Rennert v. State

• Citation: 263 Ind. 274,329 N.E.2d 595
• Decision Date: 19 June 1975
• Docket Number: No. 674S128,674S128
• Parties: Robert Joseph RENNERT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Supreme Court of Indiana

Page 595

329 N.E.2d 595

263 Ind. 274

Robert Joseph RENNERT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 674S128.

Supreme Court of Indiana.

June 19, 1975.

Bruce S. Cowen, Fort Wayne, for appellant.

Theodore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Appellant Robert Joseph Rennert was indicted by the grand jury of Allen County which charged him with first degree murder in the death of Roger D. Hudson and second degree murder in the death of Daniel L. Wolfe. Appellant pleaded not guilty by reason of insanity. Jury trial resulted in verdicts of guilty as charged. Appellant was then sentenced to life imprisonment on conviction of first degree murder, and imprisonment for fifteen to twenty-five years on conviction of second degree murder. From the overruling of his motion to correct errors, appellant brings this appeal, presenting four issues for our determination.

I.

Appellant's first assignment of error is the trial court's denial of his motion to dismiss and plea in abatement through which he sought to strike down the grand jury indictment 'for the reason that there were unauthorized persons in the Grand Jury Room during the taking of testimony.' When Jack James, an eighteen year old suspect in the case, appeared before the grand jury, he was accompanied by counsel and his parents. The record contains a stipulation that the parents 'took no part in the proceedings,' but James' attorney cross-examined him.

The law regarding the presence in the grand jury room of those unauthorized by statute, see IC 1971, 35--1--15--10, Ind.Ann.Stat. § 9--810 (Burns Supp.1974) (Clerk-Stenographer), IC 1971, 35--1--15--23, Ind.Ann.Stat. § 9--826 (Burns 1956 Repl.) (Prosecutor), was set forth by this Court in State v. Bates (1897), 148 Ind. 610, 612--13, 48 N.E. 2, 3:

'It is the rule that the presence of a stranger in the grand jury room during the investigation of a criminal charge is not sufficient to abate an indictment, unless it appears that the person indicted was thereby injured in his substantial rights. Shattuck v. State, 11 Ind. 473; Courtney v. State, 5 Ind.App. 356, 32 N.E. 335; State v. Clough, 49 Me. 573, 576; State v. Kimball, 29 Iowa 267; Bennett v. State, 62 Ark. 516, 535, 36 S.W. 947.

'In State v. Clough (supra), 49 Me., on page 576, the court said: 'The mere fact that a stranger was present when an indictment was found would not render it void. Though obviously proper, and highly important, that the proceedings of a grand jury should be in secret, one who is indicted cannot take any advantage of it if they are not. Shattuck v. State, 11 Ind. 473. The secrecy is not required for his benefit, but otherwise. 'One reason may be to prevent the escape of the party, should he know that proceedings were in train against him; and another may be to secure freedom of deliberation and opinion among the grand jurors, which would be impaired if the part taken by each might be known to the accused.' 1 Greenl.Ev., section 252.' Nor will any indictment be set aside on the ground of informalities or irregularities, when it is not shown that the defendant has been prejudiced in his substantial rights.'

Unable to demonstrate actual prejudice flowing from the presence of the outsiders, appellant urges us to adopt a per se rule modeled after the one utilized in the federal system of presuming prejudice when unauthorized persons appear before the grand jury. We decline to do so. The rule of Bates requiring proof of prejudice by an appellant collaterally attacking his conviction preserves all due process rights of the individual while protecting the interests of society in maintaining convictions justly secured. Moreover, the rule requiring proof of prejudice in attacking grand jury proceedings has been a workable one. See e.g., Jaudon v. State (1970), 255 Ind. 114, 262 N.E.2d 851. In the absence of any prejudice to the appellant, there was no error in the overruling of his motion to dismiss and his plea in abatement.

II.

Appellant challenges the overruling of his objection to the admission of State's Exhibit No. 37. That exhibit was a letter, written by appellant while in jail, and addressed to one Frank Craig, c/o Defiance Crescent News, Defiance, Ohio. Apparently intended to be published as a letter to the editor, it bears the salutation, 'Dear Society.' The letter recounts a homosexual attack upon the appellant when he was a youth and continues by describing a more recent molestation when the appellant was 'too drugged to fight.' In an attempt to 'escape the thought of what happened,' appellant took some 'acid.' The drugs backfired, however, and appellant killed his molester (Hudson) and another man who was present. The letter then concluded with a plea not to take drugs. Counsel's objection at trial to the admission of the letter reads:

MR. FINK: 'Your Honor, at this time the defense would object to the introduction of State's Exhibit 37 on these following grounds, that the obtaining of the document in question, the exhibit in question, I think is in violation of certain Constitutional rights of this defendant; namely, the Ninth, Fourteenth and Fifth Amendments to the Constitution of the United States.'

Appellant's motion to correct errors sought correction:

'For an uncorrected error of law occurring in the trial proceedings in that the trial court, over objection, admitted into evidence State's Exhibit No. 37, same being a letter written by the defendant from the jail and confiscated by the jail authorities, thus violating the defendant's rights under the Constitution of the United States.'

And appellant argues in this brief:

'Thus, the reading and confiscation of the letter of the defendant herein violated his constitutional rights under the first and fourteenth amendments of the Constitution of the United States, was an illegal seizure of evidence, and therefore said evidence should have been excluded as fruits of a poisoned tree.'

Appellant's fourth amendment claim, framed in terms of 'an illegal seizure,' is tenuous at best. Undoubtedly, there is a legitimate state interest in searching a prisoner's mail for contraband. So, too, the state may justify reading the correspondence to determine whether an escape attempt is impending. Appellant had notice of the jail policy requiring such inspection. The letter was written on stationery purchased from the jail commissary and bore the following printed statement:

'All Inmates' mail is Inspected By Jail Personnel for contraband . . . All correspondence must be in English, otherwise, letters will not be delivered.'

We assume, without deciding, that appellant consented to having his mail examined. Hence, the nub of appellant's claim appears to be that a lawful search which uncovers incriminating evidence unrelated to the purpose of the search becomes an illegal seizure of defendant's papers. The argument appears to be without merit. See Harris v. United States (1968), 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (registration card discovered while police were 'securing' impounded vehicle admissible). It is possible that appellant seeks to assert no more than a general claim to privacy under the fourth amendment. In view of the admonition printed on the stationery upon which appellant wrote his letter, appellant would be hard pressed to show any justifiable expectation of privacy in the contents of his letter. See Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. We decide none of these possible fourth amendment arguments. No fourth amendment claim was presented at trial or in appellant's motion to correct errors, and we will not consider it on appeal. Stephens v. State (1973), Ind., 295 N.E.2d 622.

Appellant bases his first amendment argument on the recent decision of Procunier v. Martinez (1974), 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224. Procunier sets forth standards for determining whether prison rules re censorship of mail infringe, without adequate justification, expression protected by the first amendment. Procunier also affirmed that minimum procedural safeguards are required when letters are censored or delivery refused. Procunier was argued on December 3, 1973, the same day the jury returned its verdicts against appellant. Appellant was sentenced December 28, 1973. His motion to correct errors was overruled on March 29, 1974. Procunier was handed down April 29, 1974. Appellant's brief presents no first amendment attack upon any rule of the Allen County jail, but merely asserts an abridgment of his right to know that his letter would not be delivered and the reason for such interference. However, like the fourth amendment arguments, this first amendment claim is raised for the first time on appeal, and we will not consider it.

Appellant's objection at trial, premised upon the fifth, ninth and fourteenth amendments, but not elaborated upon in appellant's brief, appears to raise the same question of infringement of the right to privacy argued on appeal under the first and fourth amendments but not presented to the trial court. Since the United States Constitution does not explicitly mention a right to...