COA considers denial of joint motion for mistrial

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A traveling appellate panel heard argument concerning an “unusual” instance of a trial court’s denial of a joined motion for mistrial Tuesday, considering whether the state’s sudden change of position had any impact on the case going forward.

Judges Patricia Riley, Margret Robb and Paul Mathias heard arguments in Kevin D. Jones v. State of Indiana, 18A-CR-01320. Before Kevin Jones was to be tried before a jury on several battery-related charges after an altercation with his girlfriend, Jones’ nephew approached a member of the jury and mentioned self-defense, which ultimately led to that juror’s dismissal. Despite recommendations from both the state and defense that he receive a new trial as a result, Jones was found guilty of battery, aggravated battery and domestic battery.

Appealing that denial before the traveling panel, Jones argued the trial court committed reversible error in failing to grant a mistrial. However, state counsel Jesse Durm contended that the trial court did not abuse its discretion in denying the mistrial because the jury was impartial, and therefore any error was harmless.

To combat that assertion, defense counsel Deborah Markisohn argued that the state inaccurately represented that Jones moved for a mistrial on his own. She pointed out that it was in fact the state that made the motion, in which Jones joined.

Markisohn also argued that the state’s decision to simply add in a footnote that “the deputy prosecutor agreed that a mistrial was appropriate” in its appellate brief was an unfair and inaccurate characterization of the record.

“The State already conceded the very point that it now challenges — that the jury could no longer be impartial,” Markisohn argued in her appellant brief. A deputy prosecutor “told the trial court that she was concerned jurors could not be impartial and that because of Juror No. 11’s contact with one of Mr. Jones’ family members, ‘the jury is going to be focused on other issues.’”

“Having made a record at trial that (the prosecutor) believed the jury was not able to be impartial, it is inappropriate to allow the State on appeal to now switch gears and propose that the contact was harmless.”

However, Durm argued that regardless of why the deputy prosecutor said she thought a mistrial was appropriate at the time, the trial court had concluded its interviews with the remaining jurors, proving they were not disturbed by the information presented by Jones’ relative. Therefore, that mistrial was not necessary.

“In the heat of the moment, the prosecutor thought that the mistrial was warranted, but she was wrong. … Perhaps she thought the jury was going to be intimidated,” Durm said. “I don’t know what she was thinking with that decision, but ultimately it’s up to the trial court to decide whether a mistrial was warranted.”

Thus, Durm conceded, the state did not need to present additional evidence to overcome a presumption of prejudice. He added that even if the state changed its position, there would be no impact as the appellate court was still duty-bound to look at the law and the facts of the case.  

“The general rule is that this court can affirm the trial court for any basis the record. So, a party can change its argument in favor of the affirming trial court, it just can’t change its argument in favor of reversing the trial court,” Durm said. “It’s OK to change positions if you’re trying to affirm the court because this court can affirm for any reason.” 

Despite the state’s arguments to contrary, Markisohn argued an abuse of discretion occurred and thus urged the appellate panel to vacate Jones’ conviction and remand for a new trial.

The full oral argument can be watched here.

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