Hennigan v. State

Decision Date16 November 1987
Docket NumberNo. 86-82,86-82
Citation746 P.2d 360
PartiesJoseph M. HENNIGAN, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Leonard D. Munker, State Public Defender; Julie D. Naylor, Appellate Counsel; Gerald M. Gallivan, Director, Wyoming Defender Aid Program; and Megan Olson, Student Intern, Wyoming Defender Aid Program, for appellant.

A.G. McClintock, Atty. Gen.; Gerald A. Stack, Deputy Atty. Gen.; Mary B. Guthrie, Sr. Asst. Atty. Gen., and John W. Renneisen, Sr. Asst. Atty. Gen., for appellee.


THOMAS, Justice.

The primary focus of Joseph Hennigan's contentions in this appeal is his indictment of the institution of the grand jury. His complaints are directed generally to the function of the grand jury in Wyoming and specifically to claimed defects that are present in his case. His claims encompass assertions that he was denied due process of law and the equal protection of the laws. He also argues that his conviction should be set aside because the grand jury was not properly impaneled since there was no specific finding of necessity for calling a grand jury; the indictments are fatally defective because the grand jury foreman did not personally endorse the words "A True Bill" upon the indictment; and the proceedings manifest the lack of any indicia of reliability in determining probable cause. We conclude that the institution of the grand jury has been maintained in Wyoming as a proper prosecutorial procedure; there is no constitutional defect attaching to its use as it has been structured; and no error occurred in connection with the charges brought against Hennigan by indictment. The judgment and sentence with respect to each of the several counts brought against him is affirmed.

In his brief, Hennigan articulates the issues presented in this way:

"I. Whether the Appellant has been denied due process and equal protection of the law by the actions of the prosecution in deliberately avoiding the preliminary hearing and obtaining indictments without observing minimal standards of fundamental fairness.

"II. Whether the current Grand Jury was improperly impaneled under Section 7-5-102 in that there was no necessity for said body, requiring the dissolution of the panel and the dismissal of the indictments.

"III. Whether the indictments in these cases are fatally defective for failure to conform to the statutory requirement that the foreman endorse the words 'A True Bill' upon each indictment.

"IV. Whether the indictments should be dismissed because the conduct of the Grand Jury lacks any indicia of reliability in the assessment of probable cause."

In the Brief of Appellee, the State of Wyoming restates and reorders the issues in this way:

"I. Did appellant's indictment by the grand jury deny him due process and equal protection?

"II. Was there probable cause for the grand jury to return the indictments against the appellant?

"III. Was the indictment of appellant fatally defective because the grand jury foreman did not endorse 'A True Bill' on the indictment in his own handwriting?

"IV. Was the grand jury properly impaneled?"

Hennigan was charged by indictment with four counts of delivery of marihuana in violation of §§ 35-7-1031(a)(ii) and 35-7-1014(d)(xiii), W.S.1977. 1 An arrest warrant was issued premised upon the indictment, and Hennigan, following his arrest, was arraigned on each of these counts. He entered a plea of not guilty as to each count. Prior to trial, Hennigan and a number of other individuals who had been indicted by the same grand jury presented a common motion to dismiss the indictments against them and dissolve the grand jury. That motion asserted the same contentions set forth in Hennigan's brief in this court, and it was denied following a hearing by the district court. At the jury trial which followed, Hennigan was found guilty on each of the four counts, and he then was sentenced to a term of not less than 18 months nor more than 36 months on each count with those sentences to run concurrently. He was given credit against both the minimum and maximum terms for 216 days that he spent in the Campbell County jail in pre-trial confinement. Hennigan also was fined $750 on each of the four counts; the $25.00 surcharge for victims of crimes was imposed as to each count; and he was ordered to reimburse the State of Wyoming and Campbell County for the services of his court-appointed attorney in the amount of $1,000.

Hennigan does not attack the proceedings at trial nor the sufficiency of the evidence upon which the jury found him guilty beyond a reasonable doubt. His only claims of error in this case address the grand jury proceedings. The identical issues are being presented by other individuals who were charged by the same grand jury, found guilty by a petit jury, and now have appealed to this court. Because the contentions relating to the grand jury proceedings are identical in these several cases, we will treat with them definitively in this decision.

Hennigan's contentions and arguments are heavily weighted toward a call for reform. Essentially philosophic in tone, they do not afford optimum assistance in our effort to identify incidents that can be characterized as errors of law. Walker v. Karpan, Wyo., 726 P.2d 82 (1986). Hennigan's arguments, instead, manifest an effort to explain the errors that could be present if the extant rules were as Hennigan wishes them to be. This presentation broaches upon a failure to support the issues by cogent argument or pertinent authority which might justify a refusal to consider them. Newton v. State, Wyo., 698 P.2d 1149 (1985); Ostrowski v. State, Wyo., 665 P.2d 471 (1983); Stolldorf v. Stolldorf, Wyo., 384 P.2d 969 (1963).

Hennigan relies upon general statements of the law, arguments in favor of reform by various individuals and the American Bar Association, and a dissenting position by a justice of the Supreme Court of the United States. He has failed to cite any pertinent authority which is not distinguishable, and we may assume that such authority does not exist. Taylor v. State, Wyo., 658 P.2d 1297 (1983); Deeter v. State, Wyo., 500 P.2d 68 (1972). Given the essentially philosophic, rather than legal, debate still we shall address in detail Hennigan's claims of error.

In doing so, we turn first to the claimed constitutional defects. Hennigan's arguments about deprivation of due process and equal protection weave together and certainly are closely related. We address initially the claim that the utilization of the grand jury in this instance resulted in a deprivation of due process of law. Because of the rather free-wheeling nature of Hennigan's claims, it perhaps is worthwhile to place the due process and equal protection concepts in the context of the pertinent constitutional measures. In Amendment Fourteen of the Constitution of the United States, the following language is found:

" * * * No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

In the Constitution of the State of Wyoming, we find Art. 1, § 6:

"No person shall be deprived of life, liberty or property without due process of law."

Invocation of these constitutional protections depends upon some lack of due process or the denial of equal protection in connection with the event which had the effect of depriving Hennigan of his liberty or property. That event was the judgment and sentence entered upon the finding of guilty by the jury which tried his case. Hennigan does not discern any distinction between the conviction in the trial court and the institution of the charges upon which that conviction was premised. In our judgment that distinction makes a substantial difference.

The distinction just alluded to requires that we analyze the demand for due process which attaches to the temporary invasion of an individual's liberty arising out of a determination that he should be held to answer a criminal charge in a trial court. An examination from this perspective teaches that the constitutional requirement for indictment by a grand jury found in Art. 1, § 13 of the Constitution of the State of Wyoming 2 and the Fifth Amendment to the Constitution of the United States 3 was assumed by the drafters to be essential to the protection of citizens from overreaching by government. The purpose of the grand jury presentment or indictment was to assure that there was probable cause to present an individual before a petit jury for trial. The grand jury proceeding was perceived as the standard of due process which was part of the law of the land at common law. Historical exposition of the concept is set forth in Hopkinson v. State, Wyo., 664 P.2d 43, cert. denied 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983); In re State v. Boulter, 5 Wyo. 329, 39 P. 883 (1895); Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887); Hurtado v. People of State of California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884); United States v. Smyth, 104 F.Supp. 283 (N.D.Cal.1952); L. Clark, The Grand Jury: The Use and Abuse of Political Power (1975); Campbell, Eliminate the Grand Jury, 64 J.Crim.L. & Criminology 174 (1973); J. Stephen, 1 History Criminal Law of England (1893); 38 C.J.S. Grand Juries §§ 2-47 (1943); 38 Am.Jur.2d Grand Jury §§ 1-41 (1968).

Historically, the debate has been whether alternative procedures, apparently recognized by constitutional provisions similar to those found in Art. 1, § 13 of the Constitution of the State of Wyoming, afforded the same measure of due process to the accused as did the grand jury. In Hurtado v. People of State of California, supra, the decision of the State of California to substitute...

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