Hardy v. State, No. 2-278A49

Docket NºNo. 2-278A49
Citation429 N.E.2d 281
Case DateDecember 23, 1981
CourtCourt of Appeals of Indiana

Page 281

429 N.E.2d 281
Kenny HARDY, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 2-278A49.
Court of Appeals of Indiana, Fourth District.
Dec. 23, 1981.

Page 282

Carolyn S. Holder, Lafayette, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Kenneth R. Stamm, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

CONOVER, Judge.

Kenneth Hardy was convicted by a jury for unlawful dealing in a controlled substance and sentenced to five years in prison. In challenging the fairness of his trial, Hardy contends the trial court erred in 1) denying his motion to dismiss the indictment, 2) denying his pre-trial motion to suppress evidence procured by entrapment, 3) allowing hearsay evidence during a pre-trial suppression hearing, 4) incorrectly instructing the jury on the law of entrapment, and 5) allowing evidence contrary to an order in limine excluding references to Mrs. Hardy's race.

We find it necessary to discuss only the first issue, since it is our conclusion the trial court should have granted Hardy's motion to dismiss his indictment because of irregularities in the grand jury selection process. Accordingly, we reverse.

The irregularities in the selection of the grand jury in this case has raised serious questions about the appearance of integrity in our system of justice. Whenever local courts stray from established statutory procedure, they risk both the rights of the defendant and the confidence of the citizenry in the criminal justice system.

In a nutshell, it appears from the record the three trial judges in Tippecanoe County were concerned about possible political corruption. The judges, moreover, had little faith in the elected prosecutor, James Kizer. Accordingly, they prepared a disqualification order to remove him from the investigation. 1 At a meeting with the judges on October 22, 1975, Kizer voluntarily signed the disqualification order:

"Comes now James A. Kizer, Prosecuting Attorney for the 23rd Judicial Circuit.

It appears to the Court that certain allegations have been publicly made concerning possible criminal conduct by public officials and concerning the possible commission of crimes which have not been properly investigated or prosecuted, and that further allegations have been publicly made that the said prosecuting attorney has been influenced in the conduct of his office by political considerations.

It further appears to the Court that the interests of justice require that said allegations be made the subject of police and grand jury investigation.

And now the said Prosecuting Attorney, in the interests of a full and free investigation of all said allegations, disqualifies himself from participating therein, and requests the Court to appoint a special prosecutor to assist the police and grand jury in the investigation of all said allegations and to conduct the prosecution of any criminal charges which may arise therefrom.

Entered this 22nd day of October, 1975.

/s/ Warren B. Thompson

/s/ Warren B. Thompson, Judge

/s/ Tippecanoe Circuit Court

/s/ Robert F. Munro

/s/ Robert F. Munro, Judge

/s/ Superior Court of Tippecanoe County

/s/ Jack A. King

/s/ Jack A. King, Judge

/s/ Superior Court No. 2 of Tippecanoe County

Page 283

/s/ James A. Kizer

/s/ James A. Kizer, Prosecuting Attorney for the 23rd Judicial Circuit"

The same day, the judges appointed George Hanna as special prosecutor.

The grand jury was impaneled in January, 1976, primarily to assist the special prosecutor in his investigation of political corruption. The special prosecutor, under his authority to deal with "crimes which have not been properly investigated or prosecuted" by Kizer, also brought drug abuse cases to the grand jury's attention. Consequently, it indicted Hardy on February 11, 1976, on evidence he sold on November 20, 1975, several tablets of a prescription drug to an undercover police officer for $10.00.

In addition to the Hardy indictment, the grand jury returned a number of others, including an indictment for theft and burglary against Lewis Wireman, a former Lafayette city judge. Subsequently in Wireman v. State, (1981) Ind.App., 418 N.E.2d 1182 (Transfer pending), we held the grand jury which indicted Wireman was selected in a manner not in substantial compliance with the statutory requirements that jurors be selected in a random, impartial and non-partisan manner. For that reason, we reversed Wireman's conviction and remanded with instructions to grant his motion to dismiss his indictment. We concluded that where

"there are numerous jury selection irregularities alleged in a politically-colored investigation, and that among such irregularities it is demonstrated the names for the grand jury in question had been drawn from a jury box which had not been purged for as many as six years, that during most of this six-year period names were chosen from politically-labeled voter lists, and that in selecting the names comprising the pool of prospective jurors the commissioners acted not in concert, but entirely on their own, substantial compliance with the appropriate statutory procedures has not been achieved."

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2 practice notes
  • Hardy v. State, No. 2-278A49
    • United States
    • Indiana Court of Appeals of Indiana
    • 23 Noviembre 1982
    ...Page 379 years imprisonment. That conviction was reversed by the Court of Appeals, Fourth District in Hardy v. State, (1981) Ind.App., 429 N.E.2d 281. The State's petition for rehearing was denied and it sought transfer to the Supreme Court. Transfer was granted pursuant to Ind.Rules of Pro......
  • Hardy v. State, No. 682S240
    • United States
    • Indiana Supreme Court of Indiana
    • 25 Junio 1982
    ...pursuant to Ind.R.App.P. 11(B)(2) in that the opinion of the Court of Appeals, Fourth District, found at Hardy v. State, (1981) Ind.App., 429 N.E.2d 281 contravenes ruling precedent of this Court, to wit: Wireman v. State, (1982) Ind., 432 N.E.2d 1343, 1346-49, and the decision and opinion ......
2 cases
  • Hardy v. State, No. 2-278A49
    • United States
    • Indiana Court of Appeals of Indiana
    • 23 Noviembre 1982
    ...Page 379 years imprisonment. That conviction was reversed by the Court of Appeals, Fourth District in Hardy v. State, (1981) Ind.App., 429 N.E.2d 281. The State's petition for rehearing was denied and it sought transfer to the Supreme Court. Transfer was granted pursuant to Ind.Rules of Pro......
  • Hardy v. State, No. 682S240
    • United States
    • Indiana Supreme Court of Indiana
    • 25 Junio 1982
    ...pursuant to Ind.R.App.P. 11(B)(2) in that the opinion of the Court of Appeals, Fourth District, found at Hardy v. State, (1981) Ind.App., 429 N.E.2d 281 contravenes ruling precedent of this Court, to wit: Wireman v. State, (1982) Ind., 432 N.E.2d 1343, 1346-49, and the decision and opinion ......

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