John Tompkins v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 07 2019, 6:18 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jacob T. Rigney Curtis T. Hill, Jr.
Rigney Law Attorney General of Indiana
Indianapolis, Indiana Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John Tompkins, October 7, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-PC-2394
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Sheila Carlisle,
Appellee-Plaintiff. Judge
The Honorable Stanley E. Kroh,
Magistrate
Trial Court Cause No.
49G03-1101-PC-431
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2394 | October 7, 2019 Page 1 of 20
[1] John Tompkins appeals the denial of his petition for post-conviction relief. We
affirm.
Facts and Procedural History
[2] The relevant facts as discussed in Tompkins’s direct appeal follow:
On December 27, 2010, Daphne Rutledge and Brittany
Henderson went to Mary Orr’s house to pick her up, and
Tompkins, who was dating Orr, was at the house at the time.
After picking up Orr, the three women went to Rutledge’s home.
Rutledge lived with her mother Dorothy and her nine-year-old
daughter. At some point, Rutledge, Henderson, and Orr left to
run errands and stopped at a gas station, where they saw
Tompkins, who was wearing an all gray jogging or sweat suit,
white tshirt, and white tennis shoes and had braids in his hair.
Instead of leaving the gas station with Rutledge and Henderson
as planned, Orr left with Tompkins.
Later that night, Rutledge and Henderson went to a bar in
Greenwood, Indiana, to play poker. While at the bar, Orr called
Rutledge more than ten times. After playing poker, Rutledge and
Henderson returned to Rutledge’s home. At approximately 2:00
a.m., Tompkins called Rutledge using Orr’s phone and began to
argue with her, became “rude, loud, argumentative, and
disrespectful,” and stated “Oh, you think you’re going to get my
girlfriend. B, you can come get some, too. You can Google me .
. . .” Transcript at 213-214. The argument ended when
Rutledge’s phone died. Rutledge, Henderson, and Rutledge’s
daughter all fell asleep on a bed in Rutledge’s bedroom.
At some point later during the night, Dorothy woke up to a loud
beating coming from the entrance door to Rutledge’s apartment,
she then heard a “real loud kick of like a real loud bang,” jumped
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up, went into the hallway, and observed Tompkins climbing the
stairs with a knife in his hand. Id. at 255. Dorothy yelled at
Tompkins, but he ignored her and went inside Rutledge’s room.
Dorothy followed Tompkins into the room and observed that
Tompkins was over Rutledge and hitting her.
Rutledge woke up as Tompkins was on top of her and stabbing
her. Rutledge recognized Tompkins based on the gray jogging
suit, shoes, and braids. Henderson was awakened by Tompkins
when he jumped, in “an aggressive move like a pounce,” onto
the bed, and Henderson pulled Rutledge’s daughter off of the bed
with her. Id. at 285. Henderson observed Tompkins run out of
the room. Henderson and Dorothy called 911.
The police officer responding to the scene observed fresh signs of
forced entry. An ambulance transported Rutledge to the hospital
where it was determined that she had been stabbed five times,
suffered nerve damage in her right hand, and one of her kidneys
had been stabbed. While in the hospital, Orr called Rutledge and
then Tompkins spoke to Rutledge on the phone. Tompkins
stated that he did not stab Rutledge and offered her “money to let
the police know that he did not do it.” Id. at 225. Rutledge told
Tompkins no and that he “could burn in hell.” Id. Later,
Rutledge and Henderson were both shown a photo array and
both identified Tompkins as the perpetrator.
Tompkins v. State, No. 49A04-1111-CR-690, slip op. at 2-4 (Ind. Ct. App.
October 11, 2012).
[3] On January 4, 2011, the State charged Tompkins with Count I, burglary as a
class A felony; County II, aggravated battery as a class B felony; and Count III,
battery as a class D felony. Id. at 4. On September 9, 2011, the State filed a
notice of filing habitual offender. Id. On October 5, 2011, Tompkins filed a
motion to exclude the testimony of Orr because she failed to appear for
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depositions, and the court granted the motion. Id. On October 13, 2011, the
State moved to amend Count II to correct a scrivener’s error, which the court
granted. Id.
[4] On October 17, 2011, prior to the beginning of a jury trial, the court and parties’
counsel discussed motions by the State, and defense counsel requested a motion
in limine with respect to any prior bad acts or criminal offenses by Tompkins
that had not been reduced to conviction and “also, with the granting of the
motion to exclude on Mary Orr, any testimony as to any statements she had
made.” Petitioner’s Exhibit A at 24-25. The court granted the motion.
[5] During the direct examination of Henderson, she testified that Orr was
panicked and left items in the car because she did not want Tompkins to know,
and Tompkins’s trial counsel objected and asserted that the testimony was “just
literally what she said.” Petitioner’s Exhibit A at 105. Upon questioning by the
court, Prosecutor Clifford Whitehead stated that he had advised Henderson of
the court’s rulings. The court advised the jury to disregard the last answer given
by Henderson.
[6] During the direct examination of Rutledge, the following exchange occurred:
Q Did anybody call you while you were at the bar?
A Yes.
Q Who called you?
A Mary had called me and told me she was getting beat.
Q Okay.
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[Defense Counsel]: Objection, Your Honor.
[Prosecutor Cary Solida]: I know. I know. We’re –
[Defense Counsel]: We need to approach.
THE COURT: All right.
COUNSEL APPROACHED THE BENCH
[Defense Counsel]: All right. This witness knows the ruling.
[Prosecutor Solida]: But – but –
[Defense Counsel]: She said, Mary called me and said she was
getting beat. That’s so – a violation.
[Prosecutor Solida]: Did she say that? I didn’t hear her.
[Defense Counsel]: I thought she said beat – she called me and
said she was getting beat.
THE COURT: All I’ve got is, “Mary called me and told me she
was going”. That’s all I’ve got.
[Defense Counsel]: Then you can listen to it. She said she told
me she was getting beat is what she said. We can take a break
and listen to it. I’m going to ask for a mistrial.
*****
THE COURT: Okay. On the record. We did just listen to the
witness’s answer – the last answer that the Defense objected to.
PRELIMINARY QUESTIONS BY [Defense Counsel]:
Q Okay. Miss Rutledge, did the prosecutor have a conversation
with you today, telling you that you were not to say anything
about what Mary said?
A About what I heard or hearsay?
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Q Hearsay. Anything that Mary said to you, you weren’t
supposed to say.
A Okay. Well, no, I wasn’t aware of that.
Q He didn’t – the prosecutor didn’t tell you that?
A Yeah, he told me don’t say what another person has said
outside. But she said it directly to me. That’s where it came to,
to me.
[Defense Counsel]: I don’t have any other questions. I’d like to
know, as an officer of the Court, what [Prosecutor Solida] told
her.
[Prosecutor Whitehead]: It’s my –
[Defense Counsel]: Or – yeah.
[Prosecutor Whitehead]: It’s my understanding that [Prosecutor
Solida] told her that – don’t say – whatever anything else –
anybody else said to you, don’t say.
[Defense Counsel]: Did you tell her that Mary was excluded,
and you couldn’t say anything about what she said?
[Prosecutor Solida]: Well, that’s not necessarily true. I mean, if
there’s an exception to hearsay, she can say it. And there may be
an exception on this statement.
[Defense Counsel]: I asked for a motion in limine, Your Honor,
about anything she said. And you said we were going to
approach the bench before anything was said.
THE COURT: Yes, with respect to Mary Orr and with respect
to any prior bad acts of the defendant. Those oral motions in
limine were both granted.
[Defense Counsel]: Judge, I’m going to ask for a mistrial and ask
to charge it to the State and that Mr. Tompkins be discharged.
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It’s a – it happened twice today. If it was the first time, that’s one
thing. And her throwing out something like that, to me, that just
the witness intentionally trying to get into evidence that Mary
said that she was beaten by Mr. Tompkins. So we’re going to ask
for a mistrial and have it charged to the State and that Mr.
Tompkins be released as to these charges.
*****
[Prosecutor Solida]: Okay. And I – my understanding of the
motion in limine was basically it was if it’s inadmissible hearsay
then it can’t come in. But, I mean, just to –
THE COURT: So you wanted this witness to say that answer?
Is that what you’re saying?
[Prosecutor Solida]: Not – not like that, no. I wanted her to – I
was going to ask her what Mary Orr asked her to do, because
that would not be hearsay. That would be a question.
THE COURT: Okay. Well –
[Defense Counsel]: This is the –
[Prosecutor Solida]: I asked her a yes or no question: Did you
receive any phone calls? And her response was that.
THE COURT: Right. But the – and because of her response,
then the question is was she advised that – that the Court had
ruled on the defendant’s oral motion in limine that she was not to
go into that?
[Prosecutor Solida]: She was here in the court, but she was not
specifically called aside and instructed, at least not by myself.
THE COURT: What do you mean “she was here in the court”?
[Prosecutor Solida]: She was here during the – while we were
arguing the motion in limine.
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THE COURT: Well, she was here for part of what we were
doing this morning. I don’t know what part it was. She wasn’t
here for the whole – the whole time we were in here this morning
because I saw her leave at one point.
[Defense Counsel]: And, Judge, I think after the first – I don’t
have a perfect memory of this. But I think after the first witness
did it, you instructed the prosecutor to make sure no one else did
it. I’m not a hundred percent sure on that, but I think that’s what
happened. You instructed him to make sure it didn’t happen
again.
THE COURT: Well, I did ask if they had instructed as to the
Court’s rulings. Go ahead, State. Finish your argument.
[Prosecutor Solida]: I have previously advised her about what
hearsay was and how statements are not to be used in court. I – I
don’t know if an admonishment would’ve made – a specific
admonishment today would’ve made a difference or not.
[Prosecutor Whitehead] informs me that she was in the room for
the argument in that regard to the motion in limine. Again, I
took the motion in limine to be a restatement of the Rules of
Evidence. And my next question to her was going to be what
question – “Did she ask you any questions? Did she ask you to
do anything?” And my understanding of the Rules of Evidence
is, is that would not be – that that would be admissible, not as a
statement.
[Defense Counsel]: Even –
[Prosecutor Solida]: But as a command or a question.
[Defense Counsel]: Even if that was true, Judge, the ruling was
before anything like that came out, we came in front of the bench
and talked about it. It wasn’t that well, if I think it’s admissible, I
can introduce it. No. It was approach the bench. The same
thing with me talking about Daphne’s husband and all that stuff.
Before I could say anything, I have to come and ask you. And
that was the ruling. And just to keep talking, my – what I asked
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for was that all statements, not non-hearsay statements – I said
all statements be motioned out – be in – limited [sic] out.
THE COURT: Okay. Well, this is – I’m going to have to go
back and look at some other things on the record. It’s not a
situation that I take lightly, by any means. . . .
*****
THE COURT: But I know this: It should not have come out
because I made a ruling this morning to keep that out. So I know
this: It should’ve never been said.
[Defense Counsel]: And, Judge –
THE COURT: And I can’t take it back, and I can’t drill the
jurors and say, Did that – did you catch that? You know, I
mean, everything points to the fact that I’m probably going to
have to err on the side of caution with the defendant’s rights
because I don’t know at this point who heard what. And all I
need is one juror to have heard that, and that’s enough to grant a
mistrial. I will say this: I do not believe that it was the State’s
intention to have that witness say that. That question did not call
for it. She went beyond what the answer would’ve called for.
You simply said, “Who called you?” Her answer was, “Mary
called me and told me she was getting beat.” Okay. So “Mary
called me” would’ve been all that that question asked for.
[Defense Counsel]: Judge, if I could maybe state one thing. You
know, and I’ve dealt with [Prosecutor Solida] before. I totally
trust [him].
THE COURT: Uh-huh.
[Defense Counsel]: But I think that he had a duty to tell that
witness, “Hey, you can’t say this”, and not think she heard it in
the courtroom, but a duty to go and specifically say to her, “Hey,
you can’t say anything that Mary says because it’s been limited
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[sic] out.” She’s not a lawyer. And it sounds like they didn’t do
that.
THE COURT: Did anyone do that? I know that you say she
was in the courtroom. I –
[Prosecutor Solida]: Not specifically, no. I –
THE COURT: Okay.
[Prosecutor Solida]: We –
THE COURT: So, I mean –
[Prosecutor Whitehead]: We – we told her, “You cannot say
anything that anybody else told you.” We did not say – go
through Mary, the defendant, anybody like that. And –
THE COURT: And you did not reiterate the Court’s rulings on
the defendant’s oral motion in limine as to any prior bad acts of
the defendant, which this clearly fell under, and any statements
by Mary?
[Prosecutor Whitehead]: I did not, Your Honor.
THE COURT: Okay.
[Prosecutor Solida]: No, Judge.
THE COURT: I mean, I noticed when she came on the witness
stand that she was the same person that had been in the
courtroom this morning during some of our preliminary motions.
But I did also notice that person left the courtroom at some point.
I’m not sure that having them in the back of the courtroom is
sufficient when the Court asks you to make sure all your
witnesses are advised of the Court’s ruling. But I will give you
that she was in the courtroom, and so, you know, I don’t think it
was an intentional not telling her so that this would happen. I
don’t think that at all. I don’t think the record supports that in
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any way. Okay? That being said, I – you know, I’ll have to take
this under advisement.
Petitioner’s Exhibit 1 at 174-189. On October 18, 2011, the court granted
Tompkins’s motion for a mistrial.
[7] A second jury trial began on October 19, 2011. Tompkins, slip op. at 4. The
jury found Tompkins guilty as charged under Counts I and II and not guilty
under Count III. Id. Tompkins admitted to being an habitual offender. Id.
The court vacated judgment of conviction under Count II due to double
jeopardy concerns and sentenced Tompkins to twenty years in the Department
of Correction for his conviction under Count I and enhanced the sentence by
thirty years due to the habitual offender finding for an aggregate sentence of
fifty years. Id.
[8] On direct appeal, Tompkins argued that the retrial constituted a double
jeopardy violation, that the trial court abused its discretion in admitting certain
testimony, and that the prosecutor committed prosecutorial misconduct that
resulted in fundamental error. Id. at 2. This Court affirmed. Id.
[9] On November 18, 2013, Tompkins filed a petition for post-conviction relief
alleging in part that he received ineffective assistance because his trial counsel
successfully argued for a mistrial but made the argument in such a way as to
preclude discharge. On September 15, 2015, the court held a hearing.
Tompkins’s trial counsel testified that he had been an attorney since 1990 or
1991. With respect to the motion in limine, he testified he believed he asked for
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a discharge. When asked what was necessary to show when asking for a
discharge at a mistrial, he answered: “I think bad faith from the prosecutor. I’m
not sure exactly.” Post-Conviction Transcript at 16. He stated that he
remembered making the statement that he trusted the prosecutor. When asked,
“That seems to either neuter your argument for asking for a discharge, or
putting the Court in a position to where they can’t truly determine whether a
discharge[] is . . . possible . . . [d]o you agree to that,” he answered
affirmatively. Id. at 17-18. On cross-examination, he testified that he was a
commissioner for about five years in the Marion County D felony and
misdemeanor courts, that he had been doing criminal law since 1991, that he
had handled many major felony cases prior to representing Tompkins, that he
had a duty to be truthful or have candor with the court, and “I was not going to
say that I thought [Prosecutor Solida] did that intentionally when I – everything
I know about him tells me, no, he didn’t do it intentionally.” Id. at 21.
[10] On January 17, 2018, the court entered an order denying Tompkins’s petition.
The order states:
FINDINGS OF FACT
*****
6. [Tompkins’s trial counsel] has been practicing law since 1991
primarily in the area of criminal defense. [He] served as a master
commissioner in the Marion County D-felony and misdemeanor
courts for approximately five years. Since then, his practice has
been comprised almost entirely of criminal defense work and he
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has tried between eighty and one hundred jury trials, many of
which were major felony trials.
[Trial counsel] recalls representing Tompkins as private counsel;
he reviewed his trial file prior to the PCR hearing. [Trial
counsel] believes that he had enough time to adequately prepare
for trial including time to investigate, speak to witnesses, conduct
depositions, etc.
*****
During the first trial, [trial counsel] recalls asking for a mistrial,
which was granted, he believes because the alleged victim said
something which had been limined out. He believes that he also
asked for a discharge. [Trial counsel] also testified that he had a
duty to be truthful and have candor with the Court, and that he
was not going to say that he thought [Prosecutor Solida] did that
intentionally when everything he knew about him tells him that
he did not do it intentionally.
*****
CONCLUSIONS OF LAW
*****
Lastly, [Tompkins] claims that trial counsel was ineffective for
successfully arguing for mistrial but making his argument in such
a way as to preclude discharge.
*****
The Indiana Court of Appeals held that “the record supports the
trial court’s conclusion that the prosecutor did not intend to force
Tompkins to move for a mistrial, and accordingly Tompkins’s
second trial did not violate the constitutional or statutory
proscriptions against double jeopardy.” [Tompkins, slip op. at]
11-12.
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Specifically, [Tompkins] takes issue with trial counsel’s following
comment to the court, during the discussion regarding the
mistrial request: “Judge, if I could maybe state one thing. You
know, and I’ve dealt with [Prosecutor Solida] before. I totally
trust [him].” Tr. 188.
The Court notes that this statement by [trial counsel] was made
to the court during a lengthy discussion of the issue and
immediately after the court had already stated, “I will say this: I
do not believe that it was the State’s intention to have that
witness say that. The question did not call for it. She went
beyond the answer would’ve called for. [The State] simply said,
‘Who called you?’” Tr. 187. This Court also notes that [trial
counsel] had already made a timely and thorough motion for
mistrial and discharge . . . . Tr. 179. [Trial counsel] also
subsequently argued to the court that it had instructed the
prosecutor, after the first witness violated the motion in limine, to
make sure no one else did it. Tr. 181. He further argued that the
limine ruling applied to all statements by Mary Orr, not just
hearsay statements. See Tr. 183.
“The purpose of an ineffective assistance of counsel claim is not
to [‘]grade counsel’s performance.[’]” Id. [Trial counsel] was a
zealous advocate for his client, during the entirety of this trial
and during his motion for mistrial and discharge. He timely and
forcefully moved for mistrial and discharge on his client’s behalf.
Regarding his candor to the tribunal when he mentioned that he
trusted the prosecutor based upon previously [sic] interactions,
[Tompkins] has not shown this to constitute ineffective
assistance. [Tompkins] has not shown that this truthful comment
to the trial court equates to deficient performance. Nor has [he]
proven any reasonable probability that the court would have
granted discharge had [trial counsel] not made the brief statement
at issue.
Without prejudice or deficient performance, this claim of [sic]
fails, as does the entirety of Tompkins’ ineffective assistance of
trial counsel claim.
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Appellant’s Appendix Volume II at 26-41.
[11] On February 5, 2018, Tompkins filed a motion to reconsider and argued in part
that he was not afforded an opportunity to respond to the State’s proposed
findings of facts. A notation at the top of Tompkins’s motion to reconsider
states: “Granted, in part. The order entered 1-17-2018 stands, however, the
court will consider amended proposed Findings of Fact and Conclusions of
Law. The court directs counsel to have amended proposed FF/CL filed by
April 24, 2018.” Appellant’s Appendix Volume XV at 44. On June 7, 2018,
the court stated: “The court has reviewed it’s [sic] previous order denying post-
conviction relief. The court denies the Motion to Re-consider.” Appellant’s
Appendix Volume II at 60.
Discussion
[12] Before discussing Tompkins’s allegations of error, we note the general standard
under which we review a post-conviction court’s denial of a petition for post-
conviction relief. The petitioner in a post-conviction proceeding bears the
burden of establishing grounds for relief by a preponderance of the evidence.
Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5).
When appealing from the denial of post-conviction relief, the petitioner stands
in the position of one appealing from a negative judgment. Fisher, 810 N.E.2d
at 679. On review, we will not reverse the judgment unless the evidence as a
whole unerringly and unmistakably leads to a conclusion opposite that reached
by the post-conviction court. Id. “A post-conviction court’s findings and
judgment will be reversed only upon a showing of clear error—that which
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leaves us with a definite and firm conviction that a mistake has been made.” Id.
In this review, we accept findings of fact unless clearly erroneous, but we
accord no deference to conclusions of law. Id. The post-conviction court is the
sole judge of the weight of the evidence and the credibility of witnesses. Id.
[13] The issue is whether Tompkins was denied the effective assistance of trial
counsel. Generally, to prevail on a claim of ineffective assistance of counsel a
petitioner must demonstrate both that his counsel’s performance was deficient
and that the petitioner was prejudiced by the deficient performance. French v.
State, 778 N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is deficient
if it falls below an objective standard of reasonableness based on prevailing
professional norms. Id. To meet the appropriate test for prejudice, the
petitioner must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001).
Failure to satisfy either prong will cause the claim to fail. French, 778 N.E.2d at
824. Most ineffective assistance of counsel claims can be resolved by a
prejudice inquiry alone. Id.
[14] When considering a claim of ineffective assistance of counsel, a “strong
presumption arises that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.”
Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance
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is presumed effective, and a defendant must offer strong and convincing
evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73
(Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will
not support a claim of ineffective assistance of counsel. Clark v. State, 668
N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.
Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second
guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We “will not lightly
speculate as to what may or may not have been an advantageous trial strategy
as counsel should be given deference in choosing a trial strategy which, at the
time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d
40, 42 (Ind. 1998).
[15] Tompkins argues that he was denied the effective assistance of counsel with
regard to the request to bar retrial pursuant to Ind. Code § 35-41-4-3. He argues
that “[i]t seems clear from the Trial Court’s ruling on the Petition for Post-
Conviction relief that it treated the request for a discharge as a motion to bar
further prosecution pursuant to I.C. 35-41-4-3.” Appellant’s Brief at 12. He
points to his trial counsel’s statement that he trusted the prosecutor and asserts
that he “did not even inquire regarding the State’s intent or any discussion they
had with the witness regarding the motion in limine.” Id. at 13. He contends
that his trial counsel’s argument to the trial court suggested he believed the
court could rule in his favor based on Rutledge’s intent, rather than the
prosecutor’s intent, but the “plain text of Ind. Code § 35-41-4-3 makes it clear
that is incorrect.” Id. He argues that this Court’s determination was correct in
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that the record in no way demonstrated the prosecutor’s intent to cause a
mistrial but this was “because [his trial counsel] failed to even attempt to
develop the appropriate record to succeed on the request.” Id. at 14.
[16] The State maintains that the performance of Tompkins’s trial counsel was not
deficient, points out that he successfully moved for a mistrial after Rutledge
gave unsolicited hearsay testimony, and notes that his trial counsel also moved
for discharge. It contends that the information contained in the record spoke
directly to the prosecutor’s intent and that it is hardly clear what more trial
counsel could have done to develop the record given the facts and
circumstances before the trial court. It argues that trial counsel’s comment
about trusting the prosecutor was part of a broader argument about whether the
trial court should grant his request for mistrial and discharge. It also asserts that
Tompkins cannot show prejudice.
[17] Ind. Code § 35-41-4-3 is titled “When prosecution barred for same offense” and
provides:
(a) A prosecution is barred if there was a former prosecution of
the defendant based on the same facts and for commission of the
same offense and if:
*****
(2) the former prosecution was terminated after the jury
was impaneled and sworn or, in a trial by the court
without a jury, after the first witness was sworn, unless (i)
the defendant consented to the termination or waived, by
motion to dismiss or otherwise, his right to object to the
termination, (ii) it was physically impossible to proceed
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with the trial in conformity with law, (iii) there was a legal
defect in the proceedings that would make any judgment
entered upon a verdict reversible as a matter of law, (iv)
prejudicial conduct, in or outside the courtroom, made it
impossible to proceed with the trial without injustice to
either the defendant or the state, (v) the jury was unable to
agree on a verdict, or (vi) false statements of a juror on
voir dire prevented a fair trial.
(b) If the prosecuting authority brought about any of the
circumstances in subdivisions (a)(2)(i) through (a)(2)(vi) of this
section, with intent to cause termination of the trial, another
prosecution is barred.
[18] The record reveals that Tompkins’s trial counsel requested a motion in limine,
which the trial court granted; requested a mistrial following Rutledge’s
testimony that Orr called her and told her she was getting beat, which the trial
court granted; requested a discharge; asked Rutledge if the prosecutor told her
not to say anything about what Orr said; stated “I’d like to know, as an officer
of the Court what [Prosecutor Solida] told” Rutledge; asked Prosecutor Solida
if he told Rutledge that Orr was excluded and that she could not say anything
about what Orr said; and asserted to the trial judge “after the first witness did it,
you instructed the prosecutor to make sure no one else did it.” Petitioner’s
Exhibit A at 178, 181. To the extent trial counsel stated that he had previously
dealt with Prosecutor Solida and trusted him, we note his next statement:
But I think that he had a duty to tell that witness, “Hey, you can’t
say this”, and not think she heard it in the courtroom, but a duty
to go and specifically say to her, “Hey, you can’t say anything
that Mary says because it’s been limited [sic] out.” She’s not a
lawyer. And it sounds like they didn’t do that.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2394 | October 7, 2019 Page 19 of 20
Id. at 188. We also note that the trial court stated: “I will say this: I do not
believe that it was the State’s intention to have that witness say that. That
question did not call for it. She went beyond what the answer would’ve called
for. You simply said, ‘Who called you?’” Id. at 187. We cannot say that the
evidence as a whole unerringly and unmistakably leads to a conclusion opposite
that reached by the post-conviction court.
[19] For the foregoing reasons, we affirm the denial of Tompkins’s petition for post-
conviction relief.
[20] Affirmed.
Altice, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2394 | October 7, 2019 Page 20 of 20