Seay v. State

HOFFMAN, Judge,

concurring in result.

I concur in the result. I disagree with the majority’s determination that Article 1, Section 19 is fully applicable to habitual offender proceedings. The court in Jones v. State, 449 N.E.2d 1060 (Ind.1983) analyzed whether mandatory language in the habitual offender statute interfered with the jury’s right to determine the law and the facts pursuant to Article 1, Section 19. Although the Jones court did not address explicitly the jury instruction question presented here, the reasoning drew a line of demarcation between proceedings to the point of a verdict and the sentencing proceedings. The court concluded inter alia that the “law regarding sentencing is not to be determined by the jury.” Jones, 449 N.E.2d at 1066 .

The majority’s emphasis on the language recognizing the jury nullification power is misplaced. Inherent in matters presented to a jury is the power to disbelieve or discredit the evidence. That power is sufficient to safeguard the rights of those who have been convicted of a crime, as is the case when habitual offender status is being determined. Habitual offender status will not become an issue until a conviction for an underlying offense is in place and then only at the sentencing stage. This system allows juries to decide whether the State adequately proved factual matters such as the requisite previous convictions and the identification of the offender as the one who committed the previous crimes. The law can be mandatory as to sentencing without offending Article 1, Section 19 inasmuch as its constitutional requirements are met during the proceedings leading to a conviction.

*482 Because I do not believe a constitutional error occurred in instructing the jury, I concur in the result reached by the majority.