Hollowell v. State

*618RUCKER, Justice,

concurring in part and dissenting in part.

Even though Hollowell stipulated to the predicate offenses underlying the habitual offender allegation, the State nonetheless proceeded to introduce the case chronology into evidence. The majority condones this procedure because "the facts regarding the predicate convictions are relevant to the jury's decision whether or not to find a defendant to be a habitual offender." Op. at 617 (citing Seay v. State, 698 N.E.2d 732, 736-37 (Ind.1998)). I disagree. Because of Article 1, Section 19 of the Indiana Constitution, the jury is empowered to render a verdict that a defendant is not a habitual offender even if it finds that the State proved beyond a reasonable doubt that the defendant had accumulated two prior unrelated felonies. Seay, 698 N.E.2d at 734. This right of an Indiana jury in a criminal ease not to be bound to convict even in the face of proof beyond a reasonable doubt allows the jury to consider merey in its deliberations. See Pope v. State, 737 N.E.2d 374, 379 (Ind.2000), reh'g denied; Bivins v. State, 642 N.E.2d 928, 946, (Ind.1994). Any consideration of mercy in this case was very likely eliminated by the erroneous and prejudicial information contained in the case chronology. Therefore, I would reverse the habitual offender adjudication. In all other respects I concur with the majority.

DICKSON, J., concurs.