COURT OF APPEALS OF INDIANA
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LEANNA WEISSMAN STEVE CARTER
Lawrenceburg, IN Attorney General of Indiana
Deputy Attorney General
WILLIAM O. MEEKS, )
Appellant-Defendant, ) )
vs. ) No. 39A05-0106-CR-262
STATE OF INDIANA, )
The Honorable Ted Todd, Judge
Cause No. 39C01-0004-CF-021
APPEAL FROM THE JEFFERSON CIRCUIT COURT
(December 13, 2001)
Today we are called upon ostensibly to review the trial courts denial of
a jury instruction regarding the jurys power of nullification. However, in
arguing that the trial court should have given his tendered instruction, appellant-defendant William
O. Meeks invites this court to overrule supreme court precedent on the issue
of jury nullification, which he asserts is inconsistent with the language and intent
of Article I, Section 19 of the Indiana Constitution. Thus, an
essential aspect of this case is the role of the Court of Appeals
as an intermediate appellate court and the extent to which it is bound
by the precedent established by our supreme court.
The facts most favorable to the verdict are that on April 5, 2000,
Madison City Police Officer Kenneth L. Jones was notified by police dispatch that
it had received an anonymous tip that Meeks, a habitual traffic offender, was
driving to the Quality Farm and Fleet store. Officer Jones located
Meekss vehicle at that store and arrested Meeks after he drove his vehicle
out of the stores parking lot.
On April 6, 2000, Meeks was charged with operating a vehicle after suspension
of driving privileges for life,See footnote a class C felony. During the trial
on May 1, 2001, the State established that in 1993 Meeks was convicted
for being a habitual traffic violator and was suspended from driving for life.
Officer Jones testified that he stopped Meeks on the basis of the
tip that he was driving on a suspended driving license, and that Meeks
was not speeding, operating while intoxicated, or operating his vehicle recklessly at the
time of his arrest.
Meeks did not dispute that his license had been suspended or that he
was driving unlawfully. Rather, he testified that he drove to the
feed supply store to purchase food and bedding for his hatchling geese, ducks,
and chickens, and that the young birds might have perished without these supplies.
Meeks argued that, given the facts of his case, the jury
should be instructed that it could refuse to enforce the laws harshness when
justice so requires. Appellants brief at 4. Specifically, Meeks tendered the
following jury instruction regarding nullification:
Since this is a criminal case, the Constitution of the State of Indiana
makes you the judges of both the law and facts. Though this
means that you are to determine the law for yourself, it does not
mean that you have the right to make, amend, alter, disregard, abolish or
ignore the law. The instructions of this court are the best source
as to the law applicable in this case.
Our state constitution also intentionally allows you latitude to refuse to enforce the
laws harshness when justice so requires. This should not be taken lightly
nor exercised whimsically, but only exercised upon a sincere and solemn belief that
justice of this case requires its application.
Appellants App. at 74. The trial court instructed the jury on
the first paragraph, but not the second paragraph, of Meekss tendered jury instruction.
Subsequently, the jury found Meeks guilty as charged. In determining
Meekss sentence, the trial court considered the mitigating factors that he had led
a law-abiding life for almost eight years, that his purpose for violating the
law was benign, that Meeks was a kind and generous person who meant
no harm by his actions, and that his actions had neither caused nor
threatened harm. Appellants App. at 109. The trial court then
sentenced Meeks to the minimum sentence of two years imprisonment.See footnote Meeks
DISCUSSION AND DECISION
Meeks contends that the trial court erred in refusing to give his tendered
jury instruction regarding the jurys power of nullification. Specifically, Meeks claims
that current precedent, which indicates that the jury does not have the power
of nullification, is inconsistent with the language and intent of Article I, Section
19 of the Indiana Constitution. Meeks asserts that this constitutional provision
should be interpreted to allow the jury to refuse to enforce the laws
harshness when justice so requires, as suggested by Justice Rucker in his law
review article, The Right To Ignore the Law: Constitutional Entitlement Versus Judicial
Interpretation, 33 Val. U. L. Rev. 449, 481 (1999). Thus, Meeks
invites this court to overrule the precedent set by our supreme court and
hold that his proposed instruction was a correct statement of the law and
should have been read to the jury.
In addressing Meekss request, we note that we are bound by the decisions
of our supreme court. See In re Petition to Transfer Appeals,
202 Ind. 365, 376, 174 N.E. 812, 817 (1930). The precedent
our supreme court establishes is binding upon us until it is changed either
by that court or by legislative enactment. Id. Nevertheless,
while we are without authority to overrule the decisions of our supreme court,
we are authorized by rule to criticize the supreme courts ruling.
Specifically, the Indiana Constitution provides that this court shall exercise appellate jurisdiction under
such terms and conditions as the supreme court shall specify by rules.
See Ind. Const. art. 7, § 6. Our authority to criticize
supreme court precedent is, thus, found in Ind.Appellate Rule 65(A). This rule
establishes the criteria for the publication of judicial opinions, and states that a
Court of Appeals opinion shall be published, among other reasons, if the case
criticizes existing law. While we are permitted to criticize supreme court precedent,
we exercise that privilege rarely, and solely for the purpose of urging reconsideration
of the particular issue.
Before determining whether to exercise our prerogative to criticize supreme court precedent on
jury nullification, we note that the manner of instructing the jury lies within
the sound discretion of the trial court. State v. Snyder, 732 N.E.2d
1240, 1244 (Ind. Ct. App. 2000). In determining whether the trial
court erroneously refused a tendered instruction, we consider: 1) whether the tendered
instruction correctly states the law; 2) whether there is evidence in the record
to support giving the instruction; and 3) whether the substance of the instruction
is covered by other instructions. Id. at 1244-45. The central
issue in this case is whether Meekss tendered instruction was a correct statement
of the law.
The source of the jurys right to determine the law in criminal cases
is Article I, Section 19 of the Indiana Constitution, which provides: In
all criminal cases whatever, the jury shall have the right to determine the
law and the facts. This constitutional mandate is codified in Ind.
Code § 35-37-2-2(5), which governs the trial courts instructions to the jury, and
provides, in relevant part: 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.
Current precedent establishes that the instruction given by the trial court was a
correct statement of the law and that the refused portion of Meekss instruction
would have erroneously informed the jury that it has a power of nullification
that it does not have. Specifically, the current state of the law
regarding the proper interpretation of Article I, Section 19 originated in Beavers v.
State, 236 Ind. 549, 141 N.E.2d 118 (1957).
See footnote In that case, our
supreme court determined that the [jurys] right to determine the law, as established
in Article I, Section 19, is not the right to make, repeal, disregard,
or ignore the law in all its phases.
Id. at 562, 141
N.E.2d at 124. In so holding, the court dispelled the notion
that Article I, Section 19 authorized the jury to disregard trial court instructions.
Id. at 564, 141 N.E.2d at 125.
Thirty years later, in Fleenor v. State, 514 N.E.2d 80, 87 (Ind. 1987),
the defendant challenged an instruction based upon Beavers that was substantially similar to
the one given by the trial court in the case at bar.
That instruction stated that the jurys constitutional right to judge both the law
and facts does not include the right to make, repeal, disregard, or ignore
the law as it exists. Id. Our supreme court rejected the
defendants contention that this instruction was contrary to the plain language of the
Indiana Constitution and held that it was a correct statement of the law.
Thus, it is well established that the portion of Meekss instruction
actually given by the trial court properly states the law.
Moreover, our supreme court has rejected an instruction similar to the second portion
of Meeks proposed instructionthat the jury has the right to mitigate its verdict
if it feels that the mandatory punishment is harsh considering the circumstances of
the case. Specifically, in Walker v. State, 445 N.E.2d 571, 574 (Ind.
1983), the defendant proposed the following instruction:
If, after considering all of the evidence presented in this case, you find
that the mandatory punishment inflicted on the Defendant under the Habitual Offender Statute
is excessive under the standards read to you, then you may take that
finding into consideration in rendering your verdict.
Id. at 574. According to our supreme court, the refused
instruction would have conveyed to the jury the belief that it had a
power of nullification, which clearly it does not possess under the law.
Id. at 575. The court then went on to approve an instruction
almost identical to the one given by the trial court in this case.
Notwithstanding current precedent, Meeks asserts that Article I, Section 19 of the Indiana
Constitution should be interpreted to allow the jury to be merciful by refusing
to enforce the laws harshness when justice so requires. According to
Meeks, a proper interpretation of our constitution allows the jury the right to
nullification and . . . any cases which attempt to limit that right
have done so in error. Appellants reply brief at 2.
In support of his argument, Meeks relies upon a law review article written
by Justice Rucker of the Indiana Supreme Court,
See footnote where Justice Rucker advocates:
[A]n instruction telling the jury that the constitution intentionally allows them latitude to
refuse to enforce the laws harshness when justice so requires would be consistent
with the intent of the framers and give life to what is now
a dead letter provision.
supra, at 481. In his article, Justice Rucker examines the
historical circumstances that gave rise to the concept of jury nullification articulated in
Article I, Section 19. He traces the common law
principle of jury nullification to its English roots in Bushells Case, 124 Eng.
Rep. 1006 (C.P. 1670)the post-medieval trial of William Penn and William Meade.
Id. at 449. The jury in Bushells Case refused to convict Penn
and Meade for unlawful assembly after they delivered speeches at a Quaker meeting
in London, England.
Id. at 449-50. Even after the court ordered
that the jury be deprived of food, water, and heat until it returned
a guilty verdict, the jury held out and refused to return the verdict
requested by the court. Id. at 450-51. As a result, the
court fined and imprisoned the jurors until, on a writ of habeas corpus,
the justices abolished the practice of punishing juries for their verdicts. Id.
The principle of Bushells Casethe jurys right to protect citizens from oppressive governmentwas
observed in colonial and post-revolution America.
Id. at 452. According
to Justice Rucker, in drafting Article I, Section 19 of our State constitution,
the framers intended to preserve this right of ordinary citizens to check and
control the power of the government. Id. at 477. Justice Rucker
Certainly the jurys right to determine the law meant something to the framers.
If it did not mean that the jury could alter, abolish, or
amend the law, and if it did not mean that the jury could
set aside the law on the basis of having a differing opinion of
what the law was, then what did it mean? Considering the apparent
purpose for which the provision was adopted, as informed by the history of
Indianas constitutional scheme, one may reasonably conclude that it means the jury has
a right not to apply the law when their conscience so dictates.
Id. Meeks contends that Justice Ruckers interpretation of Article I, Section
19 is proper, and that disallowing the jury to alleviate the harshness of
the law if justice so dictates is contrary to the language and intent
of the framers of our constitution. Appellants brief at 8.
It is apparent from the proliferation of case law on the subject of
jury nullification, that our supreme court has engaged in an extensive and in-depth
analysis of this issue. The court has carefully scrutinized the text,
intent, and historical underpinnings of Article I, Section 19, and, since it decided
Fleenor in 1987, has adhered to the principle that the constitutional right of
the jury to determine the law in criminal cases does not include the
right to disregard or ignore the law as it exists. See Canaan
v. State, 541 N.E.2d 894, 910 (Ind. 1989); Bivins v. State, 642 N.E.2d
928, 946 (Ind. 1994). While this court is permitted to criticize supreme
court precedent, we are constrained not to offer such criticism where, as here,
there has been recent and repeated articulation of the same principle.
Accordingly, we decline Meekss invitation to criticize our supreme courts ruling on jury
nullification and hold that the trial court properly instructed the jury regarding its
rights and obligations under the Indiana Constitution. Thus, we conclude that the
trial court did not err in refusing to give Meekss tendered instruction on
NAJAM, J., and BAILEY, J., concur.
We heard oral argument on this cause on November 28,
2001 at South Dearborn High School, near Wilmington, Indiana. We wish to
thank the high school for its hospitality and commend both parties for their
excellent presentations. We also wish to thank Judge James D. Humphrey of
the Dearborn Circuit Court Judge and Judge G. Michael Witte of the Dearborn
Superior Court for arranging our visit with the members of the Dearborn County
Bar and the high school. This oral argument represents a culmination
of a series of oral arguments held throughout the state to bring our
court closer to the people we serve. These oral arguments were held
as part of our centennial celebration of the establishment of our states intermediate
Ind. Code § 9-30-10-17. The State originally charged Meeks
with operating a vehicle after suspension as a habitual traffic offender, a class
D felony, but subsequently amended its charging information. Appellants App. at 5-6.
The presumptive sentence for a class C felony is four
nd. Code § 35-50-2-6. The trial court did not have
the option of suspending Meekss minimum sentence because he had a prior felony
conviction within seven years of the date of this offense. See
I.C. § 35-50-2-2(b).
Beavers, our supreme court had interpreted Article I,
Section 19, to confer upon the jury the power and the right to
determine the law, and, thus, the jury was not bound by the instructions
given to it by the trial court. See Williams v. State, 10
Ind. 503 (1858); Daily v. State, 10 Ind. 536 (1858).
Walker instruction admonishes the jury that it does
not have the right to make, repeal, disregard, or ignore the law as
it exists, 445 N.E.2d at 574, whereas the instruction here states that the
jury does not have the right to make, amend, alter, disregard, abolish or
ignore the law.
At the time that Justice Rucker wrote this article he
was a judge of the Indiana Court of Appeals.
Bushell was the name of the foreman of the Penn
and Meade jury. Rucker, supra, at 449, n.2 (citing 124 Eng. Rep.
1006 (C.P. 1670)).
Specifically, Penn and Meade were charged with violation of the
Conventicle Act of 1670, which prohibited the public expression of religious beliefs .
. . not in accord with [those of] the Church of England.
supra, at 450. Penn and Meade argued that
the law under which they were indicted was invalid. Id.
Originally, many states conferred upon juries in general terms the
power to determine the law and the facts in criminal cases by statute
Beavers v. State, 236 Ind. 549, 551, 141 N.E.2d 118,
121 (1957). However, Indiana remains as one of only two states, the
other being Maryland, that has retained the right of jury nullification in its