STATEMENT OF THE CASE
Daniel R. Fuquay appeals his conviction of dealing in cocaine within one thousand (1000) feet of a school, a class A felony.1
We affirm.
ISSUES
1. Did the trial court err in refusing Fuquay's tendered instruction concerning the right of the jury to determine the law?
2. Did the trial court err in overruling Fuquay's motion to correct errors based upon alleged juror misconduct in giving untruthful answers on voir dire examination?
8. Did the trial court err in prohibiting cross-examination of the arresting officer regarding prior drug transactions with the confidential informant?
*156FACTS
On July 20, 1990, Trooper Wilkerson of the Indiana State Police and a confidential informant went in Wilkerson's car to a place where Fuquay was sitting in a parked Jeep. Wilkerson instructed the informant to ask Fuquay if he had any cocaine. The officer observed the informant leave his car, proceed to the vehicle where Fuquay was, and obtain something from Fuquay. The informant returned to Wilkerson's car with five (5) plastic bags of cocaine. Pursuant to Wilkerson's instruction, the informant returned the bags of cocaine to Fuquay who was then called to the trooper's car where, following some negotiation, he sold the five (5) bags of cocaine to Trooper Wilkerson.
Further facts are stated in our discussion of the issues.
Issue One
Fuquay contends the trial court erred in refusing his tendered instruction number three which stated:
"The Constitution of Indiana provides that in all criminal cases the jury shall judge and determine the law as well as the facts. It is the duty of the Court to instruct you on the law and you should give the Court's Instructions respectful attention. However, the instructions of the Court are not necessarily binding on you. You have the right to independently determine the law to be different from the instruction from the Court. The instructions given are for your guidance and information and you should give the instructions such consideration and respect as to which you deem they are entitled."
Record at 469.
Although Art. 1, § 19 of our state constitution confers upon juries in criminal cases the right to determine the law, that right is not without limitation. In determining the law, it is the duty of the jury to determine the law correctly, as it in fact is, and it may not arbitrarily reject the instructions of the court.
Fuquay's tendered instruction would have advised the fury that "the instructions of the Court are not necessarily binding on you. You have the right to determine independently the law to be different from the instruction from the Court." This instruetion is tantamount to telling the jury it could do whatever it wanted to in determining: the law. Such an instruction is not proper.
In Hoffa v. State (1924), 194 Ind. 300, 301, 142 N.E. 653, 653, our supreme court upheld the following instruction:
"You are the exclusive and sole judges of what facts have been proven and you may also determine the law for yourselves. That statement does not mean that you have the right to set aside the law and make your own law. You determine the law as it is enacted by the legislature of this state and considered and interpreted by the higher courts of record, and in that way you have the right to determine the law for yourselves, but not to make your own laws."
An instruction tendered and rejected in Beavers v. State (1957), 236 Ind. 549, 554, 141 N.E.2d 118, 120, stated:
"You are the exclusive judges of the facts proven and the credibility of the witnesses and this being a criminal action you are also the exclusive judges of the law, but it is the duty of the court to instruct you as to the law of the case. These instructions, however, are not given for the purpose of controlling your judgment but are intended only to aid you in understanding the law. You have a right to disregard them altogether if you desire and to determine what the law of this case is for yourselves."
The Supreme Court of Indiana held the tendered instruction in Beavers properly was refused. The court stated it is erroneous, both legally and factually, to say that the jury is the exclusive judge of the law in criminal cases. "In our opinion juries should be bound by their conscience and their oaths, and not be in substance told they may act capriciously upon a whim or prejudice." Id., at 559, 141 N.E.2d at 122.
In State v. Willis (1990), Ind.App., 552 N.E.2d 512, 514, trans. denied, this court upheld an instruction stating:
*157"Since this is a criminal case the Constitution of the State of Indiana makes you the judge of both the law and the facts. Though this means that you are to determine the law for yourself, it does not mean that you have the right to make, repeal, disregard, or ignore the law as it exists. The instructions of the court are the best source as to the law applicable to this case."
The decision in Willis relied heavily upon the opinion of Justice Arterburn in Beavers.
Thus, it seems clear that in exercising their constitutional right to determine the law, juries, under their oaths, are bound to determine it correctly, and that an instruetion which would lend credence to the view that the jury was free to "do its own thing" and determine the law in accordance with its own personal opinion as to the law, is erroneous and should not be given. In our view, the tendered instruction here is in the same category as the one rejected in Beavers, and could leave the impression on the jury that it could decide the law on the basis of whim or personal prejudice.
We agree that Fuquay had a right to have the jury properly instructed upon its constitutional right to determine the law, and had he tendered a proper instruction on that subject, it would have been reversible error to refuse it. Because the instruction he tendered was not proper, it was not error to refuse it.
For the reasons stated, this issue presents no reversible error.
Issue Two
Next, Fuquay contends the trial court erred in denying his motion to correct errors based upon alleged false answers given during voir dire by juror James Albert Patton.
It is misconduct for a juror to make false statements in response to questions on voir dire examination, and, generally such is held to constitute reversible error because it impairs the right to challenge the juror, either peremptorily or for cause. Lopez v. State (1988), Ind., 527 N.E.2d 1119; McFarland v. State (1979), 271 Ind. 105, 390 N.E.2d 989; McDaniel v. State (1978), 268 Ind. 380, 375 N.E.2d 228; Barnes v. State (1975), 263 Ind. 320, 330 N.E.2d 743.
Where a question of possible juror misconduct is raised, the trial court should hold a hearing to determine whether such misconduct did exist. Barnes, at 330 N.E.2d at 747; Berkman v. State (1984), Ind.App., 459 N.E.2d 44. However, a defendant seeking such a hearing must do more than present merely conclusory allegations of misconduct. Rather, such defendant first must present some specific, substantial evidence of the claimed juror misconduct. Berkman at 46.
Here, Fuquay supported his motion to correct errors with an affidavit from his attorney stating that another member of the local bar had informed him that Patton's daughter had been convicted of a drug offense. The motion also was supported by a copy of a court record showing that one Cynthia L. Patton had been convicted of possession of an illegal drug. The trial court held a hearing on the motion to correct errors where Fuquay's counsel argued that juror Patton's failure to reveal, either in his juror questionnaire or in response to voir dire questioning, his daughter's conviction, constituted such juror misconduct as to be reversible error.
According to Fuquay's counsel, had juror Patton answered truthfully, counsel would have exercised a peremptory challenge to Patton. However, neither in his affidavit, disregarding its obvious hearsay nature, nor at the hearing on his motion to correct errors, did Fuquay establish that the Cynthia L. Patton so convicted was in fact juror Patton's daughter. Thus, there was no evidence before the trial court to support Fuquay's claim of juror misconduct. Fuquay's argument that the state never denied the relationship between the juror and Cynthia L. Patton misses the mark. It was Fuquay's obligation to prove the relationship, not the state's to prove otherwise.
Having failed to establish that juror Patton was untruthful either on his juror questionnaire or in his answers on voir dire, *158Fuquay has not shown reversible error on this issue.
Issue Three
Finally, Fuquay contends the trial court erred in refusing to permit him to cross-examine Trooper Wilkerson concerning previous drug purchases the officer had made from the confidential informant and her prior record of drug offenses. Fu-quay argues he was thereby prevented from bolstering his contention that the informant was the one who had the five (5) bags of cocaine in the trooper's car, and that he never had the cocaine or sold it to Wilkerson. We disagree.
First, Fuquay testified he never had the cocaine and that the bags of cocaine were already in the car when he entered it. Based upon his own testimony, Fuquay well could have argued his contention concerning how the bags of cocaine got into Wilkerson's car. Further, the identity of the informant was revealed to Fuquay and he could have subpoenaed her and called her as a witness. Third, the informant was not a witness, and it is not proper to attempt to impeach a non-witness.
The case of Harvey v. State (1989), Ind., 542 N.E.2d 198, is instructive. In that case, the appellant argued he erroneously was prohibited from investigating the credibility of the informant when the court sustained the state's objection to his line of questioning. Our supreme court pointed out that the identity of the informant was known by both sides, and that the state did not rely on the testimony of the informant in making its case. The court further noted:
"The trial judge has discretion to determine the scope of cross-examination, and only a clear abuse of that discretion warrants a reversal. (citation omitted) ... Because the State based its case on the positive identification of [the victim] of appellant as the robber and not on any information or testimony from the alleged informant, we find no abuse of trial court discretion in sustaining the State's objection on relevancy grounds."
542 N.E.2d at 200.
Here, as in Harvey, the state based its case on the testimony of Trooper Wilkerson. The trial court did not abuse its discretion in disallowing Fuquay's cross-examination.
Judgment affirmed.
STATON, J., concurs. ROBERTSON, J., dissents with separate opinion.. IND.CODE § 35-48-4-1.