Fry v. State, No. 09S00–1205–CR–361.

Docket NºNo. 09S00–1205–CR–361.
Citation990 N.E.2d 429
Case DateJune 25, 2013
CourtSupreme Court of Indiana

990 N.E.2d 429

Loren Hamilton FRY, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).

No. 09S00–1205–CR–361.

Supreme Court of Indiana.

June 25, 2013.






Held Unconstitutional


West's A.I.C. 35–33–8–2(b)

[990 N.E.2d 433]

Jim Brugh, Logansport, IN, Attorney for Appellant.


Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Direct Appeal Pursuant to Indiana Appellate Rule 4(A)

DAVID, Justice.

The Indiana Constitution provides a qualified right to bail, exempting murder and treason from that right when “the proof is evident, or the presumption strong.” For nearly 150 years, every time we have addressed the issue in the context of a murder charge, this Court has held that the defendant must carry the burden of demonstrating that the proof is not evident and the presumption not strong, and that he is thus entitled to bail. And the Indiana General Assembly has codified this constitutional provision and our jurisprudence into the Indiana Code.

A criminal defendant now charged with murder challenges the constitutionality of the statutory provision assigning him the burden of showing he is entitled to bail. After due consideration, today we hold that the burden must be placed upon the State to prove the defendant should be denied bail. Nevertheless, given the facts and circumstances of this particular case we affirm the trial court's decision denying the defendant bail.

Facts and Procedural History

In September 2011, Loren Fry was arrested in Cass County, Indiana, and charged with the murder of David Schroder. Fry filed a motion seeking bail, claiming that the State's evidence against him was circumstantial and therefore the presumption of his guilt was not strong. He simultaneously filed a motion seeking a declaration that Indiana Code § 35–33–8–2(b), which places on a defendant charged with murder the burden of proving why he or she should be admitted to bail, is unconstitutional.

Judge Maughmer ordered the State to present evidence that the proof was evident,

[990 N.E.2d 434]

or the presumption strong, that Fry committed the murder; thereafter, the statutory burden would shift to Fry to convince the court that he should be admitted to bail. To the extent the statute might operate otherwise, Judge Maughmer said, it would be unconstitutional.

After a hearing pursuant to his instructions, Judge Maughmer denied Fry bail. Fry appealed directly to this Court, seeking review as to both the constitutionality of § 35–33–8–2(b) and the denial of his request for bail. SeeInd. Appellate Rule 4(A)(1)(b) (providing Supreme Court mandatory and exclusive jurisdiction over appeals of final judgments declaring state statutes unconstitutional).

Standard of Review

When reviewing a challenge to the constitutionality of a statute, we observe a high level of deference to the legislature's decision-making. Collins v. Day, 644 N.E.2d 72, 80 (Ind.1994). The statute or regulation is presumed to be constitutional “until clearly overcome by a contrary showing.” Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind.1996); see also Collins, 644 N.E.2d at 80. The challenging party bears the considerable burden of proving this contrary showing, and any doubts are resolved against that challenge. Ledbetter v. Hunter, 842 N.E.2d 810, 815 (Ind.2006); Boehm, 675 N.E.2d at 321.

I. Constitutionality of Indiana Code § 35–33–8–2(b)

The right to bail is “a traditional and cherished right.” Bozovichar v. State, 230 Ind. 358, 361, 103 N.E.2d 680, 681 (1952). It “prevents the infliction of punishment prior to an adjudication of guilt and permits the unhampered preparation of a defense.” Id. Its purpose is therefore not punitive, but instead it guarantees a defendant will be present to stand trial on his charges.1Phillips v. State, 550 N.E.2d 1290, 1294 (Ind.1990). “The right to freedom by bail pending trial is an adjunct to that revered Anglo–Saxon aphorism which holds an accused to be innocent until his guilt is proven beyond a reasonable doubt.” Hobbs v. Lindsey, 240 Ind. 74, 79, 162 N.E.2d 85, 88 (1959). “Unless that right is preserved, the presumption of innocence, secured only after centuries of struggle, will lose its meaning.” Bozovichar, 230 Ind. at 361, 103 N.E.2d at 681.

That the right to bail is so deeply valued, however, does not mean that it is unqualified. The Indiana Constitution specifically provides that “[o]ffenses, other than murder or treason, shall be bailable by sufficient sureties. Murder or treason shall not be bailable, when the proof is evident, or the presumption strong.” Ind. Const. art. 1, § 17.2 We have thus said that “as a general rule, murder and treason shall not be bailable,” except “in either

[990 N.E.2d 435]

one of two cases: 1st. When the proof is not evident; 2d. When the presumption is not strong.” Ex parte Jones, 55 Ind. 176, 179 (1876). “In either one of these two separate and distinct cases, the offence shall be bailable.” Id.

This qualification was proper because murder is “the most serious charge that can be lodged by this state against an individual and carries with it the possibility of the imposition of a sentence of death, society's harshest penalty,” Phillips, 550 N.E.2d at 1294–95, and the purpose of bail would likely be disserved by an unqualified right in such a case. “Given the seriousness of the charge and the severity of the consequences that could potentially attach, the likelihood that an accused person would appear for trial if let to bail is sufficiently doubtful that an initial presumption that no monetary sum could provide an adequate assurance of attendance at trial” is appropriate. Id. at 1295.

We have also long-held that the burden is placed upon the defendant to show that either of those two separate and distinct circumstances exist—i.e., to show that in his murder case the proof is not evident, or the presumption not strong. Bozovichar, 230 Ind. at 366, 103 N.E.2d at 683;see also Ex parte Jones, 55 Ind. at 180;Ex parte Heffren, 27 Ind. 87, 88 (1866). However, the presumption against bail in a murder case—and the defendant's corresponding burden to show otherwise—is only permissible under the Constitution “so long as that person is afforded the type of procedural due process hearing that will guarantee that bail is not denied unreasonably or arbitrarily.” Phillips, 550 N.E.2d at 1295.

In 1981, the General Assembly codified this case law into § 35–33–8–2, which states, “(a) Murder is not bailable when the proof is evident or the presumption strong. In all other cases, offenses are bailable. (b) A person charged with murder has the burden of proof that he should be admitted to bail.” Ind.Code § 35–33–8–2. Fry challenges subsection (b) of this statute, and, by extension, our prior case law.

He argues that the subsection is unconstitutional because “there is a constitutional presumption in favor of innocence and in favor the right to bail, while this statute removes those presumptions by placing the burden upon the person charged.” (Appellant's Br. at 10–11.) In essence, he disagrees with the premise that there is an inherent presumption against a right to bail in murder or treason cases under Article 1, § 17. Instead, he argues, the provision's second sentence simply states that murder and treason shall not be bailable when the proof is evident or the presumption strong—but it says nothing about who carries the burden of showing that to be the case. His view is that this burden should be on the State, just as it is to ultimately prove guilt beyond a reasonable doubt.

A. The Indiana Approach

A cold reading of the plain language of Article 1, § 17, shows that Fry is at least partly correct: the provision makes no allocation of the burden for either showing that the proof is evident or the presumption strong, or showing that it is not. That interpretation—and the resulting codification in § 35–33–8–2(b)—is almost purely a result of this Court's cases.3

[990 N.E.2d 436]

However, a review of those cases shows two important features that explain why we reached that result. First, our analysis was composed in the context of criminal cases that began with an indictment of the defendant by a grand jury. See Heffren, 27 Ind. at 87;see also Caudill v. State, 262 Ind. 40, 40, 311 N.E.2d 429, 429 (1974); Bozovichar, 230 Ind. at 360, 103 N.E.2d at 681;McAdams v. State, 196 Ind. 184, 185, 147 N.E. 764, 764 (1925); State v. Hedges, 177 Ind. 589, 589, 98 N.E. 417, 417 (1912); Brown v. State, 147 Ind. 28, 29, 46 N.E. 34, 35 (1897); Schmidt v. Simmons, 137 Ind. 93, 93, 36 N.E. 516, 516 (1894); Ex parte Kendall, 100 Ind. 599, 600 (1885); Jones, 55 Ind. at 177. And it was in that context that we first said that a grand jury indictment for murder was, prima facie, sufficient to overcome what otherwise might be a presumptive right to bail. Heffren, 27 Ind. at 88;Jones, 55 Ind. at 180.

In our country, the grand jury has an “ancient role” in “determining if there is probable cause to believe that a crime has been committed” and a related responsibility of “protecting citizens against unfounded criminal prosecutions.” Branzburg v. Hayes, 408 U.S. 665, 686–87, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). “[I]ts task is to inquire into the existence of possible criminal conduct and to return only well-founded indictments.” Id. at 688, 92 S.Ct. 2646. “Historically, this body has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused.” Wood v. Georgia, 370 U.S. 375, 390, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962). Its responsibility is “to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.” Id.

Because of this protective function, grand juries are afforded a special level of deference in our judicial process. Grand...

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25 practice notes
  • Commonwealth v. Talley, No. 14 MAP 2021
    • United States
    • United States State Supreme Court of Pennsylvania
    • December 22, 2021
    ...and that the presumption is great when testimony raises inferences of guilt that are "strong, clear, and convincing"); Fry v. State , 990 N.E.2d 429, 445-49 (Ind. 2013) (holding that the standard "requires something more than probable cause" and finding that where the denial of bail is rela......
  • Berry v. Crawford, Nos. 49S00–1201–PL–53
    • United States
    • Indiana Supreme Court of Indiana
    • October 8, 2013
    ...Indiana Constitution. Hence, I would hold Plaintiffs' wage payment claims justiciable and I would affirm the trial court's order to the [990 N.E.2d 429]extent it finds Defendants violated Indiana Code section 22–2–5–1.RUSH, J., concurs in part and dissents in part with separate opinion.----......
  • Commonwealth v. Talley, 14 MAP 2021
    • United States
    • United States State Supreme Court of Pennsylvania
    • December 22, 2021
    ...and that the presumption is great when testimony raises inferences of guilt that are "strong, clear, and convincing"); Fry v. State, 990 N.E.2d 429, 445-49 (Ind. 2013) (holding that the standard "requires something more than probable cause" and finding that where the denial of bail is relat......
  • Smith v. State, No. 18S02–1304–CR–297.
    • United States
    • Indiana Supreme Court of Indiana
    • June 30, 2014
    ...When challenging the constitutionality of a statute, a party must clearly overcome a presumption of constitutionality. Fry v. State, 990 N.E.2d 429, 434 (Ind.2013). We observe a high level of deference with respect to the General Assembly's decision-making, and any doubts are resolved in fa......
  • Request a trial to view additional results
24 cases
  • Commonwealth v. Talley, No. 14 MAP 2021
    • United States
    • United States State Supreme Court of Pennsylvania
    • December 22, 2021
    ...and that the presumption is great when testimony raises inferences of guilt that are "strong, clear, and convincing"); Fry v. State , 990 N.E.2d 429, 445-49 (Ind. 2013) (holding that the standard "requires something more than probable cause" and finding that where the denial of bail is rela......
  • Berry v. Crawford, Nos. 49S00–1201–PL–53
    • United States
    • Indiana Supreme Court of Indiana
    • October 8, 2013
    ...Indiana Constitution. Hence, I would hold Plaintiffs' wage payment claims justiciable and I would affirm the trial court's order to the [990 N.E.2d 429]extent it finds Defendants violated Indiana Code section 22–2–5–1.RUSH, J., concurs in part and dissents in part with separate opinion.----......
  • Commonwealth v. Talley, 14 MAP 2021
    • United States
    • United States State Supreme Court of Pennsylvania
    • December 22, 2021
    ...and that the presumption is great when testimony raises inferences of guilt that are "strong, clear, and convincing"); Fry v. State, 990 N.E.2d 429, 445-49 (Ind. 2013) (holding that the standard "requires something more than probable cause" and finding that where the denial of bail is relat......
  • Smith v. State, No. 18S02–1304–CR–297.
    • United States
    • Indiana Supreme Court of Indiana
    • June 30, 2014
    ...When challenging the constitutionality of a statute, a party must clearly overcome a presumption of constitutionality. Fry v. State, 990 N.E.2d 429, 434 (Ind.2013). We observe a high level of deference with respect to the General Assembly's decision-making, and any doubts are resolved in fa......
  • Request a trial to view additional results

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