DRUG DEALER'S EARLIER CRIMES FRUSTRATE JURY

The jury that last week found the son of the Floyd County clerk guilty of
possessing marijuana with intent to distribute failed to agree yesterday on
a second charge, one that could add years to his prison sentence.

The Floyd Superior Court jury deliberated 31/2 hours before telling Judge
Richard Striegel that it could not decide whether the marijuana conviction
and four earlier, unrelated convictions mean Tony Farnsley is a habitual felon.

The same jury took only 21/2 hours Thursday to convict Farnsley, 40, in
connection with a package shipped last August to the home of his mother,
Floyd County Clerk Eugenia Freiberger, that contained more than 10 pounds
of marijuana.

The marijuana conviction carries a prison sentence of two to eight years. A
guilty verdict on the habitual-felon charge would mean an additional four
to 12 years behind bars.

A hung jury on a habitual-felon charge is unusual. Striegel said that in
his 25 years as a judge, "I don't remember having one on a habitual offender."

Steve Owen, the chief deputy prosecutor in Floyd County, said, "I've never
had a hung jury on the habitual phase in my 17 years as a prosecutor." Owen
said he had prosecuted more than 50 habitual-offender cases.

A guilty finding on the habitual-offender charge, which is intended to
provide additional punishment to those convicted of three or more unrelated
felonies, is usually a formality.

Once a person is convicted of a felony that qualifies him or her to be
considered a possible habitual felon, the same jury, in a separate hearing,
is presented records of the earlier convictions.

If the jury finds that the defendant has indeed been convicted of three or
more unrelated felonies, the panel may then also convict the defendant of
being a habitual felon.

But the finding of the necessary number of felony convictions does not
require a conviction on the habitual charge. The verdict form for the
habitual phase contains two sections.

The first lists the prior convictions that are to be checked off by the
jury. The second lists the options of finding that a defendant is or is not
a habitual offender.

Farnsley pleaded guilty to three felony-theft charges in 1999, and in 2000
he pleaded guilty to a felony charge of operating a vehicle while
intoxicated. The three theft charges, though they happened at different
times, are considered one for habitual-offender purposes because they were
all disposed of at the same time.

Owen, the prosecutor, said "I feel pretty confident" about getting a
conviction in the retrial on the habitual charge, which Striegel scheduled
for Feb. 2.

One reason for that feeling, Owen said, is that he will be allowed, before
the trial begins, to ask potential jurors how they feel about the
habitual-offender statute because it is the only thing they will be
considering.

That will allow the prosecution to object to jurors who oppose the law. No
such questioning was allowed before the marijuana trial.