Bex v. State

• Decision Date: 31 October 2011
• Docket Number: No. 53A01–1008–CR–422.,53A01–1008–CR–422.
• Citation: 952 N.E.2d 347
• Parties: Robbie J. BEX, Appellant–Defendant,v.STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

952 N.E.2d 347

Robbie J. BEX, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 53A01–1008–CR–422.

Court of Appeals of Indiana.

Aug. 22, 2011.Transfer Denied Oct. 31, 2011.

Jeremy M. Noel, Bloomington, IN, Attorney for Appellant.Gregory F. Zoeller, Attorney General of Indiana, Joby D. Jerrells, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

KIRSCH, Judge.

Robbie J. Bex (“Bex”) appeals from her conviction and sentence for operating while intoxicated endangering a person,¹ as a Class A misdemeanor. Bex presents three issues for our review, which we restate as:

I. Whether Bex was denied her constitutional right to a trial by jury when five jurors decided her case;

II. Whether the trial court abused its discretion when it imposed a public defender user fee as a condition of her probation without making a determination of her ability to pay; and

III. Whether the public restitution work component of Bex's sentence is inappropriate in light of the nature of the offense and the character of the offender.

We affirm.

FACTS AND PROCEDURAL HISTORY

On May 15, 2008, Bex was attempting to exit the parking lot after finishing her shift at General Electric in Bloomington. As she did so, she had a collision with another vehicle.² A sheriff's deputy responded to the scene and spoke to Bex. The deputy detected the odor of alcohol and noticed Bex's bloodshot, watery eyes and slurred speech. After administering field sobriety tests and a certified breath test, the deputy arrested Bex for driving while intoxicated.

The trial court held a jury trial in this case on May 28, 2010. A jury of six members was seated without an alternate juror being selected. During the trial, one juror suffered a medical emergency, and the case proceeded to a verdict with the five remaining jurors. Initially, defense counsel acknowledged the defense's agreement to continuing with only five jurors, but counsel later moved for a mistrial, which the trial court denied. The five-person jury found Bex guilty, and the trial court sentenced her to 360 days in jail with 350 days suspended to probation and eighty hours of public restitution work. Bex now appeals.

I. Right to Jury Trial

Bex contends that her constitutional right to a trial by jury was violated when a jury of only five members determined her guilt. The Sixth Amendment of the federal constitution provides for the right to trial by jury for criminal defendants. The United States Supreme Court, in Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), held that the Sixth Amendment right to trial by jury for criminal defendants applied to the states through the Fourteenth Amendment. Article I, section 13 of the Indiana Constitution also secures a criminal defendant's right to trial by jury but, here, Bex challenges the alleged violation of her right only under the federal constitution.

As an initial matter, the State argues in its brief that Bex waived her right to a jury trial by failing to timely file her demand for trial by jury pursuant to Indiana Criminal Rule 22. There has been no showing that Bex had at least fifteen days advance notice of her scheduled trial date and of the consequences of her failure to demand a trial by jury, as required by Indiana Criminal Rule 22. Thus, the alleged untimeliness of Bex's motion for jury trial notwithstanding, we address her claim of a violation of her Sixth Amendment right.

During the State's presentation of its case-in-chief, juror number two suffered a medical emergency. After taking a recess, the trial judge went back on the record and stated that previously the court, the State, and the defense counsel, in a sidebar conference, had agreed that no alternate juror would be picked and that if something happened to one of the jurors, the five remaining jurors would decide the case. The sidebar referred to by the trial judge was an unrecorded sidebar; however, defense counsel acknowledged on the record the accuracy of the trial court's statement of the agreed procedure. After the trial judge's statement, the court recessed for lunch. Upon reconvening, defense counsel moved for a mistrial based upon his uncertainty that his agreement to a five-member jury was valid. The trial court denied the motion, and the trial continued. The five remaining jurors deliberated and returned a guilty verdict to the charge of operating a vehicle while intoxicated in a manner endangering a person, a Class A misdemeanor.

In Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), the defendant had filed a pretrial motion to impanel a twelve-person jury instead of the statutorily mandated six-man jury in all but capital cases. The defendant's motion was denied, he was convicted as charged, and was sentenced to life imprisonment. On appeal, the defendant claimed, in pertinent part, that his Sixth Amendment rights had been violated. The Supreme Court stated as follows when addressing the issue of whether the constitutional guarantee of a trial by jury necessarily requires a trial by exactly twelve persons, or some lesser number:

We conclude, in short, as we began: the fact that the jury at common law was composed of precisely 12 is a historical accident, unnecessary to effect the purposes of the jury system and wholly without significance ‘except to mystics.’ To read the Sixth Amendment as forever codifying a feature so incidental to the real purpose of the Amendment is to ascribe a blind formalism to the Framers which would require considerably more evidence than we have been able to discover in the history and language of the Constitution or in the reasoning of our past decisions. We do not mean to intimate that legislatures can never have good reasons for concluding that the 12–man jury is preferable to the smaller jury, or that such conclusions—reflected in the provisions of most States and in our federal system—are in any sense unwise. Legislatures may well have their own views about the relative value of the larger and smaller juries, and may conclude that, wholly apart from the jury's primary function, it is desirable to spread the collective responsibility for the determination of guilt among the larger group.... Our holding does no more than leave these considerations to Congress and the States, unrestrained by an interpretation of the Sixth Amendment that would forever dictate the precise number than can constitute a jury.

399 U.S. at 102–03, 90 S.Ct. 1893 (internal citations and footnotes omitted). The Supreme Court held that the twelve-man panel is not a necessary ingredient of ‘trial by jury,’ and that the defendant's Sixth Amendment rights were not violated by the Florida statute calling for a six-member panel. Id. at 86, 90 S.Ct. 1893. The right to trial by jury was not violated by denying the defendant's request for a jury panel larger than provided for by statute.

It has long been held in this state that, under the Sixth Amendment, a defendant may waive the statutory right to a twelve-person jury and consent to a trial by an eleven-person jury. See Smith v. State, 176 Ind.App. 37, 39, 373 N.E.2d 1112, 1113 (1978) (although statute provided for jury of twelve members, such provision is primarily for protection of defendant and thus defendant may waive requirement of twelve-member jury and consent to be tried by jury of eleven members). We now take up the question of whether, under the Sixth Amendment, a defendant may waive his or her statutory right to a six-person jury and agree to be tried by a jury of five members.

Bex asserts that a defendant may not waive his or her right to a six-member jury. In support of her argument that her constitutional right to a jury trial was violated in this case, Bex relies on Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978). In that case, the United States Supreme Court addressed the constitutionality of a Georgia statute providing for five-person juries in certain types of cases. The Court examined scholarly studies on jury size and raised several concerns about juries containing less than six members. Those concerns include: smaller juries are less likely to foster effective group deliberation; the risk of convicting an innocent person rises as the size of the jury diminishes; the verdicts of jury deliberation in criminal cases will vary as juries become smaller, to the detriment of the defense; the opportunity for meaningful and appropriate representation of a cross-section of the community decreases with the size of the panel; and there exist methodological problems that tend to mask differences in the operation of smaller and larger juries. Id. at 231–39, 98 S.Ct. 1029. Based upon its application of the factors identified in the studies, the Court determined that Ballew's criminal trial before a five-member jury deprived him of the right to trial by jury as guaranteed by the Sixth Amendment.

We disagree with Bex's claim that the rationale set forth in Ballew should be applied here because Ballew is distinguishable from the present case. In Ballew, the five-member jury was mandated by a state statute. In contrast, in the instant litigation Bex was provided with the statutory right to a six-person jury.³ Her trial began with six jury members and, due to a medical emergency, one member was excused from service. A five-member panel was not legislatively imposed upon Bex, thereby affording her the opportunity to decline the service of a panel made up of less than six members. Moreover, in deciding proceed without an alternate, Bex knew the six jurors she was getting and elected to proceed in the event one could not serve; the defendant in Ballew did not know the jurors and made no such election. Thus, we see an important distinction between the situation in Ballew, where the law mandated a five-member jury, and the present situation, where the law provides for a six-member jury, but the defendant chooses to...