Bradley v. State

Decision Date30 March 1995
Docket NumberNo. 48S00-9305-CR-512,48S00-9305-CR-512
Citation649 N.E.2d 100
PartiesRichard Duane BRADLEY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
CourtIndiana Supreme Court

William Byer, Jr., Byer & Byer, Anderson, for appellant.

Pamela Carter, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

Direct Appeal

DICKSON, Justice.

Following a jury trial, the defendant-appellant, Richard Duane Bradley, was convicted of murder, Ind.Code § 35-42-1-1(1); felony murder, Ind.Code § 35-42-1-1(2); and robbery, Ind.Code § 35-42-5-1. The felony-murder count was merged with the murder conviction and the defendant was sentenced thereon to a period of sixty years. In addition, he was sentenced to a consecutive term of twenty years for the robbery conviction. Although the State sought the death penalty, the jury recommended against death.

This direct appeal presents issues concerning the following subjects: 1) jury venire; 2) juror challenges; 3) jurisdiction pending bail appeal; 4) sufficiency of the evidence; 5) an alleged evidentiary harpoon; and 6) change of venue.

The convictions arise out of a December 5, 1990, robbery and homicide at a Phillips 66 service station at the intersection of Interstate Highway 69 and State Road 9 in Madison County, resulting in the death of Paul Weaver, the service station attendant.

1. Jury Venire

The defendant contends that the venire, chosen solely from a list of registered voters in Madison County, was improper and that other sources of potential jurors should have been utilized. We understand the defendant's argument to be that the venire was improperly selected for two reasons: (1) the selection process failed to include, in addition to registered voters, citizens named on the "latest tax duplicate and the tax schedules of the county," as required by INDIANA CODE SECTION 33-4-5-2(A), AND (2)1 it failed to supplement these sources with names from other lists as permitted by Indiana Code section 33-4-5-2(d). 2 At trial, the defendant expressly challenged the venire selection process, claiming "clear violation of the statutory procedure," Record at 246, and presented evidence to establish that the county jury commissioners use an automated computer system that randomly selects potential jurors using only the voter registration list. Record at 727. The defendant asserts that jury selection systems should draw from a fair cross-section of the community and that exclusive reliance upon a voter registration list in the present case excluded from potential jury service a sizeable non-voting segment of the population. This requires us to decide whether the statute requires counties to utilize both voter registration lists and tax lists as sources for potential jurors. The defendant further argues that the "inferred purpose" of subsection (d) is to broaden the base of potential jurors, which should have been achieved in this case by supplementing voter registration lists with names drawn from other sources.

In Lambert v. State (1994), Ind., 643 N.E.2d 349, we recently addressed a claim of error in the failure to use both voter registration lists and tax schedules as sources for drawing potential jurors. Id. at 352. Summarizing the appellant's position as concluding that henceforth the use of both voter registration lists and tax schedules was required, we did not expressly address that issue but rather found no error because there was no showing that property owners were excluded. Id. In contrast, because the record in the present case demonstrates that only the voter registration lists were used, the question of whether both lists must be used is now squarely presented.

We first note that minor irregularities in compliance with juror selection statutes will not amount to reversible error. Owen v. State (1979), 272 Ind. 122, 125, 396 N.E.2d 376, 379; State ex rel. Burns v. Sharp (1979), 271 Ind. 344, 348, 393 N.E.2d 127, 130. Where the selection system used is impartial and not arbitrary, substantial compliance with the statutory requirements has been held to be sufficient. Wireman v. State (1982), Ind., 432 N.E.2d 1343, 1348, cert. denied, 459 U.S. 992, 103 S.Ct. 350, 74 L.Ed.2d 389; State ex rel. Burns, 271 Ind. at 348, 393 N.E.2d at 130; Shack v. State (1972), 259 Ind. 450, 459, 288 N.E.2d 155, 162. As noted in Lambert, many property owners are also registered voters. Lambert, 643 N.E.2d at 352. We find that, even if the statute is read to require both voter registration and tax lists to be used as sources for potential jurors, the omission of the latter will not render the process invalid. Rather, substantial compliance would be found.

Our decision today, however, need not rest on substantial compliance. The juror selection process described by Indiana Code section 33-4-5-2, considering all of its subsections (variously enacted at different times), is not altogether clear. Subsection (a) states that prospective jurors are to be chosen from the legal voters and the tax lists; subsection (c) authorizes random computer selection from among persons "eligible for selection under this chapter"; subsection (d) permits the jury commissioners to "supplement voter registration lists and tax schedules"; and subsection (e), which designates possible supplemental lists, provides that such lists "may not be substituted for the voter registration list," but then proceeds to limit the total number of names from supplemental sources to the aggregate total from both voter registration lists and tax schedules. To harmonize these provisions and provide a single, consistent interpretation, we find applicable our decision in State ex rel. Brune v. Vanderburgh Circuit Court (1971), 255 Ind. 505, 265 N.E.2d 524. In that case, notwithstanding then-existing statutory language very similar to the present wording, requiring jury commissioners to select names from voter and tax lists, this Court unanimously approved a system relying only upon voter registration lists because 1969 changes in property tax law removing owners of automobiles from the property tax roles had thereby rendered the use of tax duplicates and schedules not representative of a cross-section of citizens as required for jury selection lists by federal constitutional law.

We conclude that the computerized selection of potential jurors from voter registration lists alone, without the additional use of tax lists, is adequate to satisfy the statutory requirements.

As to the defendant's claim of error in failing to utilize other sources for potential jurors, as permitted by statute, we recognize that the statutory venire selection process must comport with constitutional considerations relating to equal protection and the right to trial by an impartial jury. Absent constitutional infirmity, however, we decline to construe the statute so as convert an option into a mandate.

The Equal Protection Clause of the Fourteenth Amendment may provide one constitutional basis, in cases where purposeful discrimination can be shown, on which to challenge any stage of the jury selection process. See Batson v. Kentucky (1986), 476 U.S. 79, 88, 106 S.Ct. 1712, 1718, 90 L.Ed.2d 69, 82, modified by Powers v. Ohio (1991), 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411. Because the defendant does not raise an equal protection challenge, we need not undertake an equal protection analysis here.

The United States Supreme Court has long held that "the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial." 3 Taylor v. Louisiana (1975), 419 U.S. 522, 528, 95 S.Ct. 692, 697, 42 L.Ed.2d 690, 697. While petit juries must be drawn from a source "fairly representative of the community," there is no requirement that they "actually ... mirror the community and reflect the various distinctive groups in the population." Id. at 538, 95 S.Ct. at 702, 42 L.Ed.2d at 703. Defendants "are not entitled to a jury of any particular composition," but venire selection systems "must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof." Id.

In order to make a prima facie showing that there has been a violation of the fair-cross-section requirement, a defendant must demonstrate:

(1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Duren v. Missouri (1979), 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579, 587. Once a prima facie case has been made, the state has the burden to demonstrate that "those aspects of the jury-selection process ... that result in the disproportionate exclusion of a distinctive group" manifestly and primarily advance "a significant state interest." Id. at 367-68, 99 S.Ct. at 670, 58 L.Ed.2d at 589. 4

Indiana has previously expressed general approval of the use of voter registration lists for the selection of prospective jurors:

There must be a practical method of choosing prospective jurors. The use of lists, whether they be property taxpayers or registered voters, so long as they represent a reasonable cross section of the people in the county, cannot be said to violate the rights of the accused, in the absence of showing that such use is made in a deliberate attempt to exclude certain groups from jury selection.

Concepcion v. State (1991), Ind., 567 N.E.2d 784, 788. As noted in Concepcion, proper use of such lists requires that they represent a reasonable community cross section. 5 A violation of the Sixth Amendment jury trial right may be found if the process used fails to yield a juror pool reflecting a reasonable cross-section of the community...

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