Ruetz v. State

Citation268 Ind. 42,373 N.E.2d 152
Decision Date09 March 1978
Docket NumberNo. 175S22,175S22
PartiesNeal RUETZ, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Howard E. Petersen, LaGrange, for appellant.

Theo. L. Sendak, Atty. Gen., Arthur Thaddeus Perry, Asst. Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Ruetz was convicted of first-degree murder by a jury in the LaGrange Circuit Court on May 26, 1971. He was sentenced to life imprisonment. He brings this direct appeal, the consideration of which has been impeded by numerous difficulties, including the accidental loss of most of the record of the trial. Cf. Ruetz v. LaGrange Circuit Court (1972), 258 Ind. 354, 281 N.E.2d 106; Ruetz v. Lash (7th Cir. 1974), 500 F.2d 1225. The crime in question is the murder of Thomas Schultz, the owner of a South Bend laundry, in July of 1971.

Six alleged errors are presented for our review. They concern: (1) the loss of most of the trial court record; (2) the similar loss of the grand jury minutes relating to this case; (3) the pre-trial photographic identification procedures; (4) the admission of evidence at trial which had been seized from appellant in Colorado; (5) certain final instructions, and; (6) the sufficiency of the evidence to support this conviction.


Appellant first makes two arguments relating to the loss of most of the trial court record. He argues, alternatively, that he is entitled to a new trial as a matter of either the common law or of due process.

The testimony given at appellant's trial was recorded on a number of recording discs which could not be located when this appeal was taken in 1974, but which may have been accidentally or inadvertently destroyed. Ninety pages of testimony were transcribed in 1971; transcription of the remainder was rendered impossible because of the loss of the discs. A statement of the evidence was prepared by appellant's counsel and submitted to and approved by the trial court, all pursuant to Ind.R.App.P. 7.2(A)(3)(c), which reads:

"Statement of the evidence or proceedings when no report was made or when the transcript is unavailable. If no report of all or part of the evidence or proceedings at the hearing or trial was or is being made, or if a transcript is unavailable, a party may prepare a statement of the evidence or proceedings from the best available means, including his recollection. If submitted contemporaneously with the matter complained of, the statement may be settled and approved by the trial court. If submitted thereafter, the statement shall be served on other parties who may serve objections or prepare amendments thereto within ten (10) days after service. The statement and any objections or prepared amendments shall be submitted to the trial court for settlement and approval and as settled and approved shall become a part of the record and be included by the clerk of the trial court in the record.

"If statements or conduct of the trial judge are in controversy, the statement shall be supported by sworn affidavit which shall be submitted to the trial judge for his certification. If he refuses to certify the statement he shall file opposing affidavits. All such affidavits shall be included in the record by the clerk of the trial court."

Appellant first argues that the loss of the greater part of the trial evidence should entitle him to a new trial as a matter of common law. He asserts that an English statute of the reign of Edward I provides for a new trial where no record adequate for appeal was preserved, and that this statute was incorporated into Indiana law by Ind.Code § 1-1-2-1 (Burns 1972), as part of the English common and statutory extant in 1607. Indiana practice prior to the adoption of Rule 7.2 also provided for a new trial where a transcript of the evidence was unavailable. Dunbar v. State (1974), 160 Ind.App. 191, 311 N.E.2d 447. However, this practice was abrogated by our adoption of Rule 7.2, as would be any statute to the contrary. Matter of Public Law No. 302 and Public Law No. 309 (1975), 263 Ind. 506, 334 N.E.2d 659. Therefore, appellant's argument fails regardless of the provisions of the old English law.

Appellant next urges that Rule 7.2(A)(3)(c) is unconstitutional in that it denies appellant due process. Appellant cites no authority for this proposition. The federal courts seem to have considered the question of the adequacy of substitute records only in the context of the constitutional validity of requiring an indigent appealing a criminal conviction to accept a substitute for a verbatim transcript, when the transcript is available and could be obtained by an appellant able to pay for its preparation. See, e. g., Mayer v. City of Chicago (1971), 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372; Draper v. Washington (1963), 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899. These cases rest upon the prohibition of the Equal Protection Clause against invidious distinctions in the quality of appellate review rendered to indigents and non-indigents, respectively, in criminal appeals. Mayer, supra, at 404 U.S. 193-94, 92 S.Ct. 414, 30 L.Ed.2d at 377-78. They, therefore, have no application to cases such as this, where due to unavailability of the records, the appellant cannot obtain a verbatim trial transcript regardless of wealth or poverty. United States ex rel. Smart v. Pate (7th Cir. 1963), 318 F.2d 559; United States ex rel. Hunter v. Follette (S.D.N.Y.1969), 307 F.Supp. 1023.

Relatively few courts appear to have considered whether requiring a criminal defendant to employ a substitute for an unavailable transcript denies due process. The Kansas Supreme Court has concluded that requiring a defendant to attempt reconstruction of a lost portion of a trial record did not deny the defendant "meaningful appellate review." State v. Jefferson (1969), 204 Kan. 50, 460 P.2d 610. The Florida Court of Appeals and the Illinois Court of Appeals have both held that substitution of certified or agreed statements of evidence do not deny criminal defendants due process. Griffin v. State (Fla.App.1975), 314 So.2d 243; People v. Hanson (1977), 44 Ill.App.3d 977, 3 Ill.Dec. 778, 359 N.E.2d 188.

We are unable to find any denial of due process in requiring appellant to submit a statement of the evidence pursuant to Rule 7.2 under the facts of this case.


Appellant next argues that he was denied access to the grand jury minutes. The grand jury minutes apparently met the same fate as the record of the testimony in the trial, and were not available for the state to produce in 1974. Since the grand jury minutes did not exist, they were not "within the control of the prosecution" and therefore, our decision in Antrobus v. State (1970), 253 Ind. 420, 254 N.E.2d 873, does not apply. Ind.Code § 35-1-15-17 (Burns 1975), provides an alternative method of gaining access to a witness' grand jury testimony. That statute provides that a court can call a member of the grand jury to testify at the trial should impeachment of one of the witnesses be necessary or desirable. Appellant did not avail himself of the method provided by this statute, in that he failed to request the testimony of any of the grand jurors. We therefore find no reversible error in this question.


Appellant next asserts that suggestive photographic identification procedures furnished to identifying witnesses, Mrs. VanLue and Robert Schultz, so tainted their in-court testimony as to make it unreliable and therefore inadmissible. The evidence is that the police officer showed each of these witnesses six photographs, two of which were of the appellant. One of these pictures of appellant was in color. The appellant was identified from the colored photograph as being the person these witnesses saw in the vicinity of the homicide at the time they testified to. Each of the witnesses identified the appellant in open court from the witness stand. Mrs. VanLue had talked to him in a restaurant, in the daylight, and had recalled that he ordered buckwheat pancakes. Robert Schultz said that he spoke with him, and also described the clothing he was wearing at the time. Thus, it appears that the witnesses recalled sufficient detail about the man they identified as defendant to render the photographic identification under the circumstances permissible or at least harmless. Love v. State (1977), Ind., 365 N.E.2d 771, 773. Furthermore, the pretrial photographic displays were not so impermissibly suggestive as to raise a substantial likelihood of irreparable mis-identification. Gaddis v. State (1977), Ind., 368 N.E.2d 244, 249. There is thus no error here.


The next issue for our consideration involves admission of a .38 caliber handgun, .38 caliber ammunition, and a leather case into evidence at the trial. These items were seized as the result of a search warrant issued in Colorado, which the appellant asserts was defective. On information given him by Sargeant William Floring of the South Bend police department, who was the officer in charge of the investigation, Detective Sargeant Richard Rankin of the Denver police force filed an affidavit with the county court of Denver, Colorado requesting a search warrant for the items above described. Appellant claims the search warrant was defective in that it was based on hearsay information given to affiant Rankin. Hearsay facts are competent to support a finding of probable cause where the facts furnished to the affiant are credible, and the affiant has reasonable grounds for attaching reliability to the informant giving him the facts. Bowles v. State (1971), 256 Ind. 27, 267 N.E.2d 56. The Denver court found that South Bend officer Floring was a source that affiant Rankin had a right to consider credible and reliable. There was thus no error in the trial court's admission of this evidence.


Appellant next challenges certain final instructions given by the trial court. Appellant claims error in regard to the giving of state's...

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