¶1dissenting in part, concurring in part.
¶2I concur in the conclusions of the majority that defendant’s convictions for posses*89sion and sale of marijuana should be affirmed. I must respectfully dissent, however, from the majority’s determination that the jury was properly instructed during the habitual offender phase of the proceedings. See Majority Opinion, Issue IV. I would vacate the habitual offender finding and remand the cause for a new hearing on that count.
¶3After all evidence regarding the habitual offender count had been presented to the jury, the trial court read aloud eight final instructions to the jury. Detailed in the first seven instructions read to the jury were matters of law peculiar to the habitual offender charge the jury was about to consider. In instruction eight, the court, over defendant’s objection, informed the jurors of the following:
“Court’s final instructions numbered 1, 2, 3, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 26, 27, 28, 29, 31, and 33 are being submitted to you along with Court’s supplemental final instructions numbered 1 through 8, without re-reading the original court’s final instructions and the Court’s final instructions and the Court’s Supplemental Final Instructions are all to be taken and construed together.”
¶4The quotation “Court’s final instructions numbered 1, 2, 3, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 26, 27, 28, 29, 31, and 33” refers to instructions on general rules of law (e.g., jurors’ responsibilities, burden of proof, presumption of innocence, reasonable-doubt standard, credibility of witnesses, etc.) which the court had read to the jury prior to its deliberations on the underlying felony charges — the controlled substances counts. That reading had occurred the previous day.
¶5Then, as the instruction indicates, the court provided the jury with copies of the numerous instructions referred to by number, as well as the eight instructions which had been read aloud, and directed the jury to retire. “All” the instructions were “to be taken and construed together,” according to instruction number eight.
¶6In his brief, defendant has predicated his claim that the trial court erred in failing to read aloud the instructions on Ind.Code § 35-1-35-1 (Burns 1979 Repl.), Ind.R.Tr.P. 51, and Purdy v. State, (1977) 267 Ind. 282, 369 N.E.2d 633. In Purdy, this Court reversed defendant’s murder conviction for the reason that the trial court had failed to read aloud its final instructions. Similar to here, the court had instead sent the instructions to the jury room with the directive that the foreman read aloud and discuss the instructions with the fellow jurors.
¶7In our unanimous reversal of Purdy’s conviction, this Court extensively analyzed the reasons why a trial court’s failure to read aloud final instructions could not be countenanced. Quoting Smith v. McMillen, (1862) 19 Ind. 391, we explained:
“ ‘The principle is, that the jury shall take the law from the Court. The mode in which the Court communicates with the jury is by addressing them in open Court. The jury take the law from the Court through the ear. By so doing, they generally stand upon equality, because none but men with hearing ears are competent jurors. In the juryroom, then, each depends upon his own recollection of the instructions, and upon the impression they made upon him for their meaning, their construction; and, this standing upon an equality, if they differ,, they should come into Court, and, in presence of the parties, let the Court be interpreter of its own instructions. But if; instead of this being done, the court sends the written instructions to the jury, inasmuch as jurors are not upon equality in their ability to read and interpret writing, it puts it in the power of the sharp ones on the jury to read, and become the interpreters for the Court, and mislead their less skillful fellow-jurors. We think instructions should not be sent to the juryroom, without consent of both parties.’ ” Purdy v. State, supra, 267 Ind. at 286, 369 N.E.2d at 634-35.
¶8In concluding, we stated:
“This duty was delegated to the foreman of the jury under circumstances where it cannot be known how the job was done, or whether it was done at all. This was *90not only in violation of the settled law in Indiana as set out above, but it was also directly in violation of Ind.R.Tr.P. 51(A),. (B) and Ind.Code § 35-1-35-1 (Burns 1975).” Id., 267 Ind. at 289, 369 N.E.2d at 636.
¶9Likewise, in the circumstances present here, there is no way of knowing whether the written instructions were construed together with the instructions read to the jury; there is no way of knowing “how the job was done, or whether it was done at all.”
¶10Still, the majority finds no error, stating the “only problem presented here is that several of the instructions had been read the day before when the jury convicted the defendant on the underlying felony.” [Emphasis added.] The “several” instructions represented twenty of the twenty-eight instructions the jury was supposed to consider in its deliberations over the habitual criminal charges after it had retired.
¶11Relying on the proposition that the hearing conducted on an habitual offender count is not a “separate crime or trial,” as enunciated in Norris v. State, (1979) Ind., 394 N.E.2d 144, the majority summarily concludes the fact the instructions had been read the day before to the same jury was sufficient. That rationale pays short shrift to the reasons instructions should always be read in open court; in addition, it shows little regard for the extreme consequences at stake, for the defendant in an habitual offender hearing.
¶12Thirty years’ imprisonment is the sentence usually imposed on a defendant who is found to be an habitual offender. Ind. Code § 35-50-2-8, supra. As here, the consequences of the outcome of the habitual offender hearing are indubitably far greater than those which result from the trial on the underlying felony. That the habitual offender hearing technically is not characterized as a “separate trial” does not diminish this fact.
¶13Furthermore, the habitual offender hearing is a proceeding wholly distinct from the trial on the underlying felony. At the conclusion of the latter, the jury, as here, usually separates and returns to their homes; this Court is fully mindful of the effect a separation may work on the individual jurors’ intellectual processes with regard to the law before it. See Follrad v. State, (1981) Ind., 428 N.E.2d 1201; Bales v. State, (1981) Ind., 418 N.E.2d 215.
¶14When the jury reconvenes, the habitual offender hearing proceeds in the format of a trial, complete with preliminary instructions, presentation of evidence, opening and closing arguments, and final instructions. At issue for the jury’s resolution is a substantive legal matter wholly distinct from the underlying felony charge.
¶15In resolving the question, the jury must adhere to the same general responsibilities and rules of law which it was required to follow in disposing of the underlying felony charge. Those matters are neither simple nor insignificant; the responsibility to act impartially, to understand and apply the reasonable-doubt standard, the presumption of innocence, and the duty to weigh the evidence and judge the credibility of witnesses, the burden of proof, the capacity to draw inferences, the distinction between circumstantial and direct evidence, the responsibility to disregard objectionable evidence, and the requirement of unanimity are all fundamental to the jury’s proper exercise of its functions.
¶16In light of the grave consequences attendant to the habitual offender hearing, the manner in which the jury is made to understand the law it must apply should not be left to chance. As in Purdy v. State, supra, we know not whether the jury did read the instructions again to refresh their memories concerning the law read to them the day before; if it was done, we do not know the manner or by whom the reading was accomplished, or whether in fact the jury “construed” the unread instructions together with those which had been read to them. And, as defendant argues, we do not know whether the trial court's failure to read the instructions conveyed an impression to the jurors that the unread instructions were of less significance than the instructions read to them. Nor can we gauge the effect the separation of the jurors had *91on their understanding of the twenty instructions which had been read to them roughly twenty-four hours earlier.
¶17These uncertainties cannot be cured by the fact the trial court made twenty numerical references to the instructions when it read instruction number eight. Those numerical references cannot be said to somehow have refreshed each juror’s individual memory as to the substantive rules of law contained in the twenty different instructions.
¶18It is this uncertainty which inspired our unanimous decision in Purdy, as well as Ind.R.Tr.P. 51, supra, and Ind.Code § 35-1-35-1, supra. To deviate from our well-reasoned decision, court rule, and statute on the basis that a habitual offender hearing is not a “separate trial” is to elevate semantics over substance. The stakes are far too significant — both to defendant and the state — to permit a trial court to subjugate those rules to its own convenience.
¶19Here, we cannot be sure the jury approached its task with an informed understanding of the law it was required to apply. We do not know with certainty that in its deliberations, the jury accorded defendant the various constitutional and statutory rights which were due him. The judgment and thirty-year sentence entered on the habitual offender count should be vacated; the cause should be remanded to the court for a new hearing on that count.
¶20I dissent.