Cross v. State, No. 1276S424

Docket NºNo. 1276S424
Citation397 N.E.2d 265, 272 Ind. 223
Case DateNovember 29, 1979
CourtSupreme Court of Indiana

Page 265

397 N.E.2d 265
272 Ind. 223
Robin E. CROSS, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 1276S424.
Supreme Court of Indiana.
Nov. 29, 1979.

Page 266

David J. Colman, Colman, Lowenthal & Loftman, Bloomington, for appellant.

Theodore L. Sendak, Atty. Gen., Terry G. Duga, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Defendant, Robin E. Cross, was convicted by a jury of murder in the second degree, Ind.Code § 35-1-54-1 (Burns 1975), and sentenced to fifteen to twenty-five years' imprisonment. He now appeals raising several issues for our review. However, because of our disposition of the issue regarding jury selection procedures, we reverse upon consideration of only this issue.

[272 Ind. 224] Defendant challenges the procedures employed in selecting the venire for this cause as being violative of Ind.Code § 33-4-5-2 (Burns 1975). That statute provides in relevant part:

"Said commissioners shall immediately, from the names of legal voters and citizens of the United States on the latest tax duplicate and the tax schedules of the county, examine for the purpose of determining the sex, age and identity of prospective jurors, and proceed to select and deposit, in a box furnished by the clerk for that purpose, the names, written on separate slips of paper of uniform shape, size and color, of twice as many persons as will be required by law for grand and petit jurors in the courts of the county, for all the terms of such courts, to commence with the calendar year next ensuing. Each selection shall be made as nearly as possible in proportion to the population of each county commissioner's district. In making such selections, they shall in all things observe their oath, and they shall not select the name of any person who is not a voter of the county, or who is not either a freeholder or householder, or who is to them known to be interested in or has cause pending which may be tried by a jury to be drawn from the names so selected. They shall deliver the box, locked, to the clerk of the circuit court, after having deposited therein the names as herein directed. The key shall be retained by one (1) of the commissioners, not an adherent of the same political party as is the clerk."

Uncontroverted affidavits attached to defendant's motion to correct errors indicate the procedure for selecting the venire in Brown County at and prior to the time of defendant's trial. Verified affidavits were submitted by the Brown County Clerk, Violet Wayman, and one Jury Commissioner, Maurice "Pods" Miller. Both affidavits read in part as follows:

"3. When the jury panel was selected for March, 1976, the procedure followed was:

"a. The Jury Commissioners selected every tenth name from the voter registration records in the Brown County Clerk's Office, going through such lists precinct by precinct.

"b. The names were placed on a list in the same order in which they were drawn from the alphabetized precinct voter registration lists.

"c. The list was then given to the County Clerk who presented it to the Circuit Court.

[272 Ind. 225] "4. There was no randomization process through the placing on uniform slips of paper of the names of the jurors on the panel, placing those slips in a locked box,

Page 267

having the box shaken well by the Clerk who would then draw names from that box."

Prior to addressing the merits of this issue we turn to two objections to our review raised by the state. First, the state claims that defendant waived this issue by accepting the jurors on the trial of the case. In Fenwick v. State, (1926) 197 Ind. 572, 150 N.E. 764, this Court found that the defendant waived irregularities in the selection of prospective jurors by the jury commissioners by accepting the jurors. In Fenwick, defendant claimed that at the time of trial he was unaware of the alleged irregularities. However, this Court noted:

"An examination of the public records in the clerk's office any time after his arrest and before April 25, the date of the trial, would have disclosed all the facts of which he claims ignorance." 197 Ind. at 574, 150 N.E. at 764.

However, in the case at bar, the Brown County Clerk, in her affidavit, said:

"The records in the Brown County Clerk's Office do not reflect that the above-described selection process was followed, or that there was any impropriety in the selection process utilized."

The state claims that defendant fails to show that he exercised due diligence in attempting to discover the alleged errors. We are at a loss to determine what sort of diligence the state would require of a defendant. For this Court to require routine interviews of county clerks and jury commissioners prior to voir dire of juries would unduly burden, not only defendants, but those public officials as...

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12 practice notes
  • Highler v. State, No. 02A03-0505-CR-203.
    • United States
    • Indiana Supreme Court of Indiana
    • September 15, 2005
    ...412 N.E.2d 778 (1980)). If there is a lack of substantial compliance, however, the accused need not show actual prejudice. Cross v. State, 272 Ind. 223, 226, 397 N.E.2d 265, 268 In the present case, the record reveals that the jury selection system in Allen County has been reformed since 19......
  • Wireman v. State, No. 382S118
    • United States
    • Indiana Supreme Court of Indiana
    • March 26, 1982
    ...guaranteeing the impartiality of jurors and eliminating any cause for suspicion about the selection process. Cross v. State, (1979) Ind., 397 N.E.2d 265; Owen v. State, (1979) Ind. 396 N.E.2d 376; Shack v. State, (1972) 259 Ind. 450, 288 N.E.2d 155; Rudd v. State, (1952) 231 Ind. 105, 107 N......
  • Azania v. State, No. 02S00-0009-SD-538.
    • United States
    • Indiana Supreme Court of Indiana
    • November 22, 2002
    ...compliance with the statute, and if there is a lack of substantial compliance, the accused need not show actual prejudice. Cross v. State, 272 Ind. 223, 226, 397 N.E.2d 265, 268 (1979); Wireman v. State, 432 N.E.2d 1343, 1354 (Ind.1982) (Hunter, J., dissenting); Rogers v. State, 428 N.E.2d ......
  • Pitman v. State, No. 1181S337
    • United States
    • Indiana Supreme Court of Indiana
    • June 11, 1982
    ...jury list and there was substantial compliance with the statutory requirements, we find no error here. Cross v. State, (1979) Ind., 397 N.E.2d 265. II. Defendant next contends that the trial court erred in permitting witnesses to testify over his objections about injuries which Mr. and Mrs.......
  • Request a trial to view additional results
12 cases
  • Highler v. State, No. 02A03-0505-CR-203.
    • United States
    • Indiana Supreme Court of Indiana
    • September 15, 2005
    ...412 N.E.2d 778 (1980)). If there is a lack of substantial compliance, however, the accused need not show actual prejudice. Cross v. State, 272 Ind. 223, 226, 397 N.E.2d 265, 268 In the present case, the record reveals that the jury selection system in Allen County has been reformed since 19......
  • Wireman v. State, No. 382S118
    • United States
    • Indiana Supreme Court of Indiana
    • March 26, 1982
    ...guaranteeing the impartiality of jurors and eliminating any cause for suspicion about the selection process. Cross v. State, (1979) Ind., 397 N.E.2d 265; Owen v. State, (1979) Ind. 396 N.E.2d 376; Shack v. State, (1972) 259 Ind. 450, 288 N.E.2d 155; Rudd v. State, (1952) 231 Ind. 105, 107 N......
  • Azania v. State, No. 02S00-0009-SD-538.
    • United States
    • Indiana Supreme Court of Indiana
    • November 22, 2002
    ...compliance with the statute, and if there is a lack of substantial compliance, the accused need not show actual prejudice. Cross v. State, 272 Ind. 223, 226, 397 N.E.2d 265, 268 (1979); Wireman v. State, 432 N.E.2d 1343, 1354 (Ind.1982) (Hunter, J., dissenting); Rogers v. State, 428 N.E.2d ......
  • Pitman v. State, No. 1181S337
    • United States
    • Indiana Supreme Court of Indiana
    • June 11, 1982
    ...jury list and there was substantial compliance with the statutory requirements, we find no error here. Cross v. State, (1979) Ind., 397 N.E.2d 265. II. Defendant next contends that the trial court erred in permitting witnesses to testify over his objections about injuries which Mr. and Mrs.......
  • Request a trial to view additional results

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