Butler v. State
| Citation | 724 N.E.2d 600 |
| Decision Date | 25 February 2000 |
| Docket Number | No. 02S00-9812-CR-822.,02S00-9812-CR-822. |
| Parties | Taurus BUTLER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
David B. LeBeau, Deputy Public Defender, Fort Wayne, Attorney for Appellant.
Jeffrey A. Modisett, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, Attorneys for Appellee.
ON DIRECT APPEAL
Taurus Butler was convicted in a retrial on two counts of murder and of being a habitual offender. He was sentenced to 160 years imprisonment. In this direct appeal he contends that (1) his second trial violated the Double Jeopardy Clause of the Fifth Amendment because his first trial ended in a mistrial attributable to the State's misconduct; (2) the trial court erroneously instructed the jury during the habitual offender phase; and (3) the State impermissibly commented on his failure to testify by placing a letter written by him in an empty chair and then reading it to the jury during closing argument. We affirm the trial court.
On the evening of May 2, 1997, Brenda Stephens was in her home in Fort Wayne with her sons, Andre, age sixteen, and Linus, twelve, and her two nephews, Derriel Jones, thirteen, and Emmanuel Jones, five. Gunfire erupted and Emmanuel was struck with a high-powered round that destroyed the left side of his head. He died at the scene. Andre was also shot and was taken to the hospital where he died several hours later of a wound to the abdomen.
Shortly after the shooting, Robert Hatch and Bernard Weaver gave statements to police implicating Butler as the shooter. Weaver and Butler were arrested and both were charged with two counts of murder. Butler was also charged with being a habitual offender. Butler went to trial seven months later, but moved for a mistrial after Weaver, who was in jail awaiting trial, entered into a plea agreement requiring him to testify against Butler. The trial court granted the mistrial.
At Butler's retrial several months later, Weaver testified that Butler fired the shots in Stephens' house under the mistaken belief that it was the home of Jermaine Norris, who Weaver believed was out to kill Butler. According to Weaver, shortly before the murders Butler said that "everybody in that house got to go."
A jury convicted Butler of two counts of murder and of being a habitual offender. He was sentenced to the maximum term of 160 years imprisonment.
Butler contends his retrial violated the Double Jeopardy Clause of the Fifth Amendment.1 Butler's first trial commenced on Monday, December 1, 1997. On Thursday morning, December 4, the State moved for a one-day continuance of the trial. The prosecutor informed the Court that the State had revived plea discussions with Weaver on Wednesday night. Weaver's counsel had told the State that his client was willing to accept a plea agreement and testify against Butler. At the time of the Thursday hearing, Weaver was being interviewed by a detective. The trial court continued the matter until 2:00 p.m. that afternoon.
Shortly before 2:00 p.m., Weaver pleaded guilty to conspiracy to commit murder pursuant to a plea agreement providing for a maximum of twenty years imprisonment. Butler's counsel was present at Weaver's plea hearing. The trial court then resumed consideration of Butler's case. Defense counsel made several motions, including a request for a ninety-day continuance and a motion for a mistrial based on the State's having obtained Weaver's guilty plea in mid-trial. The trial court granted a continuance until Monday, December 8.
On Friday, December 5, the State informed the trial court that it had obtained further evidence in its case against Butler. First, after Weaver consented to a search of his jail cell, police found several letters, including at least one believed to have been written by Butler, containing incriminating statements. Second, Ronald Stephens, Andre's father who was living in Georgia at the time of the shooting, had notified police on the morning of December 5 that he had been given two shell casings by one of his sons.2 Based on this new evidence and Weaver's guilty plea and willingness to testify against Butler, defense counsel again requested a continuance of at least ninety days and a mistrial. The trial court agreed that these developments warranted additional time to prepare Butler's defense. It granted Butler's motion for a mistrial.3 A December 5 order entered by Judge Surbeck, who had presided over the proceedings, stated: The case was reset for trial on July 13, 1998. Judge Surbeck noted that Judge Gull would preside over cases in that court beginning January 1, 1998.
On July 6, 1998, Butler filed a motion to dismiss the information, alleging that a second trial would violate the prohibition against double jeopardy. Judge Gull held a hearing on the motion on July 9. During closing argument on the motion, the deputy prosecutor assigned to the case stated:
[T]he investigation in every criminal cause continues right up to the brink of trial, through the course of trial, often times, through the middle of trial. Bernard Weaver was listed as a witness on the face of the charging information ... filed in this cause. He was not a new witness. The potential for his testimony in this case was known from the very, very beginning. Not only as an alleged co-defendant, but also as a listed witness. For the Defense to assert this claim ... assumes that the State could correctly predict how the Court would rule, whether the guilty plea of Bernard Weaver would occur, whether there would be a satisfactory factual basis, and at the conclusion of that hearing, what the Court would do and how the Defense would respond.
The State added that it stood prepared to continue with the trial after a brief continuance.
On July 13, Judge Gull orally denied Butler's motion to dismiss. After listening to tapes of the arguments and motions of counsel from the December 4 hearing, she found that "there was no bad faith conduct or harassment on the part of the State that was intended to goad the defendant into moving for a mistrial...."
The Fifth Amendment provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend 5. Although a defendant's motion for mistrial constitutes "a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact," United States v. Scott, 437 U.S. 82, 93, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), the United States Supreme Court has provided a narrow exception that bars a second trial after a mistrial "[o]nly where the governmental conduct in question is intended to `goad' the defendant into moving for a mistrial...." Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). The subjective intent of the prosecutor is the dispositive issue. See Wilson v. State. 697 N.E.2d 466, 472 (Ind.1998)
. Although a trial court's determination of prosecutorial intent is not conclusive for purposes of state appellate review, we do regard its determination as "very persuasive." Id. at 473.4 It is a factual determination that we review under a clearly erroneous standard.
Here, two different trial judges found that the State's actions were not intended to goad Butler into moving for a mistrial. The State asserts on appeal that it sought Weaver's testimony mid-trial to convict Butler, not to delay his trial or goad him into moving for a mistrial. The trial court's findings on this point appear to be correct, and certainly are not clearly erroneous.5 Accordingly, we hold that Butler's second trial was not barred by the Double Jeopardy Clause.
Butler next contends that the trial court's instructions to the jury during the habitual offender phase violated Article I, § 19 of the Indiana Constitution for the reasons explained in this Court's recent opinions in Parker v. State, 698 N.E.2d 737 (Ind.1998), and Seay v. State, 698 N.E.2d 732 (Ind.1998). Butler did not object to the habitual offender instructions at trial and any claim of error is waived. See, e.g., Bunch v. State, 697 N.E.2d 1255, 1257 (Ind.1998)
(citing Ind.Crim. Rule 8(B)).6
As a final point, Butler contends that the State impermissibly commented on his failure to testify during closing argument. The prosecutor made the following comments: The prosecutor then moved an empty chair in front of the jury and...
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