Daryl Gilbert v. State of Indiana ( 2014 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of Aug 28 2014, 9:13 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LISA M. JOHNSON GREGORY F. ZOELLER
Brownsburg, Indiana Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DARYL GILBERT, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1401-CR-37
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Marc T. Rothenberg, Judge
Cause No. 49G02-1209-MR-62371
August 28, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
SHARPNACK, Senior Judge
STATEMENT OF THE CASE
Daryl Gilbert appeals his convictions of murder, a felony, Ind. Code § 35-42-1-1(2007), and possession of a firearm by a serious violent felon, a Class B felony, Ind. Code
§ 35-47-4-5 (2012). We affirm.
ISSUES
Gilbert raises one issue: Whether his convictions on retrial following a mistrial
violate the Indiana Constitution.
The State raises one issue in response, which is dispositive: Whether Gilbert has
waived appellate review of his Indiana constitutional claims.
FACTS AND PROCEDURAL HISTORY
The State charged Gilbert with murder and possession of a firearm by a serious
violent felon in connection with the shooting death of Aaron Adams. The case was
bifurcated. The murder charge was tried to a jury, and Gilbert was tried with his co-
defendant, Tiandre Harris. The jury deadlocked, so Gilbert and the State both moved for
a mistrial. Appellant’s App. p. 19. The trial court granted the motion and subsequently
scheduled a second jury trial. Gilbert did not object to the new trial date.
The second trial began on December 9, 2013. Gilbert and Harris were once again
tried jointly. Gilbert did not raise any objection to the second trial on constitutional
grounds. The jury determined that Gilbert was guilty of murder. Next, the possession
charge was tried to the bench, and the court determined that Gilbert was guilty. The court
sentenced Gilbert accordingly, and this appeal followed.
2
DISCUSSION AND DECISION
Gilbert argues that his retrial violated the Indiana Constitution, specifically article
one, section twelve (the due course of law clause) and article one, section fourteen (the
double jeopardy clause). The State contends that Gilbert has waived his constitutional
claims. We agree with the State.
Gilbert did not file a reply brief or otherwise respond to the State’s argument. The
procedural posture of this issue is substantively equivalent to the case where an appellee
fails to file an appellee’s brief. In re Riddle, 946 N.E.2d 61, 70 (Ind. Ct. App. 2011).
Thus, we review the State’s waiver argument for prima facie error. Id. In such a
circumstance, it is not our responsibility to develop arguments for the non-responding
party. Id.As a general rule, the failure to object at trial results in waiver of an issue on
appeal. Bruno v. State, 774 N.E.2d 880, 883 (Ind. 2002). The rule of waiver in part
protects the integrity of the trial court in that the trial court cannot be found to have erred
as to an argument that it never had an opportunity to consider. T.S. v. Logansport State
Hosp., 959 N.E.2d 855, 857 (Ind. Ct. App. 2011), trans. denied.
Here, Gilbert never objected to being retried, and he never argued to the trial court
that retrial would violate the Indiana Constitution. He has thus waived his constitutional
claims for appellate review. See State v. Friedel, 714 N.E.2d 1231, 1236 (Ind. Ct. App.
1999) (State waived challenge to defendant’s standing by failing to present claim to the
trial court).
3
There is an additional ground for waiver of Gilbert’s double jeopardy claim. If a
defendant moves for or consents to the termination of a proceeding after jeopardy has
attached, he forfeits his right to raise double jeopardy in further proceedings unless the
motion was necessitated by governmental conduct, which conduct was intended to
provoke the defendant into seeking to terminate the proceedings. Emmons v. State, 847
N.E.2d 1035, 1038 (Ind. Ct. App. 2006).
In this case, Gilbert and the State jointly moved for a mistrial during the first trial,
and he has not alleged that the mistrial was made necessary by the State’s conduct. He is
thus barred from raising a double jeopardy claim on appeal. See id. (defendant’s double
jeopardy claim barred because defendant moved to dismiss the charges and the State did
not provoke a mistrial).1
CONCLUSION
For the reasons stated above, we affirm the judgment of the trial court.
Affirmed.
NAJAM, J., and BROWN, J., concur.
1
Gilbert does not argue that retrial amounted to fundamental error.
4