holding that the evidence was sufficient to show that a preschool was "school property" for purposes of an enhancement, where the director of the preschool testified that the school was a private school and did not receive state funding, that the children at the school range in age from twenty months to six years, that the children learn their numbers and alphabet, sing songs, go on field trips, and play, and that the building in which the school is located is owned by the parish
How later courts described this case
- holding that the evidence was sufficient to show that a preschool was "school property" for purposes of an enhancement, where the director of the preschool testified that the school was a private school and did not receive state funding, that the children at the school range in age from twenty months to six years, that the children learn their numbers and alphabet, sing songs, go on field trips, and play, and that the building in which the school is located is owned by the parish
- finding sufficient evidence to support proposition that a preschool was "school property" for the purposes of enhancement under Indiana Code section 85-48-4-1 where the director of the preschool testified that it was a private school, serving children in age from twenty months to six years
- holding that the appellant waived an argument by omitting it from the appellant’s brief
- noting a 14 conviction based on “an accumulation of defense attorney errors, when counsel’s mistakes do substantial damage to the defense, must be reversed,” id. at 826 , but determining “[t]here is no reasonable probability that the alleged errors made a difference,” id. at 827 , when French admitted he answered the phone calls from an informant and agreed to sell her cocaine and when police officers testified they recognized French’s voice on the body wire worn by the informant during the dealing
Written by the judges who cited it.
The opinion
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 , 96 S.Ct. 1691 , 48 L.Ed.2d 126 (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 uncontro-verted, 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 *828 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 [ 85 S.Ct. 546 , 13 L.Ed.2d 424 ] (1965).
Estelle, 425 U.S. at 504-05 , 96 S.Ct. 1691 (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 a 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 , 96 S.Ct. 1691 (“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.