VAIDIK, J.
A three-day trial was held in November 2008. At the beginning of Vaughn’s jury trial, the trial court held a hearing on Vaughn’s latest motion to proceed pro se. Vaughn ultimately withdrew this motion. On the second day of trial, Vaughn again asked to proceed pro se, but the trial court denied this motion. On the final day of trial, Vaughn, the only defense witness, testified on his own behalf. After Vaughn stated his name for the record, Attorney Holcomb asked Vaughn the following open-ended question, “do you have anything to say to the jury with regards to what led to these charges being filed against you?” Tr. p. 336. The following then occurred:
[THE WITNESS:] What I want to say is that ah – I ask you to argue something and you didn’t argue it.
THE COURT: Hold on a second.
THE WITNESS: I asked him –
THE COURT: Stop.
THE WITNESS: To tell you about –
THE COURT: Stop.
THE WITNESS: I tell you about this photograph.
THE COURT: I told you to stop. Ladies and gentlemen, retire to the jury room. Remove him from the courtroom.
WHEREUPON THE JURY RETIRED TO THE JURY ROOM.[1] [1 Although this indicates that the jury left the room at this point, it becomes clear based upon later comments by both the judge and defense counsel that the bailiff restrained the defendant and placed his hand over Vaughn’s mouth in the presence of the jury
THE WITNESS: He don’t want to tell you.
THE COURT: Remove him from the courtroom. Cover his mouth.
THE WITNESS: I asked him to get that money.
BY THE BAILIFF: Quiet.
THE WITNESS: I asked him –
BY THE BAILIFF: Now are you going to be quiet? I let my hands go.
Id. at 336-38. Outside the presence of the jury, the trial court had the following discussion with Vaughn:
THE COURT:
Now, how do you want to proceed? We are going to get through this trial one way or the other. And even contrary to what just happened and even contrary to my personal feeling that you have been trying to torpedo this case and cause a mistrial since the beginning, I have no problem with giving you a fair trial.
In fact, I recall earlier in the case you told me I was doing my job. Now, had you made the decision to unequivocally represent yourself instead of flimflamming back and forth, Mr. Holcomb wouldn’t even be sitting in this courtroom today. But it is the fact that you keep changing your mind. And you won’t stick to your answer every time I ask you. That is the reason why you have a lawyer sitting next to you.
Now the way Mr. Holcomb just started his question is he is asking you open ended questions which means you can say whatever happened on that day. You can give your version of the events. And the State, I am not going to allow them to cut you off when you go on a big, long narrative answer as to what happened on that day.
* * * * *
THE COURT:
So are you going to start with the testimony I told my attorney to do this; I told my attorney to do that; he didn’t do it? Or do you want to tell your side of the story?
BY THE DEFENDANT:
I want to tell my side of the story.
* * * * *
THE COURT:
All right. Let’s uncuff him.
BY THE DEFENDANT:
You don’t have to worry about me being violent.
* * * * *
THE COURT:
All right. Well, I think the fact that you got handcuffed and he had to put his hand over your mouth after I told you repeatedly to be quiet and you kept talking might have something to do with why you just got cuffed.
Id. at 342-45. At this point, the jury was brought back into the courtroom, and the trial court stated:
All right. At the break, Mr. Holcomb, you asked a question, the answer was non responsive, the Court felt it necessary to stop the testimony as to the non responsive nature of the question. The Court has explained the expectations of what it has for the defendant at the break. Mr. Holcomb, will you ask your question again, please.
Id. at 346. Holcomb then asked Vaughn, “Mr. Vaughn, do you have anything to say to the jury with regard to the events of September the 5th, 2008, with regards to you being in custody?” Id. Vaughn answered the question with no further problems. After Vaughn completed his testimony, id. at 346-383, the jury retired to the jury room. At this point, Attorney Holcomb
move[d] for a mistrial due [to] the activities of what happened when my client . . . was restrained by the bailiffs in this court in front of the jury. And then the jury was sent out. While my client was rambling and insisting on attacking me verbally while he was on the witness stand, at that point he was in no way, shape, form, or fashion being abusive towards the jury or any kind of a physical threat.
So on the one hand I suppose, even though the Court may feel that Mr. Vaughn was trying to set up a situation for mistrial to be granted, I don’t think it was necessary to have him physically restrained at that point simply because he wouldn’t shut up when the Court told him to be quiet. He was obviously mentioning matters that should not have been brought within the purview of the jury and would not be quiet when the Court instructed him to be quiet. But I don’t believe it was necessary at that point to have restrained him physically. Although he may have invited this thing intentionally.
. . . .
Here, there was only one disruption of courtroom decorum by Vaughn. That is, when Attorney Holcomb asked Vaughn the open-ended question, Vaughn responded “I ask you to argue something and you didn’t argue it” instead of discussing the September 5, 2008, incident. The trial court told Vaughn to stop, but Vaughn did not stop and instead tried to get his point across. The entire incident likely transpired in a matter of seconds. On appeal, the State characterizes Vaughn’s conduct as “castigat[ing]” his attorney, a “tirade,” and a “continuing harangue against his attorney.” Appellant’s Br. p. 4, 7, 10. We think this characterization goes too far. Similarly, we think the trial court’s actions in having Vaughn restrained and placing a hand over his mouth in front of the jury go too far as well.
. . . .
. . . Vaughn’s one-time disruption did not create sufficient provocation to justify restraining Vaughn in front of the jury. His non-responsive answer to Attorney Holcomb’s open-ended question and subsequent efforts in trying to make his point – despite the trial court telling him to “Stop” – do not rise to the level of the court’s “extreme measures” of restraining him and having court staff place a hand over his mouth in front of the jury. Put differently, the punishment was out of proportion to Vaughn’s offense, as the trial court put it, of being “non responsive.” Tr. p. 346. Though these were temporary measures, the damage was permanent. And while Vaughn may have technically created the situation, there were less extreme measures that the trial court could have employed, such as warning Vaughn of the potential consequences or merely excusing the jury. Tellingly, when the trial court did speak to Vaughn about his actions after this incident, Vaughn testified and then remained in the courtroom for the remainder of the proceedings without incident. Although we recognize the volume of evidence against Vaughn, he is entitled to a fair trial. We therefore conclude that this event was so prejudicial that Vaughn was placed in a position of grave peril to which he should not have been subjected. The probable persuasive effect on the jury is undeniable. It marked Vaughn, who was on trial for robbing a bank, as a dangerous person who needed to be restrained and suggested that his guilt was a foregone conclusion.
We understand the difficulty of being a trial judge and making decisions in the flash of a moment. We realize that it sometimes takes superhuman effort to restrain the natural frustration of dealing with difficult people at challenging times. We also recognize that this action is totally out of character for this seasoned and fine trial court judge. But we also understand the influence of a judge’s conduct on the jury. Muzzling and restraining Vaughn in front of the jury for this momentary outburst deprived him of an otherwise fair trial before an untainted and impartial jury. Accordingly, we conclude that the trial court abused its discretion in denying Vaughn’s motion for mistrial. We therefore reverse and remand for a new trial.
DARDEN, J., concurs.
FRIEDLANDER, J., dissents with separate opinion:
. . . In concluding that the trial court essentially over-reacted (i.e., “[t]hese restraints went far beyond what was necessary to maintain order,” slip op. at 10) the Majority states that the provocation “was only one incident by Vaughn.” Id. I believe this mischaracterizes what occurred. First, as set out in detail above, Vaughn had from the outset of trial, and indeed before, vacillated back and forth on the question of whether to proceed pro se. . . . Second, this “one incident” was in fact comprised of several successive, blatant refusals by Vaughn to adhere to the court’s commands to stop talking. Considering all that had gone on the previous three days, the court reasonably could have believed that further commands to stop talking would also go unheeded.
. . . .
Not only did Vaughn ignore repeated orders to stop talking, [footnote omitted] but it appears the trial court also was justifiably concerned that Vaughn was about to make statements that might cause a mistrial. To prevent that, and to maintain order, the court decided that Vaughn need to be silenced immediately – and reasonably so, in my view. Could the court have chosen a less “extreme” means of doing so? First and foremost, we cannot ignore the context in which this situation arose. The Majority describes it as “only one incident by Vaughn.” Slip op. at 10. I suppose this is true in a technical sense, but to view this incident in isolation is to ignore all that led up to it, as described in detail above. Isolated from its context in this fashion, our evaluation of the trial court’s decision is hamstrung by a lack of perspective. For instance, absent a consideration of that context, we cannot accurately determine the likelihood that Vaughn would have continued to disregard the trial court’s directives and would have said something that would result in a mistrial. Taking into consideration all that had occurred up to that point, it appears to me that Vaughn was determined to say what he was going to say, [footnote omitted] and he no longer recognized the trial court’s authority to limit his testimony. Thus, the trial court was left with only two choices: force Vaughn to stop talking or force the jury to stop listening. As to the latter, it is not clear to me how the trial court could accomplish it even if it were so inclined, at least not in a manner befitting the standards of decorum appropriate to the proceedings. This left only one option – to physically prevent Vaughn from speaking.
Ultimately, the Majority decides that clamping a hand over Vaughn’s mouth and restraining him “marked [him] … as a dangerous person and suggested that his guilt was a foregone conclusion.” Slip op. at 12. It seems far more likely that the jury would conclude the restraints were placed there for a different reason – the actual reason, i.e., Vaughn refused to obey the court’s orders to stop talking. Surely restraints do not carry the stigma of guilt when the jury has seen first-hand that they were placed there as a result of the defendant’s courtroom behavior. This is especially so where the defendant was restrained only briefly and the jury was advised by the trial court that the restraints had been removed after “[t]he Court … explained the expectations of what is has for the defendant[.]” Transcript at 346. I cannot see how the stigma of guilt would arise with respect to the underlying charge under these circumstances.
I find one other implication of the Majority’s ruling troubling. Certain of Vaughn’s actions both before and during trial led both the trial court [footnote omitted] and defense counsel [footnote omitted] to believe that he may have been attempting all along to cause a mistrial. Those opinions were not without basis in the record. . . . To the extent there was any prejudice to Vaughn as a result of the actions undertaken to compel his silence, he brought it on himself, perhaps purposely. Whether purposeful or not, he should not be permitted to gain from his willful disregard of the trial court’s commands. I would affirm the trial court in all respects.