*1 intelligent view to treat- psychiatrist with a purposes . frustrate the it would Whether physician- not waived the of ment. C.P. had deny admission code juvenile Therefore, in- privilege. irrelevant patient is an medical records C.P.'s privilege is of physician-patient quiry. The admitting, objections, over C.P.'s erred section of the than the Brown and the medi- higher testimony order of Mr. majori- cited prepared by Indiana Juvenile Code him. records cal ty physician-patient did not waive C.P. signed Although mother
privilege.1 C.P.'s consenting to the disclosure
a form Brown, by Mr. prepared records
medical im may not be authorization
the mother's privilege so as to waive
puted C.P. Mr. communications protecting C.P.'s TYSON, Ray Appellant Kenneth Brown. (Defendant Below), juvenile of a valid waiver ingredients 31-6-7-3 in IND.CODE are identified § v. Ed.). provides perti- (1988 That statute Indiana, Appellee STATE Below). part: nent (Plaintiff child rights guaranteed to the "(a) Any No.41A04-8904-CR-122. of the United the Constitution Indiana, Indiana, States, Appeals or the Constitution Court of any other (2) by [*] [*] child's custodial law may [*] be waived i [*] parent, guard- [*] only: # Fourth District. Sept. custodian, if: ian, guardian ad litem knowingly voluntar-
(A) person that right;
ily waives the
(B) no interest adverse person that has child;
(C) meaningful consultation has occurred child; person and the
between
(D) knowingly voluntarily child the waiver."
joins with (a)(2). mother exe- In the instant C.P.'s to Disclose Confidential
cuted "Consent petition alleging delin-
Information" and a The mother's on the same date.
quency time she consented to disclo-
interest at the Thus the clearly adverse to C.P.
sure was did signed by C.P.'s mother
consent form physician-pa- operate as a waiver of
not privilege asserted C.P.
tient summarize, priv- physician-patient
To Brown, party to Mr. a third
ilege extended to facili- essential
whose intervention was C.P. and communication between
tate issue, Mr. Brown. privilege not extend to did majority not reach 'the waiver 1. The did concluding physician-patient instead that the *2 sets,
such as a stereo and television were laying in yard approximately five feet back of the Chevette. Elkins parked spoke next to the Chevette and Kimberly Gregory (Gregory), the woman inside. When asked if anyone she had seen home, enter the Gregory Elkins's answered no, explained then sitting she was in front particular house to look for a street. Tyson, knowing, without Elkins slipped into Gregory the Chevette and away. drove pulled away, As it Elkins noted the car's plate license number. Later when Elkins home, entered her she found the front door broken in and her house ransacked. tracing After plate Chevette's license Gregory, police number to connected Tyson Tyson to the crime. charged by burglary information with and theft. A by jury convened, but was later mistrial, deemed a Tyson's over objection. A convened, second trial was then after Tyson which was convicted of both counts. He was sentenced to consecutive terms twenty years. Tyson four appeals. now Wilson, John P. Limeberry Wilson & Tan- Greenwood, dy, appellant. for Additional facts necessary appear as be- low. Pearson, Linley Gen., Atty. E. Arthur Tyson Perry, Deputy Gen., Atty.
Thaddeus
jeopardy
contends
Office
during
attached
Gen.,
Atty.
Indianapolis,
appellee.
for
trial,
the first
thus the initiation of the
second trial constituted
jeopardy.
He therefore
CONOVER,
claims the
Judge.
trial court erred
granting the State's motion for a mistrial
Defendant-Appellant
Tyson
Kenneth
denying his motions for discharge
(Tyson) appeals his conviction
burglary,
for
or a directed verdict and dismissal.
theft,
felony,
a class B
D
class
felo-
fully
To
Tyson's
understand
argument,
ny.
35-48-2-1,
IND.CODE
85-48-4-2.
procedural posture
of the case must be
We reverse.
recounted. At the first
Tyson presents seven issues for our re-
convened and five witnesses testified for
reverse,
view. Because we
we address
prosecution.
Gregory, the sixth wit-
the issue of whether a
ness,
appear
pursuant
witness's failure to
at trial consti-
subpoena
issued
Tyson
State.
necessity"
tuted a
declaring
"manifest
discharge
moved for
verdict,
or directed
a mistrial in
Tyson's
the face of
double which motion was denied. The State ob-
jeopardy claim on retrial.
tained
continuances
order to
Greg-
locate
January,
(Elkins)
however,
Susan
ory;
her,
unable
locate
Elkins
driving
home with her two children at
State moved for a
which was
approximately
p.m.
6:80
they ap- granted
As
Tyson's objection.
over
The cause
home,
proached
Elkins noticed a Chevette was re-set for trial on
subsequent
date.
lights
parked
with no
on
in front of her At the
commencement of the second
house,
house. As she
Tyson
neared the
she no-
moved the
discharge
court for
based
ticed
family's
several of her
possessions,
on double
which the court denied.
(vi)
verdict,
agree on a
unable to
and after the
was convened
testified,
juror
dire
Tyson's mo-
of a
on voir
false statements
for the State
witness
the con-
denied. At
for dismissal was
fair trial.
prevented
tion
case-in-chief, Tyson
clusion of
State's
(b)
prosecuting
authority
If
evidence,
which
judgment
on
moved
brought
any of the cireumstances
about
Tyson presented his de-
denied.
was also
(a)(2)(i)
(a)(2)(vi)
through
in subdivisions
fense,
guilty ver-
then the
returned
section,
ter-
this
with intent
to cause
*3
counts.
dicts on both
prosecution
another
mination of the
the deci-
be noted at the outset
It should
is barred.
is within the trial
to declare a mistrial
sion
recognition
cod
This
is a
and
statute
sound discretion.
v. State
court's
White
against
prohibition
of
double
ification
Ind.,
132,
(1984),
135. Such a
460 N.E.2d
in
provided the Fifth Amend
jeopardy
an
be reversed
when
decision will
1,
ment to the
States Constitution
United
Id.
of discretion is demonstrated.
abuse
through the
applicable
made
to the states
review,
paid
great
must be
Upon
deference
I,
Amendment, and Article See
Fourteenth
decision.
to the trial court's
of the Constitution of the
tion Fourteen
Tyson's argument
apparent
It is
of Indiana.2
State
question
manifest
the central
is whether
rule,
general
jeopardy at
As a
required
jury's discharge
impaneled
jury
when the
is
and
taches
permit Tyson's second trial for the
so as to
(1984),Ind.App.,
Phillippe v. State
sworn.
provides:
85-41-4-8
same offense.
I.C.
1159, 1160;
v.
458 N.E.2d
Crim
State
(a)
if
prosecution
A
is barred
Sec. 8.
66,
822,
(1973),
Ind.App.
156
prosecution
a former
there was
Further,
in crimi
a defendant
when
the same facts and
defendant based on
brought
prosecution is
to
and
nal
of the same offense and
for commission
if;
objection,
his
cause is dismissed over
he
equivalent
acquittal
to an
same is
(1)
prosecution resulted in
the former
again
and cannot
put
jeopardy
has been
in
acquittal
of the de-
or a conviction
put
jeopardy
in
for the same offense.
be
or
fendant
...
92,
(1951), 230 Ind.
102
v.
Maddox
(2)
termi-
prosecution
the former
was
225,
on the
228. This is based
N.E.2d
impaneled and
nated after the
permitted to
the state should not be
belief
or,
in
the court
a trial
with-
sworn
to undue em
subject a criminal defendant
first witness was
jury,
out a
after the
barrassment,
by re
expense, and ordeal
sworn,
(i)
con-
unless
him of an
attempting to convict
peatedly
waived, by
to
sented
the termination
1161,
Phillippe, supra, at
alleged offense.
otherwise,
to dismiss or
motion
(1971), 400
citing
v.
United States
Jorn
termination,
(ii)
right
object to the
it
to
547,
A
does not demonstrate a manifest Kimberly Gregory was the witness the trial court who saw the defendant at the scene of the granting a regard. its discretion in Ty- abused that crime; son's in the second trial was Kimberly Gregory gold found a chain consequently jeopar- barred the double that had been stolen in burglary dy of our state and clauses federal consti- the seat where the defendant had been
tutions. sitting car; in her Reversed. Kimberly Gregory ongoing had an
friendship defendant, and; with the SULLIVAN, J., concurs. friendship Her ap- peared to be the reason she ap- CHEZEM, P.J., opinion. dissents with pear testify and avoided the law enforce- ment officers attempting to find her. CHEZEM, Presiding Judge, dissenting. support There is evidence to I respectfully dissent. particular this finding court's reweigh and we should not case, it would have been more than a minor the evidence importance to redetermine the disadvantage State, to the to have been of Kimberly Gregory's testimony. required proceed with the first To hold that a mistrial called under the the face of the deliberate refusal of Kim- facts of subjects this case the defendant to berly Gregory obey properly served double jeopardy upon puts retrial an unfair subpoena. burden on the Kimberly State. Gregory's majority correctly states the law as testimony provided would have impor- and that a manifest tant, perhaps, only linking of the defen- necessity may However, allow a retrial. dant to the crime. the trial court found that the "manifest The result in this case allows friend or absconding witness, accomplice to trade off ninety day sen- emergency absence, caused her the fact tence and five hundred dollar fine for a the State had taken all reasonable defendant's freedom from lengthy sen- steps procure ...to her attendance and the tence. A may defendant encourage well public best interest of the and the commu- procure the absence of a State's witness nity" required *6 granting of the mistrial. knowing that the will have to following support facts proceed with the present trial unable to court's determination that it should declare important complete evidence. mistrial the defendant's first trial: Kimberly Gregory had properly been
served subpoena; with a
Kimberly Gregory drove the vehicle in
which the defendant left the scene of the
crime;