July 11, 2023 – The Wisconsin Supreme Court has ruled that a circuit court did not err by denying a motion for a mistrial where, after a ruling that a defendant’s prior conviction was inadmissible, a witness stated that he’d “looked at CCAP.”
In State v. Debrow, 2023 WI 54 (June 23, 2023), the supreme court held (7-0) that a mistrial wasn’t warranted, given that the circuit court struck the testimony and issued a curative instruction to the jury.
Justice Jill Karofsky wrote the majority opinion, joined by Chief Justice Annette Ziegler, Justice Ann Walsh Bradley, Justice Rebecca Dallet, and Justice Brian Hagedorn. Justice Patience Roggensack wrote a concurrence, joined by Justice Rebecca Bradley.
In 2018, the Dane County District Attorney charged Eric Debrow with second degree sexual assault of a child under the age of 16 and first degree sexual assault of a child under the age of 13.
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
The charges stemmed from separate incidents in which Debrow allegedly sexually assaulted each of his girlfriend’s two daughters – Mary and Nancy.
During Debrow’s trial, the Dane County District Attorney called Isaac (the brother of Mary and Nancy) as a witness. Isaac testified that on the night of Jan. 17, 2018, he saw Debrow go into Mary’s room.
Isaac testified that he heard Mary scream five minutes after Debrow went into her room, then saw Debrow leave the room immediately afterward. Isaac also testified that he thought something strange had taken place in Mary’s room, so he called the police.
Sidebar During Re-direct
The case proceeded to trial in Dane County Circuit Court.
During a sidebar, the prosecutor said he planned to ask Isaac why he thought something strange was going on in Mary’s room when he heard her scream, to counter any notion that Isaac had jumped to a conclusion.
The prosecutor said that Isaac knew about Debrow’s 2004 conviction for child sexual assault. But the prosecutor said he’d avoid mentioning the prior conviction, to comply with the circuit court’s ruling that the conviction was inadmissible.
‘I Looked on CCAP’
On re-direct, the prosecutor asked Isaac whether he’d heard anything or learned anything that caused him to be on alert on the night when Debrow went into Mary’s room; Isaac answered “Yes.”
The prosecutor then asked whether Isaac had heard anything from his sisters; Isaac answered “No.” When the prosecutor asked Isaac if he’d heard anything from his mother, Isaac answered “I don’t want to get into that.”
That answer elicited a burst of crosstalk from the two attorneys.
Debrow’s attorney then objected and moved the court to strike Isaac’s answer. The court granted the motion and gave a curative instruction to the jury.
The court reporter had been unable to get down Isaac’s response to the state’s question as to why he was on alert. However, the judge and both attorneys agreed that Isaac said, “I looked on CCAP.”
Motion for Mistrial
Debrow’s attorney moved for a mistrial.
The circuit court denied the motion and concluded that the jurors might not be familiar with CCAP. Additionally, the circuit court pointed out that Isaac hadn’t said what he’d found on CCAP.
The jury convicted Debrow of second degree sexual assault of a child under the age of 16 but acquitted him on the other charge.
Debrow appealed the circuit court’s denial of his motion for a mistrial. The Wisconsin Court of Appeals reversed the circuit court.
The state appealed.
Circuit Court’s Decision Was Appropriate
Justice Karofsky began her opinion for the majority by explaining that the circuit court properly concluded that striking Isaac’s testimony and issuing a curative jury instruction was preferrable to granting a mistrial.
“The circuit court considered the facts and circumstances in the record, heard arguments from both parties, assessed available remedies, and concluded that the error was not so prejudicial as to warrant a mistrial,” Justice Karofsky wrote.
The court of appeals erred, Karofsky noted, by examining the sufficiency of the curative instruction. That issue was distinct from the issue of whether the circuit court had erroneously exercised its discretion by declining to grant a mistrial.
“Debrow challenged the court’s decision to deny a mistrial,” Karofsky wrote. “He did not alternatively challenge the adequacy of the court’s curative instruction, so that issue is not before us today.”
Concurrence: Analyze Entire Proceeding
Justice Roggensack began her concurrence by explaining that she could not join the majority opinion because it failed to fully analyze the entire trial proceeding.
Roggensack pointed out that the circuit court reasoned that it was impossible to know whether any juror was familiar with CCAP, and if he or she was, whether that familiarity had to do with a small claims, civil, divorce, or other non-criminal court record.
“The [circuit] court correctly noted that Isaac’s interrupted testimony did not state anything about a prior criminal conviction, let alone a conviction for sexual assault of a child,” Justice Roggensack wrote.
Look at Instruction
Justice Roggensack argued that it was necessary to determine whether the circuit court had considered the probable effectiveness of the curative instruction.
To that end, Roggensack looked at the strength of the state’s evidence. She pointed to the following testimony:
Isaac, both his sisters, and their mother, Kathy, testified that Mary screamed “get out” several times on the night of Jan. 17, 2018;
one time before Jan. 17, 2018, Mary awoke to find Debrow in her room, and he said “It’s just a game, [so] you don’t have to tell your mom”;
a phone recording was played for the jury in which Kathy confronted Debrow about a pornographic video and Debrow said he needed help.
Justice Roggensack also pointed out that the jury convicted Debrow on one charge but acquitted him on the other.
“Accordingly, when considered in the context of the ‘whole proceeding,’ it is ‘quite clear’ that whatever prejudice the statement ‘I looked on CCAP’ may have caused Debrow, it fell short of the high bar to warrant a mistrial,” Roggensack wrote.