DAVID, J.
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.
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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 granting the mistrial, the trial court stated,
The Court has had an opportunity to view the defendant and the defendant’s positions throughout this entire case since it was filed. What occurred on the stand was something that I believe that the defendant knew was not acceptable and was something that was being done by the defendant in what prior to that event occurring the Court had already concluded that the defendant is trying to somehow create error, appealable error, reversible error, or a mistrial in this cause even though he filed a Motion for a Speedy Trial.
When the defendant started to give a non responsive answer to Mr. Holcomb’s very clearly open ended question, which invited the defendant to give his version of the events, as I recall the situation, I told him to be quiet or something to that effect and thereafter, I think I might have even told him to shut up. But at least on two occasions I believe that I had tried to stop the proceedings to bring them back into order.
At the point that it became clear to me that the defendant was not going to stop talking, I called the court staff in. Immediately upon Mr. Kelley coming into the courtroom, as I observed, Mr. Kelly then told him to be quiet at least once, maybe another time, at which point he did not stop talking. At which point I believe I commanded Mr. Kelley to put his hand over the defendant’s mouth.
That situation is an unfortunate situation and something that I never intended to have occur in front of this jury. But nevertheless based on what I observed, I don’t feel that this Court caused that to occur.
This Court, from the very beginning of this case, has gone way out of its way to allow Mr. Vaughn the opportunity to talk, to express his opinions on things, and I have tried, even though it is not really my job and may be something I ought not to do in most situations, but I try to intervene between the attorney/client privilege in an effort to somehow try to make that attorney/client relationship somewhat better or make an attempt to explain to Mr. Vaughn the proceedings and the different things that were going on with his case and how things were.
So having said all of that, while it was an unfortunate situation that occurred before the jury, it is not something that this Court caused. And the Motion for Mistrial is denied.
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 before the trial started, perhaps the trial judge should have considered establishing on the record and outside the presence of the jury the rules or expectations for the defendant’s behavior in front of the jury. The trial judge could have made clear to him the potential consequences the judge was prepared to impose if necessary to control the defendant’s conduct in the courtroom.
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 (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.
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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, J., dissenting) (citing State v. Guy, 483 P.2d 1323, 1324 (N.M. Ct. App. 1971)).
Dickson, C.J., and Rucker and Massa, JJ., concur.
Sullivan, J., dissents, believing the decision of the Court of Appeals to have been correct.