ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Kelly N. Bryan Stephen R. Carter 

Muncie, Indiana Attorney General of Indiana 

 Gary Damon Secrest 

 Deputy Attorney General 

 Indianapolis, Indiana 

______________________________________________________________________________ 

In the 

Indiana Supreme Court 

_________________________________ 

No. 18S02-0710-CR-458 

LARRY C. WALDEN, 

Appellant (Defendant below),

v. 

STATE OF INDIANA, 

Appellee (Plaintiff below). 

_________________________________ 

Appeal from the Delaware Circuit Court No. 1, No. 18C01-0402-FC-08 

The Honorable Marianne L. Vorhees, Judge 

_________________________________ 

On Petition to Transfer from the Indiana Court of Appeals, No. 18A02-0605-CR-420 

_________________________________ 

October 20, 2008 

Sullivan, Justice. 

 Larry Walden and his fiancée, Molly Arthur, were in an auto accident in which Walden’s 

truck swerved off the road and ended upside-down in a ditch. Walden managed to crawl out of 

the truck, but Arthur later died from her injuries. A jury found Walden guilty of the crime of 

Causing Death When Operating a Motor Vehicle with a Schedule I or II Controlled Substance in 
Blood. After returning its verdict at the conclusion of the “guilt phase” of the trial, a “habitual 

offender phase” of the trial followed pursuant to procedures authorized by the Legislature for 

punishing repeat offenders. At its conclusion, the jury also found Walden to be a “habitual 

offender.” He was sentenced to 20 years in prison, plus a habitual offender sentence 

enhancement of 30 years. 

 Walden raised four issues on appeal: whether the State had proved a sufficient foundation 

for the reliability of the scientific principles used by two expert witnesses as a basis for their 

testimony; whether the State proved Walden’s previous convictions to the extent necessary to 

establish that he was a “habitual offender”; whether the trial court improperly rejected Walden’s 

proposed jury instruction concerning the jury’s authority not to find him to be a habitual 

offender; and whether Walden’s sentence was inappropriate in light of the nature of the offense 

and the character of the offender. The Court of Appeals affirmed the trial court in all respects. 

Walden v. State, No. 18A02-0605-CR-420, slip op. (Ind. Ct. App. May 10, 2007). Walden 

petitioned for, and we granted, transfer. Walden v. State, 878 N.E.2d 216 (Ind. 2007) (table). 

We now address Walden’s claim that the trial court improperly rejected his proposed jury 

instruction. In all other respects, we summarily affirm the Court of Appeals. Ind. Appellate 

Rule 58(A). 

Discussion 

Indiana Code § 35-37-2-2(5) (2004) requires a trial court to instruct the jury that the jury 

has the right to determine the facts and the law in a criminal case. It reads in part: “In charging 

the jury, the court must state to them all matters of law which are necessary for their information 

in giving their verdict. The 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.” This right, of course, 

extends to the criminal habitual offender sentencing phase. The language of I.C. § 35-37-2-2(5) 

tracks that of article I, section 19, of our State’s Constitution: “In all criminal cases whatever, the 

jury shall have the right to determine the law and the facts.” 

1
 We have previously acknowledged the possibility, in the context of article I, section 19, 

that such a provision might be seen as a permissible form of jury nullification.1 Holden v. State, 

788 N.E.2d 1253, 1253-54 (Ind. 2003). However, Holden distinguished between a jury’s 

historical right to determine the law and what the jury may not do; that is, to disregard the law. 

Id. at 1254-55. In Holden, we made clear that Indiana juries do not have a broad, general 

nullification power in criminal cases. 

 The present case requires us to discuss a particular feature of the jury instruction 

requirement contained in I.C. § 35-37-2-2(5). When a jury is evaluating a defendant’s habitual 

offender status, the jury is afforded slightly more leeway than Holden authorizes in the guilt 

phase. In Holden, the defendant appealed his conviction for forgery on grounds that the trial 

court had improperly refused to instruct the jury that article I, section 19, “allow[ed] [it] the 

latitude to refuse to enforce the law’s harshness when justice so requires.” Holden, 788 N.E.2d 

at 1253. We held that such an instruction found no basis in the Indiana Constitution. Id. at 1255. 

A few years earlier, however, we had held in Seay v. State that a jury may make a habitual 

offender determination “irrespective of the uncontroverted proof of prior felonies.” 698 N.E.2d 

732, 737 (Ind. 1998). We write today to clarify the jury’s role in a habitual offender 

determination in light of our decisions in Holden and Seay. 

 The State may seek to have a person convicted of a felony sentenced as a habitual 

offender if that person has been previously convicted of two prior unrelated felonies. If the 

felony conviction is by a jury, the Legislature requires that the jury reconvene to determine that 

the State has proved beyond a reasonable doubt the two prior unrelated felony convictions that 

support a habitual offender determination. I.C. § 35-50-2-8(a), (f), (g). The stakes are high for a 

criminal defendant in such a proceeding: A defendant found to be a habitual offender may be 

sentenced – as Walden was here – to up to 30 years of additional time in prison. Id. § 8(h). 

 

1

 Jury nullification is “[a] jury’s knowing and deliberate rejection of the evidence or refusal to apply the 

law either because the jury wants to send a message about some social issue that is larger than the case 

itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness.” 

Black’s Law Dictionary 875 (8th ed. 2004). 

2
 We believe that it is precisely because the stakes are so high in the habitual offender 

phase of a trial that the Legislature has ordered a jury trial to determine habitual offender status.2 

For many years, Justice Dickson urged this Court to acknowledge that if the Legislature had 

intended for three qualifying convictions automatically to result in a habitual offender 

determination, the Legislature would not have included a jury trial on that question in the 

sentencing phase. Duff v. State, 508 N.E.2d 17, 23 (Ind. 1987) (Dickson, J., dissenting in part); 

Hensley v. State, 497 N.E.2d 1053, 1058 (Ind. 1986) (Dickson, J., concurring and dissenting); 

Mers v. State, 496 N.E.2d 75, 79 (Ind. 1986). We did so in Seay, 698 N.E.2d at 736 (“After 

careful review and analysis, we now explicitly adopt the principles enunciated by Justice 

Dickson in his opinions in Mers, Hensley, and Duff. 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.”). 

 It is the fact, we said in Seay, that the habitual offender phase is a “status determination” 

that makes all the difference. When, as in Holden, the jury is making a determination of guilt or 

innocence, the law may not be disregarded by the jury. However, in the habitual offender phase, 

Seay dictates that – on the basis that the Legislature has ordered a jury trial to determine habitual 

offender status – the jury is entitled to make a status determination over and above its 

determination of whether the predicate offenses have been established. Because the nature of 

status is different than guilt for a particular crime, the interplay between the habitual offender 

statute, I.C. § 35-50-2-8, and the umbrella “law and the facts” statute, I.C. § 35-37-2-2(5), 

operates to give a jury latitude in defining habitual offender status in a way that it does not in 

defining guilt or innocence. 

 

In Seay, we wrote, “[i]mplicit in this holding is the principle that during the habitual 

offender phase, art. I, § 19 does apply.” Seay, 698 N.E.2d at 736. This statement was not 

 

2

 While there has been a school of thought that the U.S. Constitution requires a jury to determine habitual 

offender status, see, e.g., Shepard v. United States, 544 U.S. 13, 27 (2005) (Thomas, J., concurring), and 

Almendarez-Torres v. United States, 523 U.S. 224, 248 (1998) (Scalia, J., dissenting), that position has 

now been squarely rejected by the U.S. Supreme Court in James v. United States, 127 S. Ct. 1586, 1600 

n.8 (2007). We predicted this result in Smith v. State, 825 N.E.2d 783, 789 (Ind. 2005). 

3
necessary to our holding in Seay because the effect of the interaction of the habitual offender 

statute, I.C. § 35-50-2-8, and the umbrella “law and the facts” statute, I.C. § 35-37-2-2(5), was 

sufficient to sustain the holding. We need not and should not have identified the Indiana 

Constitution as additional support for the holding and consider those comments to be obiter 

dicta. The authority given by the Legislature to determine both habitual offender status and the 

law and the facts provides the basis for the holding in Seay, independent of the State 

Constitution. 

 During the habitual offender phase of his trial, Walden asked the trial court to give his 

Jury Instruction No. 1, which read: “Even where the jury finds the facts of the prerequisite prior 

felony convictions to be uncontroverted, the jury still has the unquestioned right to refuse to find 

the Defendant to be a habitual offender at law.” (App. 253.) The trial court refused this 

instruction, and instead instructed the jury with the trial court’s Jury Instruction No. 2: “Under 

the Constitution of Indiana you have the right to determine both the law and the facts. The 

Court’s instructions are your best source in determining the law.” (R. at 649; App. 261.) The 

trial court also gave Jury Instruction No. 3, as follows: 

Count 4 of the Information in this case charges the Defendant with being 

an Habitual Offender. The applicable statute reads in part as follows: 

 The State may seek to have a person sentenced as an habitual offender for 

any felony by proving that the person has accumulated two (2) prior unrelated 

felony convictions. 

 You may find the Defendant to be an habitual offender only if the State 

has proven each of the [two previous offenses and the current offense] beyond a 

reasonable doubt.: 

 . . . 

 If the State failed to prove these elements beyond a reasonable doubt, you 

must find the Defendant is not an habitual offender. 

(App. 262.) 

 When a party has challenged a trial court’s refusal of a tendered jury instruction, the court 

on appeal performs a three-part evaluation. First, we ask whether the tendered instruction is a 

correct statement of the law. Second, we examine the record to determine whether there was 

evidence present to support the tendered instruction. (This part of the test is not at issue in this 

4
case.) Third, we determine whether the substance of the tendered instruction was covered by 

another instruction or instructions. Hartman v. State, 669 N.E.2d 959, 960-61 (Ind. 1996). This 

evaluation is performed in the context of determining whether the trial court abused its discretion 

when it rejected the instruction. Id. at 962. 

 On the question of whether Walden’s tendered instruction was a correct statement of the 

law, the parties are in agreement. Walden points out that his instruction reflects almost verbatim 

the holding of our Court in Seay, 698 N.E.2d at 734. Walden is correct that in Seay, we said that 

“even where the jury finds the facts of the prerequisite prior felony convictions to be 

uncontroverted, the jury still has the unquestioned right to refuse to find the defendant to be a 

habitual offender at law.” Id. (citations omitted). The State concedes in its brief that the 

tendered instruction was a correct statement of the law. 

 Under the third part of the analysis of a trial court’s refusal of a jury instruction, we ask 

whether another instruction covered the material covered by the rejected instruction. Simply 

stated, the jury was instructed on its right to determine the facts and law of the case. That the 

jury has more latitude in making a habitual offender determination than in determining guilt or 

innocence does suggest that the guilt phase “law and the facts” instruction might warrant 

advising the jury that it has the right to determine habitual offender status without strict reliance 

on the number of felony convictions the defendant has accrued. Such an advisement would not 

have been inappropriate. But while explanation from us on this point was provided in Seay, and 

a broader jury instruction would not have been wrong, the trial court is certainly not obligated to 

issue an invitation to the jury to disregard prior convictions in addition to informing the jury of 

its ability to determine the law and the facts. The substance of the information contained in the 

trial court’s instruction and Walden’s requested instruction is the same.3

 This is especially true 

here, where the trial court emphasized in Jury Instruction No. 3 that the jury “may”—not must—

find the defendant a habitual offender if the State has proved two prior unrelated felony 

convictions. Such use of “may” in the instruction reinforced the jury’s discretion; indeed, the 

only requirement placed upon the jury in Instruction No. 3 was “[I]f the State failed to prove 

 

3

 While it was unnecessary, for the reasons discussed above, for the trial court to refer to the Indiana 

Constitution in its instruction, we perceive no possible prejudice to Walden. 

5
these elements beyond a reasonable doubt, [the jury] must find the Defendant is not an habitual 

offender.” (App. 262 (emphases added).) Because we evaluate the trial court’s rejection of the 

instruction for an abuse of discretion, we cannot find that the trial court incorrectly instructed the 

jury on the law or improperly excluded mention of relevant law. 

Conclusion 

 The judgment of the trial court is affirmed with respect to Walden’s proposed jury 

instruction No. 1. We summarily affirm the Court of Appeals as to other issues raised on appeal 

but not addressed in this opinion. App. R. 58(A). 

Shepard, C.J., and Boehm, J., concur. 

Rucker, J., dissents with separate opinion in which Dickson, J., concurs. 

Dickson, J., dissents with separate opinion in which Rucker, J., concurs. 

6
Rucker, Justice, dissenting. 

The majority makes a distinction between “law and facts” jury instructions in the guilt 

and habitual offender phases of trial. Because I see little daylight in the wording of Indiana Code 

section 35-37-2-2(5) and the provisions of Article 1, Section 19, I respectfully dissent. 

As the majority points out the wording of the statute tracks the language of our State 

Constitution: “In all criminal cases whatever, the jury shall have the right to determine the law 

and the facts.” Ind. Const. Art. 1, § 19. The similarity in language between the two suggests that 

the analysis of how the provisions are to be applied should be similar as well. In Holden v. State, 

we held “[i]t is improper for a court to instruct a jury that they have a right to disregard the law. 

Notwithstanding Article 1, Section 19 of the Indiana Constitution, a jury has no more right to 

ignore the law than it has to ignore the facts in a case.” Holden v. State, 788 N.E.2d 1253, 1255 

(Ind. 2003) (quoting Bivins v. State, 642 N.E.2d 928, 946 (Ind. 1994)). As the author of Holden, 

I obviously have no quarrel with this holding. But, I view it as very narrow. That is to say, 

although Indiana juries have no right to disregard the law, under the clear wording of the 

Constitution they still have the right to determine the law. The questions implicated by this case 

are: (a) what does that right entail either in the context of the statutory provision or of the 

Constitution itself and (b) what should juries be told concerning that right. 

Our decisions have made clear that Article 1, Section 19 does not grant the jury the 

power to decide all matters that may be correctly included under the generic label – “law.” See

Anderson v. State, 104 Ind. 467, 5 N.E. 711, 712 (1886) (declaring the jury is not the “sole 

judge[] of the law in every respect in a criminal cause”). For example, the jury’s law 

determining function does not include the right to pass on questions concerning the admissibility 

of evidence, Sprague v. State, 203 Ind. 581, 181 N.E. 507, 512 (1932), or the right to make, 

repeal, disregard, or ignore clearly existing law. See Fleenor v. State, 514 N.E.2d 80, 87 (Ind. 

1987); Hubbard v. State, 196 Ind. 137, 147 N.E. 323, 326 (1925). But, when deliberating on its 

verdict, the “law” that the jury is empowered to determine encompasses not only evaluating, 

among other things, the statutory elements of the offense – which it may not disregard – but also 

whether the legislature intended those elements to be applied to the facts presented. This is not 
unlike the authority exercised by judges in employing canons of statutory construction, e.g., 

interpreting statutes to avoid absurd results or interpreting statutes according to their plain and 

ordinary meaning, to make sure that the substantive law as written does not become overreaching 

so as to defeat reasonable goals of justice. 4 Indeed, what may appear superficially to constitute 

nullification by jurors of the legal standards they have been instructed to apply may instead 

reflect jurors deciding whether guilt in a particular case would promote the justice values for 

which the statute is enacted. We have recognized a very similar proposition before: 

The jury have no right to base an acquittal upon their notion alone that the 

indictment is not sufficient; they have no right to determine that the indictment is 

not sufficient in form, or that it was not properly found and returned; they must 

act upon the law and the evidence, when the case comes before them. But they 

have the undoubted right, under the Constitution and the decisions of this court, to 

say that the facts in evidence do not constitute a ‘public offence,’ although those 

facts may be the same facts stated in the indictment. If this be not so, then the 

jury will be compelled to convict in all cases where the facts stated in the 

indictment are proved, although they may think that the facts so proved do not 

constitute a public offence. This would be, practically, to take from the jury the 

right to pass upon the law in all cases. 

Pritchard v. State, 248 Ind. 566, 230 N.E.2d 416, 420 (1967) (emphasis in original) (quoting 

Hudelson v. State, 94 Ind. 426, 430 (1884)). 

The Court has been clear about how all of this plays out in the habitual offender context. 

“[E]ven where the jury finds the facts of the prerequisite prior felony convictions to be 

uncontroverted, the jury still has the unquestioned right to refuse to find the defendant to be a 

habitual offender at law.” Seay v. State, 698 N.E.2d 732, 734 (Ind. 1998) (citing Duff v. State, 

508 N.E.2d 17, 24 (Ind. 1987) (Dickson, J., separate opinion)). However, other than declaring 

that the jury is entitled to be instructed on its Article 1, Section 19 authority, see Johnson v. 

State, 518 N.E.2d 1073, 1076 (Ind. 1988), the Court has not been very explicit about explaining 

the contours of that authority in the context of the guilt phase of a criminal trial.5 And by today’s 

 

4

 “[W]hat is typically seen as nullification may be recast as jurors participating actively in a system 

designed to give them authority to determine that a law is inapplicable in a given situation.” Lawrence M. 

Solan, Jurors As Statutory Interpreters, 78 Chi.-Kent L. Rev. 1281, 1283 (2003). 

5

 The closest the Court has come is best illustrated by Cobb v. State, 274 Ind. 342, 412 N.E.2d 728, 741 

(1980), in which the Court declared that to determine the law means that “jurors under their oaths should 

2
decision the majority takes the view that the trial court’s generic “law and facts” instruction is 

sufficient to advise the jury of its statutory authority in the habitual offender phase of trial. I 

respectfully disagree. Simply advising the jury that it has the right to determine the law and the 

facts falls woefully short of explaining how this right may be exercised. In contrast, Walden’s 

tendered instruction fills this void. Quoting Seay, the instruction is a correct statement of the law 

and gives express guidance to a jury on what it means to determine the law in the habitual 

offender context. This aspect of the statute was not covered by any of the trial court’s other 

instructions. 

In like fashion, when requested, juries should be given similar guidance on its law 

determining function under Article 1, Section 19 in the guilt phase of trial. At a minimum this 

may be accomplished by advising the jury as follows: 

Even where the jury finds that the State has proven the statutory elements of the 

offense beyond a reasonable doubt, the jury still has the unquestioned right to 

determine whether in this case returning a verdict of guilty promotes fairness and 

the ends of justice. 

It is clear that the jury already has the unreviewable power to acquit even where the facts 

point in the other direction, and a trial judge cannot direct a verdict of guilty “no matter how 

overwhelming the evidence.” Sullivan v. Louisiana, 508 U.S. 275, 277 (1993); accord Peck v. 

State, 563 N.E.2d 554, 560 (Ind. 1990). Informing the jury that it has such power under the 

Indiana Constitution would be consistent with our holding in Seay – even assuming the case 

involved only a statutory provision – and would breathe life into what otherwise too often has 

been treated as a dead letter constitutional provision. 

Dickson, J., concurs. 

 

honestly, justly, and impartially judge the law as it exists.” In essence to determine the law means to 

determine the law. 

3
Dickson, Justice, dissenting. 

 I join Justice Rucker's separate dissenting opinion and add the following additional 

reasons for my disagreement with the majority opinion. 

 First, I disagree with the majority's understanding of Holden v. State, 788 N.E.2d 1253, 

1253-54 (Ind. 2003). Although not part of the majority's actual holding but only reflected in its 

preliminary commentary, today's opinion expresses a view that Holden stands for the proposition 

that Indiana juries do not have the power to acquit despite overwhelming evidence in criminal 

cases. To the contrary, I believe that this Court unanimously acknowledged in Holden that our 

state's early jurisprudence held that, in the exercise of its law-determining function under Article 

1, Section 19 of the Indiana Constitution, a jury could disregard the instructions of the trial court, 

but had no right to disregard the law. Id. at 1254, citing Blaker v. State, 130 Ind. 203, 204, 29 

N.E. 1077, 1077-78 (1892). Our analysis in Holden also noted recent views from other 

jurisdictions and discussed recent academic literature arguing that a jury's right to decide the law 

did not encompass the right to nullify. Holden, 788 N.E.2d at 1255. Holden did not attempt to 

resolve these competing perspectives, but rather issued a narrow holding focused on the 

propriety of expressly advising the jury that "you [have] the latitude to 'refuse to enforce the 

law's harshness when justice so requires,'" an instruction that had been tendered but refused. Id. 

at 1253. We held only that a jury should not be affirmatively instructed that it has a right to 

disregard the law, and that the tendered instruction was properly refused. In my view, however, 

Holden does not prohibit Indiana juries from exercising their historic power to find in favor of a 

criminal defendant despite substantial contrary evidence. 

 Second, I disagree with the majority's minimization of the important role of Article 1, 

Section 19 of the Indiana Constitution in this Court's unanimous opinion in Seay v. State, 698 

N.E.2d 732 (Ind. 1998). To the contrary, Seay declared "we now explicitly adopt the principles 

enunciated by . . . [the dissent in] . . . Hensley," which Seay expressly acknowledged "reiterated 

the principle established in art. I, § 19, providing the jury the power to determine the law and the 

facts." Seay, 698 N.E.2d at 735-36, citing Hensley v. State, 497, N.E.2d 1053, 1058 (Ind. 1986) 

(Dickson, J. dissenting). In a case decided contemporaneously with Seay, Justice Sullivan 
likewise wrote for a unanimous court that "In Seay, we definitively established that Article 1, §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) (emphasis added). And numerous subsequent appellate decisions have noted Seay as 

applying the principles of Article 1, Section 19. State v. Barker, 826 N.E.2d 648, 649 (Ind. 

2005); McBride v. State, 785 N.E.2d 312, 316-17 (Ind. Ct. App. 2003), trans. denied; Flake v. 

State, 767 N.E.2d 1004, 1007 (Ind. Ct. App. 2002), trans. not sought; Smock v. State, 766 

N.E.2d 401, 408 (Ind. Ct. App. 2002), trans. not sought; Gonzalez v. State, 757 N.E.2d 202, 204-

205 (Ind. Ct. App. 2001), trans. denied; Womack v. State, 738 N.E.2d 320, 326 (Ind. Ct. App. 

2000), trans. denied. 

 Third, the majority acknowledges that the rejected jury instruction was a correct 

statement of law, but declares that it would have been inappropriate to inform the jury of this 

legal principle because of the effect it might produce. As correctly stated in the requested but 

refused instruction, "Even where the jury finds the facts of the prerequisite prior felony 

convictions to be uncontroverted, the jury still has the unquestioned right to refuse to find the 

Defendant to be a habitual offender at law." Appellant's App'x at 253. But the majority 

concludes that the substance of this instruction was adequately communicated to the jury by the 

following instruction: "[Y]ou have the right to determine both the law and the facts. The Court's 

instructions are your best source in determining the Law." Id. at 261. I cannot agree that this 

latter, broad, unspecific, and opaque instruction was adequate to inform the jury of the legal 

principal embodied in the defendant's tendered instruction—a principal that was at the heart of 

the defendant's defense on the habitual offender count. 

 Innocuous, generic, non-specific jury instructions are not an adequate substitute for plainlanguage advisements that meaningfully explain to jurors the reality of their rights and 

permissible function under the law.6

 In my view, the resulting obfuscation and secrecy is 

inconsistent with the Rule of Law. 

 

6

 Retired Arizona trial judge B. Michael Dann has recently explored this issue, expressing the view that 

"jurors deserve better and need more regarding the role the Constitution has in mind for them." B. 

Michael Dann, "Must Find the Defendant Guilty" Jury Instructions Violate the Sixth Amendment, 91 

Judicature 12, 17 (July-Aug. 2007). He advocates use of an instruction that would "impress upon jurors 

2
 Because I believe that the defendant was entitled to have the jury meaningfully instructed 

regarding its right to find in favor of a criminal defendant despite substantial contrary evidence, a 

historic right of American juries and one additionally preserved in Section 19 of the Indiana Bill 

of Rights, I dissent from the majority's opinion. 

Rucker, J., concurs.

 

that the law applicable to the case comes from the judge, that the law should be given serious 

consideration, and that the power to acquit despite the law should be reserved for exceptionable cases that 

present jurors with strong issues of conscience." Id. at 18. 

3