Barnes, J.
Case Summary
Byron Etter challenges the trial court’s denial of his motion to dismiss. We affirm.
Issue
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
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. … The State’s first witness was L.B., the alleged victim. Etter requested a mistrial twice during L.B.’s testimony. … The trial court denied Etter’s motion.
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 out.” Id. at 91. … Toward the end of the discussion, the trial court said to defense counsel, “Just have it your way.” Id. at 92.
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.
….
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. … The State responded to Etter’s motion. Judge Hawkins then recused himself, and our supreme court appointed a special judge. … 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. …
Analysis
Etter contends that, pursuant to the Fifth Amendment to the United States Constitution and Article 1, Section 14 of the Indiana Constitution, double jeopardy bars his retrial. The Fifth Amendment to the United States 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). …
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.
….
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.” …
….
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.
….
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.
Conclusion
The special judge properly denied Etter’s motion to dismiss. We affirm.
Affirmed.
Vaidik, C.J., and Mathias, J., concur.