FILED May 15 2025, 9:37 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
IN THE
Court of Appeals of Indiana Hakim Zamir Lamar Qualls, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.
May 15, 2025
Court of Appeals Case No. 24A-CR-131
Appeal from the LaPorte Superior Court
The Honorable Jaime M. Oss, Judge
The Honorable Michael S. Bergerson, Judge
Court of Appeals of Indiana | Opinion 24A-CR-131 | May 15, 2025 Page 1 of 26 Trial Court Cause No. 46D01-1812-MR-8
Opinion by Senior Judge Robb Judges Mathias and Scheele concur.
Robb, Senior Judge.
Statement of the Case [1] Hakim Zamir Lamar Qualls was tried for Murder and Class A misdemeanor
dangerous possession of a firearm. The trial ended in a mistrial. After first
denying it, the trial court later granted the State’s request to amend the
information to add one count each of Level 1 felony attempted murder, Level 3
felony aggravated battery, and Level 5 felony criminal recklessness to the
original charges. The State retried Qualls, who appeals from his convictions
after a jury trial of Level 3 felony aggravated battery and Class A misdemeanor
dangerous possession of a firearm. Qualls raises several issues for our review,
the following of which are dispositive in this appeal:
I. Whether the federal and state double jeopardy clauses bar Qualls’ retrial; and
II. Whether the State rebutted the presumption of prosecutorial vindictiveness after adding charges immediately after the mistrial was declared.
Court of Appeals of Indiana | Opinion 24A-CR-131 | May 15, 2025 Page 2 of 26 For reasons we fully explain below, we reverse and remand to vacate Qualls’
convictions.
Facts and Procedural History A. The Conflict [2] In the last two months of 2018, sixteen-year-old Qualls was pursued by Dareon
Brown, a gang member two years older than Qualls, who was also known as
Romo. Qualls, who worked at McDonald’s, lived with his friend, Marquavion,
and his family after becoming homeless. Marquavion also worked at
McDonald’s.
[3] At around 10 p.m. one night in November 2018, Brown’s brother, Javan, also
known as J Dot, and Javan’s friend, Donald Deal, arrived at McDonald’s to
confront Marquavion for “talking trash.” Tr. Vol. 6, p. 221. Qualls had
experience in boxing and established the ground rule that the two could not
“jump” Marquavion while they fought in the alley. Id. at 221. When Javan
seemed to be winning the fight, Qualls stepped in and pulled the two apart. At
some point, Marquavion walked away from the alley, saying he could not see
well in the dark and refusing to fight in that location. The other two
encouraged him to return to fight, and it was at that time that Dareon arrived.
[4] Dareon shouted to Marquavion to return to the alley or they would all fight
him. When Qualls reiterated that no one could jump Marquavion, Dareon
took offense and began fighting Qualls. Dareon’s brothers broke up the fight,
and he and the others fled the scene. Unbeknownst to Qualls, Brown’s friends
Court of Appeals of Indiana | Opinion 24A-CR-131 | May 15, 2025 Page 3 of 26 had recorded the fight between him and Qualls and uploaded the video to social
media. People commenting about the video stated that it looked like Qualls
had won the fight.
[5] The following Sunday, a car stopped beside Qualls as he was walking to work.
Brown exited from the passenger’s side of the vehicle, and Brown’s friend,
Wayne, exited the driver’s side. Wayne moved towards Qualls in a fighting
stance. Meanwhile, Brown accused Qualls of telling people he had won the
fight. Believing he was going to be jumped Qualls also took up a fighting stance
and feigned a step toward Wayne. In response, Brown flashed a gun that he
had concealed in his coat.
[6] When Qualls saw the gun, he turned to run, but Brown tripped him. After
Qualls fell to the ground, Brown and Wayne repeatedly punched and kicked
him while he curled up in a fetal position. They continued to beat Qualls until
an approaching vehicle caused them to return to their car and leave.
[7] Qualls found a place to hide until he thought it was safe to walk home.
However, as Qualls crossed a bridge he saw Wayne’s vehicle approaching.
Qualls jumped over the railing to hide. Brown exited the vehicle with his gun
drawn and pointed it at Qualls. Brown fired shots at Qualls as he ran toward a
wooded area.
[8] Qualls ran home. Lovie Nixon, Marquavion’s grandmother, was home when
Qualls entered the house. She testified at trial that he appeared scared, his
clothes were torn, he was missing his backpack and a shoe, and he had several
Court of Appeals of Indiana | Opinion 24A-CR-131 | May 15, 2025 Page 4 of 26 marks on his body from running through the brush. Nixon decided to intervene
and speak with Brown’s mother after learning that the conflict had escalated to
the use of guns. Nixon and her husband called Brown’s mother Krystal Ashley.
Ashley is the niece of the Assistant Chief of Services for the Michigan City
Police Department Jillian Ashley, an investigator in the charges against Qualls.
[9] Qualls began carrying a borrowed gun on his walk to work and prepared
himself to use it should Brown draw a gun on him again. Brown and his
friends began intimidating him at work. He told his manager about the
situation, and the disruption was such that Qualls was forced to move from
taking food orders to working in the kitchen. Eventually, Qualls bought a silver
revolver and four bullets from an individual who had heard about the conflict.
[10] Qualls carried his loaded revolver on his walk early in the morning on
December 18, 2018. He was listening to music and walking along Karwick
Street when he passed CJ Rouse’s house. Rouse was a known, local drug
dealer. Brown had backed his car into the driveway of the house next door to
Rouse’s. Brown’s girlfriend, Aubree Kolasa, remained in the car while Brown
completed a drug deal with Rouse. Qualls glanced up and saw Rouse walk
around the car and back to his porch, leaning back with folded arms, watching
Qualls. Qualls did not recognize the vehicle or see the passengers. He removed
his headphones because he believed Rouse wanted to talk with him.
[11] Qualls passed in front of Brown’s car before reaching Rouse’s house. He heard
a car door shut and then saw Brown stepping out in a crouched position from
Court of Appeals of Indiana | Opinion 24A-CR-131 | May 15, 2025 Page 5 of 26 the driver’s side of the vehicle. Brown asked, “[W]hat’s up, son?” Tr. Vol. 7, p.
46. As he did so, he had his gun drawn and pointed at Qualls. Instead of
running, Qualls drew his revolver. Brown then began to fire and Qualls
returned fire. Brown stumbled and began to fall. Qualls moved to grab
Brown’s gun from his hand. As he did so, he twisted it inward and pulled. The
gun went off once as Qualls ripped it from Brown’s hand, disarming him. That
shot struck Brown in the arm and grazed his head.
[12] Brown fell backward and landed in a seated position. Qualls took both guns
and ran into the woods. Brown had been armed with a 9-mm semiautomatic
firearm with a cartridge loaded with hollow-point bullets. Kolasa drove Brown
to the hospital and identified Qualls as the shooter. Brown died from his
wounds, and Qualls was subsequently found in possession of both guns.
B. The Charges and First Trial [13] On December 20, 2018, the State charged Qualls with murder and Class A
misdemeanor carrying a handgun without a license. The State was allowed to
amend the charge of carrying a handgun without a license to Class A
misdemeanor dangerous possession of a firearm. Qualls filed a notice of intent
to use the defense of self-defense.
[14] Qualls’ first jury trial began on December 16, 2019. The State acknowledged
Qualls’ self-defense claim in its opening statement but argued that Qualls seized
upon an opportunity for revenge against Brown. During Kolasa’s testimony,
she admitted that she had given multiple false statements to the police.
Court of Appeals of Indiana | Opinion 24A-CR-131 | May 15, 2025 Page 6 of 26 Ultimately, she testified that Brown also had a gun on the day of his death. She
said she heard three or four shots and that the last shot sounded different.
Qushawn Tyler, who was playing video games inside Rouse’s home, testified
that he heard four gunshots and that he believed Brown had a gun because he
heard two distinct sounds during the gunfire.
[15] Assistant Chief of Services for the Michigan City Police Department Jillian
Ashley testified. She was a detective with the department at the time of
Brown’s death. As a corporal, she held a supervisory position within the
department. And she had trained the lead investigator in the case, Detective
Arwen LaMotte. After meeting with other investigators in the case, Detective
Ashley and Detective Kay Pliske interviewed the residents of the home where
Qualls was apprehended and collected the clothing Qualls had left there.
[16] Detective Ashley was Brown’s great-aunt. On direct examination she agreed
that she knew Brown personally, that she knew Brown’s mother, Krystal
Ashley, and that they were all in attendance at family functions. On cross-
examination, Detective Ashley testified that she did not think it was
inappropriate for her to be involved in assisting with the investigation into her
great-nephew’s death. When asked if she was aware that Kolasa had given
inconsistent statements to police, ultimately disclosing that Brown had a gun
with him on the day of his death, she responded that she did not know anything
about a self-defense claim being asserted and did not investigate it. More
specifically, the questions and answers were as follows:
Court of Appeals of Indiana | Opinion 24A-CR-131 | May 15, 2025 Page 7 of 26 Q: [D]o you think it was a bad idea that you would be involved in an investigation of the death of your nephew when there was a claim of self-defense? A: I don’t know anything about a claim of self-defense and nor do I believe that it was a bad idea for me to assist with an investigation. Q: You’re telling me you did not know by 12/28 or 12/19 that there was a claim of self-defense? A: A claim of self-defense? Q: Yes. A: No. Q: You didn’t know by 12/19 that Aubree Kolasa had given at least three statements and ultimately told the police on 12/18 that your nephew had a gun. A: That who said that? I’m sorry? Q: Your nephew had a gun. A: I don’t know anything about what – I mean, what are you saying that it was a matter of self-defense? Do I know anything about that? No. Normally when we get self-defense, it is based on the defendant’s statement. We did not get a statement, is my understanding.
Tr. Vol. 3, pp. 95-96.
[17] Qualls’ counsel moved for and the trial court granted a mistrial on December 1 17, 2019. The court acknowledged the violation of the motion in limine and
1 Motion In Limine #7 stated in pertinent part: “The Defendant, Hakim Zamir Lamar Qualls, by counsel, Elizabeth Flynn, respectfully requests this Court to enter an Order requiring the State, by the prosecuting attorney, to refrain from mentioning in the presence of the jury during voir dire, opening argument, presentation of evidence, and closing argument, any and all references to the following, either directly or indirectly: 1. Any reference to the fact that the Defendant did not testify at the trial of this cause and that he remained silent during questioning by law enforcement officers during any stage of these proceedings. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.E.2d 106 (1985); Dooley v.
Court of Appeals of Indiana | Opinion 24A-CR-131 | May 15, 2025 Page 8 of 26 violation of Qualls’ Fifth Amendment right to remain silent. The State
conceded that it had not sent a copy of the motion in limine to Detective
Ashley but contended Qualls had opened the door to the violation through a
heated exchange with the witness. In granting the mistrial, the court accepted
that the exchange between counsel and the witness was heated, but noted that
Detective Ashley was a seasoned police officer who was related to Brown, and
that as such, when she volunteered that Qualls had not made a statement, “it
just further complicates” the issue. Id. at 103. And the court cited the violation
of a fundamental right.
[18] Immediately after the ruling from the bench, Qualls’ counsel argued, “I believe
that a mistrial granted while the jury is seated prevents the retrial of the case.”
Id. at 104. The State countered that it did not invite the error, but reasoned that
the defendant elicited the volunteered statement through cross-examination.
The court declined to rule on the propriety of a retrial at that time. Instead, the
court set a new trial date for January 27, 2020 and advised counsel to file any
motion relating to the propriety of the retrial or any other relief they might
request for review. Qualls was released to community corrections with GPS
monitoring and the court issued a no-contact order for the victim’s family.
State, 393 N.E.2d 154 (Ind. 1979); Miller v. Lockhart, 65 F.3d 676 (8th Cir 1995); Doyle v. Ohio, 426 U.S. 610 (1976). Appellant’s App. Vol. 2, p. 57. The trial court entered its order in limine on December 9, 2019. Id. at 64.
Court of Appeals of Indiana | Opinion 24A-CR-131 | May 15, 2025 Page 9 of 26 C. Motions [19] The State moved to file an amended information to add one count of Level 1
felony attempted murder and one count of Level 3 felony aggravated battery to
the previous charges the same day the mistrial was granted, December 17, 2019.
The bases for adding the charges was information learned during opening
statements and witness testimony plus physical evidence from Brown’s autopsy.
[20] On January 9, 2020, Qualls filed his objection to the State’s motion to amend.
Qualls first raised statutorily based arguments against amendment. He asserted
that the amendment was untimely because it was not filed before the omnibus
date and starting date of the first trial. He further argued that the State had
provided no authority for the right to amend after a mistrial and before Qualls’
second trial. And he claimed that he would be prejudiced by having less than
thirty days in which to prepare a defense against the new charges.
[21] Qualls further challenged the amendment, arguing that the mistrial was caused
by the State’s witness’ testimony and that the State should not be allowed to
benefit from its misconduct. He noted that the State admittedly had not
provided the motion in limine to Detective Ashley. And, even so, the detective
had enough experience to have known not to comment on Qualls’ choice to
remain silent.
[22] He also questioned that the State’s argument about learning new information
during Qualls’ opening statement and through witness testimony was a valid
basis for amending the charges. He contended that the State was in possession
Court of Appeals of Indiana | Opinion 24A-CR-131 | May 15, 2025 Page 10 of 26 of the physical evidence from the beginning of the case and that the only other
information the State discovered was Qualls’ defense strategy. He argued that
amendment of the charges after learning Qualls’ defense strategy would be
prejudicial to him.
[23] On January 10, 2020, Qualls filed a motion to dismiss the charges against him
because a retrial violated double jeopardy principles under the federal and state
constitutions. Qualls reiterated his challenge to the State’s argument that it
should be allowed to amend the charges based on evidence it learned during his
counsel’s opening statement.
[24] The court held a hearing after which it held that although the Double Jeopardy
clause does protect Qualls from improper conduct by the State to provoke a
mistrial, the State could not be held responsible for Qualls’ counsel’s choice to
“pursue repeated, inaccurate questions on cross-examination into this topic of
self-defense.” Appellant’s App. Vol. 2, p. 172. The court held that the State
took no action with the intent to cause the mistrial. The court further held that
the State’s failure to advise Detective Ashley about the motion in limine was
not designed to cause a mistrial. The court found that Qualls invited the error,
and the court denied his motion to dismiss the charges. The court also denied
the State’s motion to amend the charging information.
[25] The record reflects that the January 27, 2020 trial date was cancelled. And
Qualls later asked and the court granted his request to certify the matter for
interlocutory appeal. After certification, this Court denied Qualls’ request that
Court of Appeals of Indiana | Opinion 24A-CR-131 | May 15, 2025 Page 11 of 26 we accept jurisdiction of the interlocutory appeal on April 2, 2020. Qualls’ new
trial date was set for May 7, 2020.
[26] On April 10, 2020, the State filed another motion to amend the charging
information to add counts of Level 1 felony attempted murder, Level 3 felony
aggravated battery, and Level 5 felony criminal recklessness. This time, the
State explained that the criminal recklessness charge was based on evidence
discovered during further investigation conducted after the mistrial. As for the
other two counts, the State argued that the amendment was based on evidence
presented by Qualls in the first trial and that they are inherently lesser-included
offenses, instructions on which they would be entitled to at trial. Qualls argued
that they were based on separate facts and as such were not inherently included
in the murder charge. He reiterated his argument that the evidence was not
new. After finding that the State’s motion to amend was not vindictively filed,
the court granted the State’s motion to amend.
D. Retrial [27] At Qualls’ retrial several witnesses changed or altered their testimony. Tyler
testified that while he was inside Rouse’s house he heard two or three gunshots,
instead of the four to seven gunshots he had testified about during the mistrial.
And he did not testify about hearing shots from two distinct types of guns. In
fact, on cross-examination, Tyler denied that he heard two different sounds.
But he was not impeached by his prior statements. Kolasa testified that she saw
Qualls approach with his gun drawn, and after she heard gunshots, she saw
Brown fall as he turned to run. After she ducked down she saw Qualls Court of Appeals of Indiana | Opinion 24A-CR-131 | May 15, 2025 Page 12 of 26 approach and take something. Then she heard another round of gunshots and
saw Qualls run into the woods. And Detective Ashley denied personally
knowing her great-nephew Brown. She did acknowledge knowing Brown’s
mother because she was her husband’s niece. Dr. Feczko, the forensic
pathologist, testified during the retrial that the bullet that entered Brown’s back
hit his spine and that most spinal injuries, like Brown’s, are “most likely”
debilitating and probably caused paralysis. Tr. Vol. 6, p. 73. On cross-
examination, Dr. Feczko testified that he was certain that the spinal injury
caused paralysis because of his experience. When questioned about his
deposition testimony from 2019 where he testified it was “possible” that the
gunshot wound to the back caused paralysis, Feczko testified that he had
performed twice as many autopsies since then and had acquired additional
knowledge.
[28] Qualls testified that Brown pointed his gun at Qualls when Brown exited the
vehicle. Qualls stated that Brown began firing at him when he pulled his gun
out of his pocket. He testified that he did return gunfire and that when Brown
fell, he grabbed Brown’s gun. Qualls said Brown’s gun discharged one time as
he was grabbing it from Brown, wounding Brown’s arm and grazing his head.
Qualls maintained he acted in self-defense.
[29] The jury found Qualls guilty of aggravated battery and dangerous possession of
a firearm and not guilty of the remaining charges. The trial court sentenced
Qualls to nine years for aggravated battery and one year for dangerous
possession of a firearm, with the sentences to be served concurrently.
Court of Appeals of Indiana | Opinion 24A-CR-131 | May 15, 2025 Page 13 of 26 Discussion and Decision I. Double Jeopardy [30] Qualls argues that the trial court erred by denying his motion to dismiss on the
ground that his retrial violates double jeopardy principles. Both the United
States and Indiana Constitutions forbid the State from placing a person twice in
jeopardy. U.S. Const. Amend. V; Ind. Const. art. I, § 14. “Retrial following a
defendant’s successful mistrial motion is only barred where the government’s
conduct is responsible for the defendant’s mistrial motion.” Harbert v. State, 51
N.E.3d 267, 274 (Ind. Ct. App. 2016), trans. denied.
[31] This concept was codified in Indiana Code section 35-41-4-3(b) (1977), which
provides that “[i]f the prosecuting authority brought about any of the
circumstances [enumerated in (a)(2) of the statute] with intent to cause
termination of the trial, another prosecution is barred.” Those enumerated
circumstances in (a)(2) include “(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 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 statement of a juror on voir dire
prevented a fair trial.” I.C. § 35-41-4-3(a)(2).
Court of Appeals of Indiana | Opinion 24A-CR-131 | May 15, 2025 Page 14 of 26 [32] “The subjective intent of the prosecutor is the dispositive issue.” Butler v. State,
724 N.E.2d 600, 603 (Ind. 2000). “Although a trial court’s determination of
prosecutorial intent is not conclusive for purposes of state appellate review, we
do regard its determination as ‘very persuasive.’” Id. at 603-04 (quoting Wilson
v. State, 697 N.E.2d 466, 473 (Ind. 1998)). “It is a factual determination that we 2 review under a clearly erroneous standard.” Butler, 724 N.E.2d at 604.
[33] The trial court’s initial reaction when granting the mistrial summed up the
situation best.
Outside of the hearing of the Jury, the Defendant verbally moves for a Mistrial. Submitted. Argument heard. The Court finds as follows:
• Detective Ashley’s response was elicited in the course of heated cross examination by the Defendant’s counsel, and that the witness was doing her best to respond in a way that would answer the same question for the third time.
• The problem here is of course, had the response [sic] that Detective Ashley did not have any information related to the assertion of a self-defense claim, would have been okay. The additional comment that normally she would be aware of a
2 In Willoughby v. State, 660 N.E.2d 570, 576 (Ind. 1996), the Supreme Court applied an abuse of discretion standard. (“On appeal, the decision of the trial court [about the prosecutor’s intent to cause a mistrial] will be reversed only for an abuse of discretion.”). However, in Etter v. State, 56 N.E.3d 53, 57 (Ind. Ct. App. 2016), trans. denied, a panel of this Court held that where the special judge made his ruling on a paper record, having not been present at the first trial, our review is de novo. In this case, as in Butler, the same judge was present during the mistrial, made findings regarding the prosecutor’s intent, and ruled on the subsequent motion to dismiss. Therefore, we adhere to Butler’s clearly erroneous standard of review coupled with the concept that the court’s determination is “very persuasive” but not dispositive.
Court of Appeals of Indiana | Opinion 24A-CR-131 | May 15, 2025 Page 15 of 26 claim of self-defense if it was based on the statement of a Defendant goes a bit closer to a violation of the Defendant’s Motion in Limine #7. . . . And she then mentioned that, “We did not get a statement from the Defendant it is my understanding.” Those are her words.
• Certainly a violation of the Defendant’s Motion in Limine No. 7.
• Further complicating the situation here is that the witness is a relation to the decedent.
• The Defendant’s Fifth Amendment Rights [sic] to Remain Silent is a fundamental right.
• It is hard to think that the testimony of Detective Ashley is not going to be commented upon and discussed by this Jury. I think it puts the Defendant in great peril, and the Court GRANTS the Defendant’s Motion for a Mistrial.
Appellant’s App. Vol. II, pp. 78-79 (December 17, 2019 Order).
[34] But the court’s order denying Qualls’ motion to dismiss held as follows:
The Double Jeopardy clause does protect the Defendant from improper conduct by the State designed to provoke a mistrial, but that is not what happened here. While Det. Ashley was a State’s Witness, the State cannot be held responsible for the Defendant’s choice to pursue repeated, inaccurate questions on cross- examination into this topic of self-defense.
The State took no part in goading the witness to respond in such a way, nor did the State goad the Defense into asking for a mistrial. The State took no action whatsoever with intent to Court of Appeals of Indiana | Opinion 24A-CR-131 | May 15, 2025 Page 16 of 26 cause termination of the trial which began on December 16, 2018.
In addition, the Defendant has not established that the State’s failure to advise the witness of the Order on the Motion in Limine was designed to cause a mistrial. No such evidence was established and if anything, it was the Defendant who invited the error and cannot now be heard to complain.
Id. at 172-73.
[35] The State contends that under the facts of this case, the trial court correctly
denied the motion to dismiss because Qualls, through his questioning of
Detective Ashley, brought about the termination of his first trial. The State also
offers that our focus should be on ‘“whether the prosecutor acted with the intent
to cause termination of the trial by provoking or goading the defendant into
moving for a mistrial.”’ Appellee’s Br. p. 21 (quoting Harbert, 51 N.E.3d at
274).
[36] But the cases cited by the State are distinguishable from the present case. In
Willoughby v. State, 660 N.E.2d 570 (Ind. 1996), State’s witness Officer William
Jones was asked by the State about where an interview with a suspect in a
murder case took place. The officer responded, “I’d gone to Paula
Willoughby’s house to inform her of our previous arrangement for her to take a
polygraph test.” Id. at 575. The trial court granted the defendant’s request for
mistrial based on the reference to a polygraph test, and the appellate issue was
whether the defendant could be retried. Our supreme court found that the
Court of Appeals of Indiana | Opinion 24A-CR-131 | May 15, 2025 Page 17 of 26 officer’s answer was not what the prosecutor likely anticipated, there was no
evidence in the record of collusion between the prosecutor and the officer, no
evidence that the officer intended to cause a mistrial, or that he knew that the
mention of the word polygraph would likely cause a mistrial. Id. at 576.
[37] In Harbert, an order in limine prevented witnesses from testifying about the co-
defendants’ prior arrests. The State asked the officer if he acquired any
information to verify that the vehicle used in the crime belonged to a co-
defendant’s wife. The officer responded that “[t]he reason [he] knew or had a
suspicion that it belonged to [the co-defendant’s wife] . . . is that the defendant
Malcom Landon [sic] had actually been arrested out of that vehicle . . . .” 51
N.E.3d at 272-73. Both defendants moved for a mistrial. The State
acknowledged that it had not instructed the officer to avoid mentioning the
arrest but did not think it was necessary given the officer’s experience and the
nature of the case. The trial court granted the mistrial. Before the retrial the
defendants moved to dismiss the charges on double jeopardy grounds. The
second trial ended in a mistrial after the jury was deadlocked. The third trial
resulted in a conviction. A panel of this Court, relying on Willoughby, held that
there was no evidence that the prosecutor intended to cause a mistrial, that the
officer and prosecutor colluded, or that the officer knew his comments would
cause a mistrial. Id. at 274-75.
[38] In the present case, the officer was related to the victim. She testified that she
was unaware of a self-defense claim after having been involved in war room
discussions with other detectives in the case. She did not pursue an
Court of Appeals of Indiana | Opinion 24A-CR-131 | May 15, 2025 Page 18 of 26 investigation along those lines and did not suggest other detectives under her
supervision had investigated along those lines. Additionally, the State failed to
inform her of the order in limine prohibiting her from discussing Qualls’
decision to remain silent.
[39] The State also contends that Qualls’ argument cannot prevail because Detective
Ashley was under intense cross-examination by the defense before making the
comment precipitating the mistrial. The State reiterates that our focus should
be on the conduct of the prosecutor, which did not cause the comment or
testimony that necessitated a mistrial. See e.g., Harbert, 51 N.E.3d at 274
(central inquiry is “whether the prosecutor acted with the intent to cause
termination of the trial by provoking or goading the defendant into moving or a
mistrial.”); Butler, 724 N.E.2d at 603 (“The subjective intent of the prosecutor is
the dispositive issue.”); Willoughby, 660 N.E.2d at 576 (retrial proper because
“the trial court specifically found that ‘the state didn’t intentionally cause a
mistrial.’”). While we do not disagree with the holdings of those cases and
others which reach similar conclusions, we note some distinct differences which
lead us to decide this case differently.
[40] Here, there are too many factors supporting the conclusion that the State acted
with the subjective intent to cause a mistrial. The State chose to call Brown’s
great-aunt Detective Ashley to the stand knowing that she was related to the
decedent. During the investigation, she did not advise her superiors that she
was related to the decedent, even after learning his identity. The prosecutors
knew of the relationship, however, because on direct examination, the State
Court of Appeals of Indiana | Opinion 24A-CR-131 | May 15, 2025 Page 19 of 26 addressed it. She testified to her belief that she was not ethically compromised
and that she had, in fact, been involved in the criminal investigations of other
family members.
[41] And although Detective Ashley was not the lead investigator on the case, as a
corporal she had supervisory duties over those she outranked, and had been the
field training officer for the lead investigator Detective Arwen LaMotte. She
participated in the “war room” meetings with all of the investigators. Tr. Vol.
3, p. 88. And she interviewed witnesses at the house where Qualls was
apprehended and collected articles of his clothing.
[42] On cross-examination, Qualls’ counsel probed Detective Ashley’s potential bias
and asked why there was no investigation into whether the evidence supported
or refuted his self-defense claim. It was during this exchange that Detective
Ashley commented on Qualls’ choice to remain silent. During the bench
conference on the motion for a mistrial, the State conceded that it had not
shown Detective Ashley a copy of the order in limine prohibiting her from
discussing Qualls’ right to remain silent.
[43] Although we agree with the court that there is no evidence in the record of
collusion between the State and Detective Ashley, the State chose to place her
on the stand in spite of her potential biases. As the court acknowledged, this
was not Detective Ashley’s first trial. And as the State observed, “she should’ve
known better[.]” Tr. Vol. 3. p. 102. Early on, Qualls’ counsel had filed a notice
of the claim of self-defense. And questions about why the police did not
Court of Appeals of Indiana | Opinion 24A-CR-131 | May 15, 2025 Page 20 of 26 investigate the self-defense angle after Qualls’ arrest was fair game. ‘“[T]he
main and essential purpose of confrontation is to secure for the opponent the
opportunity of cross-examination . . . we have recognized that the exposure of a
witness’ motivation in testifying is a proper and important function of the
constitutionally protected right of cross-examination.” Tibbs v. State, 59 N.E.3d
1005, 1014-15 (Ind. Ct. App. 2016) (quoting Delaware v. Van Arsdall, 475 U.S.
673, 678-79 (1986)), trans. denied.
[44] Although a trial court’s findings are “very persuasive[,]” they are not
conclusive. Butler, 724 N.E.2d at 603-04. We disagree with the trial court’s
finding that the State or an agent of the State did not have any part in creating
the circumstances leading to the mistrial. Detective Ashley’s involvement as a
supervisor and investigator in the case and any potential bias she had were open
topics for cross-examination. The State chose to place her on the stand,
creating the circumstances where those potential biases could be explored. And
while the State failed to advise its witness of the order in limine prohibiting her
from discussing Qualls’ choice to exercise his right to remain silent, the twelve-
year veteran volunteered the statement when questioned about her lack of
consideration of the defense of self-defense and whether her familial
relationship biased her investigation and/or supervisory role in the case.
[45] We conclude that the trial court’s denial of the motion to dismiss the charges
against Qualls after the mistrial was clearly erroneous. The record is filled with
cumulative missteps by the State and its agents such that a retrial violated
Qualls’ constitutional protections against double jeopardy and, a retrial should
Court of Appeals of Indiana | Opinion 24A-CR-131 | May 15, 2025 Page 21 of 26 not have occurred. See I.C. § 35-41-4-3(a)(2)(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[.]”). As such, we reverse and
vacate Qualls’ conviction of Class A misdemeanor dangerous possession of a
firearm on this ground.
II. Amended Information [46] Qualls also challenges the trial court’s decision to allow the State to amend the
information to add counts of Level 1 felony attempted murder, Level 3 felony
aggravated battery, and Level 5 felony criminal recklessness. Indiana Code
section 35-34-1-5(c) (2014) provides that: “Upon motion of the prosecuting
attorney, the court may, at any time before, during, or after the trial, permit an
amendment to the indictment or information in respect to any defect,
imperfection, or omission in form which does not prejudice the substantial
rights of the defendant.”
[47] The federal Due Process Clause of the Fourteenth Amendment and Article 1,
Section 12 of the Indiana Constitution prohibit prosecutorial vindictiveness.
Blackledge v. Perry, 417 U.S. 21, 25-29 (1974) overruled on other grounds,
Bordenkircher v. Hayes, 434 U.S. 357, 360-65 (1978); Owens v. State, 822 N.E.2d
1075, 1077 (Ind. Ct. App. 2005). Our Supreme Court has also held that “the
State could not bring more serious charges against the defendant when nothing
has occurred except the successful exercise of the right to a fair trial.” Owens,
822 N.E.2d at 1077. And the Court later clarified that “unless there is new
Court of Appeals of Indiana | Opinion 24A-CR-131 | May 15, 2025 Page 22 of 26 evidence or information discovered to warrant additional charges, the potential
for prosecutorial vindictiveness is too great for courts to allow the State to bring
additional charges against a defendant who successfully moves for a mistrial[,]”
thus creating the presumption of prosecutorial vindictiveness. Warner v. State,
773 N.E.2d 239, 243 (Ind. 2002); see also Schiro v. State, 888 N.E.2d 828, 838
(Ind. Ct. App. 2008) (prosecutorial vindictiveness presumed when new charges
are filed after defendant exercises right to appeal), trans. denied.
[48] The day of Qualls’ mistrial, the State moved to amend the charges against him
to include attempted murder and aggravated battery. The State’s argument to
the trial court was that, “During the course of trial, information was learned
during opening statements and witness testimony which justifies the addition of
these two charges.” Appellant’s App. Vol. 2, p. 81. The trial court initially
denied that motion. At a subsequent hearing after the State filed a second
motion to amend the charges, the State explained that prior to the mistrial,
regarding the attempted murder and aggravated battery charges, “we were
already considering, based on what the facts would come in, that we were going
to be asking for those lesser included. So what we did was, after the trial ended
up a mistrial, Ms. Boehm and I decided to . . . put them on notice . . . [of the]
other charges so they’re not just sprung on the jury at the end.” Tr. Vol. 3, p.
134. Clearly, the first motion to amend was not based on new evidence. But
the record reflects that what happened during the mistrial was that the
witnesses’ testimony supported Qualls’ self-defense claim, and the State’s
Court of Appeals of Indiana | Opinion 24A-CR-131 | May 15, 2025 Page 23 of 26 strategy to wait until the end of trial to ask for lesser-included offense
instructions was not going to play out.
[49] The State’s April 10, 2020 motion to amend the charges, which was granted by
the trial court, again relied on “information [] learned during opening
statements and witness testimony . . . ” as to the attempted murder and
aggravated battery counts. Appellant’s App. Vol. 2, p. 176. The motion also
relied on physical evidence, which the State already possessed prior to the
mistrial. The inference drawn from the State’s motion is that the first motion to
amend the charges was filed without probable cause for the attempted murder
and aggravated battery charges. And the obvious conclusion is that there was
no new evidence to support filing the additional charges for attempted murder
and aggravated battery.
[50] The motion also relied on “additional investigation.” Id. According to the
State, the information supporting the criminal recklessness charges became
evident in December 2019. The State informed the court, “In early December
2019, a witness advised that there may be a bullet hole at her residence at 2014
N. Karwick that could be related to the December 18, 2018 incident. On
December 10, 2019, a preliminary investigation done by Det. [McClintock]
found that the damage appeared to be consistent with damage from a gunshot.
Additional investigation was done by Det. McClintock in January showing that
the trajectory of the bullet came from the location where the defendant was
located on December 18, 2018 on Karwick Road and leading to the Criminal
Recklessness charge to be added.” Appellant’s App. Vol. 2, p. 176. Qualls’ first
Court of Appeals of Indiana | Opinion 24A-CR-131 | May 15, 2025 Page 24 of 26 trial took place on December 16 and 17, 2019, after Detective McClintock took
pictures of damage to the window of the house.
[51] The tip about a bullet hole in a window was reported by the homeowner next
door to Rouse’s house prior to the start of Qualls’ first trial. Detective
McClintock testified about the photographs he took of the bullet hole, but the
jury found Qualls not guilty of those charges, charges he should not have faced.
As a result, the State’s claim that the bullet evidence was discovered after the
mistrial is unsupported by the record.
[52] We conclude that the State has not overcome the presumption of prosecutorial
vindictiveness and the trial court should not have granted the motion to amend
the information. Consequently, Qualls should not have faced trial on the Level
3 felony aggravated battery charge of which he was convicted. His conviction
on this charge is reversed and vacated.
Conclusion [53] Based on the foregoing, we conclude that the trial court erred by concluding
that the State did not create the circumstances which led to the mistrial, thus
allowing a second trial to take place. Furthermore, we conclude that the trial
court erred by allowing the State to amend the information because the State
did not overcome the presumption of prosecutorial vindictiveness and did not
show that the additional charges were the result of new evidence.
Consequently, we reverse and remand with instructions to vacate Qualls’
Court of Appeals of Indiana | Opinion 24A-CR-131 | May 15, 2025 Page 25 of 26 [54] Reversed and remanded.
Mathias, J., and Scheele, J., concur.
ATTORNEY FOR APPELLANT Jessica R. Merino Wyatt, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana
Megan M. Smith Deputy Attorney General Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 24A-CR-131 | May 15, 2025 Page 26 of 26