Ajabu v. State, No. 22A01-9605-CR-143

Docket NºNo. 22A01-9605-CR-143
Citation677 N.E.2d 1035
Case DateFebruary 28, 1997
CourtCourt of Appeals of Indiana

Page 1035

677 N.E.2d 1035
Mmoja AJABU, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 22A01-9605-CR-143.
Court of Appeals of Indiana.
Feb. 28, 1997.
Transfer Denied April 23, 1997.

Page 1037

Kenneth T. Roberts, Kevin Scionti, Roberts & Bishop, Indianapolis, for Appellant-Defendant.

Pamela Carter, Attorney General, James D. Dimitri, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Mmoja Ajabu appeals from his convictions after a bench trial on two counts of Intimidation as Class D felonies. Ajabu was indicted by a special grand jury and subsequently found guilty of intimidating then Hamilton County Prosecuting Attorney Steven Nation and Debra Meyer, the mother of two murder victims.

We affirm. 1

ISSUES

Ajabu presents two issues of first impression for our review, which we restate as:

1. Whether the instruction given to the grand jury to return an indictment was reversible error.

2. Whether the threats at issue were communicated in the manner required by the intimidation statute.

FACTS

Mmoja Ajabu is the father of Kofi Ajabu. In March of 1994, Kofi and two other men were charged with murder, confinement, robbery and burglary in connection with the murders of Chris James, Nicholas Allemenos and Lisa Allemenos in Carmel. These murders were highly publicized. In April of 1994, then Hamilton County Prosecutor Steven Nation filed a request for the death penalty against Kofi and his two co-defendants. Nation held a press conference to announce that the State would seek the death penalty. Debra Meyer, mother of the slain Allemenos children, was present at the press conference and voiced her support for Nation's death penalty request.

On April 12, 1994, a hearing was held in the Hamilton Superior Court on the death penalty request. Following the hearing, Mmoja Ajabu spoke to television reporters outside the courtroom. Ajabu stated, "And I want to serve notice as a father that if my son is killed for something that he did not do, then there will be other death sentences carried out." Ajabu also stated that "she [Meyer] has reaped the benefit of the death, rape and pillaging of our people and our continent. Is she eligible for the death penalty?"

Jack Martin, the Chief of School Police for the Indianapolis Public Schools, had attended the hearing to show support for Ajabu's wife, who was his co-worker. Martin was present at the courthouse when Ajabu made his statement to the press. Martin testified that Ajabu threatened Nation and "the mother" of the Allemenos children and that Ajabu was "serious" when he spoke.

Page 1038

That afternoon William Booher, a staff writer for The Indianapolis Star, telephoned Ajabu at his home. Booher had learned of Ajabu's statements on a noon television report and from an Associated Press story. According to Booher's testimony, Ajabu verified for the reporter that he had stated "other death sentences would be carried out" and that he was referring to Meyer and Nation. Based upon this interview, Booher wrote an article which appeared in the April 13 edition of The Star quoting Ajabu that "if somebody kills him [Kofi] for something he did not do, then that'll make me take somebody's life. A whole bunch of people will die."

That same day, Derrik Thomas, a Channel 6 (WRTV) television reporter contacted Nation's office and asked to speak with Nation about Ajabu's statements. Nation's secretary, Ruth McCarley, spoke with Thomas and then informed Nation of what Ajabu had said. Robert Schneider, a reporter for The Star, contacted Meyer and informed her of Ajabu's statements. In response, both Nation and Meyer took security measures.

On April 13, 1994, the day after the hearing, Ajabu appeared as a guest on a WTLC radio talk show and elaborated on his previous statements. He was asked, "Why make a threat?" Ajabu stated that "all evidence indicates that he [Kofi] has not killed anyone. So now the prosecutor is saying that he is going to kill him [Kofi] for something that he [Kofi] didn't do." Ajabu explained, "I didn't make the rules. Steve Nation made the rules. I'm just playing the game." He continued, "I'm saying that if he [Kofi] is killed for something that he did not do, then I'm going to respond in kind."

Following the radio show, Ajabu was interviewed by Glendal Jones, a Channel 13 (WTHR) television reporter. During that interview Ajabu accused Nation of filing the death penalty request to advance his political career and asked, "Is his [Nation's] political career worth other people dying because he wants to kill my son?" When Jones asked him what he meant when he said that "other death sentences" would be carried out, Ajabu responded, "I meant exactly what I said," and "if they're going to kill my son for something that he did not do, then I'm going to kill somebody for something that they did not do. They should have stopped Steve Nation from killing my son."

From April 12, 1994, through April 14, 1994, the Indianapolis media carried stories about Ajabu's threats. These stories included excerpts from Ajabu's statements outside the courtroom after the hearing on April 12 as well as his comments in subsequent newspaper, radio and television interviews. The television news coverage was broadcast on several local stations including Channel 6 (WRTV), Channel 13 (WTHR) and Channel 59 (WXIN). The stations broadcast Ajabu's statements numerous times in the Indianapolis area, including Hamilton County where Nation and Meyer were residents.

Nation moved for the appointment of a special prosecutor, and Madison County Prosecutor William Lawler was appointed. A special grand jury was then convened to consider Ajabu's statements. The grand jury heard testimony from witnesses and investigators and viewed video tapes, deliberated and then returned an indictment charging Ajabu with two counts of intimidation.

The trial court granted Ajabu's second motion for change of venue from the county under Criminal Rule 12 due to evidence of circumstances that may "substantially impair the ability to chose fair and impartial jurors in this cause." The case was then venued from Hamilton County to Floyd County where Ajabu waived a jury trial. After a bench trial, the trial court convicted Ajabu on both counts and sentenced him to three year concurrent sentences with two years suspended on each count, for a total executed term of one year to be served on home detention. Ajabu now appeals.

DISCUSSION AND DECISION

Issue One: Grand Jury Charge

Ajabu challenges one of the court's instructions to the grand jury. The instruction at issue stated:

The grand jury is now directed to hear evidence and take such further action and

Page 1039

proceedings as they deem advisable and to present their Report and Indictment to the Court.

Record at 52. 2 Ajabu twice moved to dismiss the special grand jury indictment alleging that the grand jury was erroneously instructed. The motion was denied first by Judge William Hughes of the Hamilton Superior Court and later by Judge Richard Striegel of the Floyd Superior Court. Ajabu alleges on appeal that this instruction required the grand jury to return an indictment, which invaded the province of the jury. Indiana Code § 35-34-2-4(j) provides that "the grand jury shall be the exclusive judge of the facts with respect to any matter before it." Ajabu contends that the instruction rendered the indictment against him fatally defective and, hence, that his subsequent convictions must be reversed. We cannot agree. 3

A motion to dismiss is proper when the grand jury proceedings are defective. IND. CODE § 35-34-1-4(a)(3); Sparks v. State, 499 N.E.2d 738, 741 (Ind.1986). Grand jury proceedings are defective and the indictment shall be dismissed upon motion when the grand jury proceedings which resulted in the indictment were conducted in violation of Indiana Code § 35-34-2 et seq. IND. CODE § 35-34-1-7; see Sparks, 499 N.E.2d at 741. Indiana Code § 35-34-2-4(j) provides that the grand jury shall be the exclusive judge of the facts. An instruction that invades the province of the grand jury to determine whether the facts establish probable cause would be erroneous. The defendant has the burden of proving by a preponderance of the evidence every fact essential to support a motion to dismiss. IND. CODE § 35-34-1-8(f).

The functions of a grand jury are not judicial; they are merely inquisitorial. Adams v.State, 214 Ind. 603, 605, 17 N.E.2d 84, 85 (1938). Grand jury proceedings are not a trial, or even an adversary proceeding. Sisk v. State, 232 Ind. 214, 217 110 N.E.2d 627, 629 (1953). Generally, the grand jury is an independent body which is charged with investigating the facts to determine "whether probable cause exists that a crime has been committed and whether an indictment (true bill) should be returned against one for such a crime." BLACK'S LAW DICTIONARY 855 (6th ed. 1990). Unlike a petit jury, the grand jury does not determine the guilt or innocence of the accused. Rather the grand jury determines if there is probable cause to believe that the accused has committed a crime.

Before the grand jury proceedings begin "the court shall give the grand jurors any instructions relating to the proper performance of their duties that the court considers necessary." IND. CODE § 35-34-2-3(f). To insist on the many procedural safeguards and evidentiary rules required at a trial would convert the grand jury procedure into a preliminary trial on the merits. State v. Inthavong, 402 N.W.2d 799, 801 (Minn.1987). Accordingly, the instructions to a grand jury require less precision than those to a petit jury, id., and the same rules of law which govern instructions to a petit jury may not apply to instructions given to a grand jury. However,...

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27 practice notes
  • Wurster v. State, No. 49A02-9802-CR-126
    • United States
    • Indiana Court of Appeals of Indiana
    • March 29, 1999
    ...conducted in violation of IC 35-34-2." The functions of a grand jury are not judicial, they are merely inquisitorial. Ajabu v. State, 677 N.E.2d 1035 (Ind.Ct.App.1997), trans. denied, (citing Adams v. State, 214 Ind. 603, 605, 17 N.E.2d 84, 85 (1938)). Grand jury proceedings are not a trial......
  • Peppers v. State, Court of Appeals Case No. 20A-CR-796
    • United States
    • Indiana Court of Appeals of Indiana
    • August 31, 2020
    ...transmitted in such a way that the defendant knows or has good reason to believe the statement will reach the victim. Ajabu v. State , 677 N.E.2d 1035, 1043 (Ind. Ct. App. 1997), trans. denied. See also B.B. v. State , 141 N.E.3d 856, 861, n.4 (Ind. Ct. App. 2020) (noting that "communicatio......
  • Neuhoff v. State, No. 82A01-9806-CR-213
    • United States
    • Indiana Court of Appeals of Indiana
    • April 9, 1999
    ...A mandatory instruction is one which "attempt[s] to set up a factual situation directing the jury to a certain result." Ajabu v. State, 677 N.E.2d 1035, 1039 n. 3 (Ind.Ct.App.1997). Article I, § 19 of the Indiana Constitution provides "[i]n all criminal cases whatever, the jury shall have t......
  • Dumas v. State, No. 45S00-0203-CR-187.
    • United States
    • Indiana Supreme Court of Indiana
    • February 26, 2004
    ...as to whether or not probable cause exists to believe that one or more criminal offenses may have occurred." Ajabu v. State, 677 N.E.2d 1035, 1040 (Ind.Ct.App.1997), trans. denied. In that sense its function is similar to that of a judge in a proceeding relating to the "issuance of criminal......
  • Request a trial to view additional results
27 cases
  • Wurster v. State, No. 49A02-9802-CR-126
    • United States
    • Indiana Court of Appeals of Indiana
    • March 29, 1999
    ...conducted in violation of IC 35-34-2." The functions of a grand jury are not judicial, they are merely inquisitorial. Ajabu v. State, 677 N.E.2d 1035 (Ind.Ct.App.1997), trans. denied, (citing Adams v. State, 214 Ind. 603, 605, 17 N.E.2d 84, 85 (1938)). Grand jury proceedings are not a trial......
  • Peppers v. State, Court of Appeals Case No. 20A-CR-796
    • United States
    • Indiana Court of Appeals of Indiana
    • August 31, 2020
    ...transmitted in such a way that the defendant knows or has good reason to believe the statement will reach the victim. Ajabu v. State , 677 N.E.2d 1035, 1043 (Ind. Ct. App. 1997), trans. denied. See also B.B. v. State , 141 N.E.3d 856, 861, n.4 (Ind. Ct. App. 2020) (noting that "communicatio......
  • Neuhoff v. State, No. 82A01-9806-CR-213
    • United States
    • Indiana Court of Appeals of Indiana
    • April 9, 1999
    ...A mandatory instruction is one which "attempt[s] to set up a factual situation directing the jury to a certain result." Ajabu v. State, 677 N.E.2d 1035, 1039 n. 3 (Ind.Ct.App.1997). Article I, § 19 of the Indiana Constitution provides "[i]n all criminal cases whatever, the jury shall have t......
  • Dumas v. State, No. 45S00-0203-CR-187.
    • United States
    • Indiana Supreme Court of Indiana
    • February 26, 2004
    ...as to whether or not probable cause exists to believe that one or more criminal offenses may have occurred." Ajabu v. State, 677 N.E.2d 1035, 1040 (Ind.Ct.App.1997), trans. denied. In that sense its function is similar to that of a judge in a proceeding relating to the "issuance of criminal......
  • Request a trial to view additional results

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