State v. Hardy
| Decision Date | 26 June 1980 |
| Docket Number | No. 1-180A5,1-180A5 |
| Citation | 406 N.E.2d 313 |
| Parties | STATE of Indiana, Plaintiff-Appellant, v. Raymond L. HARDY, Defendant-Appellee. |
| Court | Indiana Appellate Court |
Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for plaintiff-appellant.
Bruce Markel, III, Markel, Markel & Markel, Brownstown, for defendant-appellee.
Defendant-appellee Raymond L. Hardy was indicted by the Scott Grand Jury on six counts of theft. Prior to his arraignment, the defendant moved to dismiss the indictment, citing as grounds therefor defects in the grand jury proceedings and the indictment. Subsequent to the defendant's entry of a plea of not guilty, the trial court sustained the defendant's motion to dismiss and ordered the indictment dismissed. No trial was had. The State appeals from the dismissal.
We affirm.
Facts supportive of the trial court's action and relevant to the disposition of this appeal reveal the following: A grand jury was convened in Scott County to look into certain county affairs, including possible improprieties committed by the defendant, who was then the sheriff of Scott County.
On June 5, 1978, Robert D. Railing (Railing), the prosecuting attorney for Scott County, filed a motion to approve the appointment of a special prosecuting attorney, specifically requesting the court to approve the appointment of Theodore L. Sendak, Attorney General of Indiana, and his deputies The motion was granted.
The indictment was returned on October 11, 1978, charging the defendant with six counts of theft. The signatures on the indictment, excluding that of the clerk, were "Robert F. Colker/Deputy Prosecuting Attorney" and "Clyde Abner/Foreman."
On October 18, 1978, Railing filed a second motion to approve the appointment of a special prosecuting attorney, again requesting the appointment of the Attorney General and his deputies, for the prosecution of the defendant. Again, Railing indicated the purpose of the appointment of a special prosecutor was to avoid conflict of Hearing was held on the defendant's motion to dismiss on June 18, 1979. At the hearing Deputy Sheriff Marvin L. Richey testified regarding his testimony before the grand jury which had concerned claims submitted by the sheriff's department to Scott County for the expenses incurred in the boarding of prisoners in the Scott County Jail. Richey testified that Railing was present in the grand jury room while he testified, and that Railing conducted approximately half of the questioning.
interest that might arise if Railing were to be called as a witness in the defendant's trial. On October 23, 1978, the court issued an order approving the appointment.
Also testifying at the hearing on the motion to dismiss was Clyde Abner, the grand jury foreman. He stated that the grand jury met for about a month, that he was never absent during the grand jury proceedings, and that Railing was present at all grand jury meetings except one. Abner testified that Railing conducted "about all" of the grand jury proceedings and asked the majority of questions. Abner stated that Railing instructed the grand jury members to write out their questions on slips of paper and that Railing would paraphrase the questions and direct them to the witnesses. Abner testified that he did not prepare the indictment, nor did he read the indictment before signing it. He stated that the grand jury voted to return only four counts against the defendant and he did not realize that the indictment contained six counts. He also stated that he would not know which four of the six counts the grand jury had actually voted to return against the defendant.
The State raises one issue on appeal, essentially arguing that under Indiana law, the presence of an unauthorized person in the grand jury room is not a proper cause for dismissing an indictment absent a showing of actual prejudice to the defendant. The State contends that no showing of actual prejudice to the defendant was made and that the court erred in dismissing the indictment. The State does not address other issues raised in the defendant's motion to dismiss.
A defect in a grand jury proceeding may constitute a ground for the dismissal of an indictment. Ind.Code 35-3.1-1-4(a)(3) (Supp.1979). An indictment may be dismissed upon the showing of any ground arising out of the grand jury proceeding that would have been cause for abatement of the action under prior law. Ind.Code 35-3.1-1-7(b)(4). The burden of proof is on the defendant to show by a preponderance of the evidence the facts essential to support the motion to dismiss. Ind.Code 35-3.1-1-8(f).
The defendant challenged the indictment on several grounds, one of which was that the grand jury proceedings were defective due to the presence and active participation of Railing subsequent to the filing and granting of his motion to approve the appointment of a special prosecuting attorney. Railing's reason for seeking the appointment of a special prosecutor to conduct the grand jury proceedings was to avoid a possible conflict of interest that might arise if he were to be called as a witness.
We now consider whether Railing was authorized to be present during the grand jury proceedings. The only persons authorized to be present during grand jury proceedings are the prosecuting attorney or his deputy, Ind.Code 35-1-15-23, and a stenographer, Ind.Code 35-1-15-10. In State ex rel. Goldsmith v. Superior Court of Hancock County, (1979) Ind., 386 N.E.2d 942, a deputy prosecutor petitioned...
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