Hernandez v. State, 68S00-0009-CR-563.

Docket NºNo. 68S00-0009-CR-563.
Citation761 N.E.2d 845
Case DateJanuary 30, 2002
CourtSupreme Court of Indiana

761 N.E.2d 845

Anthony G. HERNANDEZ, Appellant (Defendant Below),
STATE of Indiana, Appellee (Plaintiff Below)

No. 68S00-0009-CR-563.

Supreme Court of Indiana.

January 30, 2002.

761 N.E.2d 847
Michael K. Ausbrook, Bloomington, IN, for Appellant

Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, for Appellee.

761 N.E.2d 846
BOEHM, Justice

Anthony Hernandez was convicted of the murder of Berenice Keffer and sentenced to sixty years imprisonment. In this direct appeal, Hernandez contends that (1) his Sixth Amendment right to the assistance of counsel under the United States Constitution was denied and (2) his right to be heard and to be present under the Indiana Constitution was denied. We affirm the judgment of the trial court.

Factual and Procedural Background

On May 30, 1982, Berenice Keffer was found dead in her house. Keffer's house had been broken into, and she had been severely beaten and sexually assaulted. The cause of death was asphyxiation.

Ten years later, Anthony Hernandez was charged with burglary, murder, and rape. After two trials ended in hung juries, the State amended its charging information to charge only a single count of murder.

The third trial started on July 24, 2000. After four days of evidence, the jury began its deliberations at 2:30 p.m. on July 28. Shortly thereafter, the jury sent out a note requesting to view a footprint and the evidence bearing on the time of death. After the court informed both parties of the note, the jury was brought back into the courtroom and, in the presence of the parties, the jury received the requested evidence. The jury returned to deliberations. There was no objection to this procedure.

At approximately 7:00 p.m., the jury sent a second note which asked, without punctuation: "What if we are a hung jury What will happen to Mr. Hernandez Will he go free or have another trial." The record is silent as to the court's response, if any, to this question. At 8:30 p.m., the jury found Hernandez guilty of murder.

I. Sixth Amendment Right to the Assistance of Counsel

A. What Hernandez Does Not Claim

Although we usually address the contentions of the parties, because Hernandez makes a novel claim, we think it useful to point out that Hernandez does not advance a number of similar contentions that are frequently presented to this Court. He quite properly does not argue that the court's inaction constituted an improper ex parte communication. Indeed, it was not a communication at all, if there was no response. Nor does he claim that the refusal to respond constituted an improper communication. This is also astute because if the response was a simple refusal to answer, that is harmless error to the extent

761 N.E.2d 848
it is an ex parte communication. Bouye v. State, 699 N.E.2d 620, 628 (Ind.1998)

Hernandez also makes no claim that it was an error of substantive law to refuse to respond. Once again, we agree with his judgment in selecting the issue to present on appeal. We think instructing a jury on the consequences of deadlock is similar to other inappropriate instructions. These include an instruction on the effect of deadlock in a sentencing hearing in a capital case under the Federal Death Penalty Act, Jones v. United States, 527 U.S. 373, 383-84, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999), an instruction to consider that the defendant would receive credit for time served for his conviction, Wilson v. State, 169 Ind.App. 33, 34-35, 346 N.E.2d 279, 281 (1976), an instruction on the possibility of parole, pardon, or "good time" sentence reduction, Feggins v. State, 265 Ind. 674, 685-86, 359 N.E.2d 517, 523-24 (1977), or an instruction on potential sentences the defendant may be given if convicted, Taylor v. State, 420 N.E.2d 1231, 1233 (Ind.1981). In holding it improper to instruct on potential sentences, this Court pointed out that such an instruction would "`invite the jurors to be influenced by their independent judgment of the fairness of the statute.'" Drake v. State, 272 Ind. 302, 304, 397 N.E.2d 600, 601 (1979) (quoting Garcia v. State, 271 Ind. 510, 517, 394 N.E.2d 106, 111 (Ind.1979)). Like sentencing, a description of the possible effect of a hung jury invites the opportunity for the jury to consider circumstances that have no bearing on the defendant's guilt or innocence.

Finally, Hernandez does not argue that Indiana statutes require a response. We agree that the trial court had no statutory duty to respond to the note. Whether or not the federal constitution requires the defendant's presence or the assistance of counsel in responding to jury inquiries, section 34-36-1-6 of the Indiana Code provides:

If, after the jury retires for deliberation:
(1) there is a disagreement among the jurors as to any part of the testimony; or
(2) the jury desires to be informed as to any point of law arising in the case; the jury may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to, the parties or the attorneys representing the parties.

Ind.Code § 34-36-1-6 (1998). Indiana case law has specified the procedure to follow in addressing a jury inquiry. The judge is to notify the parties of the jury request, inform the parties of the court's proposed response prior to communicating with the jury, and answer the request in open court with the parties present. Bouye, 699 N.E.2d at 628. When these guidelines are not followed, any communication between the judge and jury without notifying the defendant is presumptively error. Marsillett v. State, 495 N.E.2d 699, 709 (Ind.1986). However, the presumption is rebuttable, and failure to follow these guidelines does not constitute per se grounds for reversal. Grey v. State, 553 N.E.2d 1196, 1198-99 (Ind.1990). Although the note requested that the court instruct on a point of law (the effect of a hung jury), for the reasons already discussed, it was not a request the court should have honored. Accordingly, the second note was not a request for a "point of law arising in the case," and section 34-36-1-6 does not apply.

B. What Hernandez Does Contend

Hernandez contends that the second note showed that the jury was deadlocked and that at least some jurors considered convicting Hernandez because he might go free if the jury could not return a verdict.

761 N.E.2d 849
Hernandez contends that this situation presented the potential for a motion for a mistrial based on a deadlocked jury or the opportunity for him to request curative instructions. He therefore argues that the point at which the jury sent the note was one which required counsel's judgment and advocacy, and was a "critical stage" of the proceeding such that the Sixth Amendment required presence of counsel.

Hernandez also argues that the error he identifies, by its very nature, cannot be harmless. He contends that the note implied that the jury could not agree and that some jurors, at least, were considering convicting Hernandez for reasons related only collaterally, if at all, to the evidence presented at trial. Hernandez contends that the State cannot show the error was harmless because the State cannot show that a mistrial would have been denied or that Hernandez could not have taken other curative measures if he had been given the opportunity to request them. Hernandez urges that this case is more egregious than an ex parte communication between a judge and jury regarding evidence because it is impossible to analyze, after the fact, what might have happened had Hernandez simply been given the opportunity to respond.

C. Receipt of the Second Jury Note As a Critical Stage of the Proceedings.

"[T]he right to be represented by counsel is among the most fundamental of rights." Penson v. Ohio, 488 U.S. 75, 84, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). It "assure[s] that the `guiding hand of counsel' is available to those in need of assistance." United States v. Ash, 413 U.S. 300, 307-08, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973). The Sixth Amendment to the United States Constitution requires the assistance of counsel at all critical stages of proceedings. See, e.g., United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). The right to the assistance of counsel is so essential that prejudice is presumed when there is actual or constructive denial of the assistance of counsel. Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, the United States Supreme Court has held that denial of this constitutional right is "subject to a harmless error analysis unless the deprivation, by its very nature, cannot be harmless." Rushen v. Spain, 464 U.S. 114, 117-18 n. 2, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) (citations omitted).

The right to the assistance of counsel extends to several situations deemed "critical stages" in the proceeding. These include post-indictment interrogation, whether custodial or not, Massiah v. United States, 377 U.S. 201, 207, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); preliminary hearings to determine probable cause to prosecute, Coleman v. Alabama, 399 U.S. 1, 9, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); arraignments, Hamilton v. Alabama, 368 U.S. 52, 53, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); post-charge lineups, Moore v. Illinois, 434 U.S. 220, 231, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977); revocation of probation and deferred sentencing proceedings, Mempa v. Rhay, 389 U.S. 128, 137, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); felony trials, Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); misdemeanor trials when imprisonment is actually imposed, Scott v. Illinois, 440...

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