Bagnell v. State, 2-877A301

• Decision Date: 30 December 1980
• Docket Number: No. 2-877A301,2-877A301
• Parties: Wesley Robert BAGNELL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1072

413 N.E.2d 1072

Wesley Robert BAGNELL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2-877A301.

Court of Appeals of Indiana, Fourth District.

Dec. 30, 1980.

Thomas J. Jeffers, Clark & Clark, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Judge.

On March 1, 1976, a Tippecanoe County Grand Jury filed an indictment charging Wesley Bagnell with supplying false information ¹ 1) on an "Application for Transfer of a Three-way Permit," and 2) on a "Questionnaire Concerning Manager or Agent" both required to be furnished to the Alcoholic Beverage Commission pursuant to IC 7.1-3-1-4. On these forms Bagnell responded that he had never been convicted of any offense when he had allegedly plead guilty to a Dyer Act violation (transporting stolen vehicles across state lines) in 1947, when he was only nineteen years old. On January 27, 1977, he was found guilty by a jury. He was sentenced on each count of the two counts to imprisonment for one to three years and fined $500 on the second count. The imprisonment portion was initially suspended, but later revoked.

Bagnell raises numerous issues on appeal including challenging 1) the jurisdiction of the special prosecutor 2) the selection of the grand jury and 3) prosecutorial misconduct. We reverse the trial court on the third issue; but will discuss the first two as they affect the authority of the court to retry the case.

I. SPECIAL PROSECUTOR

Bagnell contends the charging indictment was defective in that it was not signed by the elected prosecutor of Tippecanoe County. He contends the special prosecutor, George L. Hanna, who signed his indictment, exceeded the scope of his special prosecutorial powers.

The authority of this special prosecutor was at issue in King v. State, (1979) Ind.App., 397 N.E.2d 1260. There this Court held Hanna was at least acting as a de facto public official and as such his actions could not be collaterally attacked:

"King correctly asserts in his brief that criminal prosecutions cannot be instituted by private individuals. However, this case was not instituted by a private individual. Rather it was initiated by a special prosecutor who at minimum, was a de facto public official.

The acts of a de facto public official may not be collaterally attacked. This proposition is so deeply rooted that in 1892 the Indiana Supreme Court stated:

The rule that the acts of an officer de facto, performed before ouster, are, as to the public, as valid as the acts of an officer de jure, is too familiar to the profession to need the citation of authority. The public is not to suffer because those discharging the functions of an officer may have a defective title, or no title at all. Parker v. State ex rel. Powell (1892), 133 Ind. 178, 200, 32 N.E. 836, 843.

This applies to prosecutor(s) as it does to judges, and other public officials. Therefore an indictment signed by a de facto special prosecutor is not subject to collateral attack by a motion to dismiss.

An indictment signed by a de facto prosecuting attorney will not be held void when attacked by accused on the ground of his want of authority.

42 C.J.S. Indictments & Informations § 57 at 912.

The validity of acts of a public officer may be challenged only by a direct challenge against the individual who purports to hold the office. Such a procedure was not followed in this case.

The indictment not being subject to the type of attack mounted against it, the trial court's overruling of the motion to dismiss was proper." (Citations omitted.)

King v. State, supra at 1267-78.

II. GRAND JURY SELECTION

1. Bagnell contends the jury commissioners who selected the names from which the grand jury was to be drawn lacked authority because their appointments and oaths do not appear in the court's order book. ²

The alleged defect does not present us with reversible error, because the rule of de facto officers applies also to jury commissioners. Steinbarger v. State, (1938) 214 Ind. 36, 14 N.E.2d 533; Randolph v. State, (1928) 200 Ind. 210, 162 N.E. 656; State v. Sutherlin, (1905) 165 Ind. 339, 75 N.E. 642. As de facto public officials their authority cannot be collaterally attacked by a motion to dismiss. Their authority "may be challenged only by a direct challenge against the individual who purports to hold the office." King v. State, supra at 1268.

2. Bagnell points out that the clerk failed to certify that the names drawn and listed were called in the same order that they were drawn from the box as is required by IC 33-4-5-2. ³

He also asserts the jurors were not, in fact, called in the same order. This issue was discussed by our Supreme Court in Phillips v. State, (1978) Ind., 376 N.E.2d 1143, 1145.

"The whole object of the jury selection procedure provided for in Ind. Code § 33-15-22-1 is to assure that jurors are chosen on a random basis, in order to avoid even the possibility of bias. The requirement that jurors be called to serve in the same order as they are originally picked by the County Clerk is to prevent the process of selection by random from being subverted by the placing of individuals or groups of individuals at the end of the list, where they might not be called for service. Here, it is apparent that the members of the array were out of their original order by reason of Judge Jacobs' policy of allowing members to serve according to their convenience. Defendant made no allegation, and there is no indication appearing in the record, that the selection process employed involved the intentional arrangement or rearrangement of prospective jurors in any particular order, and it does not appear that the defendant could have suffered any impairment of a substantial right."

Here we are not given any reason for the deviation from the prescribed sequence. However, neither are we shown any probability of harm to Bagnell's substantial rights. We must therefore hold this does not present a valid issue for reversal. Hopkins v. State, (1975) 163 Ind.App. 276, 323 N.E.2d 232.

3. Bagnell contends that even though the list of names from which the grand jury was selected was compiled from the voter's registration records the list of prospective grand jurors contained the name of an unregistered voter. The record does no more than set forth this allegation. It is the appellant's duty to present us with a complete record, Dunbar v. State, (1974) 160 Ind.App. 191, 311 N.E.2d 447, without such we are unable to review the alleged error. In addition we fail to see how any prejudice arose since the person in question was not sworn onto the jury.

4. Bagnell asserts as error the fact that the sheriff told a seventy-eight year old woman she did not have to serve on the grand jury because of her age if she did not want to and filed a return stating he could not find the woman. Clearly the woman was exempt from duty, if she desired, since she was over sixty years of age. IC 35-1-15-5 reads in part:

"A grand juror may be excused from attending ... because he is over sixty (60) years of age, and desires to be excused for such reason."

Thus Bagnell could have suffered no prejudice by her excusable absence.

With regard to the foregoing alleged improprieties we note that in order to prevail on such issues Bagnell must show either actual prejudice or a lack of substantial compliance with the statutory procedures. Cross v. State, (1979) Ind., 397 N.E.2d 265. Owen v. State, (1979) Ind., 396 N.E.2d 376. He has shown neither.

III. PROSECUTORIAL MISCONDUCT

Bagnell contends the prosecutor attempted to prejudice him by continually "posing questions ... designed and calculated to form in the minds of the jurors a configuration of an habitual criminal." When presented with such an allegation this Court will reverse only when the misconduct, under all the circumstances, placed the defendant in a position of grave peril to which he should not have been subjected. Maldonado v. State, (1976) 265 Ind. 492, 355 N.E.2d 843; White v. State, (1971) 257 Ind. 64, 272 N.E.2d 312; Washington v. State, (1979) Ind., 390 N.E.2d 983, 987-88.

The record shows the prosecutor, did indeed, on an excessive number of occasions pose questions which suggested that Bagnell had been arrested numerous times, had engaged in previous criminal conduct (for which he was neither arrested nor convicted) and had "underworld connections." This type of questioning persisted even after Bagnell's objections were sustained and the court, itself, commented on the possibility of a mistrial.

Our Supreme Court recently found prejudice resulting from analogous prosecutorial misconduct in Dailey v. State, (1980) Ind., 406 N.E.2d 1172. We quote in its entirety the discussion of that issue:

"Defendant's confession was suppressed, at a pre-trial hearing, because of a violation of his constitutional rights. Defendant contends that the State made repeated efforts to inform the jury that he had confessed to the police.

The record reflects that, on at least eight occasions, the prosecutor asked State witnesses whether or not Defendant had given a statement to the police, and on two occasions, the prosecutor asked the witness to relate what was said. These ten instances resulted in nine objections, six of which were sustained. Three of these rulings were accompanied by admonishments to the jury. In overruling the first three of such objections, the trial court stated that the police officers could testify as to Defendant's demeanor during the interrogation by the police officers but not as to the contents of the conversation. Upon Defendant's fourth objection, however, the trial court modified its earlier ruling and held that only evidence of Defendant's demeanor prior to the interrogation was admissible, and he sustained the next six objections in like instances. Two such instances included revelations of the contents of the conversations.

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