MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                            Oct 25 2017, 7:54 am

court except for the purpose of establishing                             CLERK
                                                                     Indiana Supreme Court
the defense of res judicata, collateral                                 Court of Appeals
                                                                          and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David K. Payne                                           Curtis T. Hill, Jr.
Braje, Nelson & Janes, LLP                               Attorney General of Indiana
Michigan City, Indiana
                                                         Angela Sanchez
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Steven Lindsey,                                          October 25, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         64A04-1703-CR-482
        v.                                               Appeal from the
                                                         Porter Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      William E. Alexa, Judge
                                                         Trial Court Cause No.
                                                         64D02-1502-MR-1173



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017       Page 1 of 37
[1]   Steven Lindsey (“Lindsey”) was convicted after a jury trial of murder,1 a felony,

      and was sentenced to fifty-five years executed. Lindsey raises seven issues for

      our review, which we restate as:


                 I.       Whether the trial court abused its discretion when it
                          denied Lindsey’s request for a continuance in the middle
                          of trial where the State sought to introduce new evidence
                          that Lindsey’s boots matched a footprint found outside the
                          house;


                 II.      Whether the trial court committed fundamental error
                          when it did not further question a juror about her decision
                          to remain on the jury when it was evident that the length
                          of the trial would conflict with her vacation plans;


                 III.     Whether the trial court abused its discretion when it
                          admitted evidence that blood found on the wall of the
                          crime scene belonged to Lindsey;


                 IV.      Whether the trial court abused its discretion when it
                          excluded videos of police interviews that Lindsey claimed
                          showed the lack of investigation by the police and,
                          therefore, denied him the right to present a complete
                          defense;


                 V.       Whether the trial court abused its discretion when it
                          denied Lindsey’s request to allow him to read his prior
                          testimony into the record when the testimony was offered
                          by the State in its case-in-chief;




      1
          See Ind. Code § 35-42-1-1.


      Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 2 of 37
              VI.      Whether the trial court erred when it declared a mistrial
                       when new evidence was discovered by the State during
                       Lindsey’s first trial; and


              VII.     Whether the trial court abused its discretion when it
                       admitted evidence that Lindsey had the victim’s dog
                       euthanized shortly after her murder.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In early 2012, Lindsey met his future wife, Melinda, and within a couple of

      months, she became unexpectedly pregnant with his child. Melinda had been

      an exotic dancer when the two met, but, after becoming pregnant, she quit her

      job and did not return to work again. Lindsey did not like Melinda associating

      with her friends or former customers from her time as a dancer, and Melinda

      had less and less contact with her friends as well as her family after her

      relationship with Lindsey began.


[4]   Lindsey was working as an electrical lineman when he and Melinda met, but he

      was fired from his job in early 2014 for drinking on the job. Lindsey worked

      sporadically until November 2014, earning substantially less than he had in

      prior years. After November 2014, Lindsey did not work again until after

      Melinda was murdered in January 2015. In October 2014, Lindsey’s behavior

      became very impulsive and unpredictable. He opened a new credit card and

      purchased a cruise, but never made a payment on the credit card. Lindsey also

      cashed out over $16,000 from his retirement account and spent all of that

      Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 3 of 37
      money within weeks. In November 2014, he was ordered to pay $6,200 in child

      support arrears. During this time, Lindsey had stopped paying his rent and

      numerous other bills. From May 2014 to January 2015, bank accounts

      belonging to Lindsey and Melinda were frequently overdrawn and numerous

      payments were returned for insufficient funds.


[5]   One of the payments returned for insufficient funds was the December 2014

      premium for a life insurance policy with MetLife insuring Melinda’s life. The

      policy had been issued in January 2014 and insured Melinda’s life for one

      million dollars with an additional accidental death benefit of $100,000. Lindsey

      was the sole beneficiary. On January 7, 2015, MetLife sent a letter to Lindsey

      and Melinda stating that their premium had not been paid and that if they did

      not pay by January 26, 2015, the policy would be cancelled.


[6]   The couple frequently fought about their financial problems. Melinda wanted

      Lindsey to return to work, and she also discussed returning to work as a dancer

      to earn extra money, but Lindsey did not want her to do so. Melinda asked her

      parents if she and her daughter could move back in with them in Illinois.

      Although Melinda was not actually pregnant at the time of her death, Lindsey

      believed that she was pregnant in December 2014. Lindsey and Melinda had a

      big fight around January 1, 2015, and Melinda told Lindsey that she was

      leaving him. She went to a friend’s house, in a hysterical state, and said that

      Lindsey had taken their daughter to his brother’s house and would not let

      Melinda have her daughter. Tr. Vol. VII at 1595.



      Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 4 of 37
[7]   On January 8, 2015, Lindsey called police to report that he and Melinda had

      returned home and discovered the screen to their bedroom window had been

      cut and the window was open. No one had gained entry into the house, and

      the couple’s three dogs—a large Malamute that had belonged to Lindsey before

      marriage and an aggressive and protective pit bull mix and a small Chihuahua

      that had both belonged to Melinda before the marriage—were inside the house.

      When police arrived at the scene, the bedroom window was closed. Lindsey

      told police that he believed someone opened the window to lure the dogs out so

      that they could enter the house. Tr. Vol. II at 337.


[8]   On January 15, a detective called to follow up on the January 8 incident, and

      while Melinda was on the phone with the officer, Lindsey informed Melinda

      that he had just discovered suspicious footprints around their house. Tr. Vol.

      VIII at 1865-66. Officers came to the house that day to investigate but observed

      that the prints did not appear fresh. Later the same day, Melinda called police

      again to report that she had noticed that several items were missing from her

      car. Lindsey and Melinda suggested that these incidents, and another

      unreported incident months earlier, might be related to stalking and suggested

      several ex-boyfriends and former customers, from when Melinda was a dancer,

      as possible suspects.


[9]   The next morning, on January 16, shortly before 6:30 a.m., Melinda was shot

      in the head while in bed. The bullet entered above and behind her left ear,

      travelled through her skull, and exited above and in front of her right ear.

      There was stippling around the entry wound which indicated that she was shot

      Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 5 of 37
       at close range. There were no signs of a struggle or sexual assault, and a

       blanket was pulled up over Melinda’s body, with her arms resting down at her

       side. Melinda later died of her wounds at the hospital. It was later determined

       that she had been shot with a single bullet from her own gun, which was left on

       the floor of the bedroom with no other bullets in it.


[10]   Meanwhile, Lindsey had called 911 at approximately 6:20 a.m. and screamed

       incoherently for approximately two minutes before hanging up. After receiving

       the call, the dispatcher searched the system for records associated with the

       phone number and dispatched police to the couple’s address immediately. The

       dispatcher then attempted to contact Lindsey via text or call, but did not get an

       answer. After initially calling 911, Lindsey had called his brother, and after

       speaking with his brother for almost a minute, Lindsey called 911 back,

       approximately six minutes after the first call, and reported either “My wife’s

       been shot” or “They shot my wife.” Tr. Vol. at 330-32. Police arrived at the

       home while Lindsey was still on the phone with 911.


[11]   Police entered the house through the unlocked front door and could still smell

       burnt gun powder in the air, which suggested that it had only been fifteen to

       twenty minutes since the gun had been fired. Tr. Vol. II at 496-97. Melinda

       was in her bed and still alive. The dogs were in the garage, although Lindsey

       claimed that they were in the house when he went to sleep and were never kept

       in the garage. Tr. Vol. III at 550; Tr. Vol. XI at 2664. The police discovered

       Lindsay in his daughter’s bedroom. Lindsey told the officers that he could not

       open the door, and when the officer entered, Lindsey was on his knees in front

       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 6 of 37
       of his daughter’s crib with his hands restrained behind his back with two large,

       white zip ties. The officer found zip ties of the same kind in the bedroom where

       Melinda was discovered. During the investigation, it was learned that the

       brand of zip ties was exclusively sold in bulk through electrical supply

       distributors and were accessible to Lindsey where he worked. Tr. Vol. IX at

       2046-52, 2203-08.


[12]   Lindsey informed the police that he had fallen asleep on the sofa watching

       television around 2:00 a.m. and woke up when someone began choking him

       from behind. Tr. Vol. III at 537. Lindsey maintained that he blacked out

       almost immediately and could not remember anything until he woke up on the

       floor of his daughter’s bedroom to the sound of what he thought was a gunshot.

       Id. He claimed that his hands had already been zip-tied when he woke up, but

       he did not remember anything about how he had gotten to his daughter’s room.

       Tr. Vol. XI at 2663-64. Lindsey advised the police of the same list of possible

       suspects for Melinda’s murder as he had provided for the prior incidents. The

       police investigated these suspects and eliminated them all because they had

       verified alibis. Tr. Vol. III at 690. There were no signs of forced entry to the

       home; the front door was unlocked when the police arrived, although Lindsey

       stated it was locked when he went to bed, and Melinda was known to always

       lock doors. All other doors to the house were closed and secured, and no

       footprints were found outside leading to any other point of entry.


[13]   Shortly after Melinda died, Lindsey had her body cremated, which was against

       her family’s wishes, and did not hold a memorial service or publish an obituary.

       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 7 of 37
       Within several weeks of Melinda’s death, Lindsey took numerous rings,

       including an engagement ring, and other jewelry to a jewelry store to attempt to

       sell, but the store did not purchase any of the items. Lindsey made several calls

       to MetLife to initiate a claim on Melinda’s policy and to check on the status of

       the claim. He took Melinda’s two dogs to a veterinarian clinic and had them

       euthanized. Lindsey was arrested and charged with Melinda’s murder on

       February 12, 2015.


[14]   Lindsey’s first trial began on September 21, 2015. At the end of the first day of

       trial, after the jury was selected and sworn, but before any evidence was

       presented, the State was informed that a woman had reported to police that day

       that another man, a former boyfriend of Melinda’s named Michael Manning

       (“Manning”), had confessed to her that he had committed the murder. The

       State informed defense counsel immediately, and the parties jointly requested a

       continuance of trial the following morning to permit further investigation. The

       trial court adjourned the trial for two days to permit further investigation. In

       investigating the allegations, the police conducted multiple taped interviews

       with several witnesses, conducted a voice stress test with Manning, and

       executed a search warrant to obtain cell phone location data for Manning.

       Prior to the day that the trial was set to resume, Linsey filed a “motion for

       continuance and/or additional time,” in which he maintained that it was

       “physically impossible” for defense counsel to review and investigate the

       volume of recently obtained information before the trial was scheduled to

       resume and that to proceed without additional time would deprive him of due


       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 8 of 37
       process, and he requested that “trial either be continued or reset for an adequate

       period of time to allow [Lindsey’s] counsel to conduct his due diligence

       regarding this recent information.” Appellant’s App. Vol. II at 75-80.


[15]   On the day the trial was set to resume, the trial court met with the parties and

       informed them that, after doing extensive legal research and considering

       Lindsey’s right to due process and the volume of new evidence, it had decided

       to declare a mistrial. The trial court stated that it was ordering the mistrial to

       protect the rights of the defendant. Before bringing the jury back in, the trial

       court inquired as to both parties if they had any additional issues to discuss, and

       Lindsey raised only the question of whether the trial court would set bond.

       Lindsey did not object or otherwise protest the trial court’s decision to declare a

       mistrial. The jury was returned to the courtroom, thanked, and discharged.


[16]   A jury trial again commenced on November 2, 2015, but that trial resulted in

       another mistrial due to a hung jury. A third jury trial commenced on February

       16, 2016. During voir dire, Juror 7 informed the court that she was scheduled

       to leave town to attend a wedding on Thursday, March 10, 2016, but that she

       could delay her flight if necessary and still attend the wedding. Tr. Vol. II at

       265-66. When she was asked if this would upset her, she replied “maybe a

       little.” Id. at 266. However, she assured the trial court that she would not

       allow this to rush her to a quick verdict. Id.


[17]   As the trial continued and March 10 drew near, the trial court reminded the

       parties of Juror 7’s travel plans and asked them to consider how they wanted to


       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 9 of 37
       address the issue. The trial court noted that there were two alternate jurors and

       requested that the parties consider whether they wanted to excuse Juror 7. Tr.

       Vol. X at 2316-17. When it became clear that the trial would not conclude by

       March 10, the trial court brought Juror 7 into court and inquired if she wished

       to be excused from the jury or stay until the trial was completed. Id. at 2411.

       Juror 7 stated that she would rather stay, and Lindsey declined the opportunity

       to further question the juror. Id. at 2411-12.


[18]   Prior to the presentation of evidence, Lindsey had advised the trial court that if

       the State intended to read the transcript of Lindsey’s testimony from his

       previous trial into evidence, he wanted to be allowed to be the one who read the

       testimony to prevent another reader from adding their own inflections to the

       testimony. Tr. Vol. II at 291. The State argued that it should be allowed to

       have its choice of reader to present evidence in its case-in-chief and that the jury

       could be confused by having Lindsey read the prior testimony. Id. The trial

       court agreed with the State and said it did not think it appropriate to allow

       Lindsey to read the testimony. Id. Later in the trial before the prior testimony

       was read, Lindsey raised several objections to it but did not renew his request to

       read his testimony into evidence. Tr. Vol. at 2126-27. The State had a detective

       who had not been involved with the investigation read Lindsey’s prior

       testimony to avoid any risk of undue influence or inappropriate inflections

       added to the testimony. Id. at 2128. Before the detective read the testimony,

       the trial court admonished him to read the words in the transcript without

       added inflections, and the detective agreed. Id. at 2196.

       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 10 of 37
[19]   During the investigation of the crime scene, a number of spots of blood were

       located on the wall near the headboard of the bed where Melinda was shot, and

       DNA tests later revealed that the blood belonged to Lindsey. Testimony was

       presented that the shape, location, and other characteristics of the blood spatter

       was inconsistent with having come from Melinda’s fatal wound. Lindsey

       objected and contended that the stains were irrelevant and unduly prejudicial.

       He alleged that the blood could not have been placed on the wall at the time of

       the murder because he had no visible injuries on his body at the time that police

       photographed him after the murder. Tr. Vol. V at 1130-32. The trial court

       overruled the objection.


[20]   The State also sought to admit evidence that Lindsey had euthanized Melinda’s

       dogs shortly after her murder. Lindsey objected to the evidence on the basis

       that it was irrelevant and unduly prejudicial, arguing that it was merely

       designed to elicit sympathy from any dog lovers on the jury. Tr. Vol. VIII at

       1844-45. The State responded that the evidence was relevant for two reasons:

       first, the vet records contained notes about the aggressive nature of the pit bull

       mix that undermined Lindsey’s claim that an intruder had entered the house

       without being attacked by the dog or causing it to bark and wake either Melinda

       or Lindsey; and second, Lindsey’s decision to have both of Melinda’s dogs

       euthanized so soon after her death along with other evidence showed a pattern

       of behavior that was inconsistent with that of a grieving widower and suggested

       that he was trying to rid his life of all traces of Melinda. Id. at 1844, 1846. The

       trial court overruled Lindsey’s objection.


       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 11 of 37
[21]   During his case, Lindsey sought to admit and play for the jury numerous videos

       of interviews that police conducted after they were alerted to the claim that

       Manning had confessed to killing Melinda. In their investigation of that claim,

       the police interviewed Manning, his father, his ex-wife, and the woman who

       had approached the police. Lindsey acknowledged that the interviews were

       “on face hearsay,” but claimed that he was not offering them for the truth of the

       matter asserted. Tr. Vol. XI at 2587. Instead, he asserted that allowing the jury

       to watch the videos would show that the police had not seriously investigated

       Manning’s alleged confession. Id. In support of this argument, Lindsey cited

       only the example of one officer, in one video, who allegedly stated, “‘[c]ome

       on, just tell us anything, we want to get out of here,’” to show the probative

       value of the content of the lengthy videos. Id. at 2587. At that time, Manning,

       his father, and his ex-wife had already testified during the trial. The trial court

       excluded the videos after noting that Lindsey had the opportunity to present

       evidence regarding the police investigation and the interviews through other

       witnesses. Id. at 2588.


[22]   On the morning of the murder, the police had noticed a boot print with a

       distinctive tread pattern by the front porch of the house and had photographed

       it. During the trial, a detective testified that he believed that they compared the

       print to the tread patterns of all the boots in Lindsey’s home, and none had

       matched the print. The detective had also gone to various stores to see if he

       could locate a boot with a similar tread pattern, but was not able to locate any.

       However, after his initial testimony and while the trial was still occurring, the


       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 12 of 37
       detective decided to double check that he had compared the treads on all of

       Lindsey’s boots to the print. He discovered that the print did match the tread

       pattern of a pair of boots from the home; the matching boots had not been

       collected into evidence at the house with the other boots, but had been given to

       Lindsey to wear on the morning of the crime because he had exited the house

       barefoot. Tr. Vol. X at 2277. The boots were later collected from Lindsey with

       his other clothing when he was interviewed at the police station.


[23]   When the State was informed of this discovery, the prosecutor informed

       defense counsel, who sought to have the detective’s testimony excluded. The

       trial court allowed Lindsey to question the detective about his discovery outside

       the presence of the jury, and after this questioning, Lindsey renewed his request

       to exclude the evidence, claiming that he did not have adequate time to

       investigate it. The trial court denied the request to exclude. Before the witness

       testified, Lindsey requested a continuance to allow for examination of the

       evidence and to preserve the issue for appeal, and the trial court denied the

       request.


[24]   At the conclusion of the jury trial, Lindsey was found guilty of murder. He was

       later sentenced to fifty-five years in the Indiana Department of Correction.

       Lindsey now appeals his conviction.




       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 13 of 37
                                      Discussion and Decision

                                     I.       Denial of Continuance
[25]   Lindsey argues that the trial court abused its discretion when it denied his

       motion for a continuance. The trial court has broad discretion in dealing with a

       discovery violation by the State in the alleged late disclosure of evidence to the

       defense. Kennedy v. State, 934 N.E.2d 779, 784 (Ind. Ct. App. 2010) (citing

       Berry v. State, 715 N.E.2d 864, 866 (Ind. 1999)). We will reverse the trial court’s

       ruling in such matters only for an abuse of discretion involving clear error and

       resulting prejudice. Berry, 715 N.E.2d at 866. The proper remedy for a

       discovery violation is generally a continuance. Id. “Exclusion of the evidence

       is an extreme remedy and is to be used only if the State’s actions were deliberate

       and the conduct prevented a fair trial.” Id. Failure to alternatively request a

       continuance upon moving to exclude evidence, where a continuance may be an

       appropriate remedy, constitutes a waiver of any alleged error based on

       noncompliance with the court’s discovery order. Warren v. State, 725 N.E.2d

       828, 832 (Ind. 2000).


[26]   Lindsey contends that the trial court abused its discretion when it denied his

       request for a continuance where the State disclosed new evidence in the middle

       of the trial. He asserts that the trial court allowed him an inadequate amount of

       time in which to investigate and prepare for the new evidence. Lindsey argues

       that, even though the officer who testified to the new evidence was not a new

       witness, his testimony regarding the boot print was not anticipated, and

       Lindsey required more time to properly investigate it. Lindsey further claims

       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 14 of 37
       that the trial court’s statement that the new evidence “[didn’t] go to

       admissibility but [to] the weight that a jury is going to give to it” was erroneous

       and did not afford him a sufficient remedy for the State’s newly-revealed

       evidence. Tr. Vol. X at 2274.


[27]   During the trial, a detective, testifying about the boot print with the distinctive

       tread pattern found outside the house the morning of the murder, stated that he

       believed they compared the print to the tread patterns of all the boots in the

       home and had not found any that matched. The detective also went to various

       stores to try to locate a boot with a similar tread pattern, but was not able to do

       so. However, after his initial testimony, and while the trial was still ongoing,

       the detective decided to double check the treads on the boots from Lindsey’s

       house and discovered that the print did match the tread pattern of a pair of

       boots from the home. The matching boots had not been collected into evidence

       at the house with the other boots, but had been given to Lindsey to wear on the

       morning of the crime and were later collected from Lindsey with his other

       clothing when he was interviewed at the police station. The State informed

       defense counsel of this discovery when the State was made aware of the match.

       The trial court allowed Lindsey to question the detective about his discovery

       outside the presence of the jury, and after this questioning, Lindsey renewed his

       objection to the evidence, arguing that he did not have adequate time to

       investigate it. Before the witness testified, Lindsey requested a continuance to

       allow for examination of the evidence and to preserve the issue for appeal.




       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 15 of 37
[28]   Prior to the challenged testimony by the detective, a picture of the boot print

       had been admitted into evidence and the detective had testified about the print’s

       distinctive tread pattern, where it had been found, and his efforts to try to match

       the print to boots from the house. Testimony was also presented that the police

       had given Lindsey a pair of boots to wear to the police station. Therefore, the

       only new evidence was that the tread pattern of the boots Lindsey wore to the

       police station matched the boot print. The challenged testimony consisted of

       the detective stating that he looked at the tread patterns of the boot taken from

       Lindsey at the police station and looked at the photograph of the boot print and

       noticed that the tread patterns were the same. Tr. Vol. X at 2277-79. The

       detective noted that unique markings of the boot print found outside the house

       matched the tread patterns of the boots taken from Lindsey. Id. Although

       Lindsey alleges that he did not have time to investigate the comparison, at trial,

       he did not inform the trial court of what specific analyses or consultations he

       believed were necessary and that he needed additional time to perform.

       Instead, he only mentioned having “questions” about the size of the print and

       the shoe. Id. at 2273. Lindsey “must make a specific showing that the

       additional time requested would have aided him in order to show an abuse of

       discretion on the part of the trial court.” Clark v. State, 539 N.E.2d 9, 11 (Ind.

       1989). Because nothing in the record suggests that a continuance would have

       further aided Lindsey, we find that the trial court did not abuse its discretion

       when it denied Lindsey’s request for a continuance.




       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 16 of 37
[29]   We further find that the present case is distinguishable from Johnson v. State, 384

       N.E.2d 1035 (Ind. Ct. App. 1979), on which Lindsey relies. In Johnson, a

       firearms expert was first identified the day before trial and called to testify to

       technical issues that concerned the central claim in the case, whether the gun

       had fired intentionally or accidentally. The trial court denied Johnson’s request

       for a continuance, instead only allowing for a midtrial deposition. This court

       found that the midtrial deposition did not provide the defendant adequate time

       to prepare for the witness. Id. at 35-36.


[30]   Here, the detective’s testimony did not present any similar issues to Johnson.

       The challenged testimony in the present case did not involve a highly technical

       subject, and Lindsey never suggested he wanted to consult an expert to rebut

       the testimony. Most importantly, whether the boot print belonged to Lindsey

       or a third party was not central to the question of Lindsey’s guilt. The evidence

       merely eliminated the possibility that it belonged to a third-party intruder, but

       this is unavailing as Lindsey did not contend the intruders entered through the

       front door; he believed they entered through a faulty garage door. The trial

       court did not abuse its discretion in denying Lindsey’s request for a

       continuance.


                                             II.      Juror Inquiry
[31]   Lindsey contends that the trial court erred in not questioning Juror 7 more

       extensively when the juror decided to remain on the jury. Lindsey asserts that

       the trial court had a duty to determine the level of potential prejudice held by


       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 17 of 37
       Juror 7, which was a separate inquiry from whether the juror wished to stay on

       the jury for the conclusion of the trial. Lindsey argues that Juror 7’s response

       that she would remain on the jury did not reveal if she held any prejudice based

       on having to postpone her travel plans and that the trial court should have

       made a further inquiry in light of her earlier statement that she may be upset if

       her trip was interrupted. Lindsay also takes issue with the phrase “the bitter

       end” used by the trial court and claims that Juror 7’s response to the phrase

       could indicate the “distastefulness and unpleasantness of her sacrifice with

       regard to the travel plans.” Appellant’s Br. at 24.


[32]   During voir dire, Juror 7 informed the court that she had plans to attend an out

       of town wedding on March 10, 2016, but that she could delay her flight if

       necessary and still attend the wedding. Tr. Vol. II at 265-66. When asked if this

       would upset her, she replied “maybe a little,” but assured the trial court that she

       would not allow it to cause her to reach a quick verdict. Id. As the trial

       continued and March 10 drew near, the trial court reminded the parties of Juror

       7’s travel plans, noted that there were two alternate jurors, and requested that

       the parties consider whether they wanted to excuse Juror 7. Tr. Vol. X at 2316-

       17. When it became clear that the trial would not be completed by March 10,

       the trial court brought Juror 7 into court and inquired if she wished to be

       excused from the jury or stay until “the bitter end.” Id. at 2411. Juror 7 stated

       that she would rather stay, and Lindsey declined the opportunity to further

       question the juror. Id. at 2411-12.




       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 18 of 37
[33]   A claim of error must be raised during trial in order to be available as an issue

       on appeal, and the failure to raise such a claim generally waives that issue for

       appeal. Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009). “We nevertheless

       sometimes entertain such claims under the rubric of ‘fundamental error.’”

       Caruthers v. State, 926 N.E.2d 1016, 1020 (Ind. 2010). Fundamental error is an

       error that makes a fair trial impossible or constitutes clearly blatant violations of

       basic and elementary principles of due process presenting an undeniable and

       substantial potential for harm. Id.


[34]   Lindsey argues that the trial court failed to inquire as to any potential bias or

       prejudice held by Juror 7, which denied him his right to a fair trial. The right to

       a fair trial before an impartial jury is a cornerstone of our criminal justice

       system. Whiting v. State, 969 N.E.2d 24, 28 (Ind. 2012) (citations omitted). It

       requires that a criminal defendant be given “a fair trial by a panel of impartial,

       ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961). A constitutionally

       impartial juror is one who is able and willing to lay aside his or her prior

       knowledge and opinions, follow the law as instructed by the trial judge, and

       render a verdict based solely on the evidence presented in court. Whiting, 969

       N.E.2d at 28 (citing Irwin, 366 U.S. at 722-23). “While courts have a duty to

       ensure an impartial jury, we have never held that they have the obligation to

       ensure the absence of any bias.” Caruthers, 926 N.E.2d at 1021 (emphasis in

       original). If a trial court determines that there is no risk of substantial prejudice,

       it has no duty to investigate further into potential juror bias. Id.




       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 19 of 37
[35]   In Caruthers, 926 N.E.2d 1016, which Lindsay cites to in support of his

       argument, our Supreme Court held that the determination of whether the trial

       court should have proceeded with questioning jurors turned on whether the trial

       judge could have reasonably concluded that there was little likelihood of actual

       prejudice. Id. at 1021. Here, the trial court asked Juror 7 how she wanted to

       proceed when it became apparent that the trial would not conclude before

       March 10 and would impede her travel plans and even offered Juror 7 the

       opportunity to be released from the jury completely. Taking into account that

       Juror 7’s only stated minor concern during voir dire was about the disruption of

       her trip, it was reasonable for the trial court to conclude there was no actual

       bias on the part of Juror 7. When given the opportunity to be released from the

       jury, Juror 7 stated she would rather stay due to the amount of time already

       invested in the trial. We conclude that it was reasonable for the trial court to

       believe there was no substantial risk of bias in light of Juror 7’s decision to stay

       on the jury. Further, just because the trial court used the phrase “the bitter end”

       when inquiring as to whether Juror 7 wished to remain on the jury until the

       completion of the trial does not imply bias. These were not words used by

       Juror 7, and the phrase is a common expression; it is not likely that Juror 7

       interpreted this phrase as the trial court expressing a sincere opinion on the

       experience of remaining on the jury. Lindsey has not shown that fundamental

       error occurred.




       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 20 of 37
                                           III. Blood Evidence
[36]   Lindsey contends that the trial court abused its discretion when it admitted

       evidence of blood spots found on the wall near where Melinda was shot that

       belonged to him. “Questions regarding the admission of evidence are entrusted

       to the sound discretion of the trial court.” Harrison v. State, 32 N.E.3d 240, 250

       (Ind. Ct. App. 2015), trans. denied. Accordingly, we review the trial court’s

       decision on appeal only for an abuse of that discretion. Id. The trial court

       abuses its discretion only if its decision regarding the admission of evidence is

       clearly against the logic and effect of the facts and circumstances before it, or if

       the court has misinterpreted the law. Id. We do not reweigh the evidence, and

       we consider conflicting evidence in a light most favorable to the trial court’s

       ruling, but we also consider any undisputed evidence that is favorable to the

       defendant. Id.


[37]   During the trial, the State sought to admit evidence that a number of spots of

       blood were found on the wall near the headboard of the bed where Melinda was

       shot, and DNA tests revealed that the blood belonged to Lindsey. Testimony

       was presented that the shape, location, and other characteristics of the blood

       spatter was inconsistent with having come from Melinda’s fatal wound.


[38]   Lindsey argues that it was an abuse of discretion for the trial court to admit the

       blood evidence attributed to him that was discovered on the wall near where

       Melinda was shot. Lindsey asserts that, because he had no injuries at the time

       he was interviewed by the police that were capable of producing such blood


       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 21 of 37
       spatter, the blood must have been from an unrelated incident and was,

       therefore, not relevant as to whether he murdered Melinda. Lindsey also

       contends that allowing such evidence to be admitted was highly prejudicial

       because it invited the jury to speculate as to how the blood ended up on the

       wall.


[39]   However, the presence of the blood spatter on the wall above the headboard of

       the bed in which Melinda was shot was relevant to the investigation. In fact,

       prior to trial, Lindsey moved to compel testing of the blood stains, and during

       his first trial, he questioned officers extensively about why the blood had not yet

       been tested; therefore, it seems that Lindsey believed that establishing the

       source of the blood was important. This blood evidence was relevant in

       establishing that the blood was not placed there by some unknown perpetrator

       and to eliminate other possible suspects and refute Lindsey’s claim that an

       unidentified intruder killed Melinda. It was also relevant to establish that the

       blood did not come from Melinda’s fatal wound and assist in describing the

       crime scene to the jury. The evidence was relevant to demonstrate that the

       police thoroughly examined the crime scene and determined the source of the

       blood since Lindsey challenged the thoroughness of the investigation in this

       case. Additionally, Lindsey contends that it was impossible for his blood to

       have been placed on the wall at or near the time of the crime because he had no

       obvious open wounds when he was photographed by police the morning after

       the crime. However, even if there was no fresh and obvious open wound, there

       are other ways that a person’s blood could have gotten on the wall, such as


       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 22 of 37
       bleeding from the nose or mouth with no visible injuries or bleeding from

       relatively small wounds such as nicks from a razor that could go unnoticed.

       Further, contrary to Lindsey’s contention on appeal, it was not necessary for

       the State to prove how the blood got on the wall. The trial court noted that any

       dispute about when or how the blood was placed on the wall was for the jury to

       resolve, and Lindsey’s concerns were best addressed through cross-examination

       of the witness, which Lindsey had an opportunity to do. Tr. Vol. V at 1130-31.

       We conclude that the trial court was within its discretion to admit the evidence

       pertaining to the blood spatter.


                            IV. Failure to Admit Interview Videos
[40]   Lindsey claims that the trial court abused its discretion when it did not allow

       him to admit the video-recorded interviews of individuals that suggested a third-

       party committed the murder. We review a trial court’s decision to admit or

       exclude evidence for an abuse of discretion. Barnhart v. State, 15 N.E.3d 138,

       143 (Ind. Ct. App. 2014) (citing Hardiman v. State, 726 N.E.2d 1201, 1203 (Ind.

       2000)). An abuse of discretion occurs where the trial court’s decision is clearly

       against the logic and effect of the facts and circumstances presented. Id.

       However, errors in the admission or exclusion of evidence are to be disregarded

       as harmless error unless they affect the substantial rights of a party. Id. (citing

       Fleener v. State, 656 N.E.2d 1140, 1141 (Ind. 1995)). We, therefore, “will find

       an error in the exclusion of evidence harmless if its probable impact on the jury,

       in light of all of the evidence in the case, is sufficiently minor so as not to affect



       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 23 of 37
       the defendant’s substantial rights.” Id. (citing Williams v. State, 714 N.E.2d 644,

       652 (Ind. 1999), cert. denied, 528 U.S. 1170 (2000)).


[41]   Lindsey argues that the trial court’s failure to admit the video-recorded

       interviews that were related to the confession of a third party was an abuse of

       discretion. He asserts that the videos should have been admitted into evidence

       because they were relevant to his defense that the police did not conduct a

       thorough investigation and failed to follow up on other suspects. Lindsey

       argues that the videos were admissible because they were not hearsay since he

       sought to admit them for a purpose other than the truth of the statements

       contained in the videos, which was to demonstrate that the police did not

       conduct a proper investigation. He further contends that the trial court’s failure

       to admit the videos denied him his constitutional right to present a complete

       defense under the United States Constitution.


[42]   Lindsey sought to admit and play for the jury numerous videos of interviews

       that police conducted after the police had been made aware of the claim that

       Manning had confessed to killing Melinda. In investigating that claim, the

       police interviewed Manning, his father, his ex-wife, and the woman who

       approached the police. Lindsey acknowledged to the trial court that the

       interviews were “on face hearsay,” but claimed that he was not offering them

       for the truth of the matter asserted and argued that the videos would show that

       the police had not seriously investigated Manning’s alleged confession. Tr. Vol.

       XI at 2587. In support of this argument, Lindsey cited only the example of one

       officer, in one video, who allegedly stated, “‘[c]ome on, just tell us anything, we

       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 24 of 37
       want to get out of here,’” to show the probative value of the content of the

       lengthy videos. Id. at 2587.


[43]   When the admissibility of an out-of-court statement is challenged as hearsay,

       we first determine whether the testimony describes an out-of-court statement

       that asserts a fact susceptible of being true or false. Vertner v. State, 793 N.E.2d

       1148, 1151 (Ind. Ct. App. 2003). If the statement does contain an assertion of

       fact, we consider the evidentiary purpose of the proffered statement. Id. If the

       statement is offered for a purpose other than to prove the truth of the matter

       asserted, we consider whether the fact to be proved is relevant to some issue in

       the case and whether the danger of unfair prejudice that may result from its

       admission outweighs its probative value. Id. Evidence is relevant if it has any

       tendency to make the existence of any fact that is of consequence to the

       determination of the action more probable or less probable than it would be

       without the evidence. Ind. Evidence Rule 401.


[44]   We agree that Lindsey’s stated purpose of challenging the thoroughness of the

       police investigation into the claim that someone else confessed to the murder is

       relevant. However, Lindsey has not shown how the excluded videos would

       have established that the police did not conduct a thorough investigation into

       another possible suspect. At trial, Lindsey only pointed to a single instance on

       one of the several videos he sought to admit in support of his claim that the

       police did not seriously investigate the claim that a third party committed the

       murder. Here, on appeal, he does not offer anything further regarding the

       content of the videos to support his claim. The videos contained almost nine

       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 25 of 37
       hours of interviews, with numerous police officers interviewing four different

       individuals concerning the allegations that Manning confessed to the murder of

       Melinda. Further, at the point at which Lindsey attempted to have the videos

       admitted into evidence, Manning, his father, and his ex-wife had already

       testified during the trial, and Lindsey had the opportunity to challenge the

       police investigation when cross-examining each of the police officers who

       testified. Although Lindsey offered a relevant non-hearsay purpose for the

       admission of the evidence, he did not prove that the contents of the videos had

       a strong tendency to support his stated purpose. We therefore conclude that

       Lindsey failed to establish that the video evidence was relevant and had high

       probative value. The trial court did not abuse its discretion excluding the

       videos from being admitted at trial.


[45]   Lindsey argues that the trial court’s exclusion of the videos violated his right to

       present a defense under the United States Constitution. The Constitution

       guarantees criminal defendants “a meaningful opportunity to present a

       complete defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting

       California v. Trombetta, 467 U.S. 479, 485 (1984)). An essential component of

       procedural fairness is an opportunity to be heard. Id. However, the right to

       present a defense is not absolute. Schermerhorn v. State, 61 N.E.3d 375, 379

       (Ind. Ct. App. 2016), trans. denied. “The accused does not have an unfettered

       right to offer testimony that is incompetent, privileged, or otherwise

       inadmissible under standard rules of evidence.” Taylor v. Illinois, 484 U.S. 400,

       410 (1988). Evidence must be relevant to be admissible. Evid. R. 402.


       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 26 of 37
[46]   Based on Lindsey’s contentions and the evidence, he has not shown that the

       contents of the videos had a strong tendency to support his argument that the

       police did not conduct a complete investigation into a possible third-party

       suspect in the murder. The proposed video evidence consisted of many hours

       of interviews of multiple people, many of whom testified at trial. Lindsey also

       was able to cross-examine all of the officers who testified at trial regarding their

       investigation. We find that the proposed evidence was irrelevant pursuant to

       Indiana Evidence Rule 401 and, therefore, inadmissible under Evidence Rule

       402. Lindsey’s right to present a defense does not include a right to present

       evidence that does not comply with the evidentiary rules, and thus, the trial

       court did not violate his constitutional rights by not admitting the videos.


                                   V.       Reading of the Transcript
[47]   Lindsey argues that the trial court abused its discretion in refusing to allow him

       to read the transcript of his prior trial testimony into evidence at his third trial.

       He contends that his case turned on his credibility and the jury had to weigh the

       State’s circumstantial case against his testimony that a third party had

       committed the crime. Lindsey asserts that the jury could not adequately

       perform this task with a detective reading a cold record into evidence and that

       the trial court denied his ability to provide the jury with proper demeanor

       evidence. He maintains that the trial court’s decision allowed the State to

       present misleading and incomplete evidence at trial.


[48]   At trial, the State requested permission, during its case-in-chief, to read into

       evidence the transcript of Lindsey’s testimony from the prior trial. Lindsay
       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 27 of 37
       asked that he be allowed to be the one to read the testimony to prevent another

       reader from adding their own inflections to the testimony. The State argued

       that it should be allowed to have its choice of reader to present evidence in its

       case-in-chief and that the jury could be confused by having Lindsey read the

       prior testimony. The trial court agreed with the State and said it did not think it

       appropriate to allow Lindsey to read the testimony. Before the prior testimony

       was read, Lindsey raised several objections to it but did not renew his request to

       read his testimony into evidence. The State had a detective who had no

       previous involvement in the investigation read Lindsey’s prior testimony, and

       the trial court admonished the detective to read the words in the transcript

       without added inflections.


[49]   We note that Lindsey does not provide a standard of review for this issue.

       However, “[a] trial court has wide discretion in managing the conduct of a trial

       in such a manner that facilitates the ascertainment of truth, insures fairness, and

       obtains economy of time and effort commensurate with the rights of both

       society and the defendant.” Roberts v. State, 894 N.E.2d 1018, 1027 (Ind. Ct.

       App. 2008) (citing Utley v. State, 589 N.E.2d 232, 239 (Ind. 1992), cert. denied,

       506 U.S. 1058 (1993)), trans. denied. The trial court’s exercise of discretion will

       not be disturbed unless the defendant demonstrates that he or she was

       prejudiced by an abuse of that discretion. Id.


[50]   Lindsey does not argue on appeal that his prior testimony was inadmissible,

       and he does not raise any contention about the manner in which the testimony

       was actually read to the jury; his only argument is that he believes he should

       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 28 of 37
       have been the one to read the transcript. The trial court has discretion to

       determine how to conduct the trial and how Lindsey’s prior testimony should

       be read into evidence, and its decision to allow a witness with no involvement

       in the investigation to read the transcript with no embellishments or added

       inflection was within its discretion. Additionally, Lindsey was not deprived of

       his right to have the jury assess the credibility of the witnesses as he asserts. He

       testified at trial, and the jury was able to observe his demeanor and assess his

       credibility at that time. Further, Lindsey has not shown how he was prejudiced

       by the trial court not allowing him to read the transcript into evidence. The

       State sought to admit this evidence during its case-in-chief and chose a detective

       who had not been involved in the investigation of the murder to read the

       testimony. Before the detective read the testimony, the trial court admonished

       him to read the words in the transcript without added inflections, and the

       detective agreed. We find that the trial court did not abuse its discretion in not

       allowing Lindsey to read the transcript of his prior testimony into evidence

       during the State’s case-in-chief.


                                     VI. Declaration of Mistrial
[51]   Lindsey asserts that the trial court erred because it declared a mistrial when new

       evidence was discovered during his first trial and then later retried him. He

       contends that the trial court’s sua sponte declaration of mistrial and his later

       conviction violated the prohibition against double jeopardy under the Fifth

       Amendment to the United States Constitution. Lindsey argues that he did not

       consent to the mistrial, and instead, he requested that the trial be either

       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 29 of 37
       “continued or reset” as opposed to the jury being discharged. Appellant’s Br. at

       39. He further maintains that the mistrial was not justified by manifest

       necessity because the grant of a mistrial benefited the State, no alternative to

       mistrial had been considered, and the extreme remedy of mistrial was not

       justified because the jury could have been brought back to hear the case after an

       investigation into the new evidence was conducted.


[52]   The Double Jeopardy Clause of the Fifth Amendment, applicable to the states

       through the Fourteenth Amendment, provides that “[n]o person shall . . . be

       subject for the same offence to be twice put in jeopardy of life or limb.” U.S.

       Const. amend. V; Benton v. Maryland, 395 U.S. 784, 794 (1969). Once a jury is

       impaneled, jeopardy attaches, and a defendant is protected from being twice

       placed in jeopardy. Brock v. State, 955 N.E.2d 195, 199 (Ind. 2011), cert. denied,

       566 U.S. 909 (2012). The constitutional protection against double jeopardy has

       several features. Here, because the first trial ended in a mistrial, we focus on

       the defendant’s “valued right to have his trial completed by a particular

       tribunal,” Wade v. Hunter, 336 U.S. 684, 689 (1949), which means that the

       defendant has a right to have his trial completed by the first jury impaneled to

       try him, Oregon v. Kennedy, 456 U.S. 667, 673 (1982). Although this right is

       valued, it “must in some instances be subordinated to the public’s interest in fair

       trials designed to end in just judgments.” Wade, 336 U.S. at 689. Thus, unlike

       a trial that has ended with a judgment on the merits, declaration of a mistrial

       does not automatically bar retrial. Arizona v. Washington, 434 U.S. 497, 505

       (1978).


       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 30 of 37
[53]   If the trial judge declares a mistrial over the defendant’s objection, the

       defendant may be retried only if the government demonstrates that the mistrial

       was justified by a “manifest necessity” or that “the ends of public justice would

       otherwise be defeated.” Brock, 955 N.E.2d at 200 (quoting United States v. Perez,

       22 U.S. 579, 580 (1824)). However, if the defendant consents to the mistrial,

       then retrial is permitted as a matter of course, unless the defendant can prove

       that the government intentionally goaded him or her into consenting to the

       mistrial “to subvert the protections afforded by the Double Jeopardy Clause.”

       Id. (quoting Kennedy, 456 U.S. at 676). Therefore, to determine if the State was

       permitted to retry Lindsey after his first trial ended in a mistrial, we must

       engage in a multi-step analysis. First, we consider whether Lindsey consented

       to the trial judge’s declaration of a mistrial. If so, then we consider whether the

       government goaded him into consenting. If he did not consent to the mistrial,

       then we consider whether it was justified by a “manifest necessity.”


[54]   Lindsey contends that he did not consent to the declaration of a mistrial. In

       determining whether a defendant has consented to a mistrial, the Indiana

       Supreme Court has adopted the approach of the Seventh Circuit and numerous

       other federal circuit courts, which have held that a defendant can “tacitly

       consent to the mistrial because he failed to raise a contemporaneous objection.”

       Id. at 202-03 (citing United States v. Buljubasic, 808 F.2d 1260, 1265-66 (7th Cir.

       1987) (numerous additional citations omitted), cert. denied, 484 U.S. 815

       (1987)). The requirement of a contemporaneous objection “allows the




       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 31 of 37
       defendant to control the decision whether to go to the first jury or to forego that

       option and have a different jury decide his or her fate.” Id. at 203.


[55]   In the present case, when the State informed defense counsel of the new

       evidence, the parties jointly requested a continuance of trial to permit further

       investigation, and the trial court adjourned the trial for two days to permit

       further investigation. After this initial agreed continuance, Lindsey filed a

       “motion for continuance and/or additional time.” Appellant’s App. Vol. II at 75-

       80, in which he listed the large amount of new evidence that has been produced

       by police and noted that it was “physically impossible” to review and

       investigate all of the recently obtained information before the trial was set to

       resume and that to proceed without delay would deprive him of due process.

       Id. at 77-80. He requested that “trial either be continued or reset for an

       adequate period of time to allow Defendant’s counsel to conduct his due

       diligence regarding this recent information.” Id. at 80.


[56]   In requesting either a continuance or that the trial be reset, Lindsey sought relief

       other than just a continuance, as it seems his request for a reset of the trial was a

       request to declare a mistrial and reset the case for a new trial. This conclusion

       is further bolstered by Lindsey’s conduct when trial resumed after the

       continuance. The trial court informed the parties that it had considered

       Lindsey’s right to due process and the large amount of information that Lindsey

       needed to investigate and decided that a further continuance of the trial would

       impinge on Lindsey’s rights. The trial court also stated that it had conducted

       research on the consequences of jeopardy attaching in the case and determined

       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 32 of 37
       that it would declare a mistrial in order to protect Lindsey’s rights. The parties

       and court then discussed rescheduling trial and chose a new start date for the

       trial. At no time during this discussion, did Lindsey raise any objection to the

       trial court’s decision or voice any disagreement with the trial court’s

       determination of the need for a mistrial. At that time, Lindsey’s only concern

       was whether the court would set bond in the interim. Only after this discussion

       and the setting of a new trial date was the jury returned to court and excused

       from service. Lindsey had a sufficient opportunity to object if he wanted to do

       so, and he chose not to do so. We, therefore, conclude that Lindsey tacitly

       consented to the mistrial by failing to lodge an objection. Cf. Brock, 955 N.E.2d

       at 203-04 (holding that a defendant’s failure to object will not be deemed to be

       consent if the trial court’s declaration of a mistrial does not allow the defendant

       the opportunity to object prior to discharging the jury).


[57]   Because Lindsey consented to the mistrial, he could be later retried without

       finding manifest necessity. However, we find that, even if he had not

       consented, a retrial would not have violated double jeopardy principles because

       manifest necessity existed. “‘We think, that in all cases of this nature, the law

       has invested Courts of justice with the authority to discharge a jury from giving

       any verdict, whenever, in their opinion, taking all the circumstances into

       consideration, there is a manifest necessity for the act, or the ends of public

       justice would otherwise be defeated.’” Brock, 955 N.E.2d at 206 (quoting Perez,

       22 U.S. at 580). A trial court has broad discretion in determining whether the

       totality of the circumstances shows that there is a manifest necessity for


       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 33 of 37
       declaring a mistrial, and the standard must be applied with attention to the

       particular problem confronting the trial court. Id. We review the trial court’s

       decision for an abuse of discretion, and it will be affirmed if a high degree of

       necessity is found. Id. at 207.


[58]   Here, the mistrial was not caused by prosecutorial error, and nothing suggested

       that the State wanted a do-over in order to present a stronger case. The trial

       court noted that the State had promptly provided the newly discovered

       evidence, once found, and although the evidence would potentially change the

       way the case was presented by both sides, the evidence was potentially

       exculpatory. Accordingly, it was Lindsey, not the State, who stood to benefit

       from its discovery, and there is no reason to conclude that the State wanted a

       new trial so that it could present a stronger case than it already had. Moreover,

       when the mistrial was declared, the State had not begun to present any evidence

       at all. Additionally, because the mistrial was declared so early, there was only a

       minimal burden on Lindsey to duplicate his efforts as the jury had only just

       been chosen, but no evidence had yet been presented. Further, the trial court

       made its decision to declare a mistrial after conducting legal research and taking

       sufficient time to consider the situation and the effect it had on Lindsey’s rights.


[59]   The necessity of the trial court’s decision is examined “in light of the steps taken

       by the trial court to avoid a mistrial, including whether counsel had an

       opportunity to be heard, whether the trial court considered alternatives, and

       whether the trial court’s decision came after adequate reflection.” Id. We

       conclude that, based on the totality of the circumstances, the trial court was

       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 34 of 37
       well within its discretion to find there was a manifest necessity for a mistrial.

       Lindsey’s later retrial was not barred by double jeopardy.


                             VII. Admission of Veterinary Records
[60]   Lindsey contends that the trial court abused its discretion in admitting

       veterinary records that showed his consent to euthanize Melinda’s dogs. The

       decision to admit or exclude evidence is within the discretion of the trial court,

       and this decision is afforded great deference on appeal. Bell v. State, 29 N.E.3d

       137, 141 (Ind. Ct. App. 2015), trans. denied. Accordingly, we review the trial

       court’s decision for an abuse of this discretion, which occurs where the trial

       court’s decision is clearly against the logic and effect of the facts and

       circumstances before it, or if the court misinterprets the law. Id.


[61]   Lindsey argues that it was an abuse of discretion for the trial court to admit into

       evidence veterinary records that showed his consent to euthanize Melinda’s

       dogs. He claims that the records were not relevant, and the State’s reasons for

       relevance were not supported by the evidence. Lindsey further asserts that the

       records were unduly prejudicial because the evidence was only admitted to

       appeal to the sympathies of members of the jury who happened to be dog lovers

       and to provoke “an instinct to punish.” Appellant’s Br. at 43.


[62]   At the time of her death, Melinda owned two dogs, one of which was an

       aggressive guard dog, who would attack anyone who appeared to be fighting

       with or attacking Melinda, even in a playful manner. The dog barked

       aggressively at anyone who approached the house. However, despite this, there

       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 35 of 37
       was no evidence that the dog barked or attacked the intruder that Lindsey

       claimed entered the house and killed Melinda. Less than a month after

       Melinda died, Lindsey took both of her dogs to a veterinarian and had them

       euthanized.


[63]   At trial, the State sought to admit the veterinary records showing that the dogs

       were euthanized, arguing the records were relevant for two reasons: (1) they

       supported that one of Melinda’s dogs was an aggressive guard dog; and (2) the

       fact that the dogs were euthanized so soon after Melinda died indicated that

       Lindsey was attempting to rid himself of the things that Melinda loved.

       Lindsey took Melinda’s dogs to their regular veterinarian to be euthanized, and

       the records contained a notation that one of the dogs needed to be muzzled

       during treatments and that the staff should be aware of potential biting. Tr. Vol.

       VIII at 1848; State’s Ex. 270. This evidence showed that Melinda’s dog was

       aggressive and bolstered the State’s assertion that it was unlikely that an

       intruder entered the house and killed Melinda because her dog would have

       barked or attacked if any intruder had been present. Additionally, the records

       showed that Lindsey took Melinda’s dogs to be euthanized within several

       weeks of her murder, which could demonstrate this was part of a pattern of

       behavior that was inconsistent with a grieving widower, including Lindsey’s

       decision to cremate Melinda and hold no funeral services against her family’s

       wishes, and suggested an indifference to his wife and his loss of her. We,

       therefore, conclude that the evidence was relevant.




       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 36 of 37
[64]   As to prejudice, “all evidence that is relevant to a criminal prosecution is

       inherently prejudicial, and thus the Evidence Rule 403 inquiry boils down to a

       balance of the probative value of the proffered evidence against the likely unfair

       prejudicial impact of that evidence.” Duvall v. State, 978 N.E.2d 417, 428 (Ind.

       Ct. App. 2012), trans. denied. We do not find that this evidence was unduly

       prejudicial, and the trial court did not abuse its discretion in admitting it.


[65]   Affirmed.


[66]   Najam, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 64A04-1703-CR-482 | October 25, 2017   Page 37 of 37
