowing a retrial was whether a manifest necessity existed at the time the mistrial occurred. The trial court reiterated that there would have been an "appearance of unfairness" had the trial court ruled against Mattox's attorney. The trial court then went on to say, for the first time, that the mistrial was occasioned by Schnake, who had so "prejudiced the jury with his actions" that Mattox "would have a very difficult time in receiving a fair trial." The trial court also backtracked from its earlier comments and rejected the idea that its decision had anything to do with the court personally. The trial court advised that its concern for Mattox was the sole reason why the court decided to bring the trial to an end.

¶ 17. While the trial court may have come to believe, with the benefit of hindsight, that its only reason for declaring a mistrial was to preserve Mattox's rights, its later analysis clashes, and in some instances actually contradicts the reasons given at the time the mistrial was declared. As noted, at the time of the mistrial, one of the trial court's concerns was that if Mattox were convicted, the conviction might be overturned on ineffective assistance of counsel grounds. The thought that Mattox, if convicted, might appeal on ineffective assistance of counsel grounds, and that this court would agree with him and overturn the verdict, is an insufficient reason for declaring a mistrial.

¶ 18. The trial court's later statement that jury prejudice against Mattox resulting from his attorney's conduct was the underpinning for the mistrial, is inconsistent with its contemporaneous statements. At the time the mistrial was ordered, there was no mention of the jury having been prejudiced by Schnake's actions. We note that most of Schnake's transgressions were done outside the jurors' presence. Further, there is no evidence here supporting the trial court's later conclusion. Unlike the situation existing in United States v. Spears, 89 F. Supp. 2d 891 (W.D. Mich. 2000), where the trial court sua sponte declared a mistrial after the trial court noticed signs of juror exasperation with the defense attorney by "raising their eyes, shaking their heads negatively," and individual voir dire revealed bias against the defendant due to his counsel's actions, see id. at 895, here we have no indication of juror bias. Indeed, the trial court commented at the time that, "[t]his case could very easily turn out to be an acquittal," and earlier stated that "he may very well not get convicted ...." Thus, it would appear that earlier, contrary to the court's later comments, the trial court did not think that the jurors had been negatively influenced by Schnake's behavior.

¶ 19. As noted, the chief concerns of the trial court in continuing the trial were the problems occasioned by Schnake being found in contempt, and the concern that charges of vindictiveness would be lodged against the trial court and the court would have to bend over backwards for Mattox's attorney in order to avoid a charge of impartiality and unfairness. However, the trial court was mistaken about the contempt, and we have determined that any concern about its reputation did not constitute manifest necessity. Thus, we are left with only one conclusion — no manifest necessity existed requiring a mistrial over the objections of both the State and Mattox. Consequently, the trial court erroneously exercised its discretion in terminating the trial because the trial court erred as a matter of law in its finding of contempt, and no other stated reasons rose to the level of a manifest necessity. Under these circumstances, Mattox's exercise of his constitutional rights prevents a retrial. Accordingly, we reverse.

By the Court. — Order reversed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

        See Miranda v. Arizona, 384 U.S. 436 (1966); State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 N.W.2d 753 (1965).

       See McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973); Whitty v. State, 34 Wis. 2d 278, 149 N.W.2d 557 (1967).

       Schnake later appealed the finding of contempt, and this court reversed, concluding that Schnake's questioning was not contemptuous as a substantive matter. See Schnake v. Circuit Ct. for Milw. County, No. 04-2471, unpublished slip op. (WI App May 17, 2005).

       The Fifth Amendment to the United States Constitution provides: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . .." Article I, section 8 of the Wisconsin Constitution provides that, "no person for the same offense may be put twice in jeopardy of punishment...." In construing Wisconsin's protection against double jeopardy, we are guided by the rulings of the United States Supreme Court. State v. Barthels, 174 Wis. 2d 173, 181, 495 N.W.2d 341 (1993).

       We would be remiss if we did not comment on the conduct of Mattox's defense attorney. Although Attorney Schnake escaped the trial court's finding of contempt, his behavior in the trial was, at best, very peculiar. After reviewing the record, we cannot determine if his aggressive and repeated arguments on certain issues and his extraordinary act of showing the jurors in his opening statement enlarged booking photos of the victim and his girlfriend was the result of his wayward belief that he was zealously defending his client or due to innocent ignorance. In any event, it is for others to determine whether a reprimand is appropriate.

       While we acknowledge that other reasons were proffered later by the trial court for its decision, we are satisfied that the analysis given at the time of the mistrial trumps later explanations, particularly when the new explanations contradict what was said at the time the mistrial was declared.