Szymanski v. State

¶1On August 20, 1991, Leonard Szymanski was charged with criminal recklessness, a Class D felony.1 Trial commenced on February 24, 1992. On February 25, 1992, a mistrial was declared after a State witness referred to a polygraph examination.

¶2On May 6,1992, the State filed a two count Information, charging Szymanski with criminal recklessness, a Class D felony, and battery, a Class A misdemeanor.2 The Honorable Roland Chamblee, Jr. dismissed the added count. On September 3, 1992, the State filed an Information, charging that Szymanski committed battery, a class A misdemeanor. Again, Judge Chamblee dismissed the battery charge; the State responded by moving to dismiss the cause in its entirety.

¶3On September 9,1992, the State refiled the criminal recklessness and battery charges. The cause was assigned to the Honorable William Means. Despite Szymanskfs motion to dismiss, trial proceeded on both counts.3*197Szymanski was acquitted of criminal recklessness and convicted of battery.

¶4On appeal, he raises three issues. One is dispositive: whether Szymanski was entitled to dismissal of the battery count, added after he requested and was granted a mistrial.

¶5We reverse and remand.

¶6In Murphy v. State (1983), Ind., 453 N.E.2d 219, a defendant'was brought to trial on charges of burglary and theft. A mistrial was declared and the State subsequently filed an additional count. Our supreme court concluded that the defendant was entitled to dismissal of the charge added after mistrial:

“Defendant was initially charged with a ‘Class C’ felony and a ‘Class D’ felony. Assuming maximum enhancement, of sentences and an order for consecutive sentences upon a finding of aggravating circumstances, he was subject to imprisonment for a maximum of twelve (12) years when the grounds for mistrial came to light. Immediately following the grant of Defendant’s motion, the State ‘raised the ante’ to a possible sentence for forty (40) years. In the meantime, nothing had occurred except that Defendant had successfully exercised his right to have a fair trial.

Under such circumstances, fundamental fairness precludes a requirement that Defendant show vindictive motivation or that the State be permitted to show its absence. Were we to hold otherwise, an accused in Defendant’s predicament would be required to elect whether he would submit to a trial had without due process of law or to a trial wherein there was a potential for a much more severe penalty. Our concept of justice simply will not sanction an implicit form of bargaining where the accused must purchase due process of law.”

¶7Id. at 226-27.

¶8Subsequently, in Harris v. State (1985), Ind., 421 N.E.2d 382, our supreme court emphasized the rationale underlying the Murphydecision: “that an accused should not be faced with the prospect of retaliation if he exercises his legal right to a fair trial or appeals his conviction.” Id. at 385.

¶9Szymanski was brought to trial on a single charge related to his conduct toward Ralph Bush on June 14, 1991. The conduct of a State witness precipitated a mistrial. After some prosecutorial persistence (if not vindictiveness), Szymanski was then subjected to an additional charge related to his conduct toward Ralph Bush on June 14, 1991. Szy-manski was improperly penalized for the exercise of his right to a fair trial.

¶10We reverse and remand with instructions to the trial court to vacate the battery conviction.

¶11Reversed and remanded.