COURT OF APPEALS 

DECISION 

DATED AND FILED

August 6, 2019 

Sheila T. Reiff 

Clerk of Court of Appeals 

 

NOTICE 

 This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal Nos. 2019AP642-CR 

2019AP643-CR 

Cir. Ct. Nos. 2014CM2895 

2016CM4072

STATE OF WISCONSIN IN COURT OF APPEALS 

DISTRICT I 

STATE OF WISCONSIN, 

 PLAINTIFF-RESPONDENT, 

V. 

DARIUS KAVONTA SMITH, 

 DEFENDANT-APPELLANT. 

 APPEALS from orders of the circuit court for Milwaukee County: 

MICHAEL J. HANRAHAN, Judge. Affirmed. 

¶1 BRASH, P.J.1 Darius Kavonta Smith appeals from nonfinal orders 

of the trial court denying his motion to bar a retrial of the charges against him on 

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2017-18). 

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted. 
Nos. 2019AP642-CR 

2019AP643-CR 

2 

the ground that it would violate double jeopardy.2 A trial on those charges—

disorderly conduct as an act of domestic abuse and misdemeanor bail jumping—

was held in August 2018.3 It resulted in a mistrial after the court determined that 

statements made by the State during closing arguments were improper and 

prejudicial to Smith: the State commented on witnesses that had not been called 

by Smith, which could have been construed by the jury as shifting the burden of 

proof to Smith; the State also made reference to the fact that Smith’s counsel was 

a public defender, which could have had a prejudicial effect on Smith if the jury 

had a negative view of public representation. 

¶2 In his motion to bar a retrial, Smith argued that a retrial would 

violate double jeopardy because the State’s comments amounted to prosecutorial 

overreach; thus, retrial is prohibited. The trial court disagreed, finding that the 

comments by the State were not made to intentionally prejudice the proceedings 

and cause a mistrial. It therefore denied Smith’s motion. We affirm. 

BACKGROUND

¶3 The charges against Smith stem from incidents that occurred in 

2014. In July 2014, Smith went to the home of S.R., with whom he shares a child. 

When S.R. would not let Smith inside, Smith began breaking windows in the 

 

2

 We grant Smith’s petition for leave to appeal the trial court’s nonfinal orders on double 

jeopardy grounds in accordance with State v. Jenich, 94 Wis. 2d 74, 80-82, 288 N.W.2d 114 

(1980). We point out to the State that our order dated April 8, 2019, directed the parties to 

prepare briefs addressing the merits of the double jeopardy issue, pursuant to the holding in 

Jenich, as opposed to focusing primarily on the standards for petitions for leave to appeal. 

3

 These matters were handled together by the trial court, and this court’s review of the 

records and briefs indicates that consolidation on appeal is appropriate. See WIS. STAT.

RULE 809.10(3). 
Nos. 2019AP642-CR 

2019AP643-CR 

3 

home. S.R.’s sister, S.B., was also in the house at that time and described the 

incident to police. 

¶4 Smith was arrested and charged with disorderly conduct as an act of 

domestic abuse. While out on bail for this charge, Smith failed to appear for a 

scheduled court date in November 2014, as required by the terms of his bond. He 

was then also charged with misdemeanor bail jumping. 

¶5 The matters proceeded to trial in August 2018. The State’s case 

relied on testimony from the police officers who responded to the S.R.’s home on 

the day of the incident, and the police dispatcher who received the 911 call from 

S.R. The State also provided a recording of the 911 call. Additionally, the State 

submitted as an exhibit the bail/bond agreement—signed by Smith—which 

included a condition that Smith must appear for all court dates. Smith testified in 

his defense, stating that another person, “Cash Moore,” broke the windows at 

S.R.’s home. 

¶6 During closing arguments, counsel for Smith noted that the State had

not called as witnesses the people who were at the house on the day of the 

incident, such as S.R., S.B., and others who were allegedly present. To emphasize 

this point, counsel lined up empty chairs, telling the jury that they were “all bricks 

of reasonable doubt” because it is the State’s burden to produce witnesses to prove 

a defendant’s guilt. 

¶7 In its rebuttal, the State responded as follows: 

But I do love this. I do love these little—you do 

enough of these and you notice a lot of public defenders do 

this. They try to bring up these empty seats saying these 

are your witnesses. You know who could also fit in that 

chair? Cash Moore. Two alleged arm robbers that don’t 

actually exist— 
Nos. 2019AP642-CR 

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4 

¶8 Smith’s counsel objected, arguing that the State’s comments 

amounted to burden-shifting to the defense. Counsel also asserted that the State’s 

referring to her as a public defender was improper, noting that the prosecutor’s 

“tone was very sarcastic,” that it was “belittling,” and that due to the “stigma 

associated with public defenders and ... the people who are represented by them,” 

she was concerned that “the jury may be viewing Mr. Smith differently knowing 

that he has public representation.” Smith’s counsel then moved for a mistrial. 

¶9 The trial court granted the mistrial over the strenuous objection of 

the State. The court found that the State’s comments were “improper” in that they 

inferred that the burden of proof was on the defense. The court further found that 

the comments were prejudicial because they could affect the outcome of the trial. 

The case was then scheduled for another trial. 

¶10 Smith moved to prohibit retrial on double jeopardy grounds due to 

prosecutorial overreach. Smith argued that it was “the prosecutor’s actions that 

gave rise to the motion for a mistrial,” citing State v. Copening, 100 Wis. 2d 700, 

303 N.W.2d 821 (1981). In Copening, our supreme court held that to prove 

prosecutorial overreach, it must be shown that the State intentionally tried to 

prejudice the defendant to provoke a mistrial. See id. at 714. In particular, Smith 

pointed out that after the mistrial was declared, the State had subsequently done 

additional investigation into this matter by attempting to secure a witness to rebut 

Smith’s testimony. Smith contended that this suggested intentional provocation 

on the part of the State because it had failed to adequately investigate the case 

prior to trial. Therefore, Smith asserted that the elements of the Copening test had 

been met. 
Nos. 2019AP642-CR 

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¶11 The trial court disagreed. At a hearing on the motion in December 

2018, the court noted that the prosecutor was “an extremely inexperienced 

attorney” and, as such, it was “more likely that he was simply acting out of lack of 

experience” rather than “intending to make statements that would cause a 

mistrial[.]” The court also rejected Smith’s argument that the State’s additional 

investigation after the mistrial indicated that the prosecutor’s conduct at trial was 

intentional. The court noted that Smith had provided no legal support for this 

premise, and accepted the State’s explanation that such further investigation is a 

duty of officers of the court. It therefore found that the information was irrelevant 

as to the prosecutor’s state of mind at the time the mistrial was granted. 

Furthermore, the court recognized that the decision to request a mistrial was a 

strategic one on the part of the defense: if it felt the State’s case was weak, it 

could have instead requested a curative jury instruction with regard to the 

prosecutor’s comments during rebuttal. 

¶12 Thus, the court denied Smith’s motion. This appeal follows. 

DISCUSSION

¶13 The Fifth Amendment to the United States Constitution, as well as 

article I, section 8 of the Wisconsin Constitution, prohibits “subjecting any person 

‘for the same offense to be twice put in jeopardy.’” State v. Hill, 2000 WI App 

259, ¶10, 240 Wis. 2d 1, 622 N.W.2d 34. The double jeopardy clause also 

“protects a defendant from repeated attempts by the State to convict the defendant 

for an alleged offense.” State v. Jaimes, 2006 WI App 93, ¶7, 292 Wis. 2d 656, 

715 N.W.2d 669. The issue of whether double jeopardy protections have been 

violated is a question of law that we review de novo. See State v. Steinhardt, 

2017 WI 62, ¶11, 375 Wis. 2d 712, 896 N.W.2d 700. 
Nos. 2019AP642-CR 

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¶14 Retrial of a case where a mistrial is granted upon request of the 

defendant is generally not barred by double jeopardy “because the defendant is 

exercising control over the mistrial decision: since a mistrial ordinarily implicitly 

means a new trial, the defendant is choosing to be tried by another tribunal.” Hill, 

240 Wis. 2d 1, ¶11. An exception to this rule, however, is “when a defendant 

moves for and obtains a mistrial due to prosecutorial overreaching.” Id. In that 

case, retrial is barred. Id.

¶15 Our supreme court in Copening adopted a two-prong test for 

establishing prosecutorial overreach: 

(1) The prosecutor’s action must be intentional in the sense 

of a culpable state of mind in the nature of an awareness 

that his activity would be prejudicial to the defendant; and 

(2) the prosecutor’s action was designed either to create 

another chance to convict, that is, to provoke a mistrial in 

order to get another “kick at the cat” because the first trial 

is going badly, or to prejudice the defendant’s rights to 

successfully complete the criminal confrontation at the first 

trial, i.e., to harass him by successive prosecutions. 

Id., 100 Wis. 2d at 714-15. This is a factual determination by the trial court that 

will not be overturned unless it is clearly erroneous. Hill, 240 Wis. 2d 1, ¶12. 

¶16 At the hearing on Smith’s motion to bar retrial, the trial court noted 

that with regard to the first element of the Copening test—whether the 

prosecution’s actions were intentional—it was a “close question.” The court 

observed that when it granted Smith’s motion for a mistrial, it used the phrase 

“should have known”: the prosecutor should have known that his references to 

potential defense witnesses were improper in that they inferred that the burden of 

proof was on the defense; and he should have known that his description of certain 

“tactics” employed by the public defender’s office—and the tone of voice he used 

in describing them—could prejudice the defense. 
Nos. 2019AP642-CR 

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¶17 Nevertheless, the trial court acknowledged that the Copening test 

requires that the prosecution’s acts were “intentional in the sense of a culpable 

state of mind[.]” See id., 100 Wis. 2d at 714. The court determined that due to his 

inexperience, the prosecutor likely did not “understand the implications of the 

things he was saying.” 

¶18 With regard to the second element—whether the prosecutor was 

trying to provoke a mistrial—the trial court found that to be “clear-cut.” The court 

described the prosecutor’s response to the motion for mistrial as “almost ... 

apoplectic” and that he seemed “shocked” when the court granted the motion. The 

court stated that it believed that the prosecutor did not “understand ... the 

prejudicial nature of the statements he had made.” Therefore, the court found that 

the prosecutor had not “made those statements with any designs to cause a 

mistrial.” 

¶19 The record supports those factual findings of the trial court; 

therefore, they are not erroneous. See Hill, 240 Wis. 2d 1, ¶12; see also RoysterClark, Inc. v. Olsen’s Mill, Inc., 2006 WI 46, ¶11, 290 Wis. 2d 264, 714 N.W.2d 

530 (“[T]his court defers to the [trial] court’s findings of fact unless they are 

unsupported by the record and are, therefore, clearly erroneous.”) Furthermore, 

those findings support the trial court’s determination that the elements of the 

Copening test were not met, and thus prosecutorial overreach was not established. 

See id., 100 Wis. 2d at 714-15. 

¶20 Smith also reiterates his argument that the State caused the mistrial 

to get another “kick at the cat,” as set forth in Copening, because it had failed to 

perform a thorough investigation prior to trial. See id. Like the trial court, we also 

reject this argument. First, Smith does not provide any legal support for this 
Nos. 2019AP642-CR 

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contention, and generally we will not consider arguments that are not supported by 

legal authority. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. 

App. 1992). Moreover, we have concluded that the record supports the trial 

court’s finding that the prosecutor’s conduct was due to inexperience, and that he 

did not act with the intent of causing a mistrial. Thus, that information is 

irrelevant to this analysis. 

¶21 Therefore, the trial court properly denied Smith’s motion to bar the 

retrial of the charges against him. Accordingly, we affirm. 

By the Court.—Orders affirmed. 

 This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)4.