ATTORNEY FOR APPELLANT
Michael K. Ausbrook
Bloomington, Indiana
ATTORNEYS FOR APPELLEE
Steve Carter
Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
_________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
_________________________________________________________________
ANTHONY G. HERNANDEZ, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 68S00-0009-CR-563
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE RANDOLPH CIRCUIT COURT
The Honorable Richard A. Dailey, Special Judge
Cause No. 68C01-9212-CF-39
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
January 30, 2002
BOEHM, Justice.
Anthony Hernandez was convicted of the murder of Berenice Keffer and
sentenced to sixty years imprisonment. In this direct appeal, Hernandez
contends that (1) his Sixth Amendment right to the assistance of counsel
under the United States Constitution was denied and (2) his right to be
heard and to be present under the Indiana Constitution was denied. We
affirm the judgment of the trial court.
Factual and Procedural Background
On May 30, 1982, Berenice Keffer was found dead in her house.
Keffer’s house had been broken into, and she had been severely beaten and
sexually assaulted. The cause of death was asphyxiation.
Ten years later, Anthony Hernandez was charged with burglary, murder,
and rape. After two trials ended in hung juries, the State amended its
charging information to charge only a single count of murder.
The third trial started on July 24, 2000. After four days of
evidence, the jury began its deliberations at 2:30 p.m. on July 28.
Shortly thereafter, the jury sent out a note requesting to view a footprint
and the evidence bearing on the time of death. After the court informed
both parties of the note, the jury was brought back into the courtroom and,
in the presence of the parties, the jury received the requested evidence.
The jury returned to deliberations. There was no objection to this
procedure.
At approximately 7:00 p.m., the jury sent a second note which asked,
without punctuation: “What if we are a hung jury What will happen to Mr.
Hernandez Will he go free or have another trial.” The record is silent as
to the court’s response, if any, to this question. At 8:30 p.m., the jury
found Hernandez guilty of murder.
I. Sixth Amendment Right to the Assistance of Counsel
A. What Hernandez Does Not Claim
Although we usually address the contentions of the parties, because
Hernandez makes a novel claim, we think it useful to point out that
Hernandez does not advance a number of similar contentions that are
frequently presented to this Court. He quite properly does not argue that
the court’s inaction constituted an improper ex parte communication.
Indeed, it was not a communication at all, if there was no response. Nor
does he claim that the refusal to respond constituted an improper
communication. This is also astute because if the response was a simple
refusal to answer, that is harmless error to the extent it is an ex parte
communication. Bouye v. State, 699 N.E.2d 620, 628 (Ind. 1998).
Hernandez also makes no claim that it was an error of substantive law
to refuse to respond. Once again, we agree with his judgment in selecting
the issue to present on appeal. We think instructing a jury on the
consequences of deadlock is similar to other inappropriate instructions.
These include an instruction on the effect of deadlock in a sentencing
hearing in a capital case under the Federal Death Penalty Act, Jones v.
United States, 527 U.S. 373, 383-84 (1999), an instruction to consider that
the defendant would receive credit for time served for his conviction,
Wilson v. State, 169 Ind. App. 33, 34-35, 346 N.E.2d 279, 281 (1976), an
instruction on the possibility of parole, pardon, or “good time” sentence
reduction, Feggins v. State, 265 Ind. 674, 685-86, 359 N.E.2d 517, 523-24
(1977), or an instruction on potential sentences the defendant may be given
if convicted, Taylor v. State, 420 N.E.2d 1231, 1233 (Ind. 1981). In
holding it improper to instruct on potential sentences, this Court pointed
out that such an instruction would “‘invite the jurors to be influenced by
their independent judgment of the fairness of the statute.’” Drake v.
State, 272 Ind. 302, 304, 397 N.E.2d 600, 601 (1979) (quoting Garcia v.
State, 271 Ind. 510, 517, 394 N.E.2d 106, 111 (Ind. 1979)). Like
sentencing, a description of the possible effect of a hung jury invites the
opportunity for the jury to consider circumstances that have no bearing on
the defendant’s guilt or innocence.
Finally, Hernandez does not argue that Indiana statutes require a
response. We agree that the trial court had no statutory duty to respond
to the note. Whether or not the federal constitution requires the
defendant’s presence or the assistance of counsel in responding to jury
inquiries, section 34-36-1-6 of the Indiana Code provides:
If, after the jury retires for deliberation:
(1) there is a disagreement among the jurors as to any part of the
testimony; or
(2) the jury desires to be informed as to any point of law arising in
the case;
the jury may request the officer to conduct them into court, where the
information required shall be given in the presence of, or after
notice to, the parties or the attorneys representing the parties.
Ind. Code § 34-36-1-6 (1998). Indiana case law has specified the procedure
to follow in addressing a jury inquiry. The judge is to notify the parties
of the jury request, inform the parties of the court’s proposed response
prior to communicating with the jury, and answer the request in open court
with the parties present. Bouye, 699 N.E.2d at 628. When these
guidelines are not followed, any communication between the judge and jury
without notifying the defendant is presumptively error. Marsillett v.
State, 495 N.E.2d 699, 709 (Ind. 1986). However, the presumption is
rebuttable, and failure to follow these guidelines does not constitute per
se grounds for reversal. Grey v. State, 553 N.E.2d 1196, 1198-99 (Ind.
1990). Although the note requested that the court instruct on a point of
law (the effect of a hung jury), for the reasons already discussed, it was
not a request the court should have honored. Accordingly, the second note
was not a request for a “point of law arising in the case,” and section 34-
36-1-6 does not apply.
B. What Hernandez Does Contend
Hernandez contends that the second note showed that the jury was
deadlocked and that at least some jurors considered convicting Hernandez
because he might go free if the jury could not return a verdict. Hernandez
contends that this situation presented the potential for a motion for a
mistrial based on a deadlocked jury or the opportunity for him to request
curative instructions. He therefore argues that the point at which the
jury sent the note was one which required counsel’s judgment and advocacy,
and was a “critical stage” of the proceeding such that the Sixth Amendment
required presence of counsel.
Hernandez also argues that the error he identifies, by its very
nature, cannot be harmless. He contends that the note implied that the
jury could not agree and that some jurors, at least, were considering
convicting Hernandez for reasons related only collaterally, if at all, to
the evidence presented at trial. Hernandez contends that the State cannot
show the error was harmless because the State cannot show that a mistrial
would have been denied or that Hernandez could not have taken other
curative measures if he had been given the opportunity to request them.
Hernandez urges that this case is more egregious than an ex parte
communication between a judge and jury regarding evidence because it is
impossible to analyze, after the fact, what might have happened had
Hernandez simply been given the opportunity to respond.
C. Receipt of the Second Jury Note As a Critical Stage of the
Proceedings.
“[T]he right to be represented by counsel is among the most
fundamental of rights.” Penson v. Ohio, 488 U.S. 75, 84 (1988). It
“assure[s] that the ‘guiding hand of counsel’ is available to those in need
of assistance.” United States v. Ash, 413 U.S. 300, 307-08 (1973). The
Sixth Amendment to the United States Constitution requires the assistance
of counsel at all critical stages of proceedings. See, e.g., United States
v. Cronic, 466 U.S. 648, 659 (1984). The right to the assistance of
counsel is so essential that prejudice is presumed when there is actual or
constructive denial of the assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 692 (1984). However, the United States Supreme
Court has held that denial of this constitutional right is “subject to a
harmless error analysis unless the deprivation, by its very nature, cannot
be harmless.” Rushen v. Spain, 464 U.S. 114, 117-18 n.2 (1983) (citations
omitted).
The right to the assistance of counsel extends to several situations
deemed “critical stages” in the proceeding. These include post-indictment
interrogation, whether custodial or not, Massiah v. United States, 377 U.S.
201, 207 (1964); preliminary hearings to determine probable cause to
prosecute, Coleman v. Alabama, 399 U.S. 1, 9 (1970); arraignments, Hamilton
v. Alabama, 368 U.S. 52, 53 (1961); post-charge lineups, Moore v. Illinois,
434 U.S. 220, 231 (1977); revocation of probation and deferred sentencing
proceedings, Mempha v. Rhay, 389 U.S. 128, 137 (1967); felony trials,
Gideon v. Wainwright, 372 U.S. 335, 344 (1963); misdemeanor trials when
imprisonment is actually imposed, Scott v. Illinois, 440 U.S. 367, 373-74
(1979); overnight recesses during trial, Geders v. United States, 425 U.S.
80, 91 (1976); and appeals as a matter of right, Douglas v. California, 372
U.S. 353, 357 (1963).
The United States Supreme Court has not addressed whether the point at
which a jury sends out a note during deliberations is a critical stage for
Sixth Amendment purposes. However, the Court has been confronted with a
case involving a communication between the judge and a juror without
informing counsel. In Rushen, the State conceded that the undisclosed
communications established a federal constitutional error, and as a result,
in a five Justice per curiam opinion, the Supreme Court did not rule on the
issue. Id. at 117-18 n.2 Rather, the majority found any error harmless
and stated, “Because we find that no actual prejudice was shown, we assume,
without deciding, that respondent’s constitutional rights to presence and
counsel were implicated in the circumstances of this case.” Id. Two
Justices expressed differing views as to whether the court should entertain
the core issue. Justice Stevens expressed the view that “[t]he defense has
no constitutional right to be present at every interaction between a judge
and a juror.” Id. at 125-26.
Several considerations bear on what constitutes a critical stage in a
proceeding. The right to the assistance of counsel at a critical point in
the trial encompasses “any stage of the prosecution where counsel’s absence
might derogate his right to a fair trial.” Casada v. State, 544 N.E.2d
189, 198 (Ind. Ct. App. 1989), trans. denied. “Such a stage is a ‘critical
stage’, and is any stage where (1) incrimination may occur or (2) where the
opportunity for effective defense must be seized or be forgone.” Id. More
recently, this Court formulated the test for identifying a “critical stage”
as “‘whether the defendant is confronted with the intricacies of the law or
the advocacy of the public prosecutor or prosecuting authorities.’” Dullen
v. State, 721 N.E.2d 241, 242 (Ind. 1999) (quoting Williams v. State, 555
N.E.2d 133, 136 (Ind. 1990)).
We agree that in this situation Hernandez may have been confronted
with “intricacies of the law.” The jury wanted to know what effect a hung
jury would have on Hernandez. Although not involving specific evidence
presented at trial or an interpretation of an instruction, the questions
posed by the jurors nevertheless asked for guidance as to the effect of a
hung jury. We agree with Hernandez that the note, if received, may have
been a critical stage for Sixth Amendment purposes if it can be established
that the trial court’s response could influence the jury. However, as
explained below, we are uncertain what occurred at this point in the trial.
And even if we accept the version of the facts Hernandez proposes, it is
not the end of the analysis. If we have a “critical stage,” the burden of
establishing the harmlessness of error falls on the State. See Bouye, 699
N.E.2d at 628 (If the parties are not notified when jurors request
additional guidance from the court, a rebuttable presumption of error
arises.). However, we think the burden of establishing that there is a
critical stage in the first place falls on the defendant. See Dullen, 721
N.E.2d at 242 (“[The defendant] has not shown that he was confronted with
any intricacy of the law or the advocacy of prosecuting authorities.”). We
cannot determine on this record whether there was a reasonable possibility
that the note generated a situation where advocacy had the potential to
make a difference.
Hernandez argues that the trial judge took no action regarding the
second note. The record is silent as to whether the trial judge received
the note, responded to the note, or advised the parties of the note. We
are left to speculate as to what happened at that point. The briefs of
both parties state that the note was received by the trial judge. The note
appears in the record unaccompanied by any explanation. It bears the
handwritten notation “7 p.m.” It is apparent the judge was familiar with
the proper procedure for handling requests from the jury, and making the
proper record. When the trial judge received the note requesting footprint
pictures and the report on the approximate time of death, he noted on the
record that counsel for both parties were present. He informed the
attorneys on the record of the jury’s request and his proposed response.
He then brought the jury back to the courtroom to answer its request on the
record.
On this record, we are unable to assess whether the second note
triggered a “critical stage” because it is unclear whether there was any
reasonable prospect that counsel might accomplish anything. As a result,
we are unable to evaluate the degree of prejudice, if any, that would
result from counsel’s absence. It is not entirely clear to us that the
trial court received the note, though both parties appear to assume or
assert that it was received. If it was received, it is unclear whether the
record of its handling is incomplete, or there simply was no response. If
the latter is the case, we have no indication whether defense counsel was
aware of the note or not or whether or not there was an opportunity to
respond. In addition, Hernandez leaves us to speculate what curative
measures he would have taken if he had been informed of the note. He
argues that “the State cannot show that the error in failing to inform
Hernandez about the jury’s second note was harmless, because it cannot show
. . . what other curative measures would have been taken, either with the
agreement of the parties or over Hernandez’s objection, short of declaring
a mistrial.” Hernandez does not identify any “other curative action” he
contends was not taken, but would have been taken if he had been notified
of the second note.
Similarly, Hernandez contends that he was precluded from moving for a
mistrial, but does not make a persuasive claim that there is a realistic
possibility that the motion would have been granted. Section 34-36-1-7 of
the Indiana Code provides, “The jury may be discharged by the court [if
the] jury has been kept together until it satisfactorily appears that there
is no probability of the members agreeing upon a verdict.” Ind. Code § 34-
36-1-7 (1998). The “[d]etermination whether to grant a mistrial is within
the trial court’s discretion and great deference on appeal is accorded the
trial judge as he is in the best position to gauge surrounding
circumstances of an event and its impact on the jury.” Reno v. State, 514
N.E.2d 614, 617 (Ind. 1987).
The second note by the jury was not a statement to the judge that the
jury was in deadlock. The jury’s note did not approach a conclusion that
there was “no probability” of a unanimous verdict. It asked what the
consequences would be if it did deadlock. Even a statement that the jury
cannot agree may result in further deliberation. Mitchell v. State, 535
N.E.2d 498, 500 (Ind. 1989); See also Wray v. State, 720 N.E.2d 1185, 1191-
92 (Ind. Ct. App. 1999), trans. denied; Lutz v. Goldblatt Bros., Inc., 140
Ind. App. 678, 683, 225 N.E.2d 843, 847 (1967), trans. denied. In the
absence of any showing of external influence, we think it unlikely there
was a reasonable possibility of a mistrial at that stage. In Mitchell, the
jury sent several notes to the court during deliberations. One note
stated, “[O]ur deliberations have come to a standstill. We are at the
point of deadlock. If possible we need instruction from the Court.” 535
N.E.2d at 500. The judge informed the jury that he could not respond to
that general inquiry, but would consider specific requests. Later, a note
was sent stating, “We have reviewed testimony in evidence again. We cannot
come to a unanimous decision, we are deadlocked.” The trial judge sent
exhibits to the jury room after the last note. Thereafter, the jury found
the defendant guilty of murder. Id. Although the record was silent as to
how long the jury deliberated, this Court, applying former Indiana Code
section 34-1-21-7,[1] found the judge exercised proper discretion in
declining to discharge the jury after two notes indicating deadlock were
sent. Id.
Although it is conceivable that the trial court here might have
granted a mistrial, on this record it seems extremely unlikely. Unlike the
jury in Mitchell, the jury here never stated that it was, in fact,
deadlocked. After deliberating for only four and a half hours, the second
note sent by the jury asked, “What if we are a hung jury What will happen
to Mr. Hernandez Will he go free or have another trial.” This note does
not make it appear that there was “no probability of the members agreeing
upon a verdict.” I.C. § 34-36-1-7. Nor is it clear that the jury was
deliberating based on improper considerations. Mistrial is “an extreme
remedy invoked only when no other measure can rectify the perilous
situation.” Kavanaugh v. State, 695 N.E.2d 629, 632 (Ind. Ct. App. 1998).
Although our inability to resolve this issue is grounded on an absence
of evidence, we do not believe the appropriate step is to order the trial
court to supplement the record. The appellant has the burden of
establishing the record necessary to his claim. Former Indiana Appellate
Rule 7.2(C), in effect at the time of this appeal, provides:
If anything material to either party is omitted from the record or is
misstated therein, the trial court shall . . . upon the order of the
court of appeal pursuant to the motion of a party or on its own
initiative, correct the omission or misstatement and if necessary
certify and transmit a supplemental record. Incompleteness or
inadequacy of the record shall not constitute a ground for dismissal
of the appeal or preclude review on the merits.
This rule sets out a “specific procedure to bring into the record facts
that are not contained therein but which are necessary for determination of
an issue on appeal.” Witte v. State, 516 N.E.2d 2, 5 (Ind. 1987). Here,
however, it is not clear that there is anything in the trial record that is
not before us. Moreover, we have no trial court ruling as to the potential
prejudice from any omission. The claim that the note was received, that
the defense was notified, and that there would have been a reasonable
prospect of a mistrial or that the opportunity was lost to influence the
court’s response in any way that would affect the ultimate result is simply
too speculative for appellate review at this stage.
In sum, Hernandez has failed to establish that the note triggered a
“critical stage.” Hernandez may have a valid Sixth Amendment claim, but
this record is insufficient to permit us to reach any conclusion as to (1)
what happened in the trial court with regard to the second note; (2) if
Hernandez’s counsel was notified of the note, what he would have done in
response to it short of moving for a mistrial; or (3) whether there is any
reasonable probability that a mistrial or any other action would have
resulted. Although prejudice is presumed from the absence of counsel at a
critical stage, we are sufficiently in the dark as to what happened in the
trial court that we are unable to determine whether there was a critical
stage or whether counsel was prejudiced. These issues are best resolved in
a supplemental proceeding designed for fact finding.
II. Indiana Right to Be Present and Heard
Hernandez’s second contention is very similar to his first. Hernandez
claims that he was deprived of his Indiana Constitutional right to be heard
by counsel and himself because the trial court failed to give him notice of
the jury’s second note and an opportunity to respond. Specifically, he
claims that if he had been given notice and an opportunity to be heard, he
could have requested a mistrial, and because he was not able to request a
mistrial, the jury reached a compromise verdict. Hernandez relies on
Stephenson v. State, 742 N.E.2d 463, 492 (Ind. 2001), cert. denied, No. 01-
6829, ___ U.S. ___, 2002 WL 32455 (Jan. 14, 2002) which recognized “state
constitutional protection for a defendant’s right to be present when a jury
makes a request for any additional guidance during deliberations.” A denial
of the right to be present during all critical stages of the proceedings,
like the right to counsel at a critical stage, is a constitutional right
that is subject to a harmless error analysis. Id. We are unable to
evaluate the claim for the same reason we cannot render a conclusion as to
the Sixth Amendment claim.
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and RUCKER, J., concur.
DICKSON, J., concurs in affirming the judgment of the trial court, but
dissents as to the need for supplemental proceeding, believing that the
defendant does not have a valid Sixth Amendment claim.
SULLIVAN, J., dissents with separate opinion.
Attorney for Appellant
Michael K. Ausbrook
Bloomington, IN
Attorneys for Appellee
Steve Carter
Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
ANTHONY G. HERNANDEZ,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 68S00-0009-CR-563
)
)
)
)
)
)
APPEAL FROM THE RANDOLPH CIRCUIT COURT
The Honorable Richard A. Dailey
Cause No. 68C01-9212-CF-39
ON DIRECT APPEAL
January 30, 2002
SULLIVAN, Justice, dissenting.
I respectfully dissent. The effect of the majority's opinion is to
relegate Hernandez's claim to post-conviction proceedings. I do not think
that that is the right result.
The majority begins with an excellent analysis with which I largely
agree of whether the receipt of the note constituted a "critical stage" of
the proceeding requiring the assistance of counsel. Relying on Dullen vs.
State, 721 N.E.2d 241, 242 (Ind. 1999), the majority concludes that “the
note, if received, may have been a critical stage for Sixth Amendment
purposes.” However, in the end the majority holds that the receipt of the
note was not a critical stage because Hernandez does not identify any
curative measures that he would have taken had he been informed of the note
nor does he demonstrate any reasonable possibility that a mistrial or any
other action would have resulted.
I think this analysis is incorrect. It is essentially requires
Hernandez to demonstrate prejudice in order to establish the existence of a
critical stage. But unlike a claim of ineffective assistance of counsel in
which establishing prejudice is required to demonstrate Sixth Amendment
error, prejudice is not required to be shown to establish the existence of
a critical stage. Rather, the fact that a defendant has been deprived of
counsel at a critical stage constitutes constitutional error and the burden
then shifts to the State to prove, if it can, that the error was harmless
beyond a reasonable doubt. Rushen v. Spain, 464 U.S. 114, 123 (1983). The
practical consequence of this is that, if receipt of the note was a
critical stage, it was the burden of the State, not Hernandez, to
demonstrate on appeal harmlessness beyond a reasonable doubt, e.g., that a
mistrial would not have been granted or other curative measures could have
been taken.
Given the content of the note itself and the history of this
prosecution (two prior hung juries), I think it clearly was a critical
stage. And the State makes no attempt to demonstrate harmlessness.
-----------------------
[1] Recodified as I.C. § 34-36-1-7.