ATTORNEY FOR APPELLANT
David B. LeBeau
Deputy Public Defender
Fort Wayne, Indiana
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
TAURUS BUTLER, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 02S00-9812-CR-822
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D04-9705-CF-302
ON DIRECT APPEAL
February 25, 2000
BOEHM, Justice.
Taurus Butler was convicted in a retrial on two counts of murder and
of being a habitual offender. He was sentenced to 160 years imprisonment.
In this direct appeal he contends that (1) his second trial violated the
Double Jeopardy Clause of the Fifth Amendment because his first trial ended
in a mistrial attributable to the State’s misconduct; (2) the trial court
erroneously instructed the jury during the habitual offender phase; and (3)
the State impermissibly commented on his failure to testify by placing a
letter written by him in an empty chair and then reading it to the jury
during closing argument. We affirm the trial court.
Factual and Procedural Background
On the evening of May 2, 1997, Brenda Stephens was in her home in
Fort Wayne with her sons, Andre, age sixteen, and Linus, twelve, and her
two nephews, Derriel Jones, thirteen, and Emmanuel Jones, five. Gunfire
erupted and Emmanuel was struck with a high-powered round that destroyed
the left side of his head. He died at the scene. Andre was also shot and
was taken to the hospital where he died several hours later of a wound to
the abdomen.
Shortly after the shooting, Robert Hatch and Bernard Weaver gave
statements to police implicating Butler as the shooter. Weaver and Butler
were arrested and both were charged with two counts of murder. Butler was
also charged with being a habitual offender. Butler went to trial seven
months later, but moved for a mistrial after Weaver, who was in jail
awaiting trial, entered into a plea agreement requiring him to testify
against Butler. The trial court granted the mistrial.
At Butler’s retrial several months later, Weaver testified that Butler
fired the shots in Stephens’ house under the mistaken belief that it was
the home of Jermaine Norris, who Weaver believed was out to kill Butler.
According to Weaver, shortly before the murders Butler said that “everybody
in that house got to go.”
A jury convicted Butler of two counts of murder and of being a
habitual offender. He was sentenced to the maximum term of 160 years
imprisonment.
I. Double Jeopardy
Butler contends his retrial violated the Double Jeopardy Clause of the
Fifth Amendment.[1] Butler’s first trial commenced on Monday, December 1,
1997. On Thursday morning, December 4, the State moved for a one-day
continuance of the trial. The prosecutor informed the Court that the State
had revived plea discussions with Weaver on Wednesday night. Weaver’s
counsel had told the State that his client was willing to accept a plea
agreement and testify against Butler. At the time of the Thursday hearing,
Weaver was being interviewed by a detective. The trial court continued the
matter until 2:00 p.m. that afternoon.
Shortly before 2:00 p.m., Weaver pleaded guilty to conspiracy to
commit murder pursuant to a plea agreement providing for a maximum of
twenty years imprisonment. Butler’s counsel was present at Weaver’s plea
hearing. The trial court then resumed consideration of Butler’s case.
Defense counsel made several motions, including a request for a ninety-day
continuance and a motion for a mistrial based on the State’s having
obtained Weaver’s guilty plea in mid-trial. The trial court granted a
continuance until Monday, December 8.
On Friday, December 5, the State informed the trial court that it had
obtained further evidence in its case against Butler. First, after Weaver
consented to a search of his jail cell, police found several letters,
including at least one believed to have been written by Butler, containing
incriminating statements. Second, Ronald Stephens, Andre’s father who was
living in Georgia at the time of the shooting, had notified police on the
morning of December 5 that he had been given two shell casings by one of
his sons.[2] Based on this new evidence and Weaver’s guilty plea and
willingness to testify against Butler, defense counsel again requested a
continuance of at least ninety days and a mistrial. The trial court agreed
that these developments warranted additional time to prepare Butler’s
defense. It granted Butler’s motion for a mistrial.[3] A December 5 order
entered by Judge Surbeck, who had presided over the proceedings, stated:
“Court further finds that circumstances necessitating said
continuance/mistrial were not created by Prosecuting Attorney. Court finds
that Prosecuting Attorney has not intentionally caused termination of
trial.” The case was reset for trial on July 13, 1998. Judge Surbeck
noted that Judge Gull would preside over cases in that court beginning
January 1, 1998.
On July 6, 1998, Butler filed a motion to dismiss the information,
alleging that a second trial would violate the prohibition against double
jeopardy. Judge Gull held a hearing on the motion on July 9. During
closing argument on the motion, the deputy prosecutor assigned to the case
stated:
[T]he investigation in every criminal cause continues right up to the
brink of trial, through the course of trial, often times, through the
middle of trial. Bernard Weaver was listed as a witness on the face
of the charging information . . . filed in this cause. He was not a
new witness. The potential for his testimony in this case was known
from the very, very beginning. Not only as an alleged co-defendant,
but also as a listed witness. For the Defense to assert this claim .
. . assumes that the State could correctly predict how the Court would
rule, whether the guilty plea of Bernard Weaver would occur, whether
there would be a satisfactory factual basis, and at the conclusion of
that hearing, what the Court would do and how the Defense would
respond.
The State added that it stood prepared to continue with the trial after a
brief continuance.
On July 13, Judge Gull orally denied Butler’s motion to dismiss.
After listening to tapes of the arguments and motions of counsel from the
December 4 hearing, she found that “there was no bad faith conduct or
harassment on the part of the State that was intended to goad the defendant
into moving for a mistrial . . . .”
The Fifth Amendment provides that no person shall “be subject for the
same offense to be twice put in jeopardy of life or limb.” U.S. Const.
amend 5. Although a defendant’s motion for mistrial constitutes “a
deliberate election on his part to forgo his valued right to have his guilt
or innocence determined before the first trier of fact,” United States v.
Scott, 437 U.S. 82, 93 (1978), the United States Supreme Court has provided
a narrow exception that bars a second trial after a mistrial “[o]nly where
the governmental conduct in question is intended to ‘goad’ the defendant
into moving for a mistrial . . . .” Oregon v. Kennedy, 456 U.S. 667, 676
(1982). The subjective intent of the prosecutor is the dispositive issue.
See Wilson v. State, 697 N.E.2d 466, 472 (Ind. 1998). Although a trial
court’s determination of prosecutorial intent is not conclusive for
purposes of state appellate review, we do regard its determination as “very
persuasive.” Id. at 473.[4] It is a factual determination that we review
under a clearly erroneous standard.
Here, two different trial judges found that the State’s actions were
not intended to goad Butler into moving for a mistrial. The State asserts
on appeal that it sought Weaver’s testimony mid-trial to convict Butler,
not to delay his trial or goad him into moving for a mistrial. The trial
court’s findings on this point appear to be correct, and certainly are not
clearly erroneous.[5] Accordingly, we hold that Butler’s second trial was
not barred by the Double Jeopardy Clause.
II. Habitual Offender Instructions
Butler next contends that the trial court’s instructions to the jury
during the habitual offender phase violated Article I, § 19 of the Indiana
Constitution for the reasons explained in this Court’s recent opinions in
Parker v. State, 698 N.E.2d 737 (Ind. 1998), and Seay v. State, 698 N.E.2d
732 (Ind. 1998). Butler did not object to the habitual offender
instructions at trial and any claim of error is waived. See, e.g., Bunch
v. State, 697 N.E.2d 1255, 1257 (Ind. 1998) (citing Ind. Crim. Rule
8(B)).[6]
III. Failure to Testify
As a final point, Butler contends that the State impermissibly
commented on his failure to testify during closing argument. The
prosecutor made the following comments: “There’s another witness in this
case and you had an opportunity to hear from that witness. State’s Exhibit
37 with Taurus Butler’s fingerprints all over it and I don’t mean that
figuratively, I mean it literally. . . . And what does that letter say?”
The prosecutor then moved an empty chair in front of the jury and propped
the letter up in the chair. He proceeded to read the letter, in which
Butler asked Ronnie Smith to lie to the police and provide him with an
alibi on the night of the shootings. Butler concedes that he did not
object to the prosecutor’s comments or conduct at trial, but contends that
the error is fundamental.
The Fifth Amendment prohibits compelling a defendant to testify
against himself. See U.S. Const. amend. 5. The United States Supreme
Court has interpreted this amendment to bar prosecutorial comment on a
defendant’s silence. See Griffin v. California, 380 U.S. 609, 615 (1965).
As this Court explained in Moore v. State, 669 N.E.2d 733, 739 (Ind. 1996),
a Fifth Amendment violation occurs “when a prosecutor makes a statement
that is subject to reasonable interpretation by a jury as an invitation to
draw an adverse inference from a defendant’s silence.”
Here, the prosecutor merely highlighted–albeit it somewhat
dramatically–a letter written by Butler that had been properly admitted
into evidence. As the State points out, the prosecutor did not say, “You
could have heard from that witness, but he didn’t testify.” Rather, the
prosecutor told the jury that they had “had an opportunity to hear from
that witness[,] State’s Exhibit 37 . . . . ” By placing the letter in the
chair, the prosecutor took the metaphor of the letter as a witness one step
further. These comments, however, focused on the letter, which was
admitted into evidence, and not on Butler’s failure to testify. The
prosecutor’s comments and conduct here are not a basis for a claim of
error, let alone fundamental error.
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
-----------------------
[1] Butler also cites Article I, § 14 of the Indiana Constitution and
Indiana Code § 35-41-4-3. However, he provides no authority or independent
analysis supporting a separate standard under the Indiana Constitution.
Accordingly, the state constitutional claim is waived. See Brown v. State,
703 N.E.2d 1010, 1015 n.4 (Ind. 1998). Moreover, although he quotes part
of Indiana Code § 35-41-4-3, he suggests only that the statute codifies the
state and federal constitutional prohibitions against double jeopardy.
Accordingly, we address Butler’s claim solely under the Fifth Amendment.
[2] The casings had been found on the roof of Stephens’ home approximately
two days after the shooting.
[3] The trial court observed that “it is not possible to simply continue
the case at this point and maintain this jury to some future date.” The
trial court noted that such a lengthy continuance would impose a
significant hardship on the jurors, that the passing of time would
adversely affect their ability to remember and thus render a fair verdict,
and that the jurors would be “extraordinarily susceptible to publicity
about the case” during this additional time.
[4] The United States Supreme Court has found that a trial court’s
determination of the issue is dispositive. See Kennedy, 456 U.S. at 679
(“Since the Oregon trial court found, and the Oregon Court of Appeals
accepted, that the prosecutorial conduct culminating in the termination of
the first trial was not so intended by the prosecutor, that is the end of
the matter for purposes of the Double Jeopardy Clause of the Fifth and
Fourteenth Amendments to the United States Constitution.”). However, as
this Court observed in Wilson, “[t]hough we are inclined to think such
trial court determinations are not conclusive for purposes of state
appellate review, we do regard them as very persuasive.” 697 N.E.2d at
473.
[5] Butler suggests that these findings should not be given deference
because (1) Judge Surbeck did not hold a hearing on the issue before making
his finding, and (2) Judge Gull did not review a transcript of the first
trial. The State offers a plausible explanation for its actions, and Butler
points to nothing he would have offered in response. Nor did the defense
request that Judge Gull review a transcript of the trial.
[6] Butler does not make a claim of fundamental error. In any event, as
this Court observed in Seay, an erroneous habitual offender instruction of
this variety is not fundamental error. See 698 N.E.2d at 737.