Bret Lee Sisson v. State of Indiana
985 N.E.2d 1
| Ind. Ct. App. | 2012Background
- Sisson was convicted of burglary, theft, and receiving stolen property, plus SVF and habitual offender findings after a mistrial and a retrial.
- In the first trial, the SVF charge was sua sponte dismissed by the trial court as improper; the State later refiled the SVF and habitual offender allegations after the mistrial.
- Sisson filed a notice of alibi asserting incarceration starting June 21, 2009; the State did not respond to the alibi notice in the retrial context.
- Sisson argued discovery violations; the court found a continuing discovery violation but did not exclude evidence, and offered a continuance which Sisson declined.
- Evidence included a letter and photo Sisson sent to Myers while incarcerated; the State used them on redirect to rehabilitate credibility, which Sisson contested, but the court admitted them and ruled the error harmless.
- Sisson moved for a change of judge after conviction, arguing bias due to Judge Maughmer's prior prosecutorial role; the motion was untimely and rejected.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May refiling after mistrial violate double jeopardy | Sisson asserts refiling is vindictive and barred by double jeopardy. | State contends no jeopardy bar as no trial on SVF/habitual offender occurred initially. | No fundamental error; refiling allowed; no double jeopardy violation. |
| Alibi statute and date narrowing requirement | State failed to narrow date Range per alibi statute. | Waived for failure to raise trial; no fundamental error in the date surrounding incarceration. | Waived; no reversible error; no fundamental error in date framing. |
| Discovery violations and exclusion of evidence | State discovery violations warranted exclusion of evidence. | Continuance was available; failure to request continuance waives exclusion; no fair trial violation. | Waived; not reversible; discovery violation not grounds to exclude. |
| Admission of letter and photograph on redirect | Evidence exceeded scope and was inflammatory. | Letters/photograph rehabilitated credibility; admissible under redirect. | Harmless error; overwhelming independent evidence supports conviction. |
| Change of judge for sentencing | Judge should recuse due to prior prosecutorial role in predicate offense. | No right to change for sentencing; Rule 12 not satisfied; neutrality preserved. | Denied; untimely under Criminal Rule 12; no disqualification required. |
Key Cases Cited
- Malone v. State, 702 N.E.2d 1102 (Ind. Ct. App. 1998) (dismissal does not bar refiling absent jeopardy or penalization)
- Joyner v. State, 678 N.E.2d 386 (Ind. 1997) (refiling allowed absent objecting by defendant; jeopardy concerns)
- Cherry v. State, 275 Ind. 14, 414 N.E.2d 301 (1981) (vindictiveness presumption when more serious charges after appeal)
- Willoughby v. State, 660 N.E.2d 570 (Ind. 1996) (jeopardy attaches after empanelment; dismissal before trial affects jeopardy)
- Warner v. State, 773 N.E.2d 239 (Ind. 2002) (presumption of vindictiveness not warranted after mistrial with deadlock)
- Dishman v. State, 525 N.E.2d 284 (Ind. 1988) (cannot disqualify judge based on prior prosecutorial role when no factual dispute)