Brock v. State
Citation | 936 N.E.2d 266 |
Decision Date | 06 January 2011 |
Docket Number | No. 38A02-1003-CR-272.,38A02-1003-CR-272. |
Parties | Nathan BROCK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
Court | Court of Appeals of Indiana |
Dale W. Arnett, Winchester, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant-defendant Nathan Brock appeals his conviction for Operating a Motor Vehicle After Forfeiture of License for Life,1 a class C felony. Brock argues that his convictions violate double jeopardy because the trial court granted the State's request for a mistrial at the close of the first trial in the absence of a manifest necessity to do so and then permitted the State to retry Brock, resulting in the convictions at issue herein. Finding that the mistrial and subsequent retrial do not violate double jeopardy, we affirm.
On May 28, 2007, Portland Police Officer Nathanial Springer was dispatched on a report that Brock was driving a vehicle without a valid license. Officer Springer went to the area and saw a vehicle being driven by Brock that matched the description provided in the dispatch. Officer Springer observed Brock drive through an intersection at which he was required to stop, nearly causing a collision with another vehicle that had the right of way. Officer Springer initiated a traffic stop, and Brock eventually stopped. Brock told the officer that he had been fleeing because he did not have a license; his driving privileges had been suspended for life as a habitual traffic violator (HTV) on June 14, 1993.
On May 30, 2007, the State charged Brock with class C felony operating a vehicle after a lifetime suspension and class D felony resisting law enforcement. Brock's first jury trial took place on January 13-14, 2010. 2 During closing argument, Brock's counsel made a number of statements to which the State objected:
Although Brock's attorney agreed to reopen the evidence, the State moved for a mistrial:
Three (3) statements after the Court admonished him not to refer to something that is immaterial and wrong in this case. And now to refer to a State's Exhibit and something that's been redacted and somehow imply or infer that there really is something beneficial in that record that's been redacted, is highly prejudicial to my case and I'm not sure that I can cure it.
Id. at 274. The trial court denied the motion for a mistrial, ordering that the evidence would be reopened and giving the State permission to introduce the unredacted copy of the BMV report. The trial court called a recess, and after it re-called the jury, Brock, and the attorneys, the trial court stated that, "upon further reflection ... [t]he court has changed its mind and is going to grant the State's request for a mistrial of this case." Id. at 276. Brock did not object.
On February 2, 2010, the day before the scheduled retrial, Brock filed a motion to dismiss on double jeopardy grounds. The trial court denied the motion on the same day. Brock's second trial was held on February 3, 2010, and the jury found Brock guilty of class C felony operating after lifetime suspension and not guilty of class D felony resisting law enforcement. On March 4, 2010, the trial court imposed a five-year sentence, and Brock now appeals.
Brock's sole argument on appeal is that the retrial and resulting conviction constituted a double jeopardy violation. As a general matter, jeopardy attaches when a jury has been selected and sworn. Jackson v. State, 925 N.E.2d 369, 372 (Ind.2010). But the protection against double jeopardy does not prevent re-prosecution if the defendant waives his right to raise double jeopardy claims or if there was a "manifest necessity" for a mistrial. Ried v. State, 610 N.E.2d 275, 278-79 (Ind.Ct.App.1993). A "manifest necessity" exists when, " 'taking all the circumstances into consideration[,] ... the ends of public justice would otherwise be defeated.' " Jackson, 925 N.E.2d at 373 ). It is not an abuse of discretion to find a manifest necessity just because some other trial judges might have found less extreme measures to be sufficient to cure the problem.Arizona v. Washington, 434 U.S. 497, 511, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).
As an initial matter, we note that Brock failed to lodge a timely and contemporaneous objection either to the State's request for a mistrial or to the trial court's ultimate decision to grant one. Consequently, he has waived his right to claim a double jeopardy violation. Jester v. State, 551 N.E.2d 840, 842 (Ind.1990); cf. Jackson, 925 N.E.2d at 372 ( ). The fact that Brock filed a motion to dismiss the charges weeks later did not preserve his right to raise the issue; consequently, he has waived the argument he raises on appeal.
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Brock v. State
...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 ......
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