Walden v. State

DICKSON, SHEPARD, C.J., and RUCKER, JJ., BOEHM, and and concur Indiana, Appellant, of STATE deny vote to transfer. SULLIVAN, J., dissents, and votes to transfer. grant HOLLARS, Appellee.

Shannon No. 12S02-0808-CR-477. of Indiana. Court

Supreme

Oct. PRIOR ORDER VACATING ORDER Larry WALDEN, Appellant C. TRANSFER GRANTING (Defendant below), 28, 2008, August dated By order seeking petition transfer granted Court appeal from the over this jurisdiction of Indiana, Appellee STATE (Plaintiff below). After Appeals this Court. Court of review, including argument, oral further No. 18S02-0710-CR-458. has determined majority of Court granted. improvidently transfer was Supreme Court of Indiana. granting the order transfer Accordingly, 20, 2008. Oct. Appeals The Court

is VACATED. Hollars,

opinion reported as State (Ind.Ct.App.2008), longer is no 58(A) Rule and is Appellate under

vacated Appeals prece- as Court of

REINSTATED

dent. by Appellee filed petition

The transfer DENIED.

Hollars is 58(B), Rule Appellate

Pursuant

appeal is an end. Court DIRECTS final certify

the Clerk to this order as and copies of this order to the Hon.

to send Smith,

Kathy Judge, Superior R. Clinton

Court; Baker, Judge, G. Hon. John Chief Appeals; Steve Lancas- Court Administrator;

ter, Appeals Court

all counsel of record. further DIRECTS the Clerk Court copy this Order to LexisNexis

to send Group publication on-line

and West the bound volumes Court’s

decisions.

torney General, Indianapolis, IN, Attor- neys Appellee. for SULLIVAN, Justice.

Larry fiancée, Walden and his Molly Arthur, were an auto accident which Walden’s truck swerved off the road and ended upside-down in a ditch. Walden managed truck, to crawl out of the but Arthur injuries. later died from her A jury found guilty Walden of the crime of Causing Death Operating When a Motor Vehicle with a Schedule I IIor Controlled Substance Blood. After returning its verdict at “guilt conclusion of the trial, phase” of the a “habitual offender phase” pursuant the trial followed procedures by Legislature authorized punishing repeat for At offenders. its con- clusion, also found Walden to be a “habitual offender.” He was sentenced to years prison, plus a habitual offender years. sentence enhancement of 30 Walden appeal: raised four issues on proved whether the State had a sufficient reliability foundation for the of the scienti fic principles expert used two witnesses testimony; as a basis for their whether the proved previous State Walden’s necessary to the extent to establish that he offender”; was a “habitual whether improperly rejected court Walden’s proposed jury concerning jury’s authority not to find him to be a offender; and whether Walden’s inappropriate light sentence was nature of the offense and the character of Appeals offender. The Court of af respects. firmed the trial court in all Wal 18A02-0605-CR-420, slip den v. No. Muncie, IN, Kelly Bryan, Attorney N. op., May (Ind.Ct.App. 2007 WL 1365117 Appellant. for, petitioned Walden and we Carter, Stephen Attorney R. General of granted, transfer. Walden Indiana, (Ind.2007) (table). Gary Secrest, Deputy Damon At- N.E.2d 216 We now 2(5). evaluating When a a defen claim that the trial court

address Walden’s status, jury is in- dant’s habitual offender his rejected proposed improperly slightly leeway more than Holden afforded we sum- respects, all struction. Holden, phase. In guilt authorizes in the Appeals. of Ind. affirm the Court marily his for appealed defendant conviction 58(A). Appellate Rule had grounds on that the trial court forgery Discussion jury to instruct improperly refused 35-37-2-2(5) § Code I, “allow[ed][it] article section that (2004) trial court to instruct the requires a to to enforce the law’s latitude refuse to deter jury that jury justice Hol requires.” harshness when so in a criminal and law mine den, at 1253. held that We charging the part: It reads in “In case. in an found basis such instruction no must to them all jury, the court state A Id. at 1255. few Indiana Constitution. necessary for of law which are matters however, earlier, in years we had held giving their verdict. their information jury may a make a Seay v. State that jury they inform that judge The shall “irrespec determination habitual offender judges questions of all of are the exclusive proof prior of the of tive uncontroverted also, fact, they have right, and a that (Ind.1998). felonies.” 698 course, This right, determine the law.” clarify role in today jury’s write We to the criminal habitual offender extends light a habitual offender determination sentencing phase. language I.C. Seay. in Holden of our decisions and 35-37-2-2(5) I, § that article sec tracks may person The State seek have a “In all tion our State’s Constitution: habit- felony convicted of a sentenced as a whatever, criminal shall cases person previ- ual offender if that has been the law have to determine prior felo- ously convicted of two unrelated the facts.” jury, felony by nies. If the conviction a is acknowledged previously We have Legislature requires jury re- I, sec- possibility, in the context of article that the State has convene determine provision might a tion that such beyond a reasonable the two proved doubt a nullifi- permissible seen as form of sup- prior unrelated convictions that cation.1 Holden a offender port habitual determination. (Ind.2003). However, Holden dis- 35-50-2-8(a), (f), (g). § The stakes 1.C. tinguished between a historical a high are a criminal defendant in such law to determine the and what the proceeding: A defendant to be a found is, do; disregard not that the law. may be habitual offender sentenced —as In Id. 1254-55. we made clear up years Walden here—to to 30 broad, that Indiana do not have a 8(h). § in prison. additional time Id. general nullification criminal precisely believe that it is because cases. high the stakes so in the habitual present requires case us to discuss phase Legisla- of a trial that the particular feature ture ordered trial to § requirement many contained 35-37-2- status.2 For I.C. habitual offender Jury jury's knowing jury's justice, morality, "[a] nullification is sense of or fairness.” (8th ed.2004). rejection Dictionary deliberate of the evidence or refusal Black’s Law apply the law either wants because thought message 2. While there has been school of to send a about social issue some larger requires that is than the case itself or because U.S. Constitution status, see, contrary e.g., the result dictated law to the determine habitual offender urged way Dickson this Court to tus that it does not in years, defining Justice Legislature if the had acknowledge guilt or innocence. qualifying for three

intended wrote, we “[ijmplicit in this in a offend automatically to result principle during is the determination, Legislature er would I, phase, § habitual offender art. 19 does ques have included a trial on that apply.” Seay, 698 N.E.2d at 736. This phase. sentencing tion Duff (Ind.1987) (Dick necessary statement was not to our hold- son, J., dissenting part); Hensley v. ing Seay because the effect of the inter- (Ind.1986) 1058 statute, action of the habitual offender I.C. (Dickson, J., concurring dissenting); and 35-50-2-8, § and the umbrella “law and (Ind. Mers 79 statute, 35-37-2-2(5), § the facts” I.C. was Seay, did so in N.E.2d at 698 sufficient holding. to sustain the We need (“After analysis, 736 careful review and we not and should not have identified the explicitly adopt principles now the enunci Indiana Constitution as additional support by opinions ated Justice Dickson his holding for the and consider those com- Mers, Hensley, legislature and If the Duff. ments authority to be obiter dicta. The had intended an automatic determination given by Legislature to determine both upon of habitual offender status the find habitual offender status and the law and felonies, ing of two unrelated there would provides the facts for basis no a trial jury be need for on the status Seay, independent of the State Constitu- determination”). tion. fact, in Seay, It is the we said that the phase habitual offender ais “status deter- During the phase habitual offender mination” that makes all the difference. trial, his Walden asked the trial court to When, jury making as give Jury his Instruction No. which innocence, guilt determination of or jury read: “Even finds the facts disregarded by jury. law not be prerequisite prior felony of the However, in the phase, habitual offender uncontroverted, jury to be still has the Seay dictates that —on the basis that the unquestioned right to refuse to find the Legislature has ordered a trial Defendant to be a habitual offender at determine habitual offender status —the 253.) (App. The trial law.” court refused is entitled to make status determi- instruction, and instead instructed the nation over and above its determination of Jury with the court’s Instruction predicate whether the offenses have been 2:No. “Under the Constitution of Indiana established. Because the nature of status you have the to determine both the guilt particular is different than for a law and the facts. The Court’s instruc-

crime, interplay between the habitual your in determining tions are best source statute, 35-50-2-8, § offender I.C. and the (R. 261.) 649; App. the law.” at The trial statute, umbrella “law the facts” I.C. gave Jury No. as 35-37-2-2(5), court also Instruction operates give § defining latitude in offender habitual sta- follows: States, 13, 27,

Shepard rejected by Supreme v. United Court in U.S. U.S. James (2005) (Thomas, States, S.Ct. 161 L.Ed.2d 205 v. United U.S. 127 S.Ct. J., concurring), and n.8, Almendarez-Torres (2007). pre-We 167 L.Ed.2d 532 States, 224, 248, United 523 U.S. 118 S.Ct. dicted this result in Smith (1998) (Scalia, J., 140 L.Ed.2d 350 dis- (Ind.2005). senting), position squarely has now been is,correct we said in this Walden Information Count the facts of being finds with that “even where the Defendant charges case felony convictions applicable prerequisite prior Offender. an Habitual uncontroverted, part as follows: still has reads statute find the to refuse to unquestioned person to have a may seek State offender to be a habitual an habitual offender defendant sentenced (citations omitted). person The State law.” Id. by proving any (2) prior unrelated two the tendered accumulated in its brief has concedes felony convictions. statement of the was a correct an the Defendant to be law. may find

You only if the State analysis part the third Under of- previous the [two proven each instruction, refusal of a trial court’s beyond current offense] fenses cov- another instruction we ask whether reasonable doubt.: rejected the material covered ered stated, Simply instruction. prove to these ele- failed If the State to determine the right on its instructed doubt, you beyond reasonable ments law the case. That the facts and not an habit- the Defendant is must find making in a habitual has more latitude ual offender. than in determin- offender determination 262.) (App. suggest that ing guilt or innocence does “law and the facts” instruc- guilt phase party challenged has When jury that advising the might tion warrant a tendered refusal of trial court’s right to determine habitual of- it has the instruction, performs a appeal the court on on the fender status without strict reliance First, we ask three-part evaluation. felony convictions the defendant number of instruction is a cor whether the tendered would has accrued. Such an advisement Second, we of the law. rect statement But while inappropriate. not have been to whether examine the record point pro- from us on this was explanation present support there was evidence (This Seay, jury instruc- vided in and a broader part of the tendered instruction. case.) Third, wrong, in we not have the trial not at issue this tion would been test is obligated the substance of the to issue an certainly determine whether court is was an prior tendered instruction covered disregard to the invitation Hart other instruction or instructions. informing the in addition to (Ind. man v. ability to determine the law and of its performed in the This evaluation is of the informa- the facts. The substance determining context of whether the trial in trial instruc- tion contained court’s rejected discretion court abused its when requested tion and Walden’s instruction is Id. at 962. the instruction. here, especially This is true the same.3 Jury emphasized the trial court question of whether Walden’s On the ”— jury “may Instruction No. 3 tendered instruction was a correct state- the defendant not must—find law, agree- parties ment of the prior two proved if the State has points ment. Walden out his instruc- Such use of unrelated convictions. tion reflects almost verbatim instruction reinforced the “may” 698 N.E.2d at 734. our Court instruction, in its we unnecessary, the Indiana Constitution 3. While it was for the reasons above, possible prejudice Walden. perceive no for the trial court to refer to discussed indeed, discretion; only require- ing Article Section 19 of the Indiana Constitution, upon Instruction has no more placed ment prove failed to the State law than it ignore ignore “[I]f No. 3 doubt, beyond a reasonable these elements a case.” Holden v. (Ind.2003) the Defendant is not jury] must find [the (quoting Bi (App. (emphas- (Ind. offender.” an habitual vins v. added).) the trial 1994)). es Because we evaluate As the author of I obvi rejection the instruction for an court’s ously quarrel holding. have no with this discretion, cannot find that the abuse of we But, I very view it as narrow. That tois incorrectly trial court instructed say, juries although have no mention improperly on the law or excluded law, disregard under clear word of relevant law. ing they of the Constitution still have the questions to determine the law. The

Conclusion (a) implicated by this case are: what does af- judgment court is entail either the context of respect proposed firmed with to Walden’s statutory provision or of the Constitu summarily af- jury instruction No. We (b) tion itself and what should Appeals firm the Court of as to told concerning right. not addressed appeal issues raised on but 58(A). App. R. opinion. Our decisions have made clear that Arti- grant cle 19 does not Section SHEPARD, C.J., BOEHM, J., all matters that decide concur. correctly generic be included under the State, label—“law.” v. 104 See Anderson RUCKER, J., separate dissents with (1886) 467, 711, Ind. N.E. 712 (declaring 5 J., DICKSON, opinion in which concurs. jury judge[ the is not the “sole of the law ] DICKSON, J., separate dissents with cause”). every respect in a criminal For RUCKER, J., opinion which concurs. example, determining the law func- RUCKER, Justice, dissenting. right not on pass tion does include the to majority questions concerning admissibility the of makes distinction be- State, evidence, jury v. 203 Ind. Sprague tween “law and facts” instructions (1932), guilt phases right and habitual offender of 181 N.E. 512 or the to make, I daylight disregard, ignore clearly trial. Because see little in the or repeal, State, wording of Indiana Code section 35-37-2- existing law. See Fleenor v. 2(5) provisions (Ind.1987); of Article Section N.E.2d Hubbard v. 19,1 State, respectfully dissent. 196 Ind. 147 N.E. (1925). But, deliberating when on its ver- majority points wording As the out the dict, jury empowered the “law” that the is language tracks the of our

of statute encompasses only to determine not evalu- “In all criminal State Constitution: cases statutory ating, among things, whatever, jury right to shall have may it not elements of the offense—which determine the law and the facts.” Ind. disregard legisla- also whether 1, § similarity Const. Art. 19. The lan —but to applied ture intended those elements be guage suggests between the two unlike presented. to the facts This is not analysis provisions how be authority by judges exercised em- applied should be similar as well. In Hol construction, statutory ploying canons for a improper den we held “[i]t statutes to avoid absurd they e.g., interpreting court to instruct have interpreting according statutes disregard the law. Notwithstand results or finds the context. ordinary meaning, “[EJven plain to their con- prerequisite prior law of the the substantive make sure uncontroverted, overreaching so not become does victions to be written goals justice.1 reasonable to refuse unquestioned as to defeat still Indeed, may appear superficially what to be a habitual of- to find the defendant by jurors of the le- nullification constitute Seay at law.” fender they have been instructed gal standards (Ind.1998) (citing Duff jurors deciding may instead reflect apply (Ind.1987) (Dickson, J., 17, 24 case would guilt particular whether However, other than opinion)). separate for which the justice values promote in- is entitled to be declaring that recognized have is enacted. statute Article 19 au- on its Section structed before: proposition very similar State, 518 N.E.2d thority, see Johnson v. an ac- have no to base (Ind.1988), not Court their notion alone that upon quittal explaining the very explicit about been sufficient; they is not have indictment authority the context contours of determine that the indict- no of a criminal trial.2 guilt phase of the form, or that is not sufficient ment majority by today’s decision the takes And returned; found and properly generic “law the view that the trial court’s upon the law and the must act they ad- sufficient to and facts” instruction is evidence, the case comes before when authority in statutory of its vise they But have the undoubted them. trial. I phase the habitual and the the Constitution right, under Simply advising respectfully disagree. court, say that the decisions right to determine that it has the not constitute a facts in evidence do woefully short the law and the facts falls ’ although those facts ‘public offence, right may how this be exer- explaining stated in the indict- the same facts contrast, in- tendered cised. Walden’s so, If this be not then the ment. Quoting Seay, fills this void. struction to convict in all cases compelled will be instruction is a correct statement the facts stated the indictment where gives express guidance to a law and although they may think proved, law in on what it means to determine the proved do not constitute that the so aspect context. This the habitual offender be, prac- public This would offence. by any not covered of the statute was tically, to take from trial court’s other instructions. upon the law in all cases. pass State, 566, Pritchard v. 248 Ind. fashion, requested, In when like (1967) 416, (emphasis origi- N.E.2d guidance similar on its law given should be nal) State, (quoting Hudelson v. 94 Ind. determining function under Article Sec- (1884)). 426, 430 At guilt phase 19 in the of trial. tion may accomplished by minimum this ad- all The Court has been clear about how vising as follows: plays out the habitual offender typically come is best illus- is seen as nullification 2. The closest Court has "[W]hat State, trated Cobb v. 274 Ind. jurors actively participating be recast (1980), in which the Court designed authority system give them law means that declared inapplicable given a law in a determine that honestly, "jurors under their oaths should Solan, Lawrence M. Jurors As situation.” impartially judge justly, and the law as it Statutory Interpreters, 78 L.Rev. Chi.-Kent the law exists.” In essence to determine (2003). determine the law. means to disregard the Id. at citing finds that the State law. Even where statutory State, 203, 204, elements of proven has Blaker v. 130 Ind. 29 N.E. doubt, a reasonable beyond offense (1892). analysis 1077-78 Our Hol- right to unquestioned has the jury still den also noted recent views from other in this case re- determine whether jurisdictions and discussed recent aca- fair- guilty promotes a verdict of turning that a arguing demic literature justice. ness and ends encompass to decide the law did not jury already It is clear nullify. 788 N.E.2d at even power acquit unreviewable attempt 1255. Holden did not to resolve direction, and a point the facts competing perspectives, these but rather guilty cannot direct a verdict of judge holding issued a narrow focused on the overwhelming the evi “no matter how propriety expressly advising Louisiana, 508 U.S. dence.” Sullivan “you the latitude to ‘refuse to [have] 275, 277, 2078, 124 L.Ed.2d 182 113 S.Ct. justice enforce the law’s harshness when (1993); Peck v. accord ” requires,’ so an instruction that had been (Ind.1990). Informing but refused. Id. at 1253. tendered power such under the Indiana only held that a should not be affir- consistent with our would be Constitution matively instructed that it has a Seay assuming the case —even law, disregard the and that the tendered only statutory provision involved —and my properly instruction was refused. what too would breathe life into otherwise view, however, prohibit Holden does not treated as a dead letter often has been juries from exercising their histor- provision. constitutional ic to find favor of a criminal DICKSON, J., concurs. contrary despite defendant substantial evi- dence. DICKSON, Justice, dissenting. join separate I Justice Rucker’s dissent- Second, majority’s disagree I with the following addition-

ing opinion and add minimization role of Arti- important my disagreement al reasons for with the of the Indiana Constitu- cle Section 19 majority opinion. opinion in tion in this Court’s unanimous First, majority’s un- disagree I with the (Ind.1998). Seay v. derstanding of Holden contrary, Seay declared “we now To the (Ind.2003). Al- enunciated explicitly adopt principles majority’s actual though part Hensley,” ... ... which dissent [the in] only prelimi- reflected in its holding but Seay expressly acknowledged “reiterated today’s nary commentary, opinion express- I, 19, § principle established art. prop- es a view that Holden stands for the providing power determine juries that Indiana do not have the osition Seay, N.E.2d the law and the facts.” 698 evi- power acquit despite overwhelming State, 735-36, citing Hensley v. 497 contrary, To the dence criminal cases. (Ind.1986) (Dickson, 1053, 1058 J. N.E.2d unanimously ac- I believe that this Court dissenting). contempo- In a case decided that our state’s ear- knowledged Holden like- raneously with Justice Sullivan that, in the ly jurisprudence held exercise that “In wrote for a unanimous court wise law-determining function under Arti- of its definitively that Arti- Seay, we established cle Section 19 of Indiana Constitu- during habitual applicable § 19 is cle tion, disregard the instruc- could court, and thus the proceedings, but had no tions of the trial 1190 cific, adequate was opaque instruction in such circumstances

has the inform legal principal and the facts.” the law both in- (Ind. in the defendant’s tendered embodied State, N.E.2d 742 Parker v. that was at principal struction —a added). 1998) And numerous (emphasis on the heart of the defendant’s defense decisions have noted appellate subsequent habitual offender count. of Article principles Seay applying Barker, N.E.2d v. 19. State Section Innocuous, in- non-specific jury generic, State, (Ind.2005); McBride v. adequate structions are not an substitute (Ind.Ct.App.2003), plain-language advisements mean- State, denied; v. 767 N.E.2d Flake trans. jurors reality ingfully explain to (Ind.Ct.App.2002), trans. under rights permissible their function sought; Smock view, my resulting the law.3 In obfus- sought; trans. not (Ind.Ct.App.2002), secrecy cation and is inconsistent with the 202, 204-205 Gonzalez Law. Rule of denied; Womack (Ind.Ct.App.2001), trans. I Because believe that the defendant (Ind.Ct.App. jury meaningfully was entitled to have the 2000), trans. denied. regarding to find in instructed its Third, acknowledges that majority despite favor a criminal defendant sub- was a correct rejected jury evidence, contrary stantial a historic law, it but declares statement of additionally and one of American inappropriate to inform would have been preserved in Section 19 of the Indiana Bill legal principle because of majority’s I Rights, dissent from the correctly produce. As might the effect opinion. refused in- requested

stated but struction, finds the “Even where RUCKER, J., concurs. prerequisite prior felony con- uncontroverted,

victions to be still to refuse to unquestioned right

find the Defendant to be a habitual offend- App’x at But Appellant’s

er at law.” majority concludes that the substance adequately commu- this instruction jury by following in-

nicated to the

struction: have the to deter- “[Y]ou

mine both the law and the facts. The your best source

Court’s instructions determining the Law.” Id. at 261. I latter, broad, agree unspe-

cannot that this judge "impress upon ju- 3. Retired Arizona trial B. Michael Dann an instruction that would issue, recently explored expressing applicable that the law to the case rors comes "jurors the view that better and need deserve judge, given from the that the law should be regarding more the role the Constitution has consideration, serious and that the Dann, in mind for them.” B. Michael "Must despite acquit the law should be reserved for Guilty” Jury Find the Instructions Defendant exceptionable present jurors cases that with Amendment, Judicature Violate Sixth strong Id. issues of conscience.” at 18. (July-Aug. He advocates use of

Case Details

Case Name: Walden v. State

Court Name: Indiana Supreme Court

Date Published: Oct 20, 2008

Citation: 895 N.E.2d 1182

Docket Number: 18S02-0710-CR-458

Court Abbreviation: Ind.