ATTORNEY FOR APPELLANT
Kay A. Beehler
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Steve Carter
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
ROMAN LAMONT FRENCH, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 03S00-9911-CR-661
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE BARTHOLOMEW SUPERIOR COURT
The Honorable Stephen Heimann, Judge
Cause No. 03D01-9810-CF-1044
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
November 22, 2002
BOEHM, Justice.
In this consolidated appeal, Roman Lamont French challenges both his
conviction for cocaine dealing and the denial of post-conviction relief.
We hold: (1) French was not denied due process when he appeared, without
objection, wearing jail garb in front of a new jury during the habitual
offender proceeding; (2) although it is error to require a defendant to
appear in jail garb at a habitual offender proceeding, it does not require
reversal where no objection was raised; (3) the evidence at the habitual
offender proceeding was sufficient to identify French as the person
convicted of prior crimes; (4) the trial court did not commit fundamental
error when it failed to instruct the jury that it was not required to
accept a judicially noticed fact; (5) the evidence enhancing French’s
conviction to a Class A felony was sufficient; (6) he was not denied the
effective assistance of counsel; and (7) the cumulative errors of his
attorneys did not substantially damage his defense.
Factual and Procedural Background
On February 23, 1998, a confidential informant purchased .24 grams of
cocaine from French for $100. French was charged with dealing in cocaine,
a Class A felony, and two months later was charged with being a habitual
offender. A jury found French guilty of dealing in cocaine. That jury was
dismissed and a new jury was impaneled to hear the habitual offender charge
a month later.[1] The second jury found French to be a habitual offender.
The trial court then sentenced French to thirty years for the underlying
offense and enhanced his sentence by an additional thirty years as a
habitual offender. French appealed and also initiated a post-conviction
relief proceeding. This Court suspended consideration of the direct appeal
and remanded the matter to the trial court for consideration of the issues
raised in his post-conviction petition. This consolidated appeal seeks
review of both the underlying conviction and the denial of post-conviction
relief.
I. Appearing in Jail Garb at the Habitual Offender Trial
French appeared in full jail garb with handcuffs, shackles, and orange
jail clothing at the habitual offender phase of the trial conducted before
a new jury a month after the trial of the underlying charge. French
contends that this violated his constitutional right to due process.
A. The Restraints and Shackles
In Evans v. State, 571 N.E.2d 1231, 1238 (Ind. 1991), this Court
concluded that a defendant has the right to appear in front of a jury
without physical restraints, unless restraints are necessary to prevent the
defendant’s escape, to protect those present in the courtroom, or to
maintain order during the trial. We have held that “the facts and
reasoning supporting the trial judge’s determination that restraints are
necessary must be placed on the record.” Wrinkles v. State, 749 N.E.2d
1179, 1193 (Ind. 2001) (quoting Coates v. State, 487 N.E.2d 167, 169 (Ind.
Ct. App. 1985). “An order to restrain the defendant is reviewed for an
abuse of discretion.” Forte v. State, 759 N.E.2d 206, 208 (Ind. 2001).
In a sidebar with attorneys for both the State and defense present,
the trial court explained its action as follows:
At the conclusion of the previous trial in this case, it is my
understanding that there was a significant physical altercation
between Mr. French and one or more law enforcement officers.[[2]] I
have instructed the law enforcement officers to secure French’s . . .
I think it’s his right hand. I think he’s left handed . . . so that
he is able to write. But he also has ankle irons or leg irons,
whatever they call them. [Defense counsel], you have an objection to
that?
His counsel objected only to the arm constraint because “it could be seen
by the jury.” The trial court overruled the objection “based upon the
altercation that happened as the jury was leaving the courtroom during the
last proceeding.”
The trial court complied with the requirements of law by stating, on
the record, facts and reasoning supporting its determination that
restraints were necessary. Based on the reasons given by the trial court,
we cannot say that the trial court abused its discretion in having the
defendant handcuffed and shackled.
B. Jail Clothing
At his habitual offender proceeding, French appeared in bright orange
clothing with the word “jail” on the back. The United States Supreme Court
has held that a defendant cannot be compelled to appear before a jury in
identifiable prison clothing because this may impair the presumption of
innocence. Estelle v. Williams, 425 U.S. 501, 502-05 (1976). French
argues that requiring him to wear prison clothes during the habitual
offender phase of his trial in front of a separate jury violated his right
to due process.
French made no objection to the jail garb. The failure to object to
being tried in prison clothes negates the compulsion necessary to establish
a constitutional violation. Id. at 512-13. Although it is not a denial of
due process if a defendant appears in jail garb without objection, we agree
that the same reasons requiring an appearance in street clothes at trial
also apply in a supplemental proceeding before a jury such as the habitual
offender phase. Accordingly, if a defendant objects, it is error to
require the defendant to appear in jail garb at the habitual offender
phase. Here, however, there was no objection and the issue is not
preserved.
Recognizing that no objection was raised in the trial court, French
contends that his appearance in jail garb constituted fundamental error
reviewable despite the lack of objection. We do not agree. Although, as
Justice Sullivan points out, French is entitled to the presumption of
innocence as to the habitual offender charge, he was convicted of the
underlying charge of dealing cocaine, and the jury was informed of this.
The Ninth Circuit addressed a similar issue in Duckett v. Godinez, 67 F.3d
734, 746 (9th Cir. 1995), where the defendant appeared in prison clothes,
handcuffs, and a security chain before a sentencing jury. Although a
sentencing proceeding is not identical to the habitual offender phase, in
both instances the presumption of innocence of the underlying charge no
longer applies. As the Ninth Circuit put it: “His condition as a prisoner
is no surprise to the jury, which just found him guilty. Prison clothing
cannot be considered inherently prejudicial when the jury already knows,
based upon other facts, that the defendant has been deprived of his
liberty.” Id. at 747. In French’s case a second jury was assembled for
the habitual offender phase of the trial. When this is done the jury is to
be informed of the underlying felony that provoked the habitual offender
charge. Gilliam v. State, 563 N.E.2d 94, 96 (Ind. 1990) (The State is not
required to prove the primary underlying felony to a second jury which has
been subsequently assembled during a habitual offender proceeding.); see
also Denton v. State, 496 N.E.2d 576, 581 (Ind. 1996) (There is no harm in
a trial court informing a jury subsequently assembled during the habitual
offender proceeding that a previous jury returned a guilty verdict on the
underlying felony.). In view of these authorities we do not believe this
error approaches fundamental error requiring retrial despite French’s
failure to object.
II. Evidence Identifying French as the Prior Offender
French contends that the evidence used to connect him to the documents
presented by the State violated his right to counsel and his right against
self-incrimination. At the habitual offender phase of the trial, documents
from two predicate felony convictions included a date of birth and social
security number of the defendant, as well as his name. Columbus Police
Officer Matt Myers testified to French’s date of birth and social security
number listed on the charging information in this case and stated that this
information had been provided by French when he was booked into jail on the
charge in this case. He further testified that he was not present at the
initial hearing in this case but had listened to a tape of the hearing
where French again provided this information. Based on his familiarity
with French’s voice, Myers opined that the person on the tape was French.
He then testified that the date of birth and social security number on the
records of the two prior felony convictions were the same as those
appearing in the booking information and in the charging information, and
given at the initial hearing in this case.
Relying on Palmer v. State, 679 N.E.2d 887, 891 (Ind. 1997), French
argues that Myers’ testimony prejudiced his defense because “[p]roof that
an individual named in an habitual offender information and an individual
so named in various documents is insufficient to [prove] the person
committed a prior crime.” French suggests that fingerprints on documentary
exhibits or prior convictions should have been offered.
He also contends that proof of French’s social security number and
date of birth in the form of testimony to admissions by French was improper
because it admitted into evidence statements French made in custody when
being booked without counsel. Assuming French had not been advised of his
Miranda rights at the time he gave this information, this claim is raised
for the first time on appeal and was not presented to the trial court. It
is a classic example of the justification that an issue be raised at trial
to be preserved for appeal. Had this claim been presented at the habitual
offender proceeding, it would presumably have been a simple matter to prove
French’s social security number and date of birth by other means. There is
no fundamental error here, and the issue is not available on appeal.
Finally, pictures of the “Roman French” in the booking information for
two of the felonies were given to the jury as exhibits. This evidence was
more than mere proof of French’s “common name.” Indeed, we have previously
held that a defendant’s date of birth and picture is sufficient evidence
for a jury to find the defendant sitting at the defense table was the same
defendant listed in the charging information. Fozzard v. State, 518 N.E.2d
789, 792 (Ind. 1988).
III. Failure to Instruct Jury on Judicially Noticed Exhibits
French argues that the trial court committed fundamental error when it
failed to instruct the jury pursuant to Indiana Evidence Rule 201(g) after
it took judicial notice of the charging information and the court’s own
order recording French’s conviction on the underlying felony. French
contends the court was required to carry out the direction of Indiana
Evidence Rule 201(g). That Rule provides, “In a criminal case, the court
shall instruct the jury that it may, but is not required to, accept as
conclusive any fact judicially noticed.” There was no request for such an
instruction. French argues that the court’s failure to give the required
instruction resulted in fundamental error that requires reversal despite
his failure to present the issue to the trial court. Specifically, he
contends that fundamental error occurred when “[t]he jury saw before them
an accused who was in jail clothing, shackled, and handcuffed, [and] heard
unequivocally from the court, stated as a fact, that French had been
convicted of a felony on April 1, 1999.” Although the instruction
contemplated by Rule 201(g) was required if requested, there is no claim
that the judicially noticed facts—a document from the court’s own
records—were incorrect. Accordingly, there is no fundamental unfairness in
this omission and failure to request an instruction forecloses the issue on
appeal.
IV. Sufficiency of the Evidence
French contends that he was denied his fundamental right to require
the State to prove each element of the offense charged beyond a reasonable
doubt, in violation of the United State Constitution and the Indiana
Constitution. French was charged with dealing in cocaine as a Class A
felony for delivering cocaine “within 1000 feet of 9th Street Park and/or
St. Bartholomew Catholic Parish Pre-School.” French argues that the
dealing in cocaine charge should not have been enhanced to a Class A felony
because there was insufficient evidence to prove French dealt cocaine
within 1000 feet of school property.
A. School Property
French contends that there was no evidence to support the proposition
that St. Bartholomew Preschool was “school property” for purposes of the
enhancement provided by Indiana Code section 35-48-4-1 for dealing within
1000 feet of a school. Section 35-41-1-24.7 provides, in relevant part,
that the term “school property” includes “a building or other structure
owned or rented by . . . [a] private school (as defined in IC 20-9.1-1-3).”
Section 20-9.1-1-3 defines a private school as “any school which is not
supported and maintained by funds realized from the imposition of a tax on
property, income or sales.”
The Director of St. Bartholomew Preschool testified that the
preschool is part of the St. Bartholomew’s Catholic Church. She testified
that the school was a private school, did not receive state funding, and
was privately sponsored by the church. She also stated that the children
at the school range in age from twenty months to six years; they learn
their numbers and alphabet, sing songs, go on field trips, and play. She
testified that the building in which the school is located is owned by the
parish.
French contends that based on this information, one may speculate
that St. Bartholomew was nothing more than a “church run babysitting
service.” We disagree. We think that this kindergarten level institution
falls within the definition of “school property.” In any event, the
information charged French with dealing in cocaine within 1000 feet of a
school or park. French has made no argument that the evidence was
insufficient to show that Wilson Street Park was a park. Consequently, the
enhancement to a Class A felony was proper.
B. Distance
French argues that the evidence was insufficient to establish the
distance between the transaction and either the school or the park. Shawn
Plummer, an auto CAD technician for the City Engineer’s office, testified
that the distance from the address where the dealing took place was 790
feet from St. Bartholomew’s pre-school and 661 feet from the Wilson Street
park. Plummer’s job entails making city maps, putting new subdivisions on
the maps, and “keep[ing] the map accurate with the city.” He stated that
he enters an address into the computer, and his computer calculates
everything within a 1000 feet radius of that address and produces a map.
On cross-examination, Plummer admitted that he did not physically measure
the distance in this case, did not write the computer program, did not know
how the program worked, and did not know whether it was accurate.
French objected to the map, because “no one actually went out there
and physically measured [the distance and] there’s no foundation laid that
these distances are actually the distances that that computer generated.”
We assume the computer generated map could be established to be reliable.
In any event, before trial resumed the following day, Officer Curt Beverage
physically measured the distance between the place of the dealing and the
pre-school and the place of dealing and the park. He used a one-hundred-
foot heavy-duty steel tape that he calibrated by comparison with a separate
twenty-five foot tape. He also checked the accuracy of the twenty-five
foot tape against a twelve-inch ruler. Beverage testified that the
distance from the place of dealing and just past the property line of the
school was 652 feet and to the far end of the school building was 964 feet.
Beverage stated that the distance from the place of dealing and the park
was 717 feet. This evidence was sufficient.
V. Ineffective Assistance of Counsel
Under Strickland v. Washington, 466 U.S. 668 (1984), a claim of
ineffective assistance of counsel requires a showing that: (1) counsel’s
performance was deficient by falling below an objective standard of
reasonableness based on prevailing professional norms; and (2) counsel’s
performance prejudiced the defendant so much that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 687, 694; Lowery v.
State, 640 N.E.2d 1031, 1041 (Ind. 1994). To meet the appropriate test for
prejudice, the defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. Strickland, 466 U.S. at 694. Failure to
satisfy either prong will cause the claim to fail. Vermillion v. State,
719 N.E.2d 1201, 1208 (Ind. 1999). Indeed, most ineffective assistance of
counsel claims can be resolved by a prejudice inquiry alone. Williams v.
State, 706 N.E.2d 149, 154 (Ind. 1999). French claims that he was denied
the effective assistance of counsel because his attorneys (1) conducted
little or no pretrial investigation of his alibi witness, (2) lacked
knowledge of prevailing law and precedent, and (3) allowed French to appear
in jail garb in front of a new jury during the habitual offender
proceeding.
A. Lack of Pretrial Investigations
French contends that his attorneys conducted little or no pretrial
investigation and specifically failed to investigate his alibi. French’s
attorney filed an Amended Notice of Alibi on March 23, 1999, stating that
French was with Heather Clarkson at the time of the alleged dealing. A pre-
trial conference was scheduled the day before French’s trial, March 29,
1999, to discuss this issue, but French’s attorney failed to appear because
her staff was told that the hearing was a pretrial conference that would be
telephonic.
Because Clarkson was listed as French’s alibi and a witness who would
be testifying, Curt Beverage, the supervisor of the narcotics unit,
interviewed Clarkson on behalf of the State the night before French’s trial
began. Initially, she told Beverage that she was on a date with French on
the date of the alleged dealing. Later, however, after Beverage told her
that he had French on tape making the deal and that her daughter would be
taken away if she were arrested for conspiracy to deal, she changed her
story. She then told him that she could not remember exactly when they
were together and signed an affidavit stating so.
When French’s attorney brought up the issue of an alibi defense at
trial, the trial court ruled that after the State rested, French would be
allowed to “bring Ms. Clarkson over and have a hearing outside the jury
with regard to whatever she may say.” Once the State presented its case,
however, French’s attorneys moved for a mistrial based on judicial
misconduct and prosecutorial misconduct, which included intimidation of
Clarkson in her interview with Beverage. The judge denied the motion. No
motion to present an alibi defense was made, and Clarkson was not called as
a witness during French’s trial.
At the post-conviction proceeding, French’s attorney testified that
she remembered that French told her that Clarkson had information about the
case, but did not recall whether she spoke with Clarkson. She testified
that her investigators found that many of the witnesses’ names that French
gave her were not “panning out to say what he told us they were going to
say.” She also stated:
French gave us the names of several witnesses. He didn’t give us the
alibi name until later. Many of those witnesses were hesitant in
talking with us. Many of them indicated that they had been
intimidated by Mr. French and we did not want to get into a situation
where we were having a witness who we felt may have been lying.
She testified that she talked to all of the witnesses who were called for
trial, although some were interviewed in the hallway of the courtroom.
At the post-conviction hearing, Clarkson testified that she had never
met any of French’s lawyers and that no one approached her identifying
themselves as an investigator working for his attorneys. She also admitted
that she was not certain that she was with French on the date of the
alleged dealing and stated she would have testified at his trial that it
was possible he was at her house, but “wouldn’t exactly said that he was at
my house that night because I don’t know that for sure.”
French contends that the jury should have had an opportunity to
determine whether or not his alibi was viable. He argues that Clarkson was
caught off guard by Beverage’s interview and “could have reconstructed
events more clearly closer to the time of trial.” French contends that if
Clarkson had been called at trial, she would have stated that she well
could have been with French on the night in question and that the
confidential informant was a liar.
French failed to show that he was prejudiced by his attorney’s failure
to interview Clarkson. In her testimony during the post-conviction
proceeding, Clarkson was very clear that if she had been called to testify
at French’s trial, she would have testified only that it was “possible”
that French could have been with her.[3] Moreover, Clarkson stated at one
point during the post-conviction proceeding that she would not have
testified at all at French’s trial after signing the affidavit the night
before. Based on this evidence, French has failed to meet his burden of
proof that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.
Finally, French contends for the first time in his reply brief that
“the overall effect of counsel’s inadequate performance reveals that
counsel’s failure to object to various errors as they occurred at trial
heightens French’s burden on appeal.” French has waived this issue by not
raising it in his principal brief. Ross v. State, 429 N.E.2d 942, 945
(Ind. 1982).
B. Lack of Knowledge of Prevailing Law and Precedent
French also argues he was denied the effective assistance of counsel
because his counsel demonstrated lack of knowledge of prevailing law and
precedent. Specifically, he argues that Watkins appeared to be without
knowledge of the prevailing law under Batson v. Kentucky, 476 U.S. 79
(1986). However, the record does not reflect that the prosecutor used
preemptory challenges to exclude an identifiable group from French’s jury
and there is no basis to conclude that a Batson issue would have been
properly raised. There is, therefore, no showing of prejudice.
C. Allowing French to Appear in Jail Garb at the Habitual Offender
Proceeding
Finally, French contends he had ineffective assistance of counsel
because his counsel allowed French to appear before an entirely new jury
for trial on the habitual offender enhancement charge in jail clothes,
handcuffed, and shackled. At the post-conviction proceeding, his attorney
did not recall any conversations with French with respect to his appearing
in jail clothes. She stated, “It’s my understanding he had clothing over
there. And I think it was his choice to do that.” She stated that she did
not tell French that it did not matter if he was in jail clothes because it
was only a habitual proceeding. French, however, recalled that when his
attorney saw French in jail clothes before the habitual phase of the trial
began, she asked him why and was told he had not been allowed to dress.
According to French, his attorney responded that “it didn’t matter” because
he had already been convicted. The attorney denied this exchange and
stated she “would never let a defendant appear before a jury in jail
clothes without talking to the defendant about it and if the defendant
objected, [she] would have talked to the Judge.”
For the reasons given in Part I of this opinion, French was not denied
due process by appearing at the habitual offender proceeding in handcuffs,
shackles, and jail clothing. We cannot say that this inconsistent evidence
established that counsel was ineffective or inadequate in the manner in
which she carried out her duties to his client. In any event, it seems
clear that the result of the proceeding was not affected by counsel’s
performance. The issue at this proceeding was whether French had two prior
felony convictions. As to that, the evidence was clear, and French has
failed to show prejudice from his counsel’s failure to object to his
wearing jail clothes.
VI. Reversal for Cumulative Errors By Counsel
French contends that the cumulative errors by his counsel effectively
resulted in no defense at all. “Errors by counsel that are not
individually sufficient to prove ineffective representation may add up to
ineffective assistance when viewed cumulatively.” Pennycuff v. State, 745
N.E.2d 804, 816-17 (Ind. 2001). A conviction based upon an accumulation of
defense attorney errors, when counsel’s mistakes do substantial damage to
the defense, must be reversed. Williams v. State, 508 N.E.2d 1264, 1268
(Ind. 1987). Here, however, the testimony of the informant, French’s
admission that he was the one who answered the phone calls from the
informant and agreed to sell her cocaine, and the testimony of police
officers that they recognized French’s voice on the body wire worn by the
informant during the dealing were sufficiently persuasive. There is no
reasonable probability that the alleged errors made a difference.
Conclusion
We affirm the trial court’s conviction and habitual offender
enhancement and affirm the post-conviction court’s denial of post-
conviction relief.
SHEPARD, C.J., and DICKSON, J. concur.
SULLIVAN, J. concurs in part and dissents in part with opinion in
which RUCKER, J. concurs.
SULLIVAN, Justice, concurring and dissenting.
I concur in the majority’s opinion affirming French’s conviction for
dealing cocaine and the denial of his petition for post-conviction relief
therefrom. I respectfully dissent, however, with respect to its holding
affirming French’s adjudication as a habitual offender.
In my view, the trial court committed fundamental error when it
permitted French to appear at the habitual offender proceeding in bright
orange clothing with the word “JAIL” on the back.
The majority points out that, according to the United States Supreme
Court, a defendant cannot be compelled to appear before the jury in
identifiable prison clothing because this may impair the presumption of
innocence. Estelle v. Williams, 425 U.S. 501, 502-05 (1976). Estelle held
that a defendant is required to object to being tried in jail garb in order
to make out a federal due process violation.
The majority suggests another reason why, 25 years after Estelle, an
Indiana court would permit a defendant to stand trial in bright orange
clothing with the word “JAIL” on the back. It cites with apparent approval
a Ninth Circuit case that allowed the defendant to face a sentencing jury
in prison clothing during the penalty phase of a bifurcated trial. The
majority analogizes that case to this on grounds that, in both, "the
presumption of innocence of the underlying charge no longer applies.”
But French was not facing "the penalty phase of a bifurcated trial."
He faced a jury of his peers as to his guilt or innocence of being a
habitual offender. See Seay v. State, 698 N.E.2d 732, 734 (Ind. 1998)
(“determining the habitual offender penalty is clearly different from
determining habitual offender status”) (emphasis in original). The
presumption of innocence did apply as to whether he was a habitual
offender.
The standard for fundamental error is whether the error was so
prejudicial to the rights of the defendant that a fair trial was
impossible. Boatright v. State, 759 N.E.2d 1038, 1042 (Ind. 2001). For a
combination of reasons, I think that standard is met here.
First, contrary to the majority’s assertion that “[t]he issue at this
proceeding was whether French had two prior felony convictions,” at issue
was whether French was a habitual offender. And “even where the jury finds
the facts of the prerequisite prior felony convictions to be
uncontroverted, the jury still has the unquestioned right to refuse to find
the defendant to be a habitual offender at law.” Seay, 698 N.E.2d at 734
(citations omitted).
Second, the overwhelmingly adverse prejudicial effect of appearing
before the jury in jail clothing is obvious. As Chief Justice Burger wrote
in Estelle:
The potential effects of presenting an accused before the jury in
prison attire need not, however, be measured in the abstract. Courts
have, with few exceptions, determined that an accused should not be
compelled to go to trial in prison or jail clothing because of the
possible impairment of the presumption so basic to the adversary
system. [Citations omitted.] The American Bar Association's
Standards for Criminal Justice also disapprove the practice. ABA
Project on Standards for Criminal Justice, Trial by Jury, § 4.1 (b),
p. 91 (App. Draft 1968). This is a recognition that the constant
reminder of the accused’s condition implicit in such distinctive,
identifiable attire may affect a juror's judgment. The defendant's
clothing is so likely to be a continuing influence throughout the
trial that, not unlike placing a jury in the custody of deputy
sheriffs who were also witnesses for the prosecution, an unacceptable
risk is presented of impermissible factors coming into play. Turner
v. Louisiana, 379 U.S. 466, 473 (1965).
Estelle, 425 U.S. at 504-05 (footnote omitted).
In addition, as our Court has noted before, the consequences of a
habitual offender adjudication are extremely severe. See Seay, 698 N.E.2d
at 733. And it is small imposition at most to require a trial court to
make sure a defendant knows he or she has the option of appearing before
the jury in civilian clothes. See Estelle, 425 U.S. at 504 (“Courts must
do the best they can to evaluate the likely effects of a particular
procedure, based on reason, principle, and common human experience.”).
RUCKER, J., concurs.
-----------------------
[1] This is consistent with precedent. See Denton v. State, 496 N.E.2d
576, 581 (Ind. 1986) (“While in the usual habitual offender determination
the same jury hears both the felony charge and the recidivist charge in a
bifurcated proceeding, we have previously held that it is permissible for a
different jury than the one who heard the case on the underlying felony
charge to determine a defendant’s habitual offender status.”).
[2] This altercation was not documented in the record of the trial court
proceedings. In the post-conviction proceedings, French testified that
after the verdict was read, he tried to talk to his family. The deputy
told him he was not allowed to speak to his family, and he “jerked away.”
He stated, “Everything just got out of control. I don’t know why I jerked
away because he’ll tell you, I didn’t throw punches at him . . . . It just
got out of hand and I think they might have been expecting maybe, you know,
even my family was going to get upset . . . . So then [the extra security]
started rushing me. Then . . . we ended up wrestling until we got like
probably about the middle of the floor then talked to me . . . it was them
that got me to calm down.”
[3] She stated at the post-conviction hearing, “I would have testified that
[French being at my house] was possible . . . . But I wouldn’t exactly
said that he was at my house that night because I don’t know that for
sure.” She also stated, “I couldn’t tell them at trial if I was or if I
was not [with French] because I don’t know.”