Goff, J.
In this case, we grant transfer to review a trial court’s exclusion of testimony from the jury trial of Christopher Harris’s habitual offender status. Harris wished to testify to the circumstances of his most serious crime of conviction, his intent to rehabilitate himself, and his purported innocence of one of his prior, unrelated felonies. The trial court excluded all this as irrelevant to the issue of whether Harris had accumulated the requisite convictions. Harris claims his testimony was relevant because Article 1, Section 19 of the Indiana Constitution gave the jury the right to determine, not only whether he had the convictions, but whether he was ultimately a habitual offender. A jury must indeed be allowed to decide whether a defendant is a habitual offender, irrespective of proof of the necessary convictions. Nevertheless, Harris’s testimony was irrelevant because it did not tend to prove or disprove his convictions. He had no constitutional right to present irrelevant evidence. Hence, the trial court did not err by excluding the testimony.
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Harris argues that Article 1, Section 19 of the Indiana Constitution gives a jury “‘discretion to determine whether a defendant is a habitual offender’” even when the requisite unrelated convictions have been proven. Appellant’s Br. at 15 (quoting Hollowell, 753 N.E.2d at 617). From this, he infers that the relevant evidence encompassed not merely the “barebones” fact of his convictions, but, also, the circumstances of his crimes. Id. As the jury heard nothing about these circumstances, Harris contends, it had no basis to “‘consider mercy.’” Id. (quoting Hollowell, 753 N.E.2d at 618 (Rucker, J., concurring in part)). Harris also claims that Article 1, Section 13, and various federal constitutional protections entitled him to testify in his own defense.
The State urges us to find Harris’s claims waived. If not, then the State asks us to hold that the 2014 amendment to the habitual offender statute limited the jury’s role to determining the existence of the unrelated convictions. According to the State, Article 1, Section 19 was implicated only so long as the statute gave the jury the right to determine habitual offender status. Thus, the State infers that only evidence regarding the unrelated convictions was relevant. The State also argues that the relevance issue was previously decided in its favor in Taylor v. State, 511 N.E.2d 1036 (Ind. 1987). Finally, the State insists that Harris’s right to be heard is subject to the requirement that his testimony be relevant under the controlling substantive law.
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The State argues that the amended habitual offender statute tasks the jury with determining only the existence of the unrelated convictions. As a first step, this opinion reviews our precedents on the role of the jury and concludes that Article 1, Section 19 applies to the habitual offender status determination. The jury must therefore be allowed to determine habitual offender status. Turning to the statute, it appears ambiguous whether the legislature intended the jury to determine status as well as prior convictions. Given this ambiguity, the interpretation that complies with constitutional requirements is preferable. The opinion therefore concludes that the jury retains its statutory role of determining a defendant’s ultimate habitual offender status.
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This Court has considered many times whether the habitual offender jury must be allowed to determine a defendant’s ultimate habitual offender status or only whether the unrelated convictions exist. The answer depends in part on the applicability of Article 1, Section 19 of the Indiana Constitution. This provision requires that a jury in any criminal case be allowed to decide not only what the facts are but also what the law is and, consequently, how the law applies to the facts. Holden v. State, 788 N.E.2d 1253, 1254‒55 (Ind. 2003); Holmes v. State, 671 N.E.2d 841, 857 (Ind. 1996), abrogated on other grounds by Wilkes v. State, 917 N.E.2d 675 (Ind. 2009).
The seminal decision on how Article 1, Section 19 affects habitual offender status proceedings is Seay. In that case, the trial court had instructed the jury that it was judge only of the facts; that is, whether the defendant had accumulated the requisite convictions. 698 N.E.2d at 733. This Court unanimously ruled this to be error. Id. at 737. The opinion deemed it significant that the statute provided for a jury trial: “If the legislature had intended an automatic determination of habitual offender status upon the finding of two unrelated felonies, there would be no need for a jury trial on the status determination.” Id. at 736 (citation omitted). In other words, the Court explained, “adjudication of habitual offender status required more than simply a finding that the prerequisite prior felonies were properly proven.” Id. at 735. The jury also had discretion to decide “whether a defendant should be given habitual offender status.” Id. And, because the legislature had provided for a trial by jury, complete with the “beyond a reasonable doubt” standard of proof, to decide on a status carrying a potentially “severe” sentence enhancement, Article 1, Section 19 guaranteed the jury’s right to determine the facts and the law. Id. at 736 & n.8. The jury had to have the “ability to find Seay to be a habitual offender (or not to be a habitual offender) irrespective of the uncontroverted proof of prior felonies.” Id. at 737.
This Court stated that Seay “definitively established” that Section 19 “is applicable during habitual offender proceedings, and thus the jury has the power in such circumstances to determine both the law and the facts.” Parker v. State, 698 N.E.2d 737, 742 (Ind. 1998). Just ten years later, however, the Court took a different approach.
In Walden v. State, this Court reiterated that “the jury is entitled to make a status determination over and above its determination of whether the predicate offenses have been established.” 895 N.E.2d 1182, 1185 (Ind. 2008). However, the majority opinion set Seay’s holding on a different foundation: the “interplay” between the habitual offender statute and the “umbrella ‘law and the facts’ statute.” Id. (citing I.C. § 35-50-2-8; I.C. § 35- 37-2-2(5) (1985)). The latter statute provides that “[t]he judge shall inform the jury that they are the exclusive judges of all questions of fact, and that they have a right, also, to determine the law.” I.C. § 35-37-2-2(5). This new rationale was an exercise of constitutional avoidance. It was unnecessary to constitutionalize the jury’s right to determine the law in a habitual offender hearing, the Court reasoned, given that the “law and facts” statute also guaranteed it. 895 N.E.2d at 1185.
Seay was correct in its holding and its original constitutional basis. The legislature has provided for a jury trial in habitual offender status proceedings. I.C. § 35-50-2-8(h).10 The State must prove the requisite convictions to the jury. I.C. §§ 35-50-2-8(b)‒(d). But the ultimate issue is whether the defendant is “found to be a habitual offender.” I.C. § 35-50-2- 8(i). This scheme implicates Article 1, Section 19, which declares the jury’s right to judge both the facts and the law, emphatically, in “all criminal cases whatever.” This provision does not require the legislature to entrust sentence enhancement status decisions to juries. See, e.g., Smith v. State, 825 N.E.2d 783, 786 (Ind. 2005) (repeat sexual offender status determinations need not be made by a jury). But, when a jury trial is held, the jury must be allowed to perform its constitutionally mandated functions. Thus, in the habitual offender phase, the jury may determine both whether the defendant has the convictions alleged and whether those convictions make the defendant a habitual offender as a matter of law.
The Court of Appeals panel below held that a 2014 amendment to the habitual offender statute stripped the jury of its right to determine habitual offender status, leaving it to decide only whether the unrelated convictions exist. The statute reads more ambiguously, however, than the panel allowed.
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Aside from its textual implications, the statute’s structure counsels against reading “[t]he role of the jury” as exclusive. First, this Court has stated that there would be no need for a jury trial to determine habitual offender status if it followed automatically on a finding of the requisite convictions. Seay, 698 N.E.2d at 736. Second, a separate section of the statute provides expressly for the application of “[t]he procedural safeguards that apply to other criminal charges.” I.C. § 35-50-2-8(l). In Indiana, the jury’s right to determine the law is one of these safeguards. Indeed, it is expressly provided for by the “law and facts” statute. I.C. § 35-37-2-2(5). The habitual offender statute therefore arguably contemplates the jury performing its law-determining role.
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Having decided that the jury in Harris’s habitual offender hearing had the right to determine his ultimate status, this opinion now considers whether this rendered his testimony relevant.
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Our examination of the statutory scheme involved here persuades us that the legislature did not intend the jury to consider a broad range of circumstances beyond the defendant’s convictions. The habitual offender statute addresses the status hearing at Indiana Code subsection 35-50-2- 8(h), the provision that was interpreted in Part I.B, supra. When a defendant has been found guilty by a jury, “the jury shall reconvene for the sentencing hearing.” I.C. § 35-50-2-8(h). When there has been a bench trial or guilty plea, however, “the court alone shall conduct the sentencing hearing under IC 35-38-1-3.” Id. Indiana Code section 35-38-1-3 is the statute providing for presentence hearings, at which trial courts hear “facts and circumstances relevant to sentencing” and consider “aggravating circumstances or mitigating circumstances.” Under the bifurcated scheme for habitual offender determinations, the jury is not intended to participate in the presentence hearing. By extension, the jury is not intended to hear about aggravating and mitigating circumstances when it determines habitual offender status. This conclusion is reinforced by Indiana Code subsection 35-50-2-8(i), which provides that the sentence to be imposed on a habitual offender is for the trial court alone to decide. The jury need not even be told about the sentencing implications of habitual offender status. Seay, 698 N.E.2d at 734. Under the statutory scheme, therefore, the jury determines habitual offender status without hearing about the wider circumstances of the defendant’s crimes.
The habitual offender statute may also be contrasted with Indiana Code section 35-50-2-9 (2016), this state’s death penalty statute. The latter provides for a jury to hear evidence of statutory aggravating and mitigating circumstances, and then to recommend whether a defendant convicted of murder should receive an enhanced penalty of death, life imprisonment without parole, or neither. I.C. §§ 35-50-2-9(d)‒(e). And it expressly allows the presentation of “[a]ny other circumstances appropriate for consideration” in mitigation. I.C. § 35-50-2-9(c)(8). This Court has described the statute as giving the jury a “mercy option.” Pope v. State, 737 N.E.2d 374, 379 (Ind. 2000).
The habitual offender statute does not provide for a similar hearing concerning all the circumstances. There is no indication in it that defendants may present mitigating evidence in hope of persuading the jury to choose mercy—nor indeed that the State may present aggravating evidence. Reading the statute to provide a broad status hearing, even one limited to the circumstances of the defendant’s crimes, could easily entail extensive and contested evidence on matters such as the defendant’s mental state, his degree of participation and culpability, the severity of the loss or injury caused, victim impact, and so on. All this material may be appropriate for consideration when determining what sentence to impose. But, in the habitual offender context, the legislature did not contemplate the jury’s participation in such a wide-ranging and involved proceeding, akin to either a presentence hearing or a death penalty hearing. We take it that the jury is intended to hear evidence bearing on the statutory elements of habitual offender status. Thus, only evidence concerning the existence of the defendant’s convictions is relevant for presentation to the jury.
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To allow the circumstances of prior convictions to come in would contradict the purpose of giving the jury the right to determine habitual offender status. The jury can consider mercy because it enjoys “more latitude in making a habitual offender determination than in determining guilt or innocence.” Walden, 895 N.E.2d at 1186. The mercy option is provided “because the stakes are so high” when a defendant faces a habitual offender enhancement. Id. at 1184.16 The circumstances of crimes, however, often paint the defendant in a poor light. The chance for mercy would be undermined if the State were permitted to introduce evidence showing not only that a defendant satisfied the definition of habitual offender, but, also, that he deserved to be deemed one because of additional circumstances.
Of course, this decision leaves defendants with fewer resources than they might wish for encouraging a jury to show mercy. But nothing in the decision precludes a defendant from arguing that their present and unrelated convictions are not so serious, recent, or similar in nature as to warrant habitual offender status. And, since the habitual offender jury will ordinarily have tried the present conviction, the parties may refer in argument to the circumstances of that felony, to the extent that they came out in the first phase. A defendant may sometimes convince a jury that it would simply be too harsh to pronounce them a habitual criminal. In this way, the jury can “make sure that the substantive law as written does not become overreaching so as to defeat reasonable goals of justice.” Id. at 1188 (Rucker, J., dissenting).
The habitual offender statute and the charging information filed by the State determined the issues in the habitual offender phase of this case. A person convicted of a Level 3 felony “is a habitual offender” if the State proves two prior, unrelated felonies, at least one of which is not a Level 6 or Class D felony. I.C. § 35-50-2-8(b). The information here alleged, and Harris admitted, two qualifying felonies. Evidence tending to prove or disprove his alleged convictions was relevant. Any other evidence was immaterial and irrelevant.
We agree with the trial court that none of the testimony Harris proffered was relevant. He attempted to testify about the circumstances of two of his crimes, namely his present robbery conviction and a prior, unrelated robbery conviction. As to his present conviction, Harris would have told the jury about his PTSD, medication difficulties, and intent to rehabilitate himself. Because this testimony could not serve to disprove the existence of Harris’s unrelated convictions, the trial court properly excluded it as irrelevant. And, by waiving a jury trial in the guilt phase, Harris turned down his opportunity for a jury to hear the circumstances of his crimes of conviction. As to his unrelated robbery, Harris would have told the jury that he was in fact innocent and only pled guilty because he did not know of his right to a trial. Harris does not dispute that the trial court correctly excluded this testimony as a prohibited collateral attack on a prior conviction. See I.C. § 35-50-2-8(k); Dexter v. State, 959 N.E.2d 235, 238 (Ind. 2012) (a collateral attack is permitted during habitual offender proceedings only if “the court documents on their face raise a presumption that the conviction is constitutionally infirm”).
Article 1, Section 13 of the Indiana Constitution specifically guarantees a criminal defendant’s right “to be heard by himself and counsel.” This provision “places a unique value upon the desire of an individual accused of a crime to speak out personally in the courtroom and state what in his mind constitutes a predicate for his innocence of the charges.” Sanchez, 749 N.E.2d at 520 (internal quotation marks and citation omitted). Several provisions of the federal constitution, including the Due Process Clause of the Fourteenth Amendment and the Compulsory Process Clause of the Sixth Amendment, likewise protect a defendant’s “right to take the witness stand and to testify in his or her own defense.” Rock v. Arkansas, 483 U.S. 44, 49‒53 (1987). However, as this Court explained in Sanchez, these rights are subject to “‘established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.’” 749 N.E.2d at 521 (quoting Roach, 695 N.E.2d at 939). The evidentiary rule of relevance is one such limitation. Id. We do not find the rule, as applied here, to be “arbitrary or disproportionate to the purposes” it serves, namely to focus the jury’s attention on the material facts of the prior convictions. See Rock, 483 U.S. at 56. Because testimony to the circumstances of a defendant’s crimes is irrelevant to the habitual offender status determination, Harris had no constitutional right to present it.
The jury in a habitual offender proceeding must be allowed to make the ultimate legal determination of whether the defendant has the status of habitual offender. However, only evidence of the defendant’s alleged convictions is relevant to that determination. A defendant has no constitutional right to present irrelevant evidence. Therefore, the trial court did not err in excluding Harris’s testimony concerning the circumstances of his crimes.
Transfer is hereby granted, vacating Part II of the Court of Appeals opinion. Harris’s habitual offender status determination is affirmed. Parts I and III of the opinion below are summarily affirmed. The case is remanded to the trial court for attachment of the habitual offender sentence enhancement to the sentence for robbery, as ordered in Part III of the opinion below.
Molter, J., concurs in Parts II and III, except the last two paragraphs of Part II.A, and in the judgment, with separate opinion in which Massa, J., joins.
Rush, C.J., concurs in Part I and dissents from Parts II and III, with separate opinion in which Slaughter, J., joins in part.
Slaughter, J., dissents with separate opinion
Molter, J., concurring in part and in the judgment.
I concur in the Court’s judgment and Parts II (except for the last two paragraphs of II.A) and III of the lead opinion. As Part II explains, the evidence Harris proffered was irrelevant, so the trial court did not err by excluding it.
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Part II.A of the lead opinion begins by appropriately acknowledging we already settled this evidentiary analysis long ago in Taylor v. State, where Chief Justice Shepard wrote for a unanimous Court that “[t]he only relevant evidence in a habitual offender proceeding is evidence that proves or disproves the defendant’s prior felony convictions.” 511 N.E.2d 1036, 1040 (Ind. 1987). Like this case, the defendant in Taylor wished “to testify about why he did not deserve to be considered a habitual criminal at that phase of trial,” and like this case, the Court held that his proposed testimony minimizing the severity of his criminal history could be considered at sentencing, but it was irrelevant during the habitual offender phase. Id. Since that time, the General Assembly has more clearly embraced Taylor’s view by amending the habitual offender statute to say that “[t]he role of the jury is to determine whether the defendant has been convicted of the unrelated felonies.” Ind. Code § 35-50-2-8(h); see Pub. L. No. 158-2013, § 661, 2013 Ind. Acts 1155, 1604. I would therefore resolve this case based on Taylor and stop there.
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The lead opinion proposes a new exception to the constitutional avoidance doctrine, analogizing to federal qualified immunity cases to create an exception for constitutional issues which are “fully and ably briefed and argued by appropriate parties,” which concern “judicial procedure, rather than primary conduct in the world outside,” and which will inevitably recur. Ante, at 9 n.9. I do not think our case law or federal case law supports such an exception, including because the qualified immunity affirmative defense to federal civil rights claims under 42 U.S.C. § 1983 is not analogous to the state habitual offender enhancement. Justice Slaughter’s dissent likewise disclaims any such exception, and I do not read the Chief Justice’s dissent as embracing this exception either. Instead, I understand the Chief Justice’s dissent to argue that while the lead opinion’s Article 1, Section 19 analysis makes no difference in how the Court resolves this appeal, it should make a difference. But that conclusion, in my view, rests on a few mistaken premises.
First, I disagree that our jurisprudence reflects a failure to seriously analyze Article 1, Section 19. Hundreds of opinions from our Court and the Court of Appeals cite that provision, and many of the cases the dissent discusses carefully analyze it.
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Second, I do not understand Taylor to be “long-repudiated.” Post, at 1 (opinion of Rush, C.J.). Our Court has cited Taylor fifteen times and has never even called it into question or suggested any part of it is abrogated, let alone overruled or otherwise repudiated it Even Seay cited Taylor favorably for its analysis of Article 1, Section 19. Seay, 698 N.E.2d at 734 (citing Taylor for the proposition that “we have long held that art. I, § 19, does not apply in penalty determinations” (emphasis omitted)). True, the twenty-six appellate opinions citing Taylor rely on the case for reasons unrelated to relevancy. But Taylor was the last in a line of unanimous opinions going back to the enactment of the habitual offender statute at issue. Taylor reaffirmed yet again a straightforward relevancy analysis, so there has been little need since to cite it for that purpose.
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Third, my dissenting colleagues read my relevancy analysis as based on “legislative intent.” Post, at 13 (opinion of Rush, C.J.). But when analyzing the habitual offender statute, I have only relied on statutory text, and I simply suggest that, as with any allegation the State makes that someone has run afoul of a criminal statute, we should look to the words in the legislature’s statute relating to the alleged criminal behavior, discern the elements those words establish, and then evaluate proffered evidence to determine whether it is material to those elements.
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Fourth, the Chief Justice’s dissent explains that a jury deciding whether the State has satisfied its burden of proving the defendant is a habitual offender must decide two issues, not one: (1) whether the defendant has accumulated the requisite number of convictions, and (2) “whether, based on those convictions and the primary felony, the defendant should be given the status of habitual offender.” Post, at 1 (opinion of Rush, C.J.). All agree the first element derives from the habitual offender statute. The dissent says the second element derives from Article 1, Section 19’s requirement that “[i]n all criminal cases whatever, the jury shall have the right to determine the law and the facts.” But it is unclear how Article 1, Section 19—which by its express terms applies to all criminal cases whatever—is the source of an additional element only for habitual offender enhancements.
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Article 1, Section 19 is especially ill suited to add an element to the habitual offender enhancement because we have held that “[t]he habitual offender finding is a means of sentencing and is not a determination of law,” Taylor, 511 N.E.2d at 1040, and we have concluded (and the lead opinion reaffirms) that the General Assembly can empower a judge rather than a jury to decide whether a sentence enhancement applies based on prior convictions, Smith, 825 N.E.2d at 786. It is difficult to square the notion that the Article 1, Section 19 jury right adds an extra element for habitual offender enhancements with the notion that Article 1, Section 19 permits the General Assembly to eliminate the jury’s role completely.
Thus, the statement in the unanimous Taylor opinion that “[t]he only relevant evidence in a habitual offender proceeding is evidence that proves or disproves the defendant’s prior felony convictions” is consistent with how we typically assess relevancy in the criminal context. 511 N.E.2d at 1040. It neither “dilutes” nor “nullifies” the jury’s role. Post, at 10 (opinion of Rush, C.J.). Rather, it leaves the jury’s role the same as with any other criminal allegation.
Our Court’s precedents establish that the trial court properly excluded Harris’s proffered evidence as irrelevant. I therefore concur in the judgment.
Massa, J., joins.
Rush, C.J., concurring in part and dissenting in part.
I concur in Part I in which the lead opinion concludes that, under Article 1, Section 19, the jury in a habitual-offender proceeding must decide two issues: (1) whether the defendant has accumulated the requisite number of prior unrelated felony convictions; and (2) whether, based on those convictions and the primary felony, the defendant should be given the status of habitual offender. However, I respectfully dissent from Part II in which the lead opinion concludes the only evidence relevant to those two issues is that tending “to prove or disprove the necessary unrelated convictions.” Ante, at 14 (opinion of Goff, J.). For similar reasons, I also respectfully dissent from Part III. While I understand the decision to address Harris’s claims despite waiver, I disagree that all “testimony to the circumstances of a defendant’s crimes is irrelevant to the habitual offender status determination.” Id. at 19.
As this Court aptly recognized over two decades ago, “If the legislature had intended an automatic determination of habitual offender status upon the finding of two unrelated felonies, there would be no need for a jury trial on the status determination.” Seay v. State, 698 N.E.2d 732, 736 (Ind. 1998). But today, three of my colleagues reject that well-settled principle and authorize such an automatic determination—particularly in cases like this where the parties stipulate to the prior convictions.
To be sure, as the lead opinion points out, defendants have “no constitutional right to present irrelevant evidence.” Ante, at 20 (opinion of Goff, J.). But the relevancy of evidence must be analyzed in relation to the issues to be determined. And, as the lead opinion correctly holds, juries in habitual-offender proceedings have the constitutional right to independently decide two issues. Yet, both the lead and concurring opinions erroneously conclude that the jury is not entitled to consider any evidence relevant to aid the jury in deciding the second issue. This position, as shown below, improperly resurrects long-repudiated precedent and conflicts with not only caselaw analyzing Article 1, Section 19 but also with the provision’s plain text and the history surrounding its ratification.
Article 1, Section 19 unequivocally confers on juries broad constitutional authority: “In all criminal cases whatever, the jury shall have the right to determine the law and the facts.” Ind. Const. art. 1, § 19. This provision, embedded within our Bill of Rights, enshrines an “essential value[] which the legislature may qualify but not alienate.” Price v. State, 622 N.E.2d 954, 960 (Ind. 1993). Yet, as recognized by my former colleague Justice Rucker nearly twenty-five years ago, Article 1, Section 19 “has never received serious constitutional analysis.” Honorable Robert D. Rucker, The Right to Ignore the Law: Constitutional Entitlement Versus Judicial Interpretation, 33 Val. U. L. Rev. 449, 474 (1999). His observation remains true today.
This case presents an opportunity to conduct such an analysis. History reveals that our framers and ratifiers intended for Article 1, Section 19 to confer on criminal juries distinct, broad constitutional authority. And our precedent applying the provision establishes its importance, clarifies the scope of the jury’s constitutional right in determining whether a defendant is a habitual offender, and illustrates fundamental flaws in both the lead and concurring opinions’ relevancy analyses. I thus begin with a historical analysis of Section 19.
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This history reveals that our framers and ratifiers intended to confer significant authority on juries in criminal cases. The delegates rejected a limiting proposal and, by separate provision, enshrined the right of a criminal jury to determine the law and the facts “[i]n all criminal cases whatever,” Ind. Const. art. 1, § 19, crystallizing their intent that this authority apply in all types of criminal cases—without limitation. Cf. City Chapel Evangelical Free Inc. v. City of South Bend, 744 N.E.2d 443, 448 (Ind. 2001) (concluding that “inclusion of the phrase ‘in any case whatever’” in Article 1, Section 3 demonstrated “the framers’ and ratifiers’ intent to provide unrestrained protection for the articulated values”). In fact, only three other state constitutions enshrine this right to jurors, but none of their respective provisions define the scope of the jury’s right as broadly as our unique provision. Compare Ind. Const. art. 1, § 19, with Md. Const. Decl. of Rts., art. 23 (“In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.”), Or. Const. art. I, § 16 (“In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil cases.”), and Ga. Const. art. I, § 1, para. 11(a) (“In criminal cases . . . the jury shall be the judges of the law and the facts.”).
In the years following the convention, our precedent routinely recognized the broad scope of a jury’s authority under Article 1, Section 19 even though the Court eventually began to impose limitations.
During the mid-to-late 1800s, the Court frequently acknowledged the jury’s constitutional right to determine the law and the facts in criminal cases by upholding jury instructions as well as arguments from counsel invoking the right and by disapproving of jury instructions impairing it. See, e.g., Carter v. State, 2 Ind. 617, 619 (1851); Lynch v. State, 9 Ind. 541, 541 (1857); Williams v. State, 10 Ind. 503, 505 (1858); McDonald v. State, 63 Ind. 544, 546–47 (1878); Nuzum v. State, 88 Ind. 599, 600–01 (1883); Hudelson v. State, 94 Ind. 426, 429–31 (1884).
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After Pritchard, we consistently found no error in cases when the instructions, considered in their entirety, recognized the jury’s constitutional right under Article 1, Section 19 and did not impermissibly invade that right. Holliday v. State, 254 Ind. 85, 257 N.E.2d 679, 682 (1970); Loftis v. State, 256 Ind. 417, 269 N.E.2d 746, 747–48 (1971); Barker v. State, 440 N.E.2d 664, 670–72 (Ind. 1982). It was against this historical backdrop that we began considering the application of Article 1, Section 19 in habitual-offender proceedings before a jury.
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That holding and its constitutional basis, coupled with the above history and applicable precedent, undeniably establish that the jury, in exercising its constitutional right under Article 1, Section 19, must make two determinations in a habitual-offender proceeding: (1) whether the defendant has accumulated the requisite number of prior unrelated felony convictions; and (2) whether, based on those convictions and the primary felony, the defendant should be given the status of a habitual offender. Yet, three of my colleagues have decided to restrict the jury’s constitutional right by prohibiting any evidence relevant to the status determination. As our precedent has made clear, their position not only resurrects long-repudiated reasoning, but it also dilutes—if not nullifies— the jury’s constitutional right in habitual-offender proceedings.
Both the lead and concurring opinions rely on Taylor v. State, 511 N.E.2d 1036 (Ind. 1987) and legislative intent to conclude that the only evidence relevant in a habitual-offender proceeding is that which tends to prove or disprove the defendant’s prior unrelated felony convictions. Neither basis supports this conclusion. Taylor’s relevancy determination was grounded on a premise we have since consistently rejected, and legislative intent cannot override the requirements of the Indiana Constitution.
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Aside from improperly resurrecting and relying on Taylor, the lead and concurring opinions also hinge their relevancy conclusions on the notion that the legislature intended that the jury consider only evidence related to the existence of the defendant’s prior convictions. The legislature can certainly impose statutory limits on the aggravating circumstances a trial court can consider when imposing a death sentence, Bivins v. State, 642 N.E.2d 928, 955–56 (Ind. 1994), or on a defendant’s ability to use voluntary intoxication to negate the requisite mens rea of a crime by reason of voluntary intoxication, Sanchez v. State, 749 N.E.2d 509, 521 (Ind. 2001). But the legislature cannot impose limits—either by statute or through its intent—that conflict with express constitutional requirements. See, e.g., Strong v. Daniel, 5 Ind. 348, 350 (1854). And because the legislature has entrusted the jury with making a habitual-offender determination, Article 1, Section 19 applies and vests the jury with the constitutional right to decide whether the defendant should be given habitual-offender status. Thus, excluding all evidence relevant to that decision impermissibly impinges on the jury’s constitutional authority.
For these reasons, the relevancy analysis embraced by both the lead and concurring opinions erroneously relies on Taylor and legislative intent. And contrary to the concurring opinion’s assertion, this is not a case in which “[c]onstitutional avoidance is especially prudent.” Ante, at 2 (opinion of Molter, J.). In fact, exercising constitutional avoidance isn’t even appropriate here. To be sure, it is our duty “not to enter upon the consideration of a constitutional question where the court can perceive another ground on which it may properly rest its decision.” City of New Haven v. Reichhart, 748 N.E.2d 374, 378 (Ind. 2001) (quoting Bayh v. Sonnenburg, 573 N.E.2d 398, 402 (Ind. 1991)) (emphasis added). But, as demonstrated above, Article 1, Section 19 unquestionably applies to habitual-offender proceedings. And neither Taylor nor legislative intent is instructive as to what evidence is relevant for the jury to consider when making its constitutionally required determinations in such a proceeding. Thus, neither presents “another ground” to “properly” find Harris’s proffered testimony irrelevant.
Rather, our precedent establishes that in a habitual-offender proceeding before a jury, two types of evidence are relevant. The first is evidence that assists the jury in making its first determination, which plainly includes evidence that tends to prove or disprove the existence of the requisite convictions. And the second is evidence that assists the jury in making its status determination, which turns on a consideration of the primary felony and the prior unrelated felonies. As the lead opinion observes, the jury makes this decision “irrespective of proof of the requisite unrelated convictions.” Ante, at 13 (opinion of Goff, J.). Thus, to exercise its constitutional authority under Article 1, Section 19, the jury must be able to consider evidence relevant to the status determination, which necessarily may extend beyond the existence of the prior convictions.
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Applying these principles to habitual-offender proceedings before a jury, evidence is relevant if it tends to prove or disprove the two issues the jury must decide: (1) whether the defendant has accumulated the requisite number of prior unrelated felony convictions; and (2) whether, based on those convictions and the primary felony, the defendant should be given the status of habitual offender. Deciding the second issue may involve the jury considering circumstances closely related to the three convictions, such as the defendant’s age at the time of each or the nature of the offenses. Indeed, when offered, this evidence is necessary for the jury to exercise its constitutional right under Article 1, Section 19.
But there are limits. Our trial courts make relevancy determinations all the time—they are well-equipped to decide whether proffered evidence is closely related to the defendant’s three convictions and thus relevant to the jury’s status decision. And those judges retain discretion to exclude such evidence “if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” Evid. R. 403.
Here, the parties stipulated to the existence of Harris’s prior unrelated convictions, and, outside the presence of the jury, Harris testified about those convictions as well as the primary felony. The stipulation established the existence of the requisite prior convictions, thus entitling the trial court to exclude Harris’s proposed testimony that collaterally attacked one of the convictions. But Harris’s testimony also included circumstances closely related to the primary felony offense. And because the jury was empaneled solely for Harris’s habitual-offender proceeding, it did not have the opportunity to hear any evidence about that offense. Thus, Harris’s excluded testimony included potentially relevant evidence in that it could have aided the jury in deciding whether he should be given the status of habitual offender.
For these reasons, I would hold that the trial court abused its discretion in prohibiting the jury from hearing Harris’s testimony about the primary felony. I would therefore vacate the habitual-offender adjudication and remand this case to the trial court for a new habitual-offender proceeding.
Slaughter, J., joins in part.
Slaughter, J., dissenting.
I join the Chief Justice’s separate opinion in part and agree with her proposed disposition for Defendant, Christopher Jerome Harris. But, unlike the Chief Justice, I do not join Part I of Justice Goff’s lead opinion for the Court. While I largely agree with his constitutional analysis in Part I, under principles of constitutional avoidance, I do not support addressing constitutional questions in a case decided on other, non-constitutional grounds. I write separately here to note a couple thoughts about how (or whether) article 1, section 19 of our state constitution may apply in a future case.
First, by its terms, article 1, section 19 applies in “all criminal cases whatever”. This provision does not limit its application to sentencing proceedings but also presumably applies to a criminal case’s guilt phase.
Second, a criminal jury has the “right to determine the law and the facts” under article 1, section 19. Relevant here, our legislature has entrusted such juries with determining a criminal defendant’s status as a habitual offender. Ind. Code § 35-50-2-8(h). The assignment of that responsibility to juries means article 1, section 19 applies here. In my view, the legislature could withdraw that determination from the jury without running afoul of section 19. One option would be for the trial court alone to make that determination based on the historical fact that the defendant was convicted of two prior unrelated felonies. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (fact of prior convictions need not be submitted to jury and proved beyond a reasonable doubt).
Neither of these two issues is before the Court today. But in a future case, I am willing to consider applying article 1, section 19 outside the habitual-offender context. I am also open to limiting this provision’s application if the legislature elects to remove juries from the habitual offender determination.