DAVID, Justice.
This case involves a trial court's discretion in granting a mistrial. Defendant vacillated back and forth throughout the trial seeking to proceed pro se and at other times wanting court-appointed counsel. Ultimately, the relationship between defendant and his counsel reached its low point when later in the trial defendant testified. After being non-responsive to the first question his counsel asked, defendant began to complain to the jury about his counsel's trial strategy. Defendant's response to counsel's question was also irrelevant and risked a mistrial.
Within a matter of a few moments, the judge had instructed the defendant four times to stop speaking before directing the jury to be removed from the courtroom. Before the jury left the courtroom, the judge directed the bailiff to cover the defendant's mouth so that the defendant would stop talking. Later, after the defendant had calmed down and expressed his willingness to follow the judge's direction, the jury was brought back into the courtroom, and defendant completed his direct and cross-examinations without incident. Only after defendant completed his testimony did defense counsel move for a mistrial. The trial court refused to grant a mistrial. Because we find the defendant did not suffer actual harm from the bailiff restraining him, we affirm the trial court's decision.
On September 5, 2008, Tyaisha Gardner was working as a teller for the Fifth Third Bank in Merrillville, Indiana, when a gentleman approached the counter, stating he wanted to open an account. The individual dropped a plastic bag on the counter and, in a threatening voice, told Gardner to "fill it up." Gardner was afraid the man had a gun due to his movements and keeping his arm at his side. Gardner filled the bag with money, including a stack of "bait" money and pressed the security button under the counter.
When police inventoried the vehicle, they identified even more money in the vehicle as well as a plastic bag. Officer Veschak identified Vaughn as the person who fled the vehicle. Gardner and fellow bank teller Jennifer Wilcox identified Vaughn as the bank robber.
Vaughn was charged with robbery, theft, and two counts of resisting law enforcement. Prior to trial, Vaughn vacillated between proceeding pro se and having his court-appointed counsel represent him. The trial court described Vaughn as "flimflamming back and forth."
It is important to look at the entirety of Vaughn's case to provide context for the events leading up to the request for mistrial. The court convened on October 31, 2008. The first order of business that day was to address defendant's motion to proceed without counsel. Vaughn's counsel addressed the court and acknowledged his frustration, stating, "Mr. Vaughn some months ago elected to proceed pro se and the Court just last week appointed me back to the case after he indicated he wanted counsel." Vaughn's desire to proceed pro se apparently stemmed from a disagreement in trial strategy involving a witness, Maurice Burge.
The conversation between the trial court judge and Vaughn continued, with Vaughn wanting assistance only in picking a jury, yet wanting to proceed pro se during the trial. Then the trial judge and Vaughn had the following dialogue:
Vaughn then said he understood that by proceeding pro se he would receive no assistance in jury selection. The trial court next went into a narrative of various rights Vaughn had and various penalties if he would be found guilty of his crime. Vaughn then asked the trial court for a brief break to speak with his counsel. After taking a ten-minute recess, the court reconvened, and Vaughn informed the
After finalizing Vaughn's decision to proceed with counsel, the court began its business, going through pretrial motions, discussing the scheduling of the trial, and finally selecting the jury. When the trial resumed on November 5, 2008, prior to the State's first witness, defense counsel notified the court that yet again Vaughn wished to proceed pro se. Vaughn's counsel stated, "[a]fter speaking with my client here, apparently he is entertaining notions of going pro se. So I know we have been back and forth with that before, but I think it is my duty to advise the Court." The trial court and Vaughn again held a lengthy discussion, before ultimately the trial court denying his request, stating,
Following lunch that day, the judge found a written motion to proceed pro se that Vaughn placed on the judge's chair, without knowledge of his defense counsel. The trial court judge notified counsel and then read it into the record,
The record reflects this was again a difference in trial strategy. Vaughn informed the court he wanted questions asked on cross-examination of previous witnesses, and Vaughn's counsel clearly felt such questions would potentially incriminate Vaughn or be improper strategy.
The trial court again denied this motion. Defense counsel then noted to the trial court that Vaughn placed a white envelope on the counsel's desk marked "Indiana Supreme Court Disciplinary Commission" that Vaughn "refuse[d] to let [counsel] pick
During defendant's case-in-chief, Vaughn was the only witness called. Following lunch on the third day of trial, Vaughn's counsel informed the Court,
The first question Vaughn was asked by his counsel was, "[a]nd, Mr. Vaughn, do you have anything to say to the jury with regards to what led to these charges being filed against you?" Vaughn's answer was, "What I want to say is that ah — I ask you to argue something and you didn't argue it." The court immediately attempted to get Vaughn to stop speaking; the record reflects the judge instructed Vaughn to be quiet four times. The court ordered the jury out of the courtroom, and the bailiff briefly placed his hand over Vaughn's mouth in an attempt to quiet Vaughn.
With the jury outside the courtroom, after dialogue between Vaughn and the trial judge, Vaughn eventually agreed to act appropriately and only respond to the questions asked. Vaughn testified. After he testified, and outside the presence of the jury, defense counsel moved for a mistrial due to Vaughn being restrained in the presence of the jury. The trial court denied the motion for mistrial, and a jury subsequently found Vaughn guilty on all counts. A divided panel of the Court of Appeals reversed and remanded, holding the trial court abused its discretion in denying Vaughn's motion for mistrial. Vaughn v. State, 954 N.E.2d 482, 489 (Ind. Ct.App.2011).
The decision to grant or deny a mistrial motion is left to the sound discretion of the trial court. Taylor v. State, 587 N.E.2d 1293, 1299 (Ind.1992). We will reverse the trial court's determination on the issue only for an abuse of discretion. McManus
The sole issue raised by defendant is whether a mistrial should have been granted because the bailiff, at the direction of the trial court, placed his hands over Vaughn's mouth in front of the jury.
The trial court has a duty "to manage the proceedings and take responsible steps to ensure that proper discipline and order exist in the courtroom." Mengon v. State, 505 N.E.2d 788, 792 (Ind. 1987). However, that distinction is not without limitation. The trial court does not abuse its discretion in denying a mistrial motion where the defendant is placed in restraints in front of the jury unless the defendant demonstrates actual harm. Kocielko v. State, 938 N.E.2d 243, 252 (Ind. Ct.App.2010) trans. denied. Thus, the issue is whether Vaughn suffered actual harm.
The exact transcript of the incident is as follows:
Vaughn was visibly restrained in front of the jury with the bailiff covering his mouth.
We note that upon the jury returning to the courtroom, the judge had the following conversation with the defendant:
In our view, that was not an inappropriate response for the trial court judge to have this discussion with the defendant, both acknowledging the incident but trying to minimize any prejudicial impact on the jury.
The issue is whether the defendant suffered actual harm. We would first note that defense counsel did not immediately move for a mistrial once the jury was excused but waited until after defendant finished testifying. In ruling against
A defendant certainly has the right to appear in front of a jury without physical restraints, unless necessary to prevent the defendant's escape, protect those in the courtroom, or maintain order during the trial. Wrinkles v. State, 749 N.E.2d 1179, 1193 (Ind.2001). Whenever a defendant is placed in restraints in front of the jury, the trial court shall make a statement on the record concerning the reasons. Kocielko, 938 N.E.2d at 252.
In this case the defendant did not appear in front of the jury with restraints, nor was he placed in restraints. However, he was briefly restrained by the bailiff placing his hands over Vaughn's mouth. Hindsight is twenty-twenty, but we believe the better practice would have been to warn the defendant that if he did not stop talking then he would be prevented from talking. Here, no such warning was given.
It appears there was no bailiff or security officer in the courtroom when defendant took the witness stand. The better practice would be to have security in the courtroom, particularly where an uncooperative defendant has already been identified. Since the defendant and his counsel's relationship had been less than favorable since
Here, while we believe that the trial court judge did not handle the situation in a manner as we might have liked it to be handled, we find that there was no actual harm to the defendant. We find no actual harm because the incident was so brief, taking place in literally just a few moments. The bailiff only briefly placed his hand over the defendant's mouth, and the jury was quickly taken out of the courtroom. The incident was so minor, in fact, that counsel did not immediately object, only raising the objection after defendant concluded his testimony. Furthermore, defendant neither objected when he was brought back into the courtroom nor objected shortly thereafter following the trial court's conversation with him. We find no actual harm given the facts before us.
As the United States Supreme Court noted, "It would degrade our country and our judicial system to permit our courts to be bullied, insulted, and humiliated and their orderly progress thwarted and obstructed by defendants brought before them charged with crimes." Illinois v. Allen, 397 U.S. 337, 346, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). We believe the record indicates this is the type of behavior Vaughn was engaged in, which should not be rewarded. It was his own behavior throughout the trial that showed a disregard for the procedure of our trial courts, vacillating from his desire to proceed pro se and his desire to be represented. And it was Vaughn who did not directly respond to his counsel's question, and continued to speak, when being ordered by the trial judge to stop.
We have looked at a similar issue before. In Avant v. State, 528 N.E.2d 74, 77 (Ind. 1988), the defendant was upset and unruly during the trial, complaining about the trial strategy and performance of his counsel. After excusing the jury, and the defendant refusing to remain quiet, the judge had tape placed over the defendant's mouth and his hands tied. This remained throughout the rest of the trial. This Court then wrote that the defendant's own actions led to the appropriate remedy, and that the judge "was justified in employing extreme measures to deal with an extremely recalcitrant defendant." Id. at 77-78. This court concluded, "[a] defendant who creates his own cause for mistrial presents no error." Id.
Finally, we agree with Judge Friedlander's dissent that Vaughn's actions led both the trial court and defense counsel to believe he was attempting to declare a mistrial. As the trial court judge said to Vaughn once the jury was removed from the courtroom following the incident, "I think you're trying to intentionally cause a mistrial, Mr. Vaughn. And you have been since the beginning. I have been patient with you, but I am not going to let you make a mockery out [of] this system, which is exactly what you're trying to do." And earlier in the trial, when discussing Vaughn's motion to proceed pro se, defense counsel stated, "I still have my job to do and I have my professional reputation to uphold. So it will not bother me one way or the other. What I surmise here is Mr. Vaughn is doing his best to create reversible error[.]" As the dissent noted, "[t]he administration of criminal justice is not to be delivered into the hands of those who gain only from its subversion." Vaughn, 954 N.E.2d at 493 (Friedlander,
Vaughn was no stranger to the criminal justice system. In one of his pro se motions earlier in the case, he indicated he was familiar with trial procedures from having represented himself in 2006. He lost the trial, but he stated he learned from his mistakes. Vaughn stated during his incarceration he read up on trial procedure and now knows what he did wrong and will no longer make those same mistakes. It is clear to us he knew his way around the criminal justice system and had the knowledge to attempt to create his own mistrial.
A defendant has the right to appear in front of a jury without any physical restraints. However, a trial court judge also has the responsibility of managing the proceedings so proper order exists in the courtroom. While there may have been other options the judge could have exercised to prevent the necessity of ordering the bailiff to put his hand over the defendant's mouth, the judge's decision was not an abuse of discretion in denying the motion for mistrial. We find no harm was done, and affirm the trial court.
DICKSON, C.J., and RUCKER and MASSA, JJ., concur.
SULLIVAN, J., dissents, believing the decision of the Court of Appeals to have been correct.
