COA: Judge’s comments do not require dismissal of charges

The Indiana Court of Appeals ruled a trial court judge’s inappropriate comments during trial did not “goad” the defense into asking for a mistrial and affirmed denial of the defense’s motion to dismiss child molesting, rape and sexual misconduct charges against the defendant.

Byron Etter was charged with Class A felony child molesting, Class B felony rape, Class B felony sexual misconduct with a minor and Class D felony child solicitation. During the victim’s testimony at trial, Etter’s lawyer asked for a mistrial twice, and those were denied. Etter’s counsel then attempted to cross-examine L.B. due to inconsistencies in her testimony.

During a bench conference, the judge explained why she thought the testimony was consistent. Etter’s counsel then asked if the judge was advocating for the state and after another explanation of L.B’s testimony, the judge said “Just have it your way.” When the conference concluded the judge said, “It’s Burger King today.” The judge then granted another motion Etter’s counsel made for a mistrial. Etter’s counsel then filed a motion to dismiss and after another judge recused himself, a special judge made findings of fact and conclusions and denied Etter’s motion. Etter’s motion for interlocutory appeal was granted and the COA took jurisdiction.

Etter’s counsel argued the double jeopardy clause barred Etter’s retrial because of a narrow exception which says, “[I]f a defendant moves for or consents to a mistrial, the defendant forfeits the right to raise a double jeopardy claim in subsequent proceedings unless the motion for mistrial was necessitated by governmental conduct ‘intended to goad the defendant into moving for a mistrial,” Judge Michael Barnes wrote for the panel, citing Willoughby v. State, 660 N.E.2d at 576 (Ind. 1996).

The parties first disagreed on what standard of review the court should apply. The COA determined that a clearly erroneous standard was the way to review the case because trial court determinations are “very persuasive” in cases determining a governmental actor’s intent.

The COA based its decision off the findings of the special judge, which the appeals court determined as accurate after listening to audio reviews of the exchange between the defense counsel and the first judge. The COA also determined that the jury could not have heard the “Burger King” comment, which precipitated the request for a mistrial, even though two other lawyers in the back of the room did.

The COA said it was unsure of the meaning of the Burger King comment. Etter said it was similar to case against another judge who said the court isn’t McDonald’s and you can’t get what you want when you want it. But, “There is nothing in the record that establishes, or from which we can infer, that the trial court had that context in mind when she made the comment or otherwise intended it to prompt defense counsel to seek a mistrial,” Barnes wrote.

“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,” Barnes concluded.

The case is Byron Etter v. State of Indiana, 49A02-1508-CR-1263.