*1 482 rе- Tr. at 17-19. The trial court’s Order impermissible an mod-
court’s actions were obligated one- ification, Gary pay stated that we reversed. mortgage half of and it clarified the second Now, to follow Gary us suit urges “assignment” that the term was intended “nearly exactly that is argues Strohmier give security monthly pen- in Linda the at 9. the Appellant’s Br. While point.” Appellant’s at 17. App. sion benefit. relevant, find certainly we it distin- case is may modify a final Although before us In a court not guishable that now. decree, Strohmier, in the challenged may clarify trial court order it construe and it the 2005, uncertainty, than a case of in order to sustain the in more decade was issued decree, however, it; of rather than defeat an 1991 dissolution. aftеr the decree merely is modify did not seek order not clarification where petition Wife’s uncertain, changes makes original substantial in the clarification change Sepa- of real decree. 24 Am.Jur.2d property rather desired a Divorce court, § ownership bankruptcy in ration 562 Modification after the and Clarification 2011). $30,000 Here, 1992, Aug. the judgment (updated her of Decree discharged In her Order not make or substan- granting sweeping lien Husband. did against court tial not modify, changes the trial awarded to the Decree. It did petition award property real estate Husband and Wife as ten- more Linda or less common, Gary. change ants when the decree had It did the division property. it to as his sole It did not a new obli- proper- awarded Husband schedule Rather, change or ty, making gation thus a clear indebtedness. Order existing obligation, clarification of an property decree’s division. namely the debt for half the mort- second contrast, in the present the trial court gage, Gary original which owed under the division, property not modify case did Decree. no trial court error. We find provided but rather alternate means of Gary’s securing existing obligation after Affirmed. QDRO that
learning original would not hearing on VAIDIK, J„ MATHIAS, J., be enforced. At the Linda’s concur. trial court petition clarify, the stated: court’s intent was secure that
[T]he mortgage] through [on
debt second assignment
an of the interest in his re- right
tirement If I recall I funds. think testimony there have been some Dwayne VAUGHN, Kenneth that, that it be divided could not оr Appellant-Defendant, pension administrator would not v. amount, grant request for the full so Indiana, Appellee-Plaintiff. fund, intent was to secure STATE of way amount thought best No. 45A05-1102-CR-57. do at the final hearing could the time of Appeals Indiana. periodic and that’s amount assigning paid until amount was full.... Sept. But the that debt intent was to be se- Transfer Granted Dec. against pension cured assets of Shepherd pension secured as- of Mr. Shepherd.
sets *2 Mulholland,
Kristin A. Office of the Pub- Defender, Point, IN, lic Attorney Crown Appellant. Zoeller, Gregory F. Attorney General of Indiana, Worden, Michael Gene Deputy General, IN, Indianapolis, Attor- neys Appellee.
OPINION VAIDIK, Judge. Summary
Case Dwayne Vaughn Kenneth on trial robbery for a bank and took the stand in his own public defense. When his defend- question, er asked him the Vaughn first began criticizing attorney his and was non-responsive question. therefore stop, told Vaughn did not listen. Vaughn was re- placed strained and had a hand over his presence mouth in the jury was removed from the courtroom and brought later back in. When fin- testimony, attorney ished his moved for mistrial, which the trial court denied. appeals now the denial of his mo- but continued. attempt made no Concluding tion for mistrial. streets peril pursuit ensued residential grave position in a eighty per miles subjected, reaching up to speeds have been he should not which *3 aggressively a new trial. and remand for hour. The Blazer drove reverse and we Eventually, signals. traffic disregarded History and Procеdural Facts approximately Blazer down to slowed a September of morning theOn hour, at which per five ten miles walked into a a beard male with black Blazer jumped out. The the driver Merrillville, Indiana, Bank in Fifth Third and a foot chase building, crashed into a shirt, hat, baseball wearing a checkered driver, Vaughn, identified ensued. day. gloomy on a sunglasses and dark A apprehended. large amount quickly was Tyaisha teller Gard- approached The man including money Vaughn, found on was ner, immediately suspicious be- who money. police the bait When some of and told her sunglasses, of his cause Blazer, money plastic searched He then an account. open wanted The checkered bag were found inside. counter and bag on the dropped plastic shirt, hat, re- sunglasses were never her, way,” to “threatening in a instructed later covered. Both Gardner and Wilcox Because the man up.” p. “fill it Tr. Vaughn as the bank robber. identified side, believed hand to his Gardner had his charged Vaughn with Class C The State gun and was scared. Gardner he had drawer, robbery, felony resisting D felony which Class cash from her put $3500, enforcement, A re- plus a law Glass misdemeanor approximately amounted enforcement, and D felo- consecutively-marked money sisting bait law Class stack of Holcomb, appoint- Jr. away, ny the man walked theft. Noah bag. into the When security Vaughn Vaughn’s public button under defender. pressed Gardner ed as represent her сounter. motions to pretrial filed several himself. Wilcox, teller, Jennifer heard Another the man mumble to Gardner three-day trial was held November up bag. fill then heard Gardner Vaughn’s jury beginning 2008. At the Gardner, eye not maintain trial, Like Wilcox did hearing trial court held a They man. both learned contact with the proceed pro motion to se. Vaughn’s latest eye contact training not to maintain ultimately withdrew this motion. it draws extra atten- with robbers because trial, again day On the second get to them and it is best to robbers tion se, but the trial court proceed pro asked to possible. Wilcox also quickly and out as day the final denied this motion. On security button when the man left. hit her witness, trial, Vaughn, the defense Alsop Janet observed the manager Bank After testified on his own behalf. bank, enter an man exit the older model record, Attorney name for the stated his passenger- Blazer with gold/tan Chevrolet following Holcomb away. Alsop called damage, side and drive you any- open-ended question, “do later. police, who arrived minutes regards thing say charges being filed led these Department Police Officer Merrillville following against you?” p. Tr. was on the look-out for the Daniel Veschak then occurred: spotted Blazer when he a vehicle say What I want to began WITNESS:] follow- description [THE matched the argue something you that ah—I ask it. Officer Veschak activated his is ing When siren, you argue the Blazer didn’t it. emergency lights and today. THE Hold on a sеcond. room But it you COURT: is the fact that keep changing your you mind. And THE WITNESS: I asked him— your won’t stick to every answer time I Stop. THE COURT: you. why you ask That is the reason you To tell about— THE WITNESS: lawyer sitting have a next you. Stop. THE COURT: way Now the just Holcomb start- you THE WITNESS: I tell about this question asking you ed his is he is open photograph. questions ended you which means can you stop. THE COURT: told La- say happened whatever day. on that gentlemen, dies and retire to the *4 can give your You version of the events. room. Remove him the courtroom. State, going And am not to allow THE WHEREUPON JURY RETIRED them you you to cut off when go on a THE TO JURY ROOM.[1] big, long narrative answer toas what THE want WITNESS: He don’t to tell happened day. on that you. THE Remove him from COURT: THE COURT: courtroom. Cover his mouth. are you going So tо start with the THE WITNESS: him to get testimony my this; I told attorney to do money. that; my attorney I told to do he didn’t Quiet. BY THE BAILIFF: you do it? Or do want your to tell side THE WITNESS: I asked him— story? you BY THE BAILIFF: Now are going BY THE DEFENDANT: quiet? my to be I let go. hands I want to tell story. side of the presence
Id. at 336-38. Outside the jury, the trial court had the following dis- Vaughn: with THE
cussion COURT: THE right. COURT: All Let’s uncuff him.
Now, how you proceed? do want BY THE DEFENDANT: get through We are this trial worry You don’t have to about me way one or the other. And even con- being violent.
trary have been contrary my personal to what trying just happened and even torpedo feeling this case you THE COURT: [*] [*] [*] n [*] [*] Well, All right. I think the fact that a beginning, and cause mistrial since the you got put handcuffed had to I have no with problem giving you a fair your you hand over mouth after I told trial. repeatedly quiet you kept to be fact, you I recall earlier in the case talking might have something to do with Now, doing my job. told me I was why you just got cuffed. you unequivocally made the decision to represent yourself instead of flimflam- point, jury Id. at 342-45. At forth, ming courtroom, back brought Mr. Holcomb back into the and the sitting wouldn’t even be in this court- trial court stated: Although this indicates that the left the defense counsel that the bailiff restrained the point, Vaughn's room at this clear becomes based defendant and his hand over upon by later presence comments both the mouth in the response Holcomb, break, Id. at 384-85. State’s Mr. right. At All taken the bailiffs that “the actions the answer was was question, you asked proce- with court in ... accordanсe felt it neces- were the Court responsive, non blatantly disre- to the non when the defendant testimony as dure stop the sary to him.” you gave question. garded every command nature of responsive creating purposes For expectations Id. explained has court, the trial at the appellate for the defendant record for the it has times Holcomb, your many ask how you will court summarized break. proceeding pro se and had wavered about again, please. question by criticizing Attor- opined Vaughn, Vaughn, then asked Id. at 346. Holcomb stand, “trying ney Holcomb on the anything say you do Vaughn, “Mr. error, error, appealable create somehow to the events regard with error, or a mistrial this cause reversible 5th, regards September Speedy he filed a Motion for though even an- custody?” you being The trial court re- Trial.” Id. at 388. prob- no further question with swered the *5 the situation as follows: called Vaughn completed his testi- lems. After 346-383, jury retired to mony, id. at give started When the defendant jury point, room. At this Mr. Holcomb’s responsive answer to non Holcomb question, which very clearly open ended give his version invited the defendant due the activi- [to] for a mistrial
move[d] situation, events, I recall the I as my when client happened ties of what something to that quiet told him to be or in ... the bailiffs was restrained thereafter, might I effect and I think jury. And then the court front of up. him to shut But have even told out. client was jury was sent While that I on two ocсasions I believe least me rambling insisting attacking proceedings had tried to on the witness verbally while he was them back into order. bring stand, way, point at that he was no form, being or fashion abusive shape, that it became clear to At the jury physi- kind of a towards the not me that the defendant was threat. cal the court staff in. stop talking, I called suppose, on the one hand I even So Kelley coming Mr. Immediately upon may feel that Mr. though the Court observed, courtroom, I into trying up to set a situation Vaughn was quiet him be at least Kelley then told think granted, for mistrial to be don’t time, once, another at which maybe physically him necessary it was to have stop talking. At which point he did point simply at that because restrained Kelley I commanded Mr. point I believe up he wouldn’t shut when the Court told over the defendant’s put his hand obviously men- quiet. him to be He was mouth. not have tioning matters that should is an unfortunate situa- That situation brought purview within the been something that I never intend- tion and quiet not be when the
jury and would in front of this to have occur ed quiet. But I instructed him to be based on what ob- But nevertheless necessary at that don’t believe it was served, that this Court I don’t feel him physically. have restrained point to that to occur. caused thing have invited this Although he intentionally. n n n [*] n n
487 that, satisfactorily all of while it was edies will not having So said correct the er- ror. an unfortunate situation occurred Id. jury, it is not
before matter, argues As an initial the State caused. And the Motion for this Court motion for mistrial was un- is denied. Mistrial timely because it came at the completion of testimony rather than when he was at 388-90. restrained and had a hand over his Vaughn guilty found However, mouth. we find that his motion charged. judg- The trial court entered sufficiently timely. Importantly, we felony ment of conviction as to Class C note the trial court addressed robbery felony resisting D law Class Therefore, Vaughn’s motion at trial. we only. The court enforcement sentenced find that it is not appeal waived for years felony to six for the C Class proceed to the merits.2 felony, D years and two for the Class be right defendant has the to ap consecutively. appeal served This belated pear in physical front of a without now ensues. restraints, unless such restraints are nec Discussion and Decision essary prevent the defendant’s escape, courtroom, protect contends those or maintain in denying during State, court erred his motion for mis order trial. Wrinkles v. 749 (Ind.2001); ruling trial. The on a motion for a mistrial N.E.2d see also Ko State, (Ind. is left to sound discretion of the trial cielko v. 938 N.E.2d *6 in the position Ct.App.2010) court as that court is best (noting generally, a de assess the circumstances of an error and fendant not presented be to the jury probable impact upon jury. shackles), its the in reh’g granted Stokes handcuffs or in State, 758, v. (Ind.Ct.App. part, 922 N.E.2d 762 943 (Ind.Ct.App.2011), N.E.2d 1282 2010), trans. reverse only right denied. We trans. denied. springs “This upon an abuse of that discretion. Id. principle To the bаsic of American jurispru prevail appeal on from the denial of a person dence that a accused of a crime is mistrial, motion for the presumed defendant must until proven guilty innocent be Wrinkles, yond demonstrate that the statement or conduct a reasonable doubt.” 749 question prejudicial was so and inflam at 1193. presumption N.E.2d For this effective, matory position that he was in a of be trial courts guard must grave peril to which against practices unnecessarily he should not have mark subjected. gravi been Id. at 762-63. The dangerous the defendant as a character or ty peril probable suggest of the is assessed the guilt foregone is a conclu Id.; State, persuasive upon effect оf the misconduct sion. Stephenson see also v. (Ind.2007) 1022, (“[V]isi- jury’s upon the decision rather than the 864 N.E.2d 1029 degree impropriety shackling conduct. Id. ble undermines the presumption at 763. A mistrial is an extreme remedy innocence and the related fairness of the justified only fact-finding process” that is when less severe rem- “impair[s] and the argues 2. The State also has ment or move for mistrial results in waiver of See, State, request e.g., Cooper waived this issue because failed the issue. v. 854 N.E.2d State, however, 831, (Ind.2006). an admonishment. The cites 836 Given the extreme setting potential the line of cases forth the standard for measures used here and the for fun- error, prosecutorial That line misconduct. of cases damental we find no waiver оn this says request ground. that the failure to an admonish- 488 proceed- the decorum process.” (quotation courtroom judicial the
dignity of jury. or the the either before the court omitted)), Accordingly, ings reh’g denied. the trial reasoning supporting and facts calls our attention to Avant v. The State are that restraints court’s determination State, appeared where the defendant the record. placed on necessary must be taped with his mouth front Wrinkles, at 1193. N.E.2d 749 (Ind.1988). 74, 77 528 N.E.2d shut. include case, of restraint methods after the State’s first witness Typical chairs, shackles, handcuffs, security testified, upset the defendant became Id.; see also Illi- gagging proceedings. a defendant. the trial Id. He disrupted 343-44, Allen, 397 U.S. attorney v. not nois that his suffi- complained (“We (1970) L.Ed.2d 353 S.Ct. the witness and re- ciently questioned three constitution- there are least think attorney. a new Id. The defendant quested ways judge for a trial ally permissible The trial quiet. to remain Id. refused :(1) ... obstreperous an defendant handle again asked judge excused him, him thereby keeping gag bind Id. Follow- quiet. the defendant to remain (2) contempt; him for [and] cite present; recess, again inter- ing a defendant (3) until he out of the courtroom take him jury’s pres- rupted proceedings properly.”). to conduct himself promises judge The excused the Id. ence. Id. again, defendant judge spoke Here, disrup there was one he was not to remain and he said by Vaughn. courtroom decorum tion of her judge depu- Id. So the ordered quiet. is, That when Holcomb mouth shut. tape ties to the defendant’s open-ended question, Despite the fact that his mouth was you argue “I responded ask shut, managed to dis- taped defendant it” you argue didn’t instead discuss two occa- rupt proceedings again 5, 2008, ing September incident. Id. The told defendant sions. stop, trial court told willing that if he was to be silent she would and instead tried to Vaughn did *7 removed, tape indicated have The entire get point his across. incident stay that he would not silent. Id. Accord- in a matter of seconds. likely transpired taped shut for ingly, his mouth remained the State characterizes appeal, On ap- of the trial. Id. It also the duration “castigat[ing]” his at Vaughn’s conduct him pears keeр that his hands were tied “tirade,” ha torney, “continuing and a removing tape. Id. attorney.” Appellant’s his rangue against 4, 7, We think characteriza p.Br. mistrial, moved for defendant goes Similarly, tion too far. we think the Supreme Our which was denied. Id. having Vaughn trial actions in re court’s warned that extreme meas- “[t]hese placing a over his mouth strained and hand only be used as a last resort ures should jury go too far as well. front examining all the alternatives.” Id. after that the The Court concluded defendant’s the trial court’s While we understand provoca- frustration, disruptions created sufficient Vaughn’s it overreacted to physical re- jury. justify tion to the use one-time outburst front cooperate By his refusal to Evidently brewing, frustration had been straint. civil, the trial remain forced [he] had been unable to make because to maintain necessary means represent employ whether to himself. a decision on in order that of her courtroom through Vaughn’s all of inde- control Importantly, justified in cision, proceed. trial [She] to that he had not broken up employing extreme measures deal flash of a moment. We realize that extremely with an recalcitrant defen- superhuman sometimes takes effort to re- who dant. defendant creates his own strain the natural frustration of dealing presents cause mistrial no error. with difficult people challenging at times. recognize We also that this action is totally 77-78. out of character for this seasoned and fine par is not This case Avant. trial court judge. But we also understand Vaughn’s disruption one-time not cre did judge’s the influence of a conduct on the provocation justify ate sufficient re jury. Muzzling and restraining Vaughn in straining Vaughn jury. in front of the His front of the for this momentary out- non-responsive answer to Hol deprived burst him of an otherwise fair open-ended question comb’s and subse trial before an untainted impartial quent trying efforts in point— to make his jury. Accordingly, we conclude that despite telling the trial court him to trial court abused its discretion in denying “Stop” not rise to the level of the —do Vaughn’s motion for mistrial. We there- court’s “extreme measures” of restraining fore reverse and remand new trial. having place him and court staff a hand Reversed and over his mouth in front of the Put remanded. differently, punishment of pro was out DARDEN, J., concurs. offense, portion Vaughn’s it, put being responsive.” court “non FRIEDLANDER, J., dissents with p. Though Tr. were temporary these separate opinion. measures, damage was permanent. FRIEDLANDER, Judge, dissenting. Vaughn may technically And while situation, Majority’s created the there were ex do not share the less view that the trial response treme measures that the trial court court’s remedial could have employed, warning Vaughn such as refusal to abide the court’s error, potential or instructions was consequences merely ex reversible cusing jury. Tellingly, respectfully when the trial therefore dissent. speak Vaughn court did about ac his Majority notes that incident, Vaughn tions after this testified (the flip-flopped trial court termed it “flim- and then remained courtroom for flamming” “flimflamming back and the remainder of the proceedings without forth”) on several occasions about in- Although recognize
incident. we the vol represent tention to himself at trial. *8 ume of against Vaughn, evidence he is 11, 342, Transcript at In- respectively. entitled to a fair trial. We therefore con deed, a review of the record reveals that prejudicial clude that this event was so Vaughn originally represented by was placed position was in a of counsel before deciding proceed pro to se grave peril to which he should not have some mоnths before trial. About a week subjected. probable been persuasive commence, before trial changed was to he jury effect on the is undeniable. It again requested his mind counsel. Vaughn, marked who was on trial for rob Counsel was appointed. Friday On bank, bing dangerous person as a who before trial was to Monday, commence on suggested needed to be restrained and Vaughn submitted another pro- motion to guilt a foregone his was conclusion. pro ceed se. The court addressed that difficulty being We understand a motion at the outset of proceedings on date, judge making Monday trial decisions in the and even at late Also, lawyer wants his back. me that he vacillate back and tо continued 31, he not motion October did in his filed represent he would whether as to forth motion, proceed motion to unequivocal make an they discussed himself. As motion, se, he indi- he because in that pro and indicated course changed help to somebody he wanted accept public to cated that again decided had once Bring changed jury he his him with selection. Then services. defender’s end of the same abruptly mind prefer- again expressed discussion returned Id. at 66. When the court se. After pro proceed ence to lunch break on the following a courtroom warnings about the customary
recited trial, he found in his chair day second they were self-representation pеrils of that, se proceed pro motion to written selection, Vaughn proceed to to about counsel, had been to defense unbeknownst for a vacillating and asked began again motion, Vaughn. The there After a confer with counsel. moment to record, into the which the trial court read two, between the discussion ten-minute Vaughn’s request, grounds detailed again mind and decid- Vaughn changed his as follows: by coun- represented proceed to ed defendant, Kenneth Comes now sel. this Honorable Vaughn, and motions impaneled until the That lasted allow him to County of Lake were finished. opening statements I pulled se. I know that proceed pro attorney if the court asked When motion, know my out last didn’t respond- counsel ready proceed, he was Burge, a I know now. Maurice ed: case, testify going witness this Honor, not, are mat- Your there We are my public my says on behalf and ... Af- ters that need to be addressed. Holcomb, defender, approached Noah here, my appar- client speaking ter my jury selec- prior him the start entertaining he notions of ently is him to leave. persuade tion and tried So I know we have been back pro se. Burge states that Mr. Holcomb before, but I and forth with that think him “crazy” him and tried to tell called my duty to advise the Court. is testify behalf because at 54-55. After the court and against Burge events. Mr. testified past matter, Vaughn again ex- discussed the victim of the he was the me proceed pro se. The pressed a desire says He crime I was convicted on [sic]. request, stating: court denied him he shouldn’t testi- Mr. Holcomb told him. I tried to kill proceed pro fy for me because request The defendant’s got also into verbal dis- the defendant Mr. Holcomb is denied because say [sic] him with me because agreement decision to unequivocal has not made an fact, statement why give opening he didn’t an changes and in proceed pro se him, me, paying “I’m not so and he told repetitive mind on a basis. *9 fight this case”. I can’t tell him how to know what his motiva- does not Court however, say I’m not are, mean this when I really it is do doing tions for being my belief, with Mr. Holcomb having comfortable my personal feeling me this Motion аttorney. grant in- Please years, this for a number of done I have the States. system as a citizen of United justice in the criminal volved every any examine right the to cross proceed pro that if I allowed him to se may to that the State won’t [sic] tell witness today, tomorrow he will come in and testify enough proximity me to present against have the site of the rob- right, bery conclusively on that because it’s not that it did not elect to act establish Vaughn that I have. privilege, right it’s a Sor- could not have been at the inconvenience, robbery I won’t of the ry for the but scene some ten minutes later. to finish this trial on on [sic]. [sic] But only at 147-48. After the trial court denied not have been the motion,
Vaughn’s
pointed problem
Burge’s testimony,
dеfense counsel
with
according
among
attorney
the court that
the materials
Holcomb.4
out to
As indicated in
court,
he
lunchtime
Vaughn brought
proceed pro
had
motion to
marked,
se,
“Supreme
Vaughn
envelope
acquainted
white
first became
with
Disciplinary
Vaughn Burge
Burge
Commission” that
when
the victim
of a
from
pick up
previous
Vaughn
“refused to let
the
crime of which
eventually
[counsel]
counsel,
impli-
table.” Id. at 157. To
the
was convicted. Defense counsel believed
Burge’s testimony
cation was obvious.
would be more
harmful than beneficial
Vaughn, per-
helpful
At this
would be
ex-
haps
possibility
because of the
the
pand upon
Vaughn’s displea-
the source of
prior
might
conviction
jury’s
come to thе
counsel,
sure with his
at
appointed
least
through
attention
Burge’s testimony.
displeasure
approxi-
that was manifest
event,
in defense
judgment,
counsel’s
mately one
before trial
week
and continued
Burge’s testimony would serve no useful
through
Vaughn
trial.
alluded
i.e.,
purpose,
when I
“[n]ow
talked with
problem in his lunchtime motion to pro-
Mr. Burge
Monday,
on
Mr. Burge has
i.e.,
se,
pro
potential
ceed
witness Maurice
on,
indicated
I think four other occasions
Burge. Vaughn denied involvement in the
nothing
any significance
[he]
to add
robbery
charges
from which his
stemmed.
to this case that
... would
helped
denial,
proposed
To bolster his
to call
Vaughn
this case.” Id. at 395.
who
Burge,
provide
claimed would
is,
That
against
what amounted
alibi evidence.
It is
this factual backdrop that
testify
Burge
personally
would
that he had
we must consider the actions of which
briefly spoken Vaughn
complains.
at 9 or 9:30 a.m.3
now
In concluding
day
robbery.
essentially
on the
of the
The evidence that the trial court
over-reacted
(i.e.,
robbery
ap-
beyond
revealed that
occurred
far
“[t]hese restraints went
later,
order,”
proximately
necessary
10 minutes
from 9:39
op.
to maintain
488)
a.m.
Majority
provo-
9:43
The record does not reveal where
states that the
Burge’s supposed
by Vaughn.”
encounter with
cation “was
one incident
place,
presumably
took
but
it was
close Id. I believe this mischaracterizes what
Evidently, Burge originally
previously, Vaughn
told an
set out
investi-
had indicated that
gator
Public Defender's office that
Burge
he wanted to call
as a witness. As this
a.m.,
Burge
two met at
told
was the first time the State had heard of
Vaughn's
(Burge)
that he
counsel
"had seen
Burge,
subpoena
the State served him with
on
[Vaughn]
morning
9:30 [on
about
Monday
appear
following morning
robbery]
they parted.”
and then
Id. at 245.
deposition. Burge
appear. Appar-
did not
ently, Vaughn
Burge
spoke
thereafter
on
I note also that trial commenced on Mon-
Tuesday
again Wednesday,
and then
on
day,
Wednesday,
continued on
and concluded
asked him on both
to attend
occasions
Thursday.
Burge
on
to attend
following day. Vaughn
Burge
claimed
obliged.
Monday,
Burge
By the
end
however,
indicated both times that he would attend the
day,
proceeded
the trial had
*10
only
day,
Burge
opening
to
of
statements.
next
to do
the
As
failed
so.
above,
often.
I
and he did it more
First,
proceedings
out in detail
as set
occurred.
however,
trial,
ready,
say
that
the
am not
the outset of
Vaughn had
in Avant for
dealing
principles
enunciated
before,
back and forth
vacillated
indeed
disruptive
defen-
pro
non-cooperative
se. with
proceed
of whether
question
the
only
in
application
are limited
ostensibly because
dants
done so
He had
to the Avant
(1)
where,
compared
the notion that
situations
stubbornly clung to
(2) defendant,
displays equal or
a defendant
testify on his behalf and
would
Burge
Rather,
interpret
I
greater recаlcitrance.
would be relevant and
testimony
such
permitted
to mean that a trial court is
running
a
it
his case. This was
helpful to
Second,
tape
far
the defendant’s mouth
go
this
so
as
the trial.
throughout
theme
it.
if the situation warrants
under-
comprised
in fact
shut
was
“one incident”
successive,
Supreme
the
Court cautioned
by
blatant
refusals
stand
several
an extreme meas-
tape
that the use of
was
to the court’s commands
Vaughn to adhere
that, though justified on the facts of
all that had
ure
talking. Considering
Avant,
routinely acceptable.
days, the court
would not be
previous
the
three
gone on
fur-
I believe
misconduct was
reasonably could have believed that
as was the Avant de-
nearly
egregious
would also
аs
stop talking
ther commands
fendant’s, but neither was the trial court’s
go unheeded.
remedial action in the instant case as se-
right,
trial court has the
and indeed
fact,
trial court’s
vere.
In
I believe the
the
duty,
manage
proceedings
the
“to
appropri-
case was
response
instant
prop-
responsible steps to ensure
take
by Avant.
ate and therefore sanctioned
in
order exist
the court-
discipline
er
State,
Vaughn ignore repeated
Mengon
v.
505 N.E.2d
Not
did
room.”
(Ind.1987).
this,
stop talking,5
appears
but it
the
accomplish
To
the
orders
justifiably
far
that a
trial court also was
concerned
may go
court
so
as to order
See about
to make state-
gagged.
defendant be shackled and
(Ind,
Statе,
a
To
v.
might
were so at least not in a manner counsel8 to believe that he have been befitting the standards of decorum appro- attempting along all to cause a mistrial. priate proceedings. This left opinions Those were not without basis in one option physically prevent Vaughn —to the record. One of our sister courts has speaking. observed that administration of “[t]he
Ultimately,
the Majority
justice
decides that
criminal
is not to be delivered into
clamping
Vaughn’s
hand over
mouth and the
gain only
hands of those who
from its
restraining
him “marked
...
Guy,
[him]
subversion.” State v.
82 N.M.
dangerous person
suggested
that his
as a result of silence, him- brought he it on
compel his
self, pur- perhaps purposely. Whether not, permitted not be
poseful or should disregard of the gain from his willful court’s commands. would affirm respects.
the trial court in all TONGATE, Appellant-
Jon Paul
Defendant,
v. Indiana, Appellee-Plaintiff.
STATE of
No. 29A02-1102-CR-223. Appeals
Court of Indiana.
Sept.
Rehearing Nov. Denied Zwick, Noblesville, IN,
William F. At- torney Appellant. Zoeller,
Gregory F. General of Indiana, Webster, Deputy Richard C. At- General, IN, torney Indianapolis, Attor- neys Appellee.