Background
On the night of December 30, 2020, Christian White walked into the bedroom of Marcus and Diane Suggs—his cousin and cousin’s wife—at their Jeffersonville, Indiana apartment. White had moved in with the couple just days earlier. He pointed a gun at Marcus, ordered him into the living room, then shot and killed him. Diane, who is unable to walk or use her hands, was left alone in the apartment with her husband’s body. White fled to Kentucky, where he was apprehended after a multi-state manhunt. He later admitted to the shooting, though he cycled through several inconsistent explanations—first claiming self-defense after discovering Marcus allegedly assaulting his girlfriend, then blaming his girlfriend entirely, then saying the shooting was accidental.
White’s path to conviction was anything but linear. His first jury trial, which began in May 2024, unraveled mid-stream when the State disclosed withheld discovery materials—including a medical examiner’s report—prompting a continuance. When jurors began dropping out due to scheduling conflicts, the trial court convened an off-the-record chambers meeting with counsel on May 30 to discuss the situation. The next day, without holding an on-the-record hearing, the court issued a written order declaring a mistrial due to an insufficient number of available jurors. White’s counsel never objected, asked for alternatives, or requested an on-the-record proceeding before the jury was discharged. White promptly moved to dismiss on double jeopardy grounds. The trial court denied the motion and White’s second trial ended with a hung jury on murder. His third trial, in February 2025, resulted in convictions for murder and unlawful possession of a firearm by a serious violent felon (SVF). The trial court sentenced White to an aggregate seventy years—sixty years for murder, a concurrent six years for the SVF possession conviction, and a consecutive ten-year firearm enhancement.
White raised four issues on appeal: (1) whether retrying him after the mistrial violated the Double Jeopardy Clause; (2) whether the trial court abused its sentencing discretion by declining to find mitigating circumstances; (3) whether his seventy-year sentence is inappropriate under Indiana Appellate Rule 7(B); and (4) whether the firearm enhancement and its consecutive run violated double jeopardy.
The Court’s Holding
The Court of Appeals affirmed on all counts, though not without a pointed dissent on the central double jeopardy question. On the mistrial and retrial issue, the majority held that White tacitly consented to the declaration of a mistrial by failing to object when he had a meaningful opportunity to do so. Under Brock v. State, 955 N.E.2d 195 (Ind. 2011), a defendant’s silence in the face of an anticipated mistrial can constitute implied consent. The majority concluded that the in-chambers discussion put White on reasonable notice that a mistrial was imminent, and his failure to propose alternatives—including invoking Indiana Jury Rule 16’s provision allowing parties to agree to proceed with fewer than twelve jurors—amounted to consent. Because White consented to the mistrial, the State needed only to show it did not intentionally goad him into doing so, which was undisputed. Retrial was therefore permissible as a matter of course.
Judge DeBoer dissented vigorously. In her view, the record contains two competing accounts of what happened in the May 30 chambers meeting—White contending no mistrial was ever mentioned, the State contending it was raised explicitly—and the trial court never resolved that factual dispute on the record. Without a contemporaneous record of what was actually said, she concluded the majority improperly accepted the State’s version of events. The trial judge, she wrote, declared the mistrial “hastily” after releasing the third juror without giving White any opportunity to object or propose proceeding with eleven jurors. Under Seventh Circuit guidance adopted in Brock, consent should not be inferred where it is not “clearly evident on the record.” She also concluded that, even reaching manifest necessity, the court’s failure to explore alternatives—including the jury-reduction option expressly permitted by Jury Rule 16—meant the mistrial declaration could not be upheld on that basis either.
On sentencing, the majority found no abuse of discretion. White argued the trial court should have found his alleged caregiving for Diane a mitigating factor, but because he never raised that argument at sentencing, it was waived. Even setting waiver aside, whatever minimal assistance White may have provided during his few days in the apartment was negated by the fact that he fled immediately after the murder, leaving Diane alone and immobile. On inappropriateness under Appellate Rule 7(B), the sixty-year murder sentence (within the forty-five-to-sixty-five-year range) plus the ten-year firearm enhancement was affirmed: an unprovoked killing, a multi-state flight, pending kidnapping charges in Kentucky, an active Ohio parole warrant, and a pattern of prior felonies—including a prior conviction for felonious assault and aggravated burglary with a firearm—left no room for revision. On the double jeopardy challenge to the firearm enhancement, the court followed Nicoson v. State, 938 N.E.2d 660 (Ind. 2010), and Wadle v. State, 151 N.E.3d 227 (Ind. 2020): possessing a firearm and using it are legally distinct acts, and a sentencing enhancement is cumulative punishment rather than a separate offense—it implicates no double jeopardy concern. Finally, the court confirmed that the firearm enhancement under Indiana Code section 35-50-2-11 may properly run consecutive to the underlying felony sentence, distinguishing the more constrained treatment of habitual-offender enhancements under section 35-50-2-8(j).
Key Takeaways
- Tacit consent to mistrial requires a meaningful opportunity to object. When defense counsel is present for, or put on notice of, the court’s intention to declare a mistrial and says nothing, that silence can constitute implied consent under Brock—forfeiting any double jeopardy bar to retrial. The dissent signals that this rule has bite only when the record clearly establishes what was communicated in chambers; off-the-record discussions that are disputed will not easily support a consent finding.
- Firearm enhancement double jeopardy challenge remains a loser in Indiana. Combining a conviction for firearm possession by an SVF with a use-of-firearm sentencing enhancement on an underlying murder conviction does not violate double jeopardy. Nicoson and Wadle confirm that possession and use are separate acts, and that enhancements are not standalone offenses subject to double jeopardy analysis.
- Indiana Code section 35-50-2-11 firearm enhancements run consecutive. Unlike habitual-offender enhancements, which I.C. § 35-50-2-8(j) expressly prohibits from running consecutive to the enhanced sentence, section 35-50-2-11 contains no such constraint. Trial courts have discretion to order the enhancement to run consecutive, and doing so is not an abuse of discretion.
- Mitigating factors not raised at sentencing are waived on appeal. Defense counsel who wish to preserve a mitigating-circumstances argument must advance it at sentencing; the Court of Appeals will not reach an argument first raised on appeal, and will presume the factor was not significant if not offered below.
Why It Matters
The double jeopardy holding is the most practically significant aspect of this opinion for Indiana criminal practitioners. The majority’s rule—that silence during an off-the-record chambers conversation about juror availability can constitute implied consent to a mistrial—places a real-time burden on defense counsel: when a trial court raises the prospect of a mistrial (even informally, even off the record), counsel must immediately object on the record, propose alternatives, and request an on-the-record hearing before the jury is discharged. The dissent’s warning that disputed, unrecorded chambers discussions should not easily yield a consent finding gives appellate practitioners an argument, but the majority’s reasoning will govern unless the Indiana Supreme Court takes up the issue.
The confirmation that Indiana Code section 35-50-2-11 firearm enhancements may run consecutive to the underlying offense—and are categorically different from habitual-offender enhancements in that respect—also has sentence-planning significance. Indiana prosecutors can seek significant aggregate sentences in firearm-involved cases without running into the structural constraints that limit habitual-offender stacking, and defense counsel must be prepared to argue against consecutive imposition at sentencing rather than relying on statutory prohibitions.