                                                                                 FILED
                                                                            Jun 16 2016, 10:38 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                           Gregory F. Zoeller
      Marion County Public Defender Agency                       Attorney General of Indiana
      Indianapolis, Indiana
                                                                 Eric P. Babbs
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Byron Etter,                                               June 16, 2016
      Appellant-Defendant,                                       Court of Appeals Cause No.
                                                                 49A02-1508-CR-1263
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable J. Jeffrey Edens,
      Appellee-Plaintiff.                                        Special Judge
                                                                 Trial Court Cause No.
                                                                 49G05-1301-FA-4106



      Barnes, Judge.


                                              Case Summary
[1]   Byron Etter challenges the trial court’s denial of his motion to dismiss. We

      affirm.



      Court of Appeals of Indiana | Opinion 49A02-1508-CR-1263 | June 16, 2016                       Page 1 of 13
                                                       Issue
[2]   The restated issue is whether the special judge properly denied Etter’s motion to

      dismiss because the trial court did not “goad” Etter into moving for a mistrial.


                                                       Facts
[3]   On January 24, 2013, the State charged Etter with Class A felony child

      molesting, Class B felony rape, Class B felony sexual misconduct with a minor,

      and Class D felony child solicitation. On July 21, 2014, Etter’s jury trial began.

      The State’s first witness was L.B., the alleged victim. Etter requested a mistrial

      twice during L.B.’s testimony. The first time, Etter objected to the foundation,

      or lack thereof, the State attempted to lay in order to admit certain photographs;

      he moved for a mistrial when the State described in front of the witness (but

      outside the presence of the jury) the substance of the foundational testimony it

      sought from her. The trial court denied Etter’s motion.


[4]   Shortly thereafter, Etter attempted to cross-examine L.B. regarding what he

      described as inconsistencies between her answers to foundation questions the

      State asked outside the presence of the jury and her answers to the same line of

      questioning when her testimony resumed. The trial court disagreed that the

      statements were inconsistent and, after calling the parties to the bench,

      explained why it believed that to be the case. Defense counsel then asked, “Are

      you advocating for the State?” Tr. p. 90. The trial court responded, “No,

      absolutely not . . . I am offended by what you just said to me, absolutely not . . .

      I’m not advocating for anybody here, only justice . . . Only that the truth come


      Court of Appeals of Indiana | Opinion 49A02-1508-CR-1263 | June 16, 2016    Page 2 of 13
      out.” Id. at 91. The bench conference continued, and defense counsel again

      explained his interpretation of L.B.’s testimony. Toward the end of the

      discussion, the trial court said to defense counsel, “Just have it your way.” Id.

      at 92.


[5]   The bench conference concluded, and this exchange took place:

               THE COURT:                It’s Burger King today.


               [DEFENSE COUNSEL]:             Judge, I’m going to object to
               that comment. And at this time, I’m going to move for a mistrial
               because I believe --


               THE COURT:                I’m going to grant it.


               [DEFENSE COUNSEL]:                         Okay.


               THE COURT:                I’m granting the mistrial.


      Id. The jury exited the courtroom, and the trial court said:


               We’re done. Thank you. I’m going to reset this for trial [a]nd
               I’m going to put it on my commissioner’s calendar and you can
               have the rest of your cases in my court in front of the
               commissioner, [defense counsel]. Your attitude towards this
               Court has always been disrespectful and it was no less today. It’s
               nothing less than I expected, actually. I don’t know why I would
               have expected anything different. We can try this Thursday. I’ll
               put it on her calendar and we can do the trial then.


      Id. at 93.


      Court of Appeals of Indiana | Opinion 49A02-1508-CR-1263 | June 16, 2016   Page 3 of 13
[6]   Three days later, the trial judge recused herself, and this case was transferred to

      Marion County Superior Court Judge Grant Hawkins. Arguing double

      jeopardy barred his retrial, Etter filed a motion to dismiss. Attached to that

      motion were affidavits from two deputy public defenders who were present in

      the courtroom during Etter’s trial. The affidavits set out what those attorneys

      heard and observed with regard to the “Burger King” comment and the bench

      conference that immediately preceded the comment. The State responded to

      Etter’s motion. Judge Hawkins then recused himself, and our supreme court

      appointed a special judge. The parties declined the opportunity to make any

      further arguments with regard to Etter’s motion to dismiss. In January 2015,

      the special judge made findings of fact and conclusions thereon and denied

      Etter’s motion. In August 2015, the special judge granted Etter’s motion to

      certify the January 2015 order for interlocutory appeal. We agreed to entertain

      Etter’s interlocutory appeal pursuant to Indiana Appellate Rule 14(B).


                                                     Analysis
[7]   Etter contends that, pursuant to the Fifth Amendment to the United States

      Constitution and Article 1, Section 14 of the Indiana Constitution,1 double

      jeopardy bars his retrial. The Fifth Amendment to the United States



      1
        Etter argues that we should afford him broader double jeopardy protection under our state constitution than
      that provided by the federal constitution. He contends that courts in other states, including Oregon and
      Arizona, have done so and urges us to follow suit. However, Etter cites to no Indiana precedent to support
      his request. We note that Indiana courts have not undertaken a separate analysis under our state constitution
      when addressing the double jeopardy issue Etter presents here. See Willoughby v. State, 660 N.E.2d 570, 575-
      76 (Ind. 19967); Green v. State, 875 N.E.2d 473, 476-77 (Ind. Ct. App. 2007), trans. denied. Thus, we do not
      separately address Etter’s claim under the Indiana Constitution.

      Court of Appeals of Indiana | Opinion 49A02-1508-CR-1263 | June 16, 2016                         Page 4 of 13
      Constitution “protects a criminal defendant from repeated prosecutions for the

      same offense.” Oregon v. Kennedy, 456 U.S. 667, 671 102 S. Ct. 2083, 2087

      (1982). The Double Jeopardy Clause further grants a defendant the right “to

      have his trial completed by a particular tribunal.” Id. at 671-72, 102 S. Ct. at

      2087. In general, when a defendant elects to terminate the proceedings against

      him or her, double jeopardy does not bar retrial. See id. at 672-73, 102 S. Ct. at

      2088. However, there is a narrow exception to this rule: “The Double

      Jeopardy Clause does protect a defendant against governmental actions

      intended to provoke mistrial requests and thereby to subject defendants to the

      substantial burdens imposed by multiple prosecutions.” Id. at 674, 102 S. Ct. at

      2088 (citation omitted). “[I]f a defendant moves for or consents to a mistrial,

      the defendant forfeits the right to raise a double jeopardy claim in subsequent

      proceedings unless the motion for mistrial was necessitated by governmental

      conduct ‘intended to goad the defendant into moving for a mistrial.’”

      Willoughby, 660 N.E.2d at 576 (quoting Kennedy, 456 U.S. at 676, 102 S. Ct. at

      2089).


[8]   We need not determine whether the trial court’s intemperate remarks fall within

      the ambit of “governmental conduct.” Id. The parties do not dispute that they

      do. We therefore address Etter’s argument assuming, without deciding, that is

      the case.


[9]   The parties disagree regarding the standard of review we should apply. Etter

      contends that the standard of review on a claim of double jeopardy is de novo

      and that the standard of review regarding motions to dismiss is abuse of

      Court of Appeals of Indiana | Opinion 49A02-1508-CR-1263 | June 16, 2016   Page 5 of 13
       discretion. He candidly acknowledges, however, our supreme court has stated

       that an appellate court examining a governmental actor’s intent in these

       circumstances should consider the trial court’s determination to be “very

       persuasive.” Appellant’s Br. p. 16 (quoting Butler v. State, 724 N.E.2d 600, 604

       (Ind. 2000)). That is the argument the State adopts. Relying in part on Butler,2

       the State contends that where, as here, the trial court makes findings of fact and

       conclusions thereon, we should review its ruling under a clearly erroneous

       standard.


[10]   Etter argues his case is distinguishable from Butler. He contends, in sum, that

       because the special judge was not present during Etter’s aborted trial, he “had

       no more opportunity to assess the actor’s intent than does an appellate court.”

       Appellant’s Br. p. 16. Instead, the special judge’s review of the record, on

       which he based the findings of fact, “[was] like an appellate court’s review: [he]

       ha[d] only the record to consider in making its determination of intent.” Id.

       We agree.




       2
         We note that the State relies on two other cases—Robinson v. State, 5 N.E.3d 362 (Ind. 2014), and Candler v.
       State, 837 N.E.2d 1100 (Ind. Ct. App. 2005)—in support of its argument regarding the standard of review.
       Neither of those cases examines the double jeopardy issue Etter raises here, however. In Robinson, our
       supreme court discussed whether and to what extent reviewing the video of a traffic stop constituted
       reweighing evidence when that video conflicted with a police officer’s live testimony about the traffic stop.
       The trial court concluded the officer’s testimony should be afforded more weight than the video. Our
       supreme court concluded that even though it was able to view the same video evidence the trial court did, it
       could not substitute its own judgment for that of the trial court by reweighing the evidence. Robinson differs
       from this case in that the trial judge in that case heard live testimony, which, obviously, was not before the
       reviewing court. The State cites to Candler for the general proposition that we review factual findings under a
       clearly erroneous standard. Because Robinson and Candler do not speak to the standard of review we should
       apply in addressing this particular double jeopardy question, and because Robinson is distinguishable, they do
       not persuade us to apply a more deferential standard of review.

       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1263 | June 16, 2016                           Page 6 of 13
[11]   In Butler, our supreme court stated, “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.’ It is a factual determination

       that we review under a clearly erroneous standard.” Butler, 724 N.E.2d at 602-

       04 (citation omitted). But Butler is distinguishable from this case. In Butler, the

       same trial judge who presided over the trial and granted Butler’s motion for a

       mistrial found that the circumstances necessitating the mistrial were not created

       by the State. In that case, the trial court was able to observe the participants in

       the trial and use those first-hand observations to determine whether the

       governmental actor intended to goad the defendant into requesting a mistrial.

       Here, however, the special judge was not present during Etter’s aborted trial

       and, like us, had only the record to review.


[12]   We afford a trial court’s findings of fact and conclusions thereon deference

       because “the trial court views the evidence firsthand and we review a cold

       documentary record.” MacLafferty v. MacLafferty, 829 N.E.2d 938, 941 (Ind.

       2005). Our supreme court has stated, “when ‘the trial court rules on a paper

       record without conducting an evidentiary hearing,’ as happened here, we are ‘in

       as good a position as the trial court . . . to determine the force and effect of the

       evidence.’ Under those circumstances, our review is de novo.” In re Adoption of

       C.B.M. 992 N.E.2d 687, 691 (Ind. 2013) (quoting GKN v. Magness, 744 N.E.2d

       397, 401 (Ind. 2001)) (ellipses and emphasis in original). Because the special

       judge in this case did not view Etter’s trial firsthand, its findings and

       conclusions regarding the trial court’s intent are based on the same paper and


       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1263 | June 16, 2016    Page 7 of 13
       audio records now before this court. Thus, we are in as good a position as the

       special judge was to determine whether the trial court intended to goad Etter

       into requesting a mistrial. Our task, then, is to assess whether the subjective

       intent of the trial court was to goad Etter into moving for a mistrial. See Farris v.

       State, 753 N.E.2d 641, 646 (Ind. 2001) (“The subjective intent of the

       [governmental actor] is the dispositive issue”) and Kennedy, 456 U.S. at 667,

       102 S. Ct. at 2088.


[13]   The special judge issued expansive, detailed findings of fact. Although we do

       not defer to those findings, we do view some of them as a helpful starting point

       for our review.3 The special judge recounted the parties’ disagreements

       regarding aspects of L.B.’s testimony and found that, while granting one of

       defense counsel’s motions, the trial court responded, “Oh, good Lord.” App. p.

       180. The special judge quotes several excerpts from the conversation held

       outside the presence of the jury that immediately preceded the “Burger King”

       comment. The special judge found that defense counsel and the trial court

       engaged in an exchange after defense counsel asked, “Are you advocating for

       the State?” and that the trial court stated it was offended. Id. at 182. Shortly

       after that, the following exchange took place:




       3
         The trial court denied Etter’s first request for a mistrial. Had it been attempting to goad Etter into making
       that first request, it stands to reason that it would have granted his motion. Because it did not, we conclude
       the trial court was not trying to goad Etter into requesting a mistrial at that time, and we confine our review
       to the conversations and comments that took place after the trial court denied Etter’s first motion for a
       mistrial.

       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1263 | June 16, 2016                            Page 8 of 13
               [Defense Counsel]: That’s what the testimony was. We can go
               back and listen to it, Judge.


               [The Court]: Well, go right ahead, [defense counsel].


               [Defense Counsel]: I mean -- no, I’m just saying --


               [The Court]: Do whatever you want to do. This is your trial.


               [The Court]: Go ahead.


               [Defense Counsel]: I’m just (inaudible) go ahead and finish
               (inaudible). That’s fine.


               [The Court]: Go right ahead.


               [Defense Counsel]: Okay.


               [The Court]: Just have it your way.


               [Defense Counsel]: Okay.


       Tr. p. 92. The bench conference concluded, and the trial court then said, “It’s

       Burger King today.” Id.


[14]   The special judge found that Etter and the State disagreed regarding how loudly

       the trial court made the “Burger King” comment and that “[t]he State argues

       that it was not loud enough for the courtroom to hear . . . . However the

       comment was made loud enough for two deputy public defenders sitting in the



       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1263 | June 16, 2016   Page 9 of 13
       back of the courtroom, to have heard it.” App. p. 183. The special judge

       further found:


               55) After the jury was released [the trial court] address[ed]
               [defense counsel]:


               We’re done. Thank you. I’m going to reset this for trial [a]nd
               I’m going to put it on my commissioner’s calendar and you can
               have the rest of your cases in my court in front of the
               commissioner, [defense counsel]. Your attitude towards this
               Court has always been disrespectful and it was no less today. It’s
               nothing less than I expected, actually. I don’t know why I would
               have expected anything different. We can try this Thursday. I’ll
               put it on her calendar and we can do the trial then.


       Id. at 183.


[15]   The special judge found “Clearly [the trial court] became frustrated over the

       events that transpired during the trial” and cited the admonishment the trial

       court gave defense counsel after the jury was excused. Id. at 185. In particular,

       the special judge noted, “At one point [the trial court] stated, ‘Your attitude

       toward this Court has always been disrespectful and it was no less today.’” Id.

       The special judge concluded that statement was “not without merit” and that

       defense counsel’s question regarding the trial court’s impartiality “could be

       perceived as being disrespectful in nature.” Id. at 186. The special judge

       acknowledged “a buildup on [sic] tension between [the trial court] and [defense

       counsel] . . . [which] reached a breaking point when [the trial court] stated ‘It’s

       Burger King today.’” Id. (no citation in original).


       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1263 | June 16, 2016   Page 10 of 13
[16]   Based on our de novo review of the record, we conclude that the above-

       referenced findings are accurate. In addition to the special judge’s findings, our

       review of the record reveals that the trial court made several frustrated,

       intemperate remarks directed at defense counsel during the bench conference

       immediately preceding the “Burger King” comment; the exchanges between the

       trial court and defense counsel were tense. Our review of the audio recording

       reveals that the volume of the trial court’s voice increased during the bench

       conference when she denied advocating for the State and expressed her

       frustration with defense counsel’s suggestion otherwise. But the record contains

       no evidence the jury heard any of the comments immediately preceding the

       “Burger King” comment. That is true even though two attorneys present in the

       courtroom heard snippets of the bench conference and described the trial court’s

       expression and tone as “angry or upset” and “very impatient.” App. p. 159.


[17]   We next turn to the “Burger King” comment, the comment that seems to have

       precipitated Etter’s request for a mistrial. Based on our review of the audio

       recording of the trial, we observe that the volume of that comment was not as

       loud as statements the trial court made to the courtroom in general, but not as

       quiet, generally, as those it made during bench conferences. We further observe

       that the record contains no evidence the jurors heard the comment, despite the

       fact that two attorneys present in the courtroom did. We do not believe it is

       reasonable to infer that the jurors were paying attention to the non-testimony

       statement to the same degree the attorneys were, particularly one made

       immediately following a bench conference, which is designed to be a private


       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1263 | June 16, 2016   Page 11 of 13
       conversation between the trial court and the parties. Therefore, we do not

       believe it is reasonable to infer that the jurors heard the comment simply

       because the attorneys who were observing the trial did.


[18]   The meaning of the “Burger King” comment is not self-evident. It was flippant

       and may have trivialized the importance of a Class B felony jury trial. But it is

       not clear from our review of the transcript or audio recording precisely what the

       trial court intended to convey when she made the comment. Etter explains in

       his motion to dismiss that the “Burger King” comment is “not unlike the

       comments cited by the Judicial Qualification Commission as in the case against

       [another trial judge]: ‘This isn’t McDonald[’]s, you can’t get what you want

       when you want it.’” App. p. 155 (no citation in original). We are unfamiliar

       with that context and presume the jury was as well. Without that context, we

       do not assign the same offensive meaning to it that defense counsel

       understandably did. More to the point, however, there is nothing in the record

       that establishes, or from which we can infer, that the trial court had that context

       in mind when she made the comment or otherwise intended it to prompt

       defense counsel to seek a mistrial.


[19]   Our review of the record, including the audio recording of the trial, reveals that,

       although the trial court was frustrated with defense counsel and made

       inappropriate comments, there is no evidence she intended to goad Etter into

       requesting a mistrial. Although we do not condone the trial court’s comments,

       we cannot say they were so damaging to Etter as to necessitate a mistrial.



       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1263 | June 16, 2016   Page 12 of 13
                                                  Conclusion
[20]   The special judge properly denied Etter’s motion to dismiss. We affirm.


[21]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1263 | June 16, 2016   Page 13 of 13
