# Motion — Willardo v. Indiana

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0289%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Motion
- **Published:** January 1, 1986
- **Citation:** 474 U.S. 1098

## Text

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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:
- oe Cee )) |) yr rrrrr err rrr rer rr re.
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0289%3A2. Public record. Not legal advice.