¶22. We begin by addressing Williams’ double jeopardy claim. He submits that the trial court failed to exercise “sound discretion” in declaring a mistrial after his counsel had asked a State witness, the victim’s mother, whether she was aware that White, whom the witness had identified as a caretaker of the victim, “had sexually molested two children in the past.”…
¶30. Thus, if a trial judge acts irrationally or irresponsibly, his or her action cannot be condoned. Washington, 434 U.S. at 514. However, our review of this record indicates that this was not such a case. First, Williams’ counsel aired improper and highly prejudicial evidence before the jury. Williams’ counsel was ordered to raise the question of admissibility before asking “a question pertaining to other sexual conduct of any witness” and he failed to do so. As pointed out by the trial judge, the alleged molestation of the other children, who were much older than the victim in this case, was irrelevant to who sexually assaulted the victim and that mention of the alleged molestation was highly prejudicial to the State. Furthermore, and most importantly, after questioning defense counsel about the factual basis for the alleged molestation, the trial court concluded that there was no “firm basis” for it. The posing of questions asserting the existence of facts for which there is no evidentiary basis constitutes behavior that courts cannot condone.See Kiner v. State, 643 N.E.2d 950, 954 (Ct. App. Ind. 1995); United States v. Harris, 542 F.2d 1283, 1307 (1976), cert. denied, Clay v. United States, 430 U.S. 934 (1977) (“It is improper for the Government to ask a question which implies a factual predicate which the examiner knows [he or she] cannot support by evidence or for which [he or she] has no reason to believe that there is a foundation of truth.”)
¶31. Second, the trial judge did not act precipitately in response to the prosecutor’s request for a mistrial. Rather, the trial judge gave both Williams’ counsel and the prosecutor full opportunity to explain their positions on the propriety of a mistrial. The judge entertained Williams’ suggestion that the court “try to save the trial” but rejected it stating that “the State has been very seriously harmed. And I don’t know any alternative but declare a mistrial.”3 The record, therefore, persuades us that the trial judge acted responsibly and deliberately and accorded careful consideration to Williams’ interest in having the trial concluded in a single proceeding. Since the trial judge exercised “sound discretion” in handling the sensitive problem of possible juror bias created by the improper question by Williams’ counsel, the mistrial order is supported by the “high degree” of necessity that is required in a case of this kind. See Washington, 434 U.S. at 516.
3 Williams likens this case to State v. Collier, 220 Wis. 2d 825, 838-39, 584 N.W.2d 689 (Ct. App. 1998), in which we held that the court failed to exercise sound discretion where the court did not consider the possibility of an alternative measure to a mistrial. However, unlike the trial court in Collier, the trial court here considered other alternatives before making its final determination. We, therefore, reject Williams’ argument that this case compels the same result as Collier.
Defense counsel asked a single pernicious question; no answer was ever given. See ¶4. This in and of itself is so shatteringly harmful that mistrial was manifestly necessary? Remember this case next time the State [or court] flippantly says that a curative instruction presumptively cures any harm, or that questions by counsel aren’t regarded as evidence so the prosecutor’s objectionable question couldn’t possibly be harmful. That aside, this decision runs roughshod over the idea that alternatives to mistrial must be considered—the very point, by the way, of Collier. (“Not all errors warrant a mistrial; ‘the law prefers less drastic alternatives, if available and practical.’”) Collier is indeed difficult to distinguish: there, an objectionable but unanswered question caused an unnecessarymistrial – unnecessary because, among other things, no consideration was given to a curative instruction. (“A curative instruction would have been the least drastic but most effective method of addressing the problem, and the trial court’s failure to consider it constitutes a misuse of discretion.”) What about Williams? The court says alternatives were considered, but in what sense? The trial judge simply announced there was no alternative; is this perception unreviewable? Why wouldn’t it have been sufficient to strike the question? The court doesn’t say. Taking at face value the court’s perception that the question had no “firm basis” in fact, ¶30, then you might conclude that the question was tinged with ethical impropriety. If that is the distinction, then it is a fairly artificial one. If ethical impropriety is indeed the tipping point, then the court simply conflated that concern with concern over the impact on the jury: mistrial is not a mechanism for enforcing ethical rules.