SULLIVAN, J.
The defendant’s first trial ended in a mistrial due to improper prejudicial comments made by defense counsel during closing argument. We hold that, although the defendant did not consent to the mistrial, his second trial did not violate the Double Jeopardy Clause of the Fifth Amendment because the trial court did not abuse its discretion in concluding that a mistrial was justified by manifest necessity.
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During his closing argument, defense counsel made several statements to the jury that prompted objections from the State. Defense counsel argued that the notice requirement of Indiana Code section 9-30-10-16 [operating when suspended as habitual traffic offender] applied as well to section 9-30-10-17 [operating when driving privileges suspended for life as habitual traffic offender], with which the defendant was charged. The trial court admonished defense counsel that Brock had been charged under section 17, not section 16, and that there was no notice requirement under section 17. Accordingly, the court ordered defense counsel to “refrain from inferring to the jury that there is any sort of notice requirement.” Tr. 263. Brock’s counsel then argued that there was no evidence to establish that the prior conviction evidenced by the redacted driving record was for violating section 16. Agreeing with the State, the trial court explained that the driving record did show that the defendant had been convicted under section 16 because, even though the driving record did not contain a citation to section 16 (or any other statute), there was only one way that the defendant could have become an HTV for life with a lifetime suspension – conviction under section 16. Tr. 268.
As soon as the jury returned from a short recess, defense counsel again argued that there was “nothing in this report that says Mr. Brock violated 9-30-10-16.” Tr. 269. The State again objected, and the trial court again admonished defense counsel not to do it again, but to no avail. After another sidebar, defense counsel again argued to the jury that there was no evidence indicating what the defendant had been convicted of in 1993, “other than a couple of lines here.” Tr. 270-71. The State objected for a fourth time, arguing that defense counsel was mischaracterizing the evidence.
After a third sidebar, defense counsel argued to the jury, with the court’s permission, that the driving record was “weak” evidence. He followed that up with the following comment: “We again, have stuff redacted. We don’t know what’s happened afterwards.” Tr. 272. The State requested a fourth sidebar because of defense counsel’s insinuation that the redacted material may have been beneficial to Brock, when in reality the redacted material was an extensive catalog of Brock’s numerous other traffic convictions and suspensions – material that had been redacted for Brock’s benefit. . . . During this sidebar, the State informed the court that if it were not allowed to address this comment then it would “have to ask for a mistrial” because of defense counsel’s mischaracterizations. Tr. 273. The trial court asked if both sides would assent to reopening the evidence, and both agreed. But after a few more comments among counsel and the trial judge, the State “officially” moved for a mistrial because of defense counsel’s prejudicial comments. Tr. 274. After concluding sidebar, the trial court denied the motion for a mistrial and ordered that the evidence would be reopened and that the State would be permitted to start its closing argument anew. The court then took a short recess, and when it returned from recess, the trial judge said that, “upon further reflection,” he had decided to grant the State’s request for a mistrial, and it therefore discharged the jury. Tr. 276-77.
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The constitutional protection against double jeopardy has several features. In this case, because the first trial ended in a mistrial, we deal with 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). [Footnote omitted.] . . . .
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.” United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824) (Story, J.); see also Washington, 434 U.S. at 505; Somerville, 410 U.S. at 461-63. But 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.” Kennedy, 456 U.S. at 676; see also Jorn, 400 U.S. at 485. Thus, determining whether the State was permitted to retry Brock after his first trial ended in a mistrial involves a multi-step analysis. We first consider whether he 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.”
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In this case, Brock neither requested the mistrial nor expressly agreed to be retried. Rather, the State argues that he tacitly consented to the mistrial because he failed to raise a contemporaneous objection. The Court of Appeals agreed and held that because the defendant “failed to lodge a timely and contemporaneous objection either to the State’s request for a mistrial or to the trial court’s ultimate decision to grant one[,] . . . he ha[d] waived his right to claim a double jeopardy violation.” Brock, 936 N.E.2d at 270 (emphasis in original). Moreover, “[t]he fact that Brock filed a motion to dismiss the charges weeks later did not preserve his right to raise the issue.” Id.
The United States Supreme Court has rejected the contention that the permissibility of a retrial is such circumstances depends on a knowing, voluntary, and intelligent waiver of the right to be free from double jeopardy. Dinitz, 424 U.S. at 609 n.11 (citations omitted). The Supreme Court has not, however, squarely addressed implied consent in this context, [footnote omitted] but most, if not all, of the United States Circuit Courts of Appeals have. Those courts have held that a defendant may tacitly or implicitly consent to be retried through certain conduct, including failing to raise a timely objection to a mistrial declaration. . . . These courts have, for the most part, held that a defendant consents to a mistrial when he or she has an opportunity to object and fails to do so. Judge Easterbrook provided a helpful explanation in Buljubasic:
Parties may give assent in many ways. If a judge should say: “I think a mistrial would be a good idea, but think this over and let me know if you disagree,” the defendant’s silence would be assent. The principal functions of the double jeopardy clause are to allow a defendant to get a verdict at the first trial if he wants one and to keep a verdict that is favorable. Whether the defendant wants a verdict is something he knows best, and when the occasion for choice comes he must choose unless, as in Jorn, the judge brooks no opposition, or unless there is insufficient time to deliberate.
808 F.2d at 1265-66 (internal citations omitted). But these courts have also recognized that in some cases there is no opportunity to object and to prohibit a defendant from raising a double-jeopardy claim under such circumstances would be too harsh. . . . .
We find persuasive the approach taken by the United States Circuit Courts of Appeals, particularly that taken by the Seventh Circuit in Buljubasic, and adopt it here. [Footnote omitted.] Ordinarily, a defendant must raise a timely objection when the government moves for a mistrial or when the trial court declares a mistrial sua sponte. . . . This allows the 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. . . . As a corollary, trial courts should allow time for such an objection prior to discharging the jury. This will give the trial court an opportunity to rethink its position and correct any error before discharging the jury, thereby avoiding a scenario in which the judge grants a mistrial but later realizes that there was no manifest necessity and precludes the State from achieving its interests in prosecuting offenders in fair trials. . . . Requiring the defendant to make a choice also avoids transforming the protection against double jeopardy into an abusive weapon used by a defendant to avoid prosecution, particularly when, as here, the mistrial is precipitated by defense counsel’s conduct. . . . .
On the other hand, we acknowledge that the circumstances surrounding a trial court‟s declaration of a mistrial may not present an opportunity for raising a timely objection prior to the jury‟s discharge. In such cases, a failure to object will not be deemed to be consent unless the totality of the circumstances otherwise shows that the defendant consented to the mistrial. . . . .
Although we think it is a close call, we hold that Brock did not consent to the trial judge’s declaration of a mistrial. This case presents somewhat of a wrinkle because the trial judge’s declaration of a mistrial was in part a grant of the State’s motion and in part sua sponte. As soon as the State moved for a mistrial, the trial judge proposed reopening the evidence and defense counsel assented to that – which suggests that Brock was willing to try something other than a mistrial. Once they left sidebar, the trial court formally denied the State’s motion. At this point there had been no need for defense counsel to object given the trial court’s quick denial of the State’s motion. The court then took a recess, but it did not suggest that it would be reconsidering the State’s motion during the recess. Rather, it took the recess to allow the parties to prepare to reopen the evidence. When the court and jury returned from recess, the trial court abruptly declared that, upon further reflection, it was going to grant the State’s motion for a mistrial. The trial judge declared the mistrial and discharged the jury without allowing any response from the parties. It was not until the jury had been discharged that the defendant had an opportunity to object. Admittedly, the defendant did not at that point object, but this is not determinative here. [Footnote omitted.] The defendant had no clue that the trial judge would declare a mistrial after having denied the motion moments earlier. . . . Moreover, it is apparent that the trial was going in Brock’s favor at that point, in large part because of his counsel’s improper comments. [Footnote omitted.] In point of fact, the State’s reason for requesting a mistrial was because it did not think it could cure its case in the face of defense counsel’s prejudicial comments.
In sum, Brock’s failure to object cannot be taken as tacit consent to mistrial in this case because there was no opportunity to raise a contemporaneous objection. And the totality of the circumstances fails to reveal that Brock otherwise consented to the declaration of a mistrial.
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Having concluded that Brock did not consent to the mistrial, we proceed to consider whether the mistrial was justified by a “manifest necessity.” The State’s request for mistrial was prompted by defense counsel’s comments concerning the elements required to convict Brock and implicating that the State had acted deviously in introducing into evidence a heavily redacted version of Brock’s driving record. Brock’s main argument on appeal is that his trial counsel’s comments were not improper. We therefore consider the propriety of defense counsel’s comments before considering whether the trial court abused its discretion in declaring a mistrial.
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In this case, the mistrial was granted because of defense counsel’s repeated improper comments to the jury, which, of course, were not the State’s fault. The trial judge gave defense counsel several chances to explain himself and to continue his closing without confusing the jury. Each time, defense counsel seemingly ignored the trial judge’s directions and continued arguing to the jury that the State was required to prove additional elements. And his final comment to the jury was calculated to bias the jury against the State by suggesting that the State had hidden evidence beneficial to Brock by submitting a redacted driving record when, in fact, the redacted material was highly prejudicial to Brock. . . . When the State first moved for a mistrial, the trial judge denied the motion and chose an alternative route – the evidence would be reopened and closing arguments would begin anew. After further reflection during a recess, the trial judge returned and decided to change his mind. The record is unclear as to why he changed his mind, but this is not fatal, for there is more than adequate evidence in the record for us to conclude that the trial judge did not abuse his discretion in granting the mistrial. Finally, although the mistrial was declared during closing arguments, the burden of the mistrial was not so great considering that Brock himself had delayed trial for more than two-and-a-half years, the first trial lasted only a few hours over two days, the second trial occurred less than three weeks later, and the mistrial was due to defense counsel‟s improper conduct.
We hold that the trial judge did not abuse his discretion in declaring a mistrial. Brock’s trial counsel made highly prejudicial comments during his closing argument to the jury. Moreover, had the trial judge allowed the first trial to proceed and had defense counsel’s erroneous comments confused the jury to the point that it acquitted, the State would have been precluded from appealing that decision. . . . Although another trial judge might have employed another method to reduce the effects of defense counsel’s comments, the trial judge here did not abuse his discretion in granting the mistrial. . . . .
Shepard, C.J., and Dickson, Rucker, and David, JJ., concur.