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Brief of appellant
Case no: 24AP71
Case name: State v Damarion Sanders
Court of Appeals District: I
Filing attorney: Daniel J. O'Brien
Title: Assistant state attorney general
Law firm / agency: Wisconsin Department of Justice
Circuit Court: Milwaukee County
Judge: Danielle Shelton
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Issue presented
Did the trial court err when it denied Defendant-Petitioner Damarion Sanders’s motion to dismiss with prejudice based on an alleged double jeopardy violation?
In the midst of his trial for burglary as a party to the crime, the trial court granted Sanders’s motion for a mistrial because the State failed to disclose the results of a forensic examination of his cell phone. The court scheduled the case for retrial. Sanders moved to dismiss with prejudice on the ground that retrial would violate his right to be free from double jeopardy. The trial court denied the motion after finding that Sanders failed to prove the State intentionally withheld evidence to provoke a mistrial. On February 29, 2024, this Court entered an order that the parties file briefs “addressing the merits of the double jeopardy issue.”
This Court should affirm. Sanders did not discuss the controlling double jeopardy principles at all below and does not, as ordered by this Court, address them in his brief here. Instead, he appears to advocate for a new rule that requires dismissal with prejudice as a matter of double jeopardy law for a willful failure to disclose exculpatory evidence. Sanders did not argue for that new rule below and has thereby forfeited his right to have this Court review it for the first time on appeal. There is no reason to ado pt such a rule and Sanders cites no authority that extends the principles of Brady v. Maryland ... into the realm of double jeopardy.
Sanders does not develop any argument explaining why he should prevail under existing double jeopardy principles. When the controlling double jeopardy principles are applied, it is plain that Sanders loses. There is no evidence that the State acted in bad faith with the specific intent to provoke Sanders to move for a mistrial. The State opposed a mistrial. The late disclosure of the cell phone forensic evidence that caused the mistrial was, as the trial court later found, due to miscommunication and neglect, not bad intent. That finding of fact is not clearly erroneous.
The cell phone forensic evidence also was not exculpatory. It confirmed that Sanders played an active role in the home invasion burglary by exchanging text messages with his cousin and accomplice, Areon Davis, while Sanders was inside the house as a guest shortly before the burglary, and he deleted those text messages afterwards. Nonetheless, the trial court declared a mistrial. Dismissal with prejudice is too drastic a sanction for a discovery violation such as this. Sanders now has all of the pertinent information regarding the examination of his cell phone at his disposal for the retrial.
The trial court also denied dismissal with prejudice based on the State’s failure to disclose before trial evidence that police had interviewed Sanders’s cousin, Areon Davis, about Davis’s suspected involvement in the home invasion. The court treated this only as a discovery violation because the evidence was not exculpatory and Sanders was fully aware of Davis’s involvement in the burglary from the outset.
This Court should affirm. Davis’s statements to police exculpated only Davis, not Sanders. Dismissal with prejudice is too drastic a sanction for a discovery violation such as this. Sanders now has all of the pertinent information regarding Areon Davis at his disposal for the retrial.
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