The Indiana Supreme Court found that although a defendant didn’t consent to a mistrial, the trial judge didn’t abuse his discretion in finding that a mistrial was justified by “manifest necessity.”
Nathan Brock appealed his conviction of Class C felony operating a motor vehicle after forfeiture of driving privileges for life. He was charged with violating Indiana Code 9-30-10-17. His defense counsel made several improper statements to the jury, including insinuating that redacted material in Brock’s driving record may have been beneficial to Brock. The state moved for a mistrial, but Jay Superior Judge Max Ludy Jr. denied it and ordered that evidence would be reopened. After a short recess, Ludy decided to grant the request for a mistrial and discharged the jury.
Brock filed a motion to dismiss on double jeopardy grounds just before his second trial was to begin. The trial court denied that motion and he was convicted. The Indiana Court of Appeals affirmed, finding Brock waived his right to claim double jeopardy because he didn’t timely object to the state’s motion for a mistrial, and manifest necessity justified the judge’s decision.
In Nathan Brock v. State of Indiana, No. 38S02-1101-CR-8, the justices found Brock did not consent to the trial judge’s declaration of a mistrial, adopting the approach taken by the federal appellate courts which held that a defendant consents to a mistrial when he or she has an opportunity to object and fails to do so. These courts have also recognized that sometimes there is no opportunity to object and to prohibit a defendant from raising a double jeopardy claim under these circumstances would be too harsh, wrote Justice Frank Sullivan.
“Brock’s failure to object cannot be taken as tacit consent to mistrial in this case because there was no opportunity to raise a contemporaneous objection,” wrote the justice. “And the totality of the circumstances fails to reveal that Brock otherwise consented to the declaration of a mistrial.”
The Supreme Court agreed that manifest necessity supported the declaration of a mistrial. Brock’s counsel’s comments to the jury were improper, and Ludy gave the attorney several chances to explain himself and to continue with his closing without confusing the jury, but the attorney seemed to ignore the trial judge’s directions, wrote Sullivan. In addition, had the trial judge allowed the first trial to proceed and had defense counsel’s erroneous comments confused the jury to the point that it acquitted Brock, the state wouldn’t have been able to appeal that decision.