Robb, S.J.
Hakim Zamir Lamar Qualls was tried for Murder and Class A misdemeanor dangerous possession of a firearm. The trial ended in a mistrial. After first denying it, the trial court later granted the State’s request to amend the information to add one count each of Level 1 felony attempted murder, Level 3 felony aggravated battery, and Level 5 felony criminal recklessness to the original charges. The State retried Qualls, who appeals from his convictions after a jury trial of Level 3 felony aggravated battery and Class A misdemeanor dangerous possession of a firearm. Qualls raises several issues for our review, the following of which are dispositive in this appeal:
I. Whether the federal and state double jeopardy clauses bar Qualls’ retrial; and II. Whether the State rebutted the presumption of prosecutorial vindictiveness after adding charges immediately after the mistrial was declared.
For reasons we fully explain below, we reverse and remand to vacate Qualls’ convictions.
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Qualls argues that the trial court erred by denying his motion to dismiss on the ground that his retrial violates double jeopardy principles. Both the United States and Indiana Constitutions forbid the State from placing a person twice in jeopardy. U.S. Const. Amend. V; Ind. Const. art. I, § 14. “Retrial following a defendant’s successful mistrial motion is only barred where the government’s conduct is responsible for the defendant’s mistrial motion.” Harbert v. State, 51 N.E.3d 267, 274 (Ind. Ct. App. 2016), trans. denied.
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The State contends that under the facts of this case, the trial court correctly denied the motion to dismiss because Qualls, through his questioning of Detective Ashley, brought about the termination of his first trial. The State also offers that our focus should be on ‘“whether the prosecutor acted with the intent to cause termination of the trial by provoking or goading the defendant into moving for a mistrial.”’ Appellee’s Br. p. 21 (quoting Harbert, 51 N.E.3d at 274).
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Here, there are too many factors supporting the conclusion that the State acted with the subjective intent to cause a mistrial. The State chose to call Brown’s great-aunt Detective Ashley to the stand knowing that she was related to the decedent. During the investigation, she did not advise her superiors that she was related to the decedent, even after learning his identity. The prosecutors knew of the relationship, however, because on direct examination, the State addressed it. She testified to her belief that she was not ethically compromised and that she had, in fact, been involved in the criminal investigations of other family members.
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We conclude that the trial court’s denial of the motion to dismiss the charges against Qualls after the mistrial was clearly erroneous. The record is filled with cumulative missteps by the State and its agents such that a retrial violated Qualls’ constitutional protections against double jeopardy and, a retrial should not have occurred. See I.C. § 35-41-4-3(a)(2)(iv) (“prejudicial conduct, in or outside the courtroom, made it impossible to proceed with the trial without injustice to either the defendant or the state[.]”). As such, we reverse and vacate Qualls’ conviction of Class A misdemeanor dangerous possession of a firearm on this ground.
Qualls also challenges the trial court’s decision to allow the State to amend the information to add counts of Level 1 felony attempted murder, Level 3 felony aggravated battery, and Level 5 felony criminal recklessness. Indiana Code section 35-34-1-5(c) (2014) provides that: “Upon motion of the prosecuting attorney, the court may, at any time before, during, or after the trial, permit an amendment to the indictment or information in respect to any defect, imperfection, or omission in form which does not prejudice the substantial rights of the defendant.”
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The day of Qualls’ mistrial, the State moved to amend the charges against him to include attempted murder and aggravated battery. The State’s argument to the trial court was that, “During the course of trial, information was learned during opening statements and witness testimony which justifies the addition of these two charges.” Appellant’s App. Vol. 2, p. 81. The trial court initially denied that motion. At a subsequent hearing after the State filed a second motion to amend the charges, the State explained that prior to the mistrial, regarding the attempted murder and aggravated battery charges, “we were already considering, based on what the facts would come in, that we were going to be asking for those lesser included. So what we did was, after the trial ended up a mistrial, Ms. Boehm and I decided to . . . put them on notice . . . [of the] other charges so they’re not just sprung on the jury at the end.” Tr. Vol. 3, p. 134. Clearly, the first motion to amend was not based on new evidence. But the record reflects that what happened during the mistrial was that the witnesses’ testimony supported Qualls’ self-defense claim, and the State’s strategy to wait until the end of trial to ask for lesser-included offense instructions was not going to play out.
The State’s April 10, 2020 motion to amend the charges, which was granted by the trial court, again relied on “information [] learned during opening statements and witness testimony . . . ” as to the attempted murder and aggravated battery counts. Appellant’s App. Vol. 2, p. 176. The motion also relied on physical evidence, which the State already possessed prior to the mistrial. The inference drawn from the State’s motion is that the first motion to amend the charges was filed without probable cause for the attempted murder and aggravated battery charges. And the obvious conclusion is that there was no new evidence to support filing the additional charges for attempted murder and aggravated battery.
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The motion also relied on “additional investigation.” Id. According to the State, the information supporting the criminal recklessness charges became evident in December 2019. The State informed the court, “In early December 2019, a witness advised that there may be a bullet hole at her residence at 2014 N. Karwick that could be related to the December 18, 2018 incident. On December 10, 2019, a preliminary investigation done by Det. [McClintock] found that the damage appeared to be consistent with damage from a gunshot. Additional investigation was done by Det. McClintock in January showing that the trajectory of the bullet came from the location where the defendant was located on December 18, 2018 on Karwick Road and leading to the Criminal Recklessness charge to be added.” Appellant’s App. Vol. 2, p. 176. Qualls’ first trial took place on December 16 and 17, 2019, after Detective McClintock took pictures of damage to the window of the house.
The tip about a bullet hole in a window was reported by the homeowner next door to Rouse’s house prior to the start of Qualls’ first trial. Detective McClintock testified about the photographs he took of the bullet hole, but the jury found Qualls not guilty of those charges, charges he should not have faced. As a result, the State’s claim that the bullet evidence was discovered after the mistrial is unsupported by the record.
We conclude that the State has not overcome the presumption of prosecutorial vindictiveness and the trial court should not have granted the motion to amend the information. Consequently, Qualls should not have faced trial on the Level 3 felony aggravated battery charge of which he was convicted. His conviction on this charge is reversed and vacated.
Based on the foregoing, we conclude that the trial court erred by concluding that the State did not create the circumstances which led to the mistrial, thus allowing a second trial to take place. Furthermore, we conclude that the trial court erred by allowing the State to amend the information because the State did not overcome the presumption of prosecutorial vindictiveness and did not show that the additional charges were the result of new evidence. Consequently, we reverse and remand with instructions to vacate Qualls’ convictions.
Reversed and remanded.
Mathias, J., and Scheele, J., concur.