Moritz v. State

Decision Date26 June 1984
Docket NumberNo. 1-783A215,1-783A215
Citation465 N.E.2d 748
PartiesChristopher D. MORITZ, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
CourtIndiana Appellate Court

Kenneth A. Layton, David W. Paugh, Montgomery, Elsner & Pardieck, Seymour, for defendant-appellant.

Linley E. Pearson, Atty. Gen. of Ind., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

NEAL, Presiding Judge.

STATEMENT OF THE CASE

Defendant-appellant, Christopher D. Moritz (Moritz), was convicted of four counts of bribery under IND.CODE 35-44-1-1(a)(2), a Class C felony, by a Lawrence County Circuit Court jury. From an executed sentence of five years he appeals.

We affirm in part and reverse in part.

STATEMENT OF THE FACTS

As a result of a widespread investigation by Indiana State Police officers into illegal kickbacks received in exchange for the purchase by municipalities of chemical products (Chemseam), Moritz, Mayor of the City of Seymour, was indicted by a Jackson County grand jury on 36 separate offenses of malfeasance in office including the six charges of bribery involved here. Eleven other defendants were indicted including salesmen and other Seymour city officers and employees. After venue was changed to Lawrence County, the six bribery cases against Moritz were consolidated and tried together, resulting in conviction on four of the charges and acquittal on the other two charges. The essence of each bribery charge was the same. Leo Trimpe, a chemical salesman, testified that he paid Moritz money in return for orders of chemical products made by Moritz for the City of Seymour.

ISSUES

Moritz raises eleven issues on appeal. Restated for brevity, they concern the following:

I. Prosecutorial misconduct.

II. Failure to impose sanctions for violations of a discovery order.

III. Error in ordering transcript and filing of grand jury testimony.

IV. Error in limiting cross examination of Leo Trimpe.

V. Failure to grant mistrial for violation of motion in limine.

VI. Admission of hearsay evidence.

VII. Refusal to admit opinion evidence of impressions as to a third party.

VIII. Failure to grant judgment on the evidence based upon a variance between the indictment and evidence at trial.

IX. Sufficiency of the evidence.

X. Refusal to admit polygraph of defendant at sentencing concerning his guilt.

XI. Error in weighing mitigating circumstances.

DISCUSSION AND DECISION

Issues I, II and III: Prosecutorial Misconduct.

Under these issues Moritz argues the court erred in failing to grant his pre-trial motion to dismiss barring re-prosecution. This motion was based on prosecutorial misconduct consisting of (1) disclosure of the grand jury proceedings; (2) extra judicial statements made to the press; and (3) violation of the court's discovery order. The factual underpinning of these arguments is as follows:

1. Grand Jury Proceedings. Prior to the time venue was changed from Jackson County to Lawrence County, the trial court entered a discovery order applicable to all 171 chemscam indictments and to all 12 defendants involved. As a part thereof, it ordered the state to "prepare and file a copy of the grand jury testimony". The state complied and placed the grand jury transcript in the court's files. A reporter for the Seymour Tribune testified at the hearing on Moritz's motion to dismiss that he secured specific permission from the trial judge to copy the transcript, which he did. Thereafter, the Seymour Tribune printed news stories based upon the information contained in the transcript. The evidence at the hearing affirmatively showed the prosecutor, Doboze, did not authorize the press to use the grand jury transcript in any way. The above evidence is undisputed.

2. Extra Judicial Statements. The media coverage of the "chemscam" story has been described as massive. The record of the hearing on Moritz's motion to dismiss contains copies of 20 lengthy news stories covering the many indictments of city officials and employees, whose pictures often adorned the articles. The prosecuting attorney was quoted intermittently throughout the 20 articles; however, he denied he was the source of these scattered comments concerning the overall investigation, the time expended on it, its justifications and resultant indictments and arraignments. He stated that he anticipated a multitude of motions to be filed, and a change of venue from the county. The prosecutor was also quoted as saying Moritz should resign. He had comments on the city council's monitoring of expenditures, the workings of chemscam, and its cost to the city. He quoted a city official as saying the "commission" had been paid to a political party fund.

3. Violation of Discovery Order. Commencing January 19, 1982, various discovery orders applicable to all the chemscam cases were entered. The discoverable material, which included statements and grand jury testimony, was mountainous and required months to transcribe and assemble. The State Police were faced with a logistic problem created by the 171 separate indictments of the 12 defendants which charges were venued into different counties. In addition, there were other chemscam investigations proceeding in other counties involving some of the same witnesses. Returns on the discovery order were made by the state periodically throughout 1982. Cassettes of statements were filed as late as February 24, 1983, two days after the trial had started. Over this time span, Moritz filed various motions for sanctions which were heard by the trial court. After voir dire was completed on February 25, the court granted a motion for continuance in favor of Moritz until February 28, the specific date requested by Moritz to afford him an opportunity to evaluate the late discovery. No other motion for continuance was made.

We first observe that because of pre-trial publicity the six bribery cases against Moritz which are relevant here were venued from Jackson to Lawrence County. No contention is made that the voir dire examination of the Lawrence County jurors reflected any knowledge of the parties or the facts which was prejudicial to Moritz. Much of Moritz's argument consists of strident and accusatory characterizations of the prosecutor's acts as blatant "misconduct and overreaching". To reach this conclusion, he assumes the prosecuting attorney deliberately suppressed relevant discovery material, deliberately caused the grand jury testimony to be made public, and deliberately made statements to the press in order to try Moritz in the news media. He omits from his brief any mention of the trial judge's role in the release of the grand jury's testimony. There is nothing in the record that compels his factual conclusions or even permits them. He cites Maldonado v. State, (1976) 265 Ind. 492, 355 N.E.2d 843, and United States v. Kessler, (5th Cir.1976) 530 F.2d 1246 and other like cases concerning mistrial for prosecutorial misconduct during trial as authority for the proposition that the court is mandated to grant a dismissal barring further prosecution for pre-trial prosecutorial misconduct. He cites the Code of Professional Responsibility, DR. 7-107 and 1-102, concerning extra judicial statements or the dissemination of information about a criminal proceeding. He asserts without authority that the prosecutor was bound to file all the counts against him in one indictment. He cites IND.Code 35-1-15-16 and cases forbidding disclosure of grand jury proceedings to support abstract propositions of due process and fair trial. He cites no authority whatever, and we have found none, which mandates a trial court to grant a dismissal barring further prosecution for pre-trial prosecutorial misconduct. Even granting a mistrial for prosecutorial misconduct during trial is ordinarily within the discretion of the trial court. Ramos v. State, (1982) Ind. 433 N.E.2d 757. The usual remedy is a new trial.

Primarily relied upon by Moritz at the hearing on the motion to dismiss, and here, is the release of grand jury testimony to the press. Factually, this was not an act of the prosecuting attorney, who simply obeyed the discovery order and filed the transcript with the court. Moritz characterizes this as filing it in a "public" file, though he does not inform us of the distinction between a court's "public" file and a non-public file. In any event, the disclosure was a result of the trial judge's acts, not those of the prosecutors. Though the order for the preparation of the transcript was made in another chemscam case, it was for Moritz's benefit, as well as other defendants, and Moritz did not object to the order. Later, Moritz himself filed a motion and received an order on August 18, 1982 for the grand jury testimony. He utilized this information and cannot now argue that the court erred in ordering it prepared.

The provisions for secrecy of grand jury proceedings have been held to be for the benefit of the jurors and witnesses, and not the defendant. Reichert v. Commissioners of Internal Revenue, (7th Cir.1954) 214 F.2d 19 cert. denied 348 U.S. 909, 75 S.Ct. 294, 99 L.Ed. 713. Rennert v. State, (1975) 263 Ind. 274, 329 N.E.2d 595. State v. Bowman, (1981) Ind., 423 N.E.2d 605. Even for change of venue purposes, and for continuance purposes, any ruling regarding publicity is addressed to the sound discretion of the trial court. In that regard the trial court should consider the following factors: (1) the right of the news media to fairly and accurately report the news; (2) the right of the defendant to a fair trial before an impartial tribunal free from the influence of generated prejudice and inflamed passions of the community; and (3) the right of citizens to fully comprehend and analyze the portent and direction of the administration of our court system. Moore v. State, (1972) 154 Ind.App. 482, 290 N.E.2d 472; Daniels v. State, (1983) Ind., 453 N.E.2d 160; Resnover v. State, (1984) Ind., 460 N.E.2d 922.

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