Brock v. State

• Decision Date: 18 October 2011
• Docket Number: No. 38S02–1101–CR–8.,38S02–1101–CR–8.
• Citation: 955 N.E.2d 195
• Parties: Nathan BROCK, Appellant (Defendant below),v.STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

955 N.E.2d 195

Nathan BROCK, Appellant (Defendant below),

v.STATE of Indiana, Appellee (Plaintiff below).

No. 38S02–1101–CR–8.

Supreme Court of Indiana.

Oct. 18, 2011.

Dale W. Arnett, Winchester, IN, Attorney for Appellant.Gregory F. Zoeller, Attorney General of Indiana, Henry Flores, Jr., Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 38A02–1003–CR–272

SULLIVAN, Justice.

The defendant's first trial ended in a mistrial due to improper prejudicial comments made by defense counsel during closing argument. We hold that, although the defendant did not consent to the mistrial, his second trial did not violate the Double Jeopardy Clause of the Fifth Amendment because the trial court did not abuse its discretion in concluding that a mistrial was justified by manifest necessity.

Background

The defendant, Nathan Brock, was classified as a habitual traffic violator (“HTV”) by the Bureau of Motor Vehicles (“BMV”) and his Indiana driver's license was suspended.¹ See Ind.Code §§ 9–30–10–4, –5. Brock continued to drive until he was caught, in January, 1993, driving on a suspended license. On June 14, 1993, he pled guilty to violating Indiana Code section 9–30–10–16, which made it a Class D felony for an HTV to operate a motor vehicle while his or her driving privileges were suspended,² and his Indiana driving privileges were suspended for life.

On May 28, 2007, Brock was arrested again for being an HTV driving after his privileges had been suspended for life. On May 30, 2007, the State filed an information charging Brock with one count of violating Indiana Code section 9–30–10–17, which makes it a Class C felony for an HTV to operate a motor vehicle after his or her driving privileges have been forfeited for life under Indiana Code section 9–30–10–16. The State also charged him with one count of Class D felony resisting law enforcement under Indiana Code section 35–44–3–3.

The first jury trial commenced on January 13, 2010,³ and lasted two days. The State's lone witness was the arresting officer, and its only tangible evidence was the defendant's redacted driving record, which was admitted without objection. The redacted driving record indicated that the defendant's “License Status” was “Habitual Traffic Violator”; that on June 14, 1993, he had been convicted in Jay Circuit Court of “Operating HTV/Felony”; that on the same day his driving privileges had been suspended for “Operating HTV/Felony”; and that the expiration date of the suspension was “Indefinite.” The defense rested without calling any witnesses or presenting any evidence.

During his closing argument, defense counsel made several statements to the jury that prompted objections from the State. Defense counsel argued that the notice requirement of Indiana Code section 9–30–10–16 applied as well to section 9–30–10–17, with which the defendant was charged. The trial court admonished defense counsel that Brock had been charged under section 17, not section 16, and that there was no notice requirement under section 17. Accordingly, the court ordered defense counsel to “refrain from inferring to the jury that there is any sort of notice requirement.” Tr. 263. Brock's counsel then argued that there was no evidence to establish that the prior conviction evidenced by the redacted driving record was for violating section 16. Agreeing with the State, the trial court explained that the driving record did show that the defendant had been convicted under section 16 because, even though the driving record did not contain a citation to section 16 (or any other statute), there was only one way that the defendant could have become an HTV for life with a lifetime suspension—conviction under section 16. Tr. 268.

As soon as the jury returned from a short recess, defense counsel again argued that there was “nothing in this report that says Mr. Brock violated 9–30–10–16.” Tr. 269. The State again objected, and the trial court again admonished defense counsel not to do it again, but to no avail. After another sidebar, defense counsel again argued to the jury that there was no evidence indicating what the defendant had been convicted of in 1993, “other than a couple of lines here.” Tr. 270–71. The State objected for a fourth time, arguing that defense counsel was mischaracterizing the evidence.

After a third sidebar, defense counsel argued to the jury, with the court's permission, that the driving record was “weak” evidence. He followed that up with the following comment: “We again, have stuff redacted. We don't know what's happened afterwards.” Tr. 272. The State requested a fourth sidebar because of defense counsel's insinuation that the redacted material may have been beneficial to Brock, when in reality the redacted material was an extensive catalog of Brock's numerous other traffic convictions and suspensions—material that had been redacted for Brock's benefit. See footnote 1, supra. During this sidebar, the State informed the court that if it were not allowed to address this comment then it would “have to ask for a mistrial” because of defense counsel's mischaracterizations. Tr. 273. The trial court asked if both sides would assent to reopening the evidence, and both agreed. But after a few more comments among counsel and the trial judge, the State “officially” moved for a mistrial because of defense counsel's prejudicial comments. Tr. 274. After concluding sidebar, the trial court denied the motion for a mistrial and ordered that the evidence would be reopened and that the State would be permitted to start its closing argument anew. The court then took a short recess, and when it returned from recess, the trial judge said that, “upon further reflection,” he had decided to grant the State's request for a mistrial, and it therefore discharged the jury. Tr. 276–77.

One day before the second trial was set to begin, Brock filed a motion to dismiss on double-jeopardy grounds. The trial court denied the motion, finding that the defendant had not objected to the State's mistrial motion and that the mistrial was prompted by defense counsel's repeated improper statements. The jury convicted the defendant of Class C felony operating a motor vehicle after forfeiture of driving privileges for life but acquitted him of Class D felony resisting law enforcement. The trial court entered judgment accordingly and later sentenced Brock to five years imprisonment.

The Court of Appeals unanimously affirmed, concluding that the defendant had waived his right to claim double jeopardy because he had not lodged a timely objection to the State's motion for mistrial and that, in any event, there was “manifest necessity” justifying the trial judge's declaration of a mistrial. Brock v. State, 936 N.E.2d 266, 270–72 (Ind.Ct.App.2010).

Brock sought, and we granted, transfer, Brock v. State, 950 N.E.2d 1195 (Ind.2011) (table), thereby vacating the opinion of the Court of Appeals, Ind. Appellate Rule 58(A).

Discussion

The sole issue in this appeal is whether the State violated Brock's Fifth Amendment right not to be placed twice in jeopardy by retrying him after his first trial ended in a mistrial.⁴ The Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment, provides that “[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V; Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). As a threshold matter, Brock was protected from being twice placed in jeopardy because jeopardy “attached” when the first jury was impaneled and sworn. See Downum v. United States, 372 U.S. 734, 736–37, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); Jackson v. State, 925 N.E.2d 369, 373 (Ind.2010). But this merely “begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause” barred his second trial. Illinois v. Somerville, 410 U.S. 458, 467, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973).

The constitutional protection against double jeopardy has several features. In this case, because the first trial ended in a mistrial, we deal with the defendant's “valued right to have his trial completed by a particular tribunal,” Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949), which means that the defendant has a right to have his trial completed by the first jury impaneled to try him, Oregon v. Kennedy, 456 U.S. 667, 673, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982).⁵ Valued though this right may be, it “must in some instances be subordinated to the public's interest in fair trials designed to end in just judgments.” Wade, 336 U.S. at 689, 69 S.Ct. 834; see also United States v. Jorn, 400 U.S. 470, 483–84, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (plurality opinion). Accordingly, unlike a trial that has ended with a judgment on the merits, declaration of a mistrial does not automatically bar retrial. Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).

If the trial judge declares a mistrial over the defendant's objection, the defendant may be retried only if the government demonstrates that the mistrial was justified by a “manifest necessity” or that “the ends of public justice would otherwise be defeated.” United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824) (Story, J.); see also Washington, 434 U.S. at 505, 98 S.Ct. 824; Somerville, 410 U.S. at 461–63, 93 S.Ct. 1066. But if the defendant consents to the mistrial, then retrial is permitted as a matter of course, unless the defendant can prove that the government intentionally goaded him or her into consenting to the mistrial “to subvert the protections afforded by the Double Jeopardy Clause.” Kennedy, 456 U.S. at 676, 102 S.Ct. 2083; see also Jorn, 400 U.S. at 485, 91 S.Ct. 547. Thus, determining whether the State was permitted to retry Brock after his first trial ended in a...