Judge, dissenting.
I respectfully dissent. In my opinion the majority improperly puts the burden on the State to prove it would have been prejudiced had Flynn been allowed to reopen his case. Control of the proceedings is within the trial court's sound discretion. A reversal is in order only when a manifest abuse of discretion and the denial of a fair trial to the complaining party is shown. Marbley v. State (1984), Ind., 461 N.E.2d 1102, 1108. That we might have decided differently were we on the trial bench is unimportant, it matters only whether the trial court manifestly abused its discretion.
The majority here bases its reversal on the denial of Flynn's right to testify in his own behalf. Were this the case I would agree, but Flynn was not denied this right under the facts before us.
As the majority notes, the right to testify in his own behalf can be waived by a defendant. I can envision no clearer case of an express, informed waiver than this case presents. After the State rested, defendant Flynn requested and was granted a brief recess. During this recess, Flynn consulted with and was advised by counsel. Following the recess, Flynn rested his case. Thus, he waived his right to testify in his own behalf.
The trial court gave Flynn ample opportunity to testify and present witnesses. It was Flynn's decision not to testify or present witnesses, he was not prevented from doing so as the majority states.
When Flynn moved to reopen his case the next day, having already waived his right to testify in his own behalf and present witnesses, it was solely within the trial court's discretion whether or not to grant the motion. There was no manifest abuse of the trial court's discretion when it denied Flynn's motion under these circumstances.
I would affirm the trial court.