Wireman v. State

HUNTER, Justice,

dissenting.

I must respectfully dissent from the majority opinion. The Court of Appeals' decision in the instant case, found at Wireman v. State, (1981) Ind.App., 418 N.E.2d 1182 , should not be disturbed. Based on its extensive analysis of the facts, as well as the case precedent and policy considerations surrounding the selection of jurors, the Court of Appeals unanimously and correctly concluded the manner in which Wireman's *1354 jury was selected was not in substantial compliance with the dictates of Ind.Code § 33-4-5-1 et seq. (Burns 1975). In concluding otherwise, the majority has overlooked both facts in evidence and the case precedent of this jurisdiction.

As the Court of Appeals recognized, this Court has repeatedly emphasized that compliance with the statutory procedures for the selection of jury venire serves the vital purposes of guaranteeing the impartiality of jurors and eliminating any cause for suspicion about the selection process. Cross v. State, (1979) Ind., 397 N.E.2d 265 ; Owen v. State, (1979) Ind. 396 N.E.2d 376 ; Shack v. State, (1972) 259 Ind. 450 , 288 N.E.2d 155 ; Rudd v. State, (1952) 231 Ind. 105 , 107 N.E.2d 168 . The former aim, of course, is constitutionally required as basic to our system of jurisprudence and the principles of law of our republic. Smith v. Texas, (1940) 311 U.S. 128 , 61 S.Ct. 164 , 85 L.Ed. 84 ; Brewer v. State, (1969) 258 Ind. 154 , 252 N.E.2d 429 . The latter purpose-removing any specter of arbitrariness from the selection process-is vital to the effective administration of justice, for it perpetuates society's confidence that the system yields convictions justly secured. Cross v. State, supra; Brewer v. State, supra; Rudd v. State, supra.

In response to these considerations, Judge Emmert spoke for this unanimous Court in Rudd :

"It seems to us that the proper construction is to hold that an accused, regardless of his guilt or innocence, has the right to insist that there be substantial compliance with § 4-8820, Burns' 1946 Replacement, and if these provisions are not substantially complied with, his substantial rights are harmed.

* * #

"The only way this court has to enforce substantial compliance with the statutes on juries is to reverse when the issue is properly presented in the trial court and here." Id., 231 Ind. at 111-113 , 107 N.E.2d at 170-71 ."

In the three decades since Rudd was decided, this Court's decisions have continued to focus on the question whether the methods employed in any particular case constituted "substantial compliance" with the governing statutes. In the spirit of Rudd and the aforementioned constitutional and policy considerations, a two-pronged test has evolved, as we recently reiterated in Cross v. State, supra :

"When a defendant fails to show lack of substantial compliance with statutory requirements, this Court will require a showing of prejudice to the defendant's rights. Shack v. State, supra; Leonard v. State, (1968) 249 Ind. 361 , 232 N.E.2d 882 . However, when there is a lack of substantial compliance, the defendant need not show actual prejudice." Id., 397 N.E.2d at 267-268 .

Here, the Court of Appeals concluded the procedures employed to select the venire from which defendant's grand jury was chosen did not constitute substantial compliance with the governing statutes. Ind. Code § 338-4-5-1 , supra. For that reason, the Court of Appeals rejected the state's contention that it was incumbent upon defendant to demonstrate actual prejudice from the various irregularities. Wireman v. State, supra.

The majority of this Court rejects that approach, finding the procedures substantially complied with the statutory requirements and that the defendant demonstrated no actual prejudice by virtue of the various irregularities.

The record supports the conclusion of the Court of Appeals. Therein, it is revealed it was the practice of the jury commissioners to select the venire by utilizing voter registration lists which "plainly" revealed the voting preferences of the persons listed thereon. The use of these politically-labeled lists occurred notwithstanding the availability of politically-neutered master voting lists which, as this Court has expressly recognized, satisfy the statutory requirement and purpose of Ind.Code § 33-4- *1355 5-2, supra. State ex rel. Brune v. Vanderburgh Circuit Court, (1971) 255 Ind. 505 , 265 N.E.2d 524 .

Coupled with this impropriety, the record also reveals the jury commissioners regularly acted outside the presence of each other when selecting the names of prospective jurors from the politically-labeled lists. For obvious reasons, this practice was condemned in Rudd. The fact both commissioners were present when the names were ultimately placed in the box, as the majority indicates, in no way cures the impropriety. As it is pointless to lock the gate after the horse has fled, so it is meaningless the commissioners were present together to view the slips of paper bearing improperly selected names as they were dropped into the box.

In addition, the record reveals the jury commissioners failed to purge the box of names on a regular basis; instead, the commissioners simply added names whenever the box neared depletion. This practice was also condemned in Rudd.

The record also reveals that prior to the time when the names for defendant's grand jury were drawn, the jury commissioners abandoned use of the politically-labeled lists as the source of prospective jurors. The majority indicates this procedural change occurred "somewhere between mid-1974 to early 1975." It is true that one commissioner vacillated in his testimony regarding when the procedure changed; he stated the change might have occurred as early as mid-1974 or as late as mid-1975. Other testimony, however, was more definite. Voter registration officer Johanna Garten-haus testified the commissioners utilized the politically-labeled lists until the middle of 1975. Likewise, jury commissioner Robert Brown stated that the last time the politically-labeled lists were employed was to fill the spring request of 1975.

That request in the spring of 1975 occurred in June, when the commissioners added 600 names to the box of prospective jurors. In January of 1975, when the main input of names for the year had occurred, the commissioners had placed 1,000 names in the box. The fact that 1,600 names drawn from the politically-labeled lists were placed in the box during 1975 renders insignificant the testimony of jury commissioner Brown that "sometime" in 1974 the box contained only three or four names.

It is significant, on the other hand, that the box was not purged of names in mid-1975 when the commissioners properly began using the nonpartisan master voting lists. Likewise, it is relevant that subsequent to the implementation of the new selection source, 1,200 additional names were added to the box prior to early December of 1975, when the names of defendant's prospective grand jurors were drawn.

We have no way of knowing the ratio of properly selected names to improperly selected names in the box at the time prospective grand jurors' names were drawn. There is no testimony to establish that fact, nor can the matter be resolved by resort to inference on the basis of the record before us.

On the basis of these facts alone, the case precedent of this Court requires the conclusion reached by the Court of Appeals. We emphasized in State ex rel. Brune v. Vanderburgh Circuit Court, supra, that master voting lists could be utilized in the selection of venire so long as the lists were "without any reference to political affiliation." Id., 255 Ind. at 513 , 265 N.E.2d at 529 . We have also recognized that when the source of names for the venire is improper, a random selection therefrom does not cure the impropriety and transform the procedure into one which substantially complies with the statutory requirements. Cross v. State, supra (Givan, C. J., and Pivarnik, J., dissenting); State ex rel. Burns v. Sharp, (1979) Ind., 393 N.E.2d 127 .

Other factors remain, however-factors peculiar to this case-which also require the conclusion reached by the Court of Appeals. The Court of Appeals properly acknowledged the case before us involved an inves *1356 tigation of wrongdoing by public officials and carried partisan "overtones." The official investigation which culminated in the grand jury's indictment of defendant was initiated by three other elected public officials, each of whom shared a political preference different from that held by defendant. Together, they called a meeting with the regularly-elected prosecutor and urged him to yield to the appointment of a special prosecutor to head the investigation and convene the grand jury. Ultimately, a special prosecutor of the same partisan persuasion as the three public officials was appointed and assumed control of the investigation.

It is true, as the majority states, that defendant has "made much" of the political aspects of the investigation and grand jury indictment. Indeed, both in his motion to dismiss and on appeal, defendant has tendered numerous arguments in that respect which the majority has erroneously failed to mention or address. 1 In addition to arguing the venire was improperly selected, defendant has also maintained his motion to dismiss should have been granted because one of the three public officials who initiated the investigation and appointment of the special prosecutor also presided over the selection of the jurors who ultimately sat on the grand jury; concomitantly, defendant has argued the grand jury was improperly impaneled in that prospective jurors were not seated for questioning in the order in which their names had been drawn, that prospective jurors were excused without legal cause, and that prospective jurors were questioned outside the presence of each other. Defendant has also maintained dismissal was warranted by virtue of irregularities in records pertaining to the selection process, by the fact a commissioner, rather than a clerk, drew the names, and by the fact the box was not shaken prior to the draw. It was this Court's duty to address these contentions. See n. 1, supra.

Just as the Court of Appeals found it unnecessary to reach the merits of these questions, so also should it be emphasized the question before us is not a partisan one. Rather, the issue is whether defendant's motion to dismiss should have been granted by virtue of the various irregularities in the selection of the grand jury which indicted him. *

Nevertheless, the majority relies on the fact there was "no evidence whatever that the grand jury was selected in furtherance of any conspiracy or that it was handpicked in any manner to bring about a calculated result." See, Majority Opinion, supra. That analysis flies directly in the face of recognition by both this Court and the United States Supreme Court that it is not incumbent upon a defendant to establish the improper manner in which his jury was selected was a product of bad faith, fraud, corruption, or other ulterior motives. Whitus v. Georgia, (1967) 385 U.S. 545 , 87 S.Ct. 643 , 17 L.Ed.2d 599 ; Rudd v. State, supra; see also, Shack v. State, supra, 259 Ind. at 463 , 288 N.E.2d at 164 (DeBruler, J., concurring). Similarly, the majority has emphasized there was no evidence to indicate the "political makeup" of the grand jury which indicted him; that question is particularly inappropriate here.

It was, after all, our founding fathers' desire to eliminate the specter of convictions politically obtained which inspired the constitutional right to an impartial jury. In the face of the circumstances surrounding the case at hand, the question before us should not be reduced to a matter purely of formal partisanship; neither, however, can *1357 the fact defendant's investigation involved public officials of opposing faiths be relegated to oblivion. Cognizant of the broader considerations underlying the facts at hand, the Court of Appeals in its final analysis refused to ignore the political aspects of the question before us. Judge Miller spoke for the unanimous Court:

"Thus, we conclude that where, as here, there are numerous jury selection irregularities alleged in a politically-colored investigation, and that among such irregularities it is demonstrated the names for the grand jury in question had been drawn from a jury box which had not been purged for as many as six years, that during most of this six-year period names were chosen from politically-labeled voter lists, and that in selecting the names comprising the pool of prospective jurors the commissioners acted not in concert, but entirely on their own, substantial compliance with the appropriate statutory procedures has not been achieved." Wireman v. State, supra, 418 N.E.2d at 1189 .

This approach to the circumstances at hand reflects regard for the considerations underlying the statutory jury selection procedures and serves to perpetuate its purposes.

It is emphasized that no opinion is here expressed regarding defendant's claim his prosecution and conviction were politically inspired. Whether real or imagined, the particularities of that contention are not relevant here. At issue is solely whether defendant's grand jury was selected in a manner which substantially complied with the governing statutes and case law; in resolving that question, the guilt or innocence of defendant is also irrelevant. 2 Rudd v. State, supra.

When previously confronted with this issue of law, we have determined on various occasions that irregularities in the selection of a particular jury were not so significant that reversal was warranted. See, e.g., Shack v. State, supra (commissioners appointed in December instead of November, as statutorily required); Leonard v. State, (1968) 249 Ind. 361 , 232 N.E.2d 882 (names of prospective grand and petit jurors not selected at same drawing); Flowers v. State, (1956) 236 Ind. 151 , 139 N.E.2d 185 (grand jury drawn one hour earlier than statutory mandate); Anderson v. State, (1941) 218 Ind. 299 , 32 N.E.2d 705 (clerk failed to enter names drawn and give proper statutory notice).

The circumstances of this case take it far outside the pale of the above authorities, which involved only minor irregularities. In concluding the instant facts fall within the purview of the above authorities, the majority gives an expanded and unprecedented application of the term "substantial compliance" which defeats the most fundamental considerations of the statutory authority.

In the application of the legislature's mandates regarding the manner in which jury venire are selected, our aim must not only be to insure impartiality and fairness, but, equally as important, to guard against the appearance of impropriety. With these precepts in mind, the state's petition to transfer should be denied, for to hold otherwise is to condone procedures which defeat the goals of impartiality and fairness and, at their very least, unnecessarily raise the appearance of impropriety.

The Court of Appeals properly decided the question before us. I would deny transfer; I dissent.

PRENTICE, J., concurs.

. Inasmuch as the Court of Appeals concluded the improperly selected venire warranted reversal, it expressly noted the disposition of these other arguments was not necessary to its decision. Wireman v. State, supra 418 N.E.2d at 1183, n. 1 . Pursuant to Ind.R.App.P. 11(B)(3), it is this Court's duty to address these contentions of defendant; pursuant to the rule, this Court assumes "jurisdiction of the appeal as if originally filed" in this Court when we grant transfer. Id. Defendant argued each of the contentions in the brief filed with the Court of Appeals.

%. As the Court of Appeals noted, defendant was disbarred from the practice of law for improprieties related to the charges at issue. See In re Wireman, (1977) Ind., 367 N.E.2d 1368 .