In Davenport, 689 N.E.2d at 1229, our supreme court stated that "the State does not necessarily prejudice a defendant's substantial rights by dismissing an information in order to avoid an adverse evidentiary ruling and then refilling an information for the same offense." But subsequently, in Johnson v. State, 740 N.E.2d 118, 120 (Ind. 2001), the supreme court omitted this standard from its discussion of permissible State refilling tactics. It acknowledged the Davenport statement in a footnote, but then seemingly disapproved of its use, declaring "the question of substantial prejudice is a fact-sensitive inquiry, not readily amenable to bright-line rules."
Cobbs then filed another motion to exclude the testimony of the confidential informant. Relying on Davenport v. State, 689 N.E.2d 1226 (Ind.1997), reh'g granted in part,696 N.E.2d 870 (Ind.1998), and Johnson v. State, 740 N.E.2d 118 (Ind.2001), Cobbs argued that his substantial rights had been violated. According to Cobbs, the State refiled the charges to avoid an adverse evidentiary ruling, and the State “waited until the last minute” to try to relitigate the exclusion of the confidential informant's testimony.
Id. Concluding that this was not the case on the facts presented, the court held that the defendant's substantial rights had been prejudiced and reversed the convictions on the subsequently added charges. A similar issue was presented in Johnson v. State, 740 N.E.2d 118 (Ind. 2001). There, the defendant was charged with sexual misconduct.
Id. at 1230.[11] In Johnson v. State, 740 N.E.2d 118 (Ind.2001), the State, attempting to circumvent an adverse evidentiary mling, dismissed the original charge of sexual misconduct with a minor and then refiled it, adding ten more charges that involved the witnesses who had been disallowed by the adverse evidentiary ruling. As no new evidence was discovered prior to refiling, our Indiana Supreme Court found the “State exceeded the boundaries of fair play” and “impermissibly impinged the defendant's exercise of his substantial procedural rights.”
” Id. (citing Johnson v. State, 252 Ind. 79, 246 N.E.2d 181, 183–84 (1969) ; Dennis v. State, 412 N.E.2d 303, 304–05 (Ind.Ct.Ap.1980) ). “The question of substantial prejudice is a fact-sensitive inquiry, not readily amenable to bright-line rules.” Johnson v. State, 740 N.E.2d 118, 120 n. 3 (Ind.2001).[23] Howell argues that “[c]learly, dismissing the prior cause and adding Count III to the underlying cause was an attempt by the State to evade Mr. Howell's constitutional right to a speedy trial.”
The State may not re-file if doing so will prejudice the substantial rights of the defendant. Id.; see also Johnson v. State, 740 N.E.2d 118, 121 (Ind. 2001) (State may not circumvent adverse court order or prejudice defendant's substantial rights). Here, Myers argues that "[t]he State's constant addition, subtraction and amendment of the various charges against [Myers] prejudiced his substantial rights in that [he] had to keep changing his trial strategy and defense to the charges as they were constantly changed by the State."