¶ 18 "The decision to declare a mistrial is within the ‘sound discretion’ of the trial court." State v. Duckett , 120 Wis. 2d 646, 650, 358 N.W.2d 300 (Ct. App. 1984) (citation omitted). A court may declare a mistrial "whenever, in [its] 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.
¶18 "The decision to declare a mistrial is within the 'sound discretion'" of the trial court." State v. Duckett, 120 Wis. 2d 646, 650, 358 N.W.2d 300 (Ct. App. 1984) (citation omitted). A court may declare a mistrial "whenever, in [its] 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."
Under these circumstances, it was error to have declared a mistrial. See, e.g., State v. Fosse, 144 Wis.2d 700, 706-07, 424 N.W.2d 725 (Ct.App. 1988) (defense counsel gave misleading advice to prosecution witness); State v. Duckett, 120 Wis.2d 646, 650-51, 358 N.W.2d 300 (Ct.App. 1984) (defense counsel's opening statement called into question prosecutor's motivations); and State v. Reid, 166 Wis.2d 139, 143, 479 N.W.2d 572 (Ct.App. 1991) (defense witness committed perjury). We further conclude that the circuit court failed to exercise appropriate discretion when it granted a mistrial without considering other alternatives.
In construing the double jeopardy clause of the United States constitution in the context of a declaration of a mistrial over a defendant's objection, the seminal decision is United States v. Perez, supra. It has enjoyed continued vitality. See, e.g., Arizona v. Washington, supra, 506; United States v. Dinitz, 424 U.S. 600, 606-607, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); Illinois v. Somerville, supra, 461; Wade v. Hunter, supra, 689-90; Simmons v. United States, 142 U.S. 148, 153-54, 12 S.Ct. 171, 35 L.Ed. 968 (1891); State v. Roy, supra; State v. Aillon, supra; Costarelli v. Commonwealth, 374 Mass. 677, 682, 373 N.E.2d 1183 (1978); Matter of Plummer v. Rothwax, supra; State v. Duckett, 120 Wis.2d 646, 649-50, 358 N.W.2d 300 (1984). Justice Story, writing for the United States Supreme Court in Perez, set forth standards for determining when to order a retrial after the declaration of a mistrial over the defendant's objection.
The amount of deference to be accorded to a mistrial declaration varies with the reason necessitating the mistrial. State v. Duckett, 120 Wis.2d 646, 650, 358 N.W.2d 300 (Ct.App.1984). A decision to declare a mistrial in response to defense counsel's misconduct “is entitled to special respect,” a standard akin to “great deference.”
The right to have a trial continued to judgment must sometimes be subordinated to the public's interest in fair trials designed to end in just judgments. State v. Duckett, 120 Wis.2d 646, 650, 358 N.W.2d 300, 302 (Ct.App. 1984). The public's interest in fair trials and just judgments will not tolerate a defendant benefiting from defrauding the court.