Whitehead v. State

• Decision Date: 14 February 1983
• Docket Number: No. 3-582A89,3-582A89
• Citation: 444 N.E.2d 1253
• Parties: Ronald Keith WHITEHEAD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1253

444 N.E.2d 1253

Ronald Keith WHITEHEAD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 3-582A89.

Court of Appeals of Indiana,

Third District.

Feb. 14, 1983.

Rehearing Denied April 3, 1983.

Brennan & Brennan, South Bend, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

STATON, Judge.

Ronald Keith Whitehead brings this interlocutory appeal from the trial court's denial of his Motion for Discharge. He contends that further prosecution is barred by the constitutional prohibition against double jeopardy.

Affirmed.

Ronald Keith Whitehead was charged with murder on February 24, 1981. On February 3, 1982, a jury was selected. The next day, the trial judge issued preliminary instructions to the jury, both parties presented opening statements, and the State presented its first witness. Following the lunch recess, the trial judge informed the parties that the jury had not been sworn. Whitehead moved for a mistrial. The motion was denied, subject to reconsideration. Over Whitehead's objection, the court swore in the jury, and the State's first witness was again examined. Following another recess, the State informed the trial court that it had no objection to the motion for mistrial. The trial court then granted the mistrial. Whitehead, by counsel, reiterated his objection to the swearing of the jury, but he did not object to the granting of the mistrial or to the discharge of the jury.

The trial judge disqualified himself and another judge was selected. On February 25, 1982, Whitehead filed a Motion for Discharge alleging that further prosecution would violate the prohibition against double jeopardy. Following a hearing the judge denied Whitehead's motion. Whitehead appeals from that denial.

Both the Fifth Amendment to the United States Constitution and article one, section fourteen of the Indiana Constitution provide that a person shall not be placed in jeopardy twice for the same offense. This protection will not prevent further prosecution if a defendant waives his right to raise double jeopardy claims or consents to the termination of proceedings after jeopardy has attached or if the termination is required by "manifest necessity," Crim v. State (1973), 156 Ind.App. 66, 294 N.E.2d 822, 829; see IC 1976, 35-41-4-3(a)(2) (Burns Code Ed., 1979 Repl.), such as a jury which cannot reach a decision. Oregon v. Kennedy (1982), --- U.S. ----, 102 S.Ct. 2083, 2087, 72 L.Ed.2d 416. A defendant waives his right to raise double jeopardy by failing to make a timely objection to the discharge of the jury. Moyer v. State (1978), 177 Ind.App. 461, 379 N.E.2d 1036. If he moves for or consents to a mistrial, he also forfeits his right to raise double jeopardy in further proceedings, Cabell v. State (1978), 267 Ind. 664, 372 N.E.2d 1176, 1177, unless the motion was necessitated by governmental conduct "intended to provoke the defendant into moving for a mistrial." Oregon v. Kennedy, supra, 102 S.Ct. at p. 2091.

Whitehead contends that he neither consented to the termination of proceedings against him nor waived his right to raise double jeopardy. ¹ We disagree. When the trial judge informed the parties that he had neglected to swear the jury, Whitehead moved for a mistrial. His motion was denied subject to reconsideration but later granted. Because the mistrial was declared in response to Whitehead's motion, he cannot now assert that double jeopardy bars further prosecution. See Lee v. United States (1977), 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80, Cabell v. State, supra.

Whitehead argues that the motion for mistrial was no longer his because the trial court denied the motion. However, the trial judge stated that he would research the question and reconsider his ruling. Whitehead's counsel submitted a brief on the issue to the trial judge and consented to the judge's request that he keep the brief and review the cases overnight. When the State later announced that it had no objection to a mistrial, the trial court granted Whitehead's motion. At the time the motion was granted, Whitehead made no objection and made no attempt to withdraw the motion; ² he reiterated his earlier objection to the jury being sworn, but did not object to the mistrial or to the discharge of the jury. ³

The United States Supreme Court considered a similar situation in Lee v. United States, supra, where defense counsel moved to dismiss an information after the prosecutor's opening statement in a bench trial. The trial judge denied the motion but stated that he would check the citation and consider the motion further. Following the presentation of evidence, the trial court granted the motion to dismiss. Id., 432 U.S. at 25-26, 97 S.Ct. at 2143. Lee argued that double jeopardy barred his second trial. The Supreme Court held that, ⁴ in terminating Lee's first trial, the trial court "did not act sua sponte but in response to a motion by defense counsel." Id. at 31, 97 S.Ct. at 2146. In Lee, as in the case before us, the motion was made before jeopardy attached, ⁵ denied subject to further consideration, and granted after jeopardy attached. The Court noted that defense counsel neither attempted to withdraw the motion nor objected to termination of the proceedings. Id. at 33, 97 S.Ct. at 2147.

Whitehead consented to the trial court's research and further consideration of the issue, made no attempt to withdraw his motion, and did not object to the termination of proceedings. Furthermore, when the jury was sworn, he objected to the swearing. He later reiterated his objection following the declaration of a mistrial, stating that the swearing was "fundamental error and would require a discharge." These objections demonstrate Whitehead's continuing desire that the proceedings be terminated. Cf. Brown v. State (1979), Ind.App., 390 N.E.2d 1058, 1065 (dicta) (objection to proceedings was "tantamount to a motion for a mistrial."). ⁶ The trial court did not err in ruling that double jeopardy does not bar further prosecution of Ronald Whitehead.

Affirmed.

HOFFMAN, P.J., and GARRARD, J., concur.

1 Whitehead also argues that "manifest necessity" for the mistrial did not exist. Because we hold that the mistrial was granted in response to Whitehead's motion, we need not decide whether "manifest necessity" existed.

2 The record shows the following:

"[THE COURT:] Accordingly, under those circumstances, the defendant's motion is granted.

"Gentlemen, have I misstated the record in any...