William Robertson, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2024)

MEMORANDUM DECISION

Case Summary

[1] William Robertson was charged with unlawful possession of a firearm by a serious violent felon and pointing a firearm and was alleged to be a habitual offender. During his jury trial, Robertson moved for a mistrial, which the trial court granted. Robertson then filed a motion to dismiss on double jeopardy grounds, alleging that the mistrial was due to prosecutorial misconduct. The trial court denied this motion. On appeal, Robertson argues that the trial erred in denying his motion to dismiss. We disagree and therefore affirm.

Facts and Procedural History

[2] On September 29, 2022, Carl Cottrill told New Albany Police Department Corporal Andrew Byrne that Robertson pointed a handgun at him. An investigation ensued, and a handgun was seized. The State charged Robertson with level 4 felony unlawful possession of a firearm by a serious violent felon and level 6 felony pointing a firearm and alleged that he was a habitual offender. A jury trial was set for August 7, 2023.

[3] On July 27, Robertson filed a motion in limine to exclude “any evidence not disclosed and provided by the Final Pretrial Conference held on July 24, 2023.” Appellant's App. Vol. 3 at 35. The trial court granted the motion. On August 2, the State filed an amended supplemental response to Robertson's motion for discovery and production of evidence in which it disclosed an “ATF e-Trace” and other documents; the response indicated that those materials would be “transmitted to the opposing party through the Indiana PCMS E-Discovery system.” Appellant's App. Vol. 3 at 82.

[4] The jury trial began as scheduled. The first day was devoted to jury selection. On the second day, the State called Corporal Byrne to testify about the investigation and Corporal Michelle Gilbert to testify about the handgun's chain of custody. Corporal Gilbert explained that when “an officer collects evidence, um, they will package it ․ with the appropriate labeling procedures.” Tr. Vol. 2 at 175. She testified that the handgun was transported to the state police lab for processing and then returned to the New Albany Police Department. The following exchange occurred between the deputy prosecutor and Corporal Gilbert:

Q. And then did you do anything further with that item after you secured it again?

A. Uh, yes. I entered the information into ATF for a trace of ownership of the weapon.

Q. Okay. Uh, anything specifically you did with this item after it was placed back into evidence of NAPD.

A. Uh, we-we double-checked, uh, to compare serial numbers for the entry to ATF trace.

Id. at 178-79. Defense counsel did not object to these references to the ATF trace. Shortly thereafter, the deputy prosecutor asked Corporal Gilbert if she had to open the package containing the handgun as she was processing the evidence. She replied, “It was open to confirm the serial number and make, model, manufacturer for an ATF trace, um, that was requested.” Id. at 181. Defense counsel did not object to this reference to the ATF trace.

[5] On cross-examination, defense counsel questioned Corporal Gilbert about the police incident report for Robertson's case, which “includes ․ items that were dropped into evidence” as well as “names, ․ property, the narrative.” Id. at 183. Defense counsel asked the corporal about a notation on the report regarding “Item IT.” Id. at 185. She replied, “That is a test fire that the lab does. And basically what comes back is casings. So you have the cartridge, which is the entirety of the casing, the powder, the primer and the bullet. So that is a cartridge. So what they did was fire the gun, and the casing was returned to us as evidence (about two words indiscernible)[.]” Id.

[6] Defense counsel requested a bench conference and stated,

[Defense counsel]: They already mentioned about this ATF, uh, skip trace [sic]. Again, no witness has been identified from ATF who's going to be coming in.

[Deputy prosecutor]: We didn't intend to introduce it. It wasn't returned to me until late, um, and it was part of a supplemental that we weren't covering by that day. But it has been provided to the Defense, if they wished to call someone. But we weren't calling anybody with regard to the trace.

[Defense counsel]: I'm not prosecuting the case. I'm the defense lawyer. We've got no burden. They identified that and now they just brought it out on direct examination with this witness about a skip trace [sic] that was done by ATF. It's already before the jury. There is no witness to come in, so under [Bullcoming v. New Mexico, 564 U.S. 657 (2011),] it can't come in. Now she just identified that there's been a test fire of the weapon and we have not received any report whatsoever about a test firing. It indicates on the back here that they were going to send it to ATF for a test fire. I assumed it didn't happen, because I'm relying upon the report. And here it states specifically in the narrative, a copy of the Department of Justice Firearms Tracing Report was attached. It wasn't attached. And in the report it also talked about sending this to ATF for test firing. I had assumed that did not happen because we received no notice whatsoever. Yeah. After speaking with the Prosecutor's Office, there was a request to have ATF trace completed on the gun and also have the gun test fired to verify it was functional. We never got that. Now, this witness just said that there was such a test firing. So I move them for a mistrial at this time.

[Deputy prosecutor]: Your Honor--

[Defense counsel]: We can't unring that bell, and I can't put on a defense to something I haven't been provided.

[Deputy prosecutor]: He was provided in a supplement prior to our discussion about what day the Court would say we could (about three words indiscernible) As soon as I received it, I provided it in supplemental discovery to the Defense. I did not get the return in that report until August 1st, when it was printed. It was sent to me. It was provided to the Defense on August 1st when I got it. I had no intent on introducing any of that.

[Defense counsel]: Is that the ATF trace you're talking about?

[Deputy prosecutor]: Yes, and it's been provided.

[Defense counsel]: I'm talking now, number one, ATF has been talked about. This witness has no first hand knowledge. But more important, again, she just said the gun was test fired. We don't have that report.

[Deputy prosecutor]: It wasn't--

[Defense counsel]: I'm moving for mistrial.

[Deputy prosecutor]: Your Honor, the State did not elicit to that testimony.

[Defense counsel]: I have to rely upon this report. Again, there wasn't anything on that property sheet about four (4) ․ rounds. I certainly get to ask about that. We didn't get the report. She just testified about that as to what it was. I was asking about why the four (4) bullets weren't on that report. She goes, oh, that was a test fire. I certainly didn't elicit that. I was asking why it wasn't on the report. We didn't get it.

․.

[Deputy prosecutor]: ․. Just additionally, Your Honor, this is not an ultimate issue question. It doesn't require that the firearm that was in the possession of defendant, under any of the elements of the offense, actually be operable. So it's honestly irrelevant as to whether or not the firearm is operable or not. It's not a requirement under the law that prove that the firearm was operable.

Id. at 185-88.

[7] The trial court declared a recess and asked if a continuance would allow defense counsel to obtain the necessary information. Defense counsel replied, “I can't meet the evidence because it's gonna be expert testimony. Uh, we're two (2) days into trial ․. I guess in theory you can, uh, have a continuance and get me the report. And then do I have to get an expert to rebut the report? I don't know.” Id. at 190. The court asked the deputy prosecutor if “any documentation with regards that the report had been delivered to [defense counsel] and he might just not realize he has it?” Id. The deputy prosecutor replied that she was not in possession of a test fire report and did not know “whether one was ever generated.” Id. The deputy prosecutor noted that the ATF report was provided to defense counsel on the same day that it was received, which was after “the final pretrial conference, so we were limited from introducing it. We didn't introduce it.” Id. at 191.

[8] Finally, the deputy prosecutor reiterated,

[A]ll that has to be proved is that [Robertson] pointed a firearm. We're talking about an actual gun, which is presumed by Indiana to be a firearm. It meets all the statutory requirements. It doesn't require anything else to be a firearm. It doesn't ․ even have to be loaded, except now that we're elevating the offense a level [from a class A misdemeanor to a level 6 felony], we have to prove that it's loaded. No one has to prove ․ that it is capable of firing a projectile, that it, in fact, fired a projectile, what tests were done about a projectile. Anything about projectiles or the firing is irrelevant to the issues before the Court. So there's no detriment to the Defendant and no necessity for a mistrial.

Id. at 191-92.¹ Ultimately, the trial court granted Robertson's motion for mistrial and reset the trial for September 25.

[9] Robertson filed a motion to dismiss on federal double jeopardy grounds, alleging that he was goaded into moving for mistrial due to prosecutorial misconduct, i.e., failure to notify him about the test firing of the handgun and to disclose any reports therefrom. At the hearing on the motion, the deputy prosecutor reiterated that she “was never on notice that the test fire had been completed.” Supp. Tr. at 18. The trial court summarily denied Robertson's motion to dismiss. This interlocutory appeal ensued.

Discussion and Decision

[10] Robertson asserts that the trial court erred in denying his motion to dismiss. The Fifth Amendment to the United States Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy or life or limb[.]” “[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.’ ” Willoughby v. State, 660 N.E.2d 570, 576 (Ind. 1996) (quoting Oregon v. Kennedy, 456 U.S. 667, 676 (1982)). “The subjective intent of the prosecutor is the dispositive issue.” Farris v. State, 753 N.E.2d 641, 646 (Ind. 2001). We presume that, by denying Robertson's motion to dismiss, the trial court determined that the deputy prosecutor in this case did not intend to goad Robertson into moving for a mistrial. “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.’ ” Butler v. State, 724 N.E.2d 600, 603-04 (Ind. 2000) (quoting Wilson v. State, 697 N.E.2d 466, 472 (Ind. 1998)). “It is a factual determination that we review under a clearly erroneous standard.” Id. at 604.²

[11] The record in this case makes it abundantly clear that the deputy prosecutor did not intentionally goad Robertson into moving for a mistrial. Indeed, it was defense counsel, not the deputy prosecutor, who elicited Corporal Gilbert's testimony about the test firing of the handgun by asking about a notation on the incident report, which was not addressed on direct examination. As the deputy prosecutor correctly observed, whether the handgun was capable of firing a projectile was not relevant to the charged crimes. And we observe that the trial court simply could have admonished the jury to disregard Corporal Gilbert's testimony. “[A]n admonition is presumed to cure any error resulting from the admission of evidence, and juries are presumed to follow instructions to disregard such evidence.” Hatcher v. State, 762 N.E.2d 170, 174 (Ind. Ct. App. 2002), trans. denied. Instead, the court granted Robertson's motion for mistrial. Because the mistrial did not result from any intentional government conduct, Robertson may be retried.³

[12] Affirmed.

FOOTNOTES

1.   The deputy prosecutor explained that she requested the test firing “due to [her] history in the State of Kentucky, that does, in fact, require the firearm to be capable of firing a projectile[.]” Tr. Vol. 2 at 193.

2.   Robertson invites us to apply a de novo standard of review based on Etter v. State, 56 N.E.3d 53 (Ind. Ct. App. 2016), trans. denied, in which the judge who ruled on the defendant's motion to dismiss was not the same judge who presided at trial. That did not happen here, so we decline Robertson's invitation.

3.   Robertson complains that the deputy prosecutor “induced a mistrial after he had already revealed his defense strategy.” Appellant's Br. at 13. The State correctly points out that[d]isclosure of trial strategy occurs no matter what the basis is for retrial, whether it be mistrial or reversible error on appeal. If disclosure of trial strategy were part of the double jeopardy analysis, then retrial would be foreclosed following any mistrial or reversal. The sole focus in the mistrial context is whether the State subjectively intended to bring about the mistrial.Appellee's Br. at 16. And here, the State did not subjectively intend to bring about the mistrial.

Crone, Judge.

Chief Judge Altice and Judge Vaidik concur. Altice, C.J., and Vaidik, J., concur.