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
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
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 States 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 Butlers 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
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
I. Double Jeopardy
Butler contends his retrial violated the Double Jeopardy Clause of the Fifth Amendment.
Butlers 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. Weavers 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
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.
Butlers counsel was present at Weavers plea hearing. The trial court
then resumed consideration of Butlers case. Defense counsel made several motions, including
a request for a ninety-day continuance and a motion for a mistrial based
on the States having obtained Weavers 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, Andres 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.
Based on this new evidence and Weavers 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 Butlers defense. It granted Butlers motion for a mistrial.
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 Butlers 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 defendants 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 courts determination of prosecutorial intent is not conclusive for purposes of
state appellate review, we do regard its determination as very persuasive. Id.
It is a factual determination that we review under a
clearly erroneous standard.
Here, two different trial judges found that the States actions were not intended
to goad Butler into moving for a mistrial. The State asserts on
appeal that it sought Weavers testimony mid-trial to convict Butler, not to delay
his trial or goad him into moving for a mistrial. The trial
courts findings on this point appear to be correct, and certainly are not
Accordingly, we hold that Butlers second trial was not barred
by the Double Jeopardy Clause.
II. Habitual Offender Instructions
Butler next contends that the trial courts instructions to the jury during the
habitual offender phase violated Article I, § 19 of the Indiana Constitution for
the reasons explained in this Courts 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)).
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:
Theres another witness in this case and you had an opportunity to
hear from that witness. States Exhibit 37 with Taurus Butlers fingerprints all
over it and I dont 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 prosecutors 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 defendants 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 defendants
Here, the prosecutor merely highlightedalbeit it somewhat dramaticallya 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
didnt testify. Rather, the prosecutor told the jury that they had had
an opportunity to hear from that witness[,] States 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 Butlers failure to testify. The prosecutors comments and conduct here are
not a basis for a claim of error, let alone fundamental error.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
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 Butlers claim solely under the
The casings had been found on the roof of Stephens
two days after the shooting.
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
The United States Supreme Court has found that a trial courts 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.
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.
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.