Owen v. State

Decision Date08 November 1979
Docket NumberNo. 979S243,979S243
PartiesRichard Lee OWEN, II, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Richard Lee Owen, II, Michigan City, pro se.

Theodore L. Sendak, Atty. Gen., Kenneth R. Stamm, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

This opinion is occasioned by the filing by appellant Richard Lee Owen, II, of a Motion filed Pro se, which, though not in proper form, we will treat and consider as a petition for rehearing.

The appellant was found guilty in St. Joseph Superior Court of the crime of commission of a felony while armed and sentenced to a term of ten (10) years. He appeared Pro se in the trial court and before the Court of Appeals, as he does before this Court.

The Fourth District Court of Appeals reversed the conviction based upon the trial court's denial of defendant's motion to strike the jury panel. Owen v. State, (1979) Ind.App., 388 N.E.2d 292. Seven issues were raised in that appeal, but because the Court of Appeals found grounds for reversal on the issue concerning selection of the jurors and reversed the conviction of appellant, the remaining six issues were not considered by the Court of Appeals. On petition to transfer to the Supreme Court, we found the Court of Appeals in error in their holding on the juror issue, granted transfer and vacated the decision of the Court of Appeals. In doing so, our opinion, issued on September 5, 1979, considered only the single issue of the selection of the jurors and mistakenly failed to consider the other issues raised by appellant Owen in the Court of Appeals. By his Motion the appellant brings this situation to our attention and requests that we consider the other issues raised in his original appeal. In the furtherance of convenience and avoidance of unnecessary cost or delay, we grant rehearing and our opinions issued on September 5, 1979, are withdrawn and the previous majority opinion on transfer is incorporated in this opinion, which includes consideration of all additional issues raised by the appellant.

The only basis the Court of Appeals used for reversal in Owen v. State, (1979) Ind.App., 388 N.E.2d 292, was the fact that St. Joseph Superior Court judges had appointed two jury commissioners, and the statute in 1969 provided for four jury commissioners for service of the Superior Courts.

Prior to 1969, the statute provided that the judge of the Circuit Court was to appoint two jury commissioners for selection of grand and petit jurors to serve in the various courts of the county. In 1969, the St. Joseph Superior Court reorganized into an integrated court consisting of five judges and enabling statutes were passed by the Legislature structuring the make-up of this Court. Ind.Code § 33-5-40-18 (Burns 1975) provided that:

"The superior court shall, in each calendar year, appoint for the next calendar year four (4) persons as jury commissioners, and the law with reference to jury commissioners appointed by the circuit court as now made or may hereafter be made, shall fully govern said jury commissioners as appointed by the superior court in all things, conditions and qualifications, and said jury commissioners shall prepare and draw the jury for the superior court, both petit and grand, as the law directs the same to be done by the jury commissioners for the circuit court."

However, it is important to note the following provision of that statute which is as follows:

"Provided that the superior court may order on what day (of) the term said jurors shall be summoned to attend the court, and that any judge of the court may order the selection and summoning of other jurors for the court whenever the same may be necessary. The said jury drawn by the jury commissioners shall be the jurors, either petit or grand for the superior court, and they shall serve the entire court, and before any judge of the court where their services may be required: Provided, however, That they need not serve in any particular order in which they were drawn by the jury commissioners provided in their selection to serve before any judge, the selection shall be on a fair and impartial basis.

If at any time a jury shall not be drawn, then the clerk of the court shall select from among the properly qualified residents of such county, a jury for such term who shall be summoned and considered in all things as a regular panel of the court. The court may call one or more juries during any one term, and may by rule provide for how long any jury shall sit. (Acts 1965, ch. 266, § 19, p. 727; 1969, ch. 306 § 4, p. 1279.

Appellant went to great length to show, by using census figures on population make-up in the county, that in fact the jury did not contain percentages of certain, age, sex and race groupings that he felt would have been consistent with an impartial jury. There was no showing however, in his arguments that the juries were not properly selected. The two jury commissioners testified as to their selection of the jurors with the Clerk of the Court and indicated that their selection was made as the statute provided it was to be done. It is apparent that the legislature provided for more manpower in the jury commissioners inasmuch as the jury commissioners were going to be selecting jurors for five courts. It is also apparent that the judges of the St. Joseph Superior Court should have appointed four commissioners. However, it certainly cannot be said that a failure to comply with that statute was such a substantial violation of the intention of the legislature to provide for the selection of non-partisan and impartial jurors that appellant was prejudiced by the procedure used. The statute to which he refers provides that if a jury is not drawn by the jury commissioners, the Clerk of the Court shall have the authority to draw from the properly qualified residents of the county as long as all requirements for selection of jurors are followed and that this selection shall constitute a regular panel of the court. Thus, the legislature has provided that when none of the jury commissioners act in their selection of jurors, the Clerk is qualified to do so. We stated in Shack v. State, (1972) 259 Ind. 450, 459, 288 N.E.2d 155, 162, "The major requirement should be that the system of selection is not arbitrary . . . and complete impartiality should be sought." We have held that where there has been substantial compliance with the statutes directing selection and calling of jurors, minor irregularities in compliance with the statutes will not create prejudice to the defendant's substantial rights. Shack, supra, Harrison v. State, (1952) 231 Ind. 147, 106 N.E.2d 912; Rudd v. State, (1952) 231 Ind. 105, 107 N.E.2d 168. Our statutory method for drawing juries was devised for the purpose of putting selection beyond suspicion of advantage or favoritism and making the selection, as nearly as possible, random. There is no showing here that the jury commissioners did not in all respects follow the dictates of the statutes in their selection of jurors. There was no showing of any systematic exclusion of any class of persons to serve on the jury. The mere fact that the actual jury did not contain percentages of certain groups to the satisfaction of this appellant does not indicate improper action by the commissioners. Lake v. State, (1971) 257 Ind. 264, 274 N.E.2d 249.

Appellants substantial rights have not been prejudiced by this jury selection. Transfer is granted. The opinion of the Court of Appeals is vacated, and the trial court is affirmed on this issue.

The six additional issues to be considered herein are claims of alleged error involving (1) the refusal of the trial court to allow the defendant to read a case to the jury during final argument; (2) the refusal of the trial court to provide the defendant with a private investigator at public expense; (3) the taking of judicial notice of pleadings signed by the defendant, and allowing witnesses to testify to similarities in handwriting of those writings and signatures and the writing in a note delivered to the robbery victims; (4) the sufficiency of the evidence on the age of the defendant; (5) the refusal of the trial judge to order the state to furnish information to the defendant regarding prospective jurors; and (6) the failure of the trial judge to give the defendant good time credit for time served in jail awaiting trial.

On June 18, 1976, the Ponderosa Steak House in St. Joseph County, Indiana, was robbed at gun point. The manager and two other employees of the Steak House testified that the defendant entered the store and talked with the manager for about an hour. He then left and re-entered the store a short time later, engaged the manager in further conversation, delivered a hand-written note announcing a robbery, pulled out a gun, and took the money in the cash register. Defendant was identified as the robber by all three of the employees of the Steak House.

I.

At closing argument defendant requested permission from the trial court to read to the jury from the case of Fleming v. State, (1894) 136 Ind. 149, 36 N.E. 154. The issue in the Fleming case pertinent to appellant's position concerned alibi. At trial Fleming had claimed he was with a young lady at the time the crime was committed, and therefore, could not have been at the scene of the crime. He tendered an instruction to the court on the defense of alibi and its consideration by the jury. The court refused the instruction. It was found that the trial court had erred in refusing to give the alibi instruction where evidence of alibi had been presented by the defendant in his defense.

We have held on previous occasions that since Article I, § 19 of the Indiana Constitution gives the jury in criminal cases the right to determine the law as well as the facts, it is permissible and proper for opinions to be read and discussed before the jury in final argument. Hubbard...

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