French v. State

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.”