Motion — Willardo v. Indiana

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No. 85-871 Supreme Court, U.S,

eelledenkt TD

IN THE DEC &¢G 199g

Supreme Court of the United’States""™

October Term, 1985

ALBERT T. WILLARDO, M.D..,

Petitioner,

V.

STATE OF INDIANA,

Rezvondent.

ON APPEAL TO THE

COURT OF APPEALS OF INDIANA

MOTION TO DISMISS JURISDICTIONAL

STATEMENT

LINLEY E.. PEARSON

Attorney General of Indiana

WILLIAM E. DAILY

Deputy Attorney General

LISA M. PAUNICKA

Deputy Attorney General

Office of Attorney General

219 State House

Indianapolis, Indiana 46204

Telephone: (317) 232-6217

Attorneys for Respondent

Central Publishing Company. Inc., Indianapolis. IN 46206

QUESTIONS PRESENTED FOR REVIEW

I. Whether I.C. §35-37-2-2(6) (Burns Repl. 1985) which

requires, among ctiier things, that either a party or his

attorney sign requested special instructions, violates the

due process clause of the Fourteenth Amendment?

II. Did the trial court err by overruling the Petitioner’s

objection to trial before a six-person jury which was based

upon the assertion that the court’s application of I.C. §35-

37-1-1 (Burns Repl. 1985) which provides for asix-member

jury violated the constitutional protections against ex post

facte jaws? |

III. Did the trial court err by denying the Petitioner’s

motion to dismiss which was based upon the assertion that

the indictment was vague and uncertain?

TABLE OF CONTENTS

Questions Presented for Review ...............0005

dade ee kcwbee ewee

EES POOL EOP OCTETS PTT EE

Statement of the Case Relevant to the Issues Presented

re ee vceekeiadsases

Summary of the Argument.................0e000e.

Argument:

I.

II.

WHERE THE ISSUE AS TO WHETHER

I.C. §35-37-2:2(6) (BURNS REPL. 1985)

WHICH REQUIRES, AMONG OTHER

THINGS, THAT EITHER A PARTY ORHIS

ATTORNEY SIGN REQUESTED SPECIAL

FINAL INSTRUCTIONS CONTRAVENES

THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT WAS

NEITHER SPECIFICALLY RAISED AT

TRIAL NOR DECIDED BY INDIANA

APPELLATE COURTS, THE ISSUE IS

NOT REVIEWABLE BY THE UNITED

STATES SUPREME COURT .............

THE TRIAL COURT DID NOT ERR BY

OVERRULING THE PETITIONER’S

OBJECTION TO TRIAL BEFORE A SIX-

PERSON JURY WHICH WAS BASED

UPON THE ASSERTION THAT THE

COURT'S APPLICATION OF I.C. § 35-37-1-1

(BURNS REPL. 1985) WHICH PROVIDES

FOR A SIX-MEMBER JURY VIOLATED

THE CONSTITUTIONAL PROTECTIONS

AGAINST EX POST FACTO LAWS ......

*.

4-5

III. SINCE THE PETITIONER HAS FAILED

TO RAISE A SUBSTANTIAL FEDERAL

QUESTION REGARDING HIS CLAIM

THAT THE INDICTMENT IS VAGUE,

REVIEW BY THE UNITED STATES

SUPREME COURT IS PRECLUDED..... 8-10

NS ee rus seas beaten eae ee 6s 10

TABLE OF AUTHORITIES

Cases: Pages:

Bailey v. Anderson, 326 U.S. 203, 66 S.Ct. 66 (1945) 5

Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68 (1925)..... 7,8

Cardinale v. Louisiana, 2%4 U.S. 437, 89 S.Ct. 1161

| EAA pe eP A pe Brrr poten baa Seder 5

Fuller v. Oregon, 417 U.S. 40, n.11, 948.Ct. 2116, n.11

RSs oa es Oe eh ee ee aes 5

Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887

SRV sb aod phnadlenek eh ee hae eee ee eae mse 9, 10

Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 1111-

Be St va cas wae a iwc bs eke dankee teks 5

Mavrwell v. Dow, 176 U.S. 581, 20 S.Ct. 448 (1900) .. 2

Oxley Stave Co. v. Butler County, 166 U.S. 684, 17S.Ct.

Pe NE a ha ch cone sadckscdaeeukvasnlaowsnens 10

Portley v. Grossman, 440 U.S. 1311, 100 S.Ct. 714

Ge i cary Saavndy eas aeekad ee wen amend mcenne a 6

State Farm Mutual Automobile Insurance Co. v. Duel,

$24 U.S. 154, 66 S.Ct. 673 (1944)... 2... ccc cess 5

Street v. New York, 394 U.S. 576, 89 S.Ct. 13854(1969) 5

Thompson v. Utah, 170 U.S. 348, 18 S.Ct. 620 (1898) 6, 7

Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893(1970) 7

Statutes:

SA aE MEET wines kuncacndpcunssoaesnese 2, 6

I.C. §35-37-2-2(6) (Burns Repl. 1985)......... i, ii, 3, 4, 5

I.C. §35-37-1-1 (Burns Repl. 1985) ........... i, ii, 2, 6, 7

iv

Other Authorities:

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United States Constitution, Article 1, §10 ..........

No. 85-871

IN THE

Supreme Court of the United States

October Term, 1985

ALBERT T. WILLARDO, M.D.,

Petitioner,

Vv.

STATE OF INDIANA,

Respondent.

ON APPEAL TO THE

COURT OF APPEALS OF INDIANA

MOTION TO DISMISS JURISDICTIONAL

STATEMENT

Respondent, the State of Indiana, respectfully requests

the Court to dismiss the jurisdictional statement which

seeks review of an opinion of the Court of Appeals of

Indiana since substantial federal questions have not been

raised.

OPINION BELOW

The Court of Appeals of Indiana entered an opinion in

this cause on March 27, 1985. The opinion is set forth in

1

2

Petitioner’s Appendix at A-1 and is not officially reported.

On May 23, 1985, the Court of Appeals of Indiana denied

the Petitioner’s petition for rehearing. The unpublished

order of the Supreme Court of Indiana denying the

Petitioner’s petition for transfer was entered on September

17, 1985 (Petitioner’s Appendix at A-33).

STATEMENT OF THE CASE RELEVANT

TO THE ISSUES PRESENTED FOR REVIEW

The Petitioner, Dr. Albert T. Willardo, a former coroner

of Lake County, Indiana, was convicted and sentenced for

theft due to converting monies issued from county funds for

fraudulent mileage claims and depositing the monies into

his personal campaign fund.

The Petitioner was indicted on September 3, 1982 for a

theft committed in 1978. In 1978, a jury panel of twelve

members was authorized. I.C. §35-1-30-1 (1977). However,

on September 1, 1982, prior to the indictment, IC §35-37-1-

1 (Burns Repl. 1985) became effective and authorized a

jury of six qualified jurors to hear the Petitioner’s Class D

felony theft charge. In this case, a panel of six jurors was

assembled. Prior to trial, however, the Petitioner filed a

motion for a twelve-member jury which was denied. On

appeal to the Court of Appeals of Indiana, the Court

concluded that the Petitioner was not denied any

substantial right when he was tried by a six-member

rather than a twelve-member jury and there was no ex post

facto prohibition involved (Petitioner’s Appendix at A-13-

22).

In addition, prior to trial, the Petitioner filed a motion to

dismiss the indictment which was based upon the assertion

that the indictment failed to state the offense with

certainty. The trial court denied the motion. On appeal to

the Court of Appeals of Indiana, the Court dismissed the

Petitioner’s claim and ruled that he failed to specifically

state in what manner the indictment was deficient

(Petitioner’s Appendix at A-31).

3

Finally, after the presentation of evidence, the Peti-

tioner tendered several! final instructions which the trial

court refused. On appeal, the Court of Appeals of Indiana

declined to address the Petitioner’s allegation of error

regarding the refusal of the instructions since he failed to

comply with I.C. §35-37-2-2(6) (Burns Repl. 1985) which

requires that either a party or his attorney must sign the

requested instruction(s) (Petitioner’s Appendix at A-29-

30).

SUMMARY OF THE ARGUMENT

The United States Supreme Court has no jurisdiction to

review the Petitioner’s argument regarding the

constitutionality of I.C. §35-37-2-2(6) (Burns Repl. 1985)

which requires, among other things, that either a party or

his attorney sign requested special final instructions, since

this contention was not raised, briefed, or argued in the

Indiana appellate courts.

Further, the Petitioner has failed to present a substantial

federal question regarding his claim that the indictment

which charged him with theft is vague. A mere reference tc

the Fifth Amendment to the United States Constitution is

insufficient to support a claim that the amendment has

been violated.

Finally, the Petitioner’s trial by a jury of six persons was

not in violation of the constitutional prohibition against ex

post facto laws even though at the time the theft was

eommitted, the Petitioner had the right to be tried by a jury

of twelve. The Petitioner was subjected only to a change in

procedure and no ex post facto prohibition was involved.

Because the jurisdictional statement does not raise

substantial federal questions, the statement does not

warrant further review.

4

ARGUMENT

I.

WHERE THE ISSUE AS TO WHETHER L.C. §35-

37-2-2(6) (BURNS REPL. 1985) WHICH

REQUIRES, AMONG OTHER THINGS, THAT

EITHER A PARTY OR HIS ATTORNEY SIGN

REQUESTED SPECIAL FINAL INSTRUCTIONS

CONTRAVENES THE DUE PROCESS CLAUSE

OF THE FOURTEENTH AMENDMENT WAS

NEITHER SPECIFICALLY RAISED AT TRIAL

NOR DECIDED BY INDIANA APPELLATE

COURTS, THE ISSUE IS NOT REVIEWABLE BY

THE UNITED STATES SUPREME COURT

After the presentation of evidence, the Petitioner

tendered several special final instructions which the trial

court refused. On appeal, the Court of Appeals of Indiana

declined to address the Petitioner’s allegation of error

regarding the refusal of the instructions since he failed to

comply with I.C. §35-37-2-2(6) (Burns Repl. 1985) which

reads in pertinent part:

(6) Ifthe prosecuting attorney, the defendant, or his

counsel desires special instructions to be given to the

jury, these instructions must be:

(A) reduced to writing;

(B) numbered;

(C) signed by the party, or his attorney, who is

requesting the special instructions; and

(D) delivered to the court;

before the commencement of the argument. A charge

of the court or any special instructions, when written

and given by the court under this subdivision, may not

be orally qualified, modified, or in any manner orally

explained to the jury by the court.

In his petition for rehearing to the Court of Appeals and

in a petition for transfer to the Supreme Court of Indiana,

5

the Petitioner merely asserted that “Indiana Code §35-37-2-

2(6) does not require each special instruction to be signed

and, therefore, [the issue was] not waived.” The petitions

were denied by the appellate courts. In his jurisdictional

statement, however, the Petitioner argues that I.C. 35-37-

2-2(6) contravenes his rights guaranteed under the due

process clause of the Fourteenth Amendment

(Jurisdictional Statement, pp. 14-18).

The United States Supreme Court has no jurisdiction to

review the Petitioner’s current contention since the

constitutionality of I.C. §35-37-2-2(6) was not raised,

briefed, or argued in the Indiana appellate courts. State

Farm Mutual Automobile Insurance Co. v. Duel, 324 U.S.

154, 160, 65 S.Ct. 573, 576 (1944). See also Hill v. California,

401 U.S. 797, 805-806, 91 S.Ct. 1106, 1111-1112 (1971).

Indeed, in Cardinale v. Louisiana, 394 U.S. 437, 439, 89

S.Ct. 1161, 1163 (1969), the Supreme Court indicated the __

desirability of allowing state courts to determine the

constitutionality of state statutes in light of a federal

constitutional challenge since this not only assures an

adequate record, but also gives the states the first

opportunity to provide a definitive interpretation of their

statutes.

In addition, when the highest state court does not

examine an issue, it is presumed that the omission is due to

lack of proper presentation unless the aggrieved party can

affirmatively show the contrary. Fuller v. Oregon, 417 U.S.

40, 50 n.11, 94S.Ct. 2116, 2123 n.11 (1974) quoting Street v.

New York, 394 U.S. 576, 582, 89 S.Ct. 1354, 1360(1969). No

such showing has been made in this case. Since the

constitutionality of I.C. §35-37-2-2(6) was not raised,

briefed, or argued in the Indiana appellate courts, review

by the United States Supreme Court is precluded. Bailey v.

Anderson, 326 U.S. 203, 206-207, 66 S.Ct. 66, 68 (1945).

6

II.

THE TRIAL COURT DID NOT ERR BY

OVERRULING THE PETITIONER’S OBJECTION

TO TRIAL BEFORE A SIX-PERSON JURY

WHICH WAS BASED UPON THE ASSERTION

THAT THE COURT'S APPLICATION OF LC. § 35-

37-1-1 (BURNS REPL. 1985) WHICH PROVIDES

FOR A SIX-MEMBER JURY VIOLATED THE

CONSTITUTIONAL PROTECTIONS AGAINST EX

POST FACTO LAWS

The Petitioner was indicted on September 3, 1982 for a

theft committed in 1978. In 1978, I.C. §35-1-30-1 (1977)

provided for a twelve-member jury in the trial of Class D

felonies. On September 1, 1982, I.C. §35-37-1-1 (Burns

Repl. 1985) became effective and authorized six-member

juries. Prior to trial, the Petitioner filed a motion for a

twelve-member jury which was denied. In his

jurisdictional statement, the Petitioner argues that his

trial by a jury of six persons was in violation of the

‘constitutional prohibition against ex post facto laws, Article

1, §10 of the United States Constitution, because at the time

the theft was committed, he had the right to be tried by a

jury of twelve (Jurisdictional Statement, pp. 18-24).

An ex post facto law is a legislative act relating to

criminal matters, retroactive in operation, which alters the

situation of an accused to his disadvantage, or deprives him

of some lawful protection to which he is entitled. The ex post

facto prohibition, however, is applicable only where a

substantive right is taken away and not where there is

merely a change in procedure. Portley v. Grossman, 440

U.S. 1311, 100 S.Ct. 714 (1980).

In Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620 (1898), a

case relied upon by the Petitioner, the United States

Supreme Court ruled that a change in the law by Utah

which reduced the number of jurors for a trial subsequent

to the offense for which the trial was to be held was

7

unconstitutional as an ex post facto law when the offense

had been committed while Utah was a territory and subject

only to federal law. The Supreme Court concluded that the

new statute “belongs to that class which by its necessary

operation and ‘in its relation to the offense, or its

consequences, alters the situation of the accused to his

disadvantage’.” Jd. at 351, 18 S.Ct. at 623. The Supreme

Court further stated:

...a Statute that takes from the accused a substantial

right given to him by the law in force at the time to

which his guilt relates would be ex post facto in its

nature and operation, and ... legislation of that kind

cannot be sustained simply because, in a general sense,

it may be said to regulate procedure.

Id., at 352, 18 S.Ct. at 623, (Emphasis added).

Later, in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893

(1970), the Supreme Court held that a jury of six persons is

constitutional but did not overrule Thompson on the ex post

facto issue. Williams, however, did not contain the ex post

facto aspects present in Thompson. Therefore, Thompson

could not have been specifically overruled in Williams.

Nevertheless, in Williams, 399 U.S. at 101, 90 S.Ct. at 1906,

the Court stated that “neither currently available evidence

nor theory suggests that the 12-man jury is necessarily

more advantageous to the defendant than a jury composed

of fewer members.”

Since Williams and its progeny, a jury of twelve is no

longer considered a constitutional right, is not deemed to

offer any advantage to a defendant, and is not substantial.

Thus, in the instant case, !.C. §35-37-1-1 which reduced the

jury’s size from twelve to six did not take away asubstantial

right, but operated “only in a limited and unsubstantial

manner to ... [the Petitioner’s] disadvantage.” See Beazell

8

v. Ohio, 269 U.S. 167, 46 S.Ct. 68 (1925)! The Petitioner was

subjected only to a change in procedure and no ex post facto

prohibition was involved.

ITI.

SINCE THE PETITIONER HAS FAILED TO

RAISE A SUBSTANTIAL FEDERAL QUESTION

REGARDING HIS CLAIM THAT THE

INDICTMENT IS VAGUE, REVIEW BY THE

UNITED STATES SUPREME COURT IS

PRECLUDED

The Petitioner was charged as follows:

The Grand Jurors of Lake County, in the State of

Indiana, good and lawful men, duly and legally

impaneled, charged and sworn to inquire into felonies

and certain misdemeanors in and for the body of said

County of Lake, inthe name and by the authority of the

State of Indiana, on their oaths present that one

ALBERT T. WILLARDO, M.D. of said County, on the

January 1, 1978 through December 31, 1978,

inclusive, at said County and State aforesaid, did then

and there did knowingly or intentionally exert

' In Beazell v. Ohio, 369 U.S. 167, 46 S.Ct. 68 (1925), the Supreme Court

considered a change in the law which resulted in joint trials of

defendants who would otherwise have been entitled to separate trials.

The Court determined that this was not an er post facto violation since

“statutory changes in the mode of trial. ..which do not deprive the

accused of a defense and which operate only in a limited and

unsubstantial manner to his disadvantage are not prohibited.” /d. at

170, 46 S.Ct. at 69. In addition, in Maxwell v. Dow, 176 U.S. 581, 605,

20 S.Ct. 448, 472, (1900), the Supreme Court referred to the propriety

of an eight-member jury as a procedural matter:

[T Jhe state has full control over the procedure in its courts, both in

civil and criminal cases, subject only to the qualification that

such procedure must not work a denial of fundamental rights or

conflict with specific and applicable provisions of the Federal

Constitution. The legislation in question is not, in our opinion,

open to either of these objections.

9

unauthorized control in a manner or toan extent other

than that to which the other person has consented over

property of Lake County, Indiana, a body politic or

corporate, to-wit: money from the Lake County,

Indiana, Coroner’s Budget (Calendar Year 1978)

Account Number 001-070-00213 (Traveling

Expenses), with the intent to deprive the said Lake

County, Indiana, a body politic or corporate, of the

value and use thereof...

Prior to trial, the Petitioner filed a motion to dismiss the

indictment which was based upon the assertion that the

indictment failed to state the offense with certainty. The

trial court denied the motion. On appeal to the Court of

Appeals of Indiana, the Petitioner stated (Petitioner’s

Appendix at A-30):

While it is true that some latitude should be permitted,

in regard to certainty, a child could have done a better

job of drafting. No one charged in this fashion could

read this and understand what he was charged with. It

was obviously hurriedly drawn just before the Special

Grand Jury expired, and thereafter the State could not

amend the indictment as far as substance. Dr.

Willardo timely filed his Motion to Dismiss on those

grounds, but it was denied by the Court without

comment.

The Court of Appeals, however, dismissed the Petitioner’s

claim and ruled that he failed to specifically state in what

manner the indictment was deficient (Petitioner’s

Appendix at A-31). In his jurisdictional statement, the

Petitioner alleges that the indictment was vague and

should have been dismissed (Jurisdictional Statement, pp.

24-25).

An indictment is sufficient if it contains the elements of

the offense charged, fairly informs a defendant of the

charge against which he must defend, and finally, enables

him to plead an acquittal or conviction in bar of future

prosecutions for the same offense. Hamling v. United

10

States, 418 U.S. 87, 94 S.Ct. 2887 (1974). In his

jurisdictional statement, the Petitioner again fails to

specify in what. manner the indictment is deficient.

Moreover, the Petiticner has not raised a substantial

federal question pursuant to 28 U.S.C. §1257. Although the

jurisdictional statement contains a mere reference to the

Fifth Amendment, this is insufficient to support a claim

that the amendment has been violated. Indeed, as stated in

Oxley Stave Co. v. Butler County, 166 U.S. 684, 17S.Ct. 709,

711 (1897): “the jurisdiction of this court to re-examine the

final judgment of a state court cannot arise from mere

inference, but only from averments so distinct and positive

as to place it beyond question that the party bringing a case

here from such court intended to assert a federal right.”

Since the Petitioner has failed to raise a substantial federal

question regarding his claim that the indictment is vague,

review by the United States Supreme Court is precluded.

CONCLUSION

For the foregoing reasons, the Respondent, the State of

Indiana, respectfully requests that the jurisdictional

statement be dismissed.

Respectfully submitted,

LINLEY E. PEARSON

Attorney General of Indiana

William E. Daily

Deputy Attorney General

Lisa M. Paunicka

Deputy Attorney General

Attorneys for Respondent