Sparks v. State

• Decision Date: 06 November 1986
• Docket Number: No. 685S241,685S241
• Citation: 499 N.E.2d 738
• Parties: Paul SPARKS, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
• Court: Indiana Supreme Court

Page 738

499 N.E.2d 738

Paul SPARKS, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).

No. 685S241.

Supreme Court of Indiana.

Nov. 6, 1986.

Larry A. Landis, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Justice.

In 1978, a jury found petitioner Paul Sparks guilty of murder, a felony, Ind.Code Sec. 35-13-4-1 (Burns 1975). He was sentenced to forty-five years in prison. He appealed, and this Court affirmed his conviction. Sparks v. State (1979), 271 Ind. 419, 393 N.E.2d 151. Sparks subsequently challenged his conviction in a petition for post-conviction relief. He now appeals the trial court's denial of his petition, raising the following three issues:

1) Whether he received effective assistance of counsel at trial and on appeal;

2) Whether an allegedly defective grand jury indictment constituted fundamental error, and

3) Whether the post-conviction court's findings of fact and conclusions of law are sufficient.

As petitioner, Sparks had the burden of proving the allegations of his petition by a preponderance of the evidence. We review his case as an appeal from a negative judgment. The post-conviction court is the sole judge of the weight of the evidence and the credibility of the witnesses. Its decision will be reversed only when the evidence is without conflict and leads to a contrary conclusion. Young v. State (1984), Ind., 470 N.E.2d 70.

I. Effective Assistance of Counsel

Sparks alleges several acts or ommissions which rendered the assistance of his trial counsel ineffective. Specifically, he argues that his trial attorney was ineffective for failing to challenge an allegedly defective grand jury indictment, failing to request a continuance when the State disclosed a surprise statement given by a witness, presenting a damaging defense witness without interviewing that witness prior to trial, and failing to give a closing argument. He also charges that his appellate counsel was ineffective for failing to raise on appeal the defectiveness of the indictment.

Sparks must overcome a strong presumption that his counsel was competent. To prevail on a claim of ineffective assistance, he must show that counsel's actions fell below reasonable professional standards and that this deficiency resulted in such prejudice that the reliability and fairness of the proceeding was undermined. Tactical or strategic decisions will not support a claim of ineffective assistance. Stanley v. State (1985), Ind., 479 N.E.2d 1315.

A. Allegedly Defective Indictment

Appellant claims that the indictment returned by the grand jury was defective because one of the grand jurors was an emergency medical technician who attended the victim at the crime scene. Sparks appears to claim, though he does not say so explicitly, that the attorney who represented him at trial and on appeal should have moved to dismiss the indictment on the grounds that one of the grand jurors was subject to challenge under Ind.Code Sec. 35-1-15-11 (Burns 1975).

In his verified petition, Sparks cites the following colloquy from the grand jury testimony:

Prosecutor Surface: Any other questions?

Grand Juror: I don't have a question, I've got more of a statement. You've indicated that--well, it was earlier, too, that one of the rounds entered the cheek?

Sgt. Andrews: Right.

Grand Juror: And there was no mention of anybody noticing the wound and you said they couldn't help but notice it.

Sgt. Andrews: I said it was very obvious.

Grand Juror: Well, now when I was on the scene, see, I was one of the technicians that took him in, we did not treat any wound here. The entire area was covered with blood and we couldn't find any wound down here. So it's very possible that the brain matter that had come through the shot that entered around the eyebrow, the orbit, could have been in such a way that nobody else would have noticed the wound until it had been cleaned off.

Sgt. Andrews: Well, this isn't what she--this isn't what was stated to us by Jeannie Gregory and by Shirley Powell. Okay, at the time that you arrived, he had been--if you arrived, I wasn't there, I'm assuming you arrived--at the time you arrived, he would have laid there for how long?

Grand Juror: Approximately four or five minutes.

Sgt. Andrews: Okay, that's four or five minutes for blood to pour out of the wound between the eyes and on the cheek. At the time that they saw him, it was maybe thirty seconds.

Grand Juror: I remember there was one statement indicating that they--I think Shirley Powell--didn't remember any blood at all around that area.

Sgt. Andrews: That's right. That's our contention. She's not saying that there was blood on the side of his face. She's saying that she didn't see anything on the side of his face. She's not saying she didn't see a wound, she saw blood, or that blood could have covered the wound, she's saying that there wasn't anything there when she saw him.

Prosecutor Surface: Any other questions?

Sparks also submitted a list of grand jurors, showing Steven W. Duckett as juror number three, and now refers us to the State's witness list at trial, which shows an ambulance driver named Duckett as a prospective witness. Though Duckett did not testify at trial, Ron Stevens, another emergency medical technician present at the crime scene, did testify and mentioned his partner, Duckett. Though the connection is not conclusive, for the purposes of this argument, we accept Sparks' contention that a grand juror in this case was also an emergency medical technician at the crime scene.

Appellant argues that Duckett's role as both a witness and a grand juror rendered the indictment defective because the juror was subject to challenge pursuant to Ind.Code Sec. 35-1-15-11 (Burns 1975), which provides in pertinent part:

An individual held to answer a charge for an offense may challenge any individual grand juror, before the jury is sworn, for one or more of the following causes only:

* * *

(6) That he is a witness on the part of the prosecution.

Sparks' claim that counsel could have moved to dismiss the indictment under authority of this statute is something of a leap of faith. Generally, a defendant who fails to challenge a grand juror before the grand jury is sworn is deemed to have waived his right to challenge. McFarland v. State (1978), 269 Ind. 385, 381 N.E.2d 85; Sisk v. State (1953), 232 Ind. 214, 110 N.E.2d 627, cert. denied, 346 U.S. 838, 74 S.Ct. 60, 98 L.Ed. 360.

A motion to dismiss, previously a motion to quash, is proper when the grand jury proceeding is defective. Ind.Code Sec. 35-3.1-1-4(a)(3) (Burns 1975). ¹ A grand jury proceeding is defective when the grand jury was illegally constituted or when any other grounds exist which would have been cause for the abatement of the action. Ind.Code Sec. 35-3.1-1-7 (Burns 1975). Freedom from personal bias is not a legal qualification for a grand juror. Ind.Code 33-4-5-7 (Burns 1975). Therefore the presence of such a member does not render the grand jury illegally constituted and does not subject the indictment to a motion to dismiss. Jones v. State (1979), 270 Ind. 285, 385 N.E.2d 426; Stevens v. State (1976), 265 Ind. 396, 354 N.E.2d 727.

Aside from this statutory claim, Sparks asserts that counsel's failure to challenge the indictment denied him "due process of law as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Sections 12 and 13 of the Indiana Constitution." He does not cite any case authority for either of these propositions, nor is it clear whether he means to invoke the Sixth Amendment right to trial by an impartial jury or the due process of law guaranteed by the Fifth Amendment. Regardless, either federal claim must fail. A grand jury is not a trial body or the ultimate trier of fact. King v. State (1957), 236 Ind. 171, 139 N.E.2d 547. Thus, Sparks' Sixth Amendment right to a fair trial by an impartial petit jury was not prejudiced by the allegedly defective indictment.

Whether a federal Fifth Amendment right to due process attaches to a state grand jury proceeding is open to considerable doubt. The United States Supreme Court has declined to decide whether due process would require a state to impanel an unbiased body once it resorted to a grand jury procedure, noting that the grand jury procedure itself is not required by due process. Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962). It has also been noted that "the problem of conflicts of interest [on grand jury panels] is one of state law rather than constitutional law." Quadra v. Superior Court of City and County of San Francisco, 403 F.Supp. 486, 489 n. 3, (N.D.Cal.1975). Even if the Fifth Amendment requires an unbiased grand jury, it cannot be said that the grand juror in question was biased.

The due course of law provisions in Article I, Section 12 of the Indiana Constitution are violated when the proceedings of the grand jury "render the indictment abhorrent to the fundamental concept of fair and proper justice." Madison v. State (1971), 256 Ind. 353, 357, 269 N.E.2d 164, 166. Even if Duckett's statement to the grand jury can be characterized as an irregularity in the proceedings, dismissal is proper only when the irregularity amounts to corruption. Holland v. State (1976), 265 Ind. 216, 352 N.E.2d 752. There is no evidence that the prosecution planned or otherwise participated in Duckett's selection as a juror in an attempt to influence the grand jury's decision. Rather, his presence on the grand jury seems to be coincidental. A motion to dismiss based on this alleged irregularity would not be successful. Section 13 of our Bill of Rights guarantees an accused a public trial before an impartial jury. It does not contain any guarantees applicable to grand juries. A grand jury proceeding is not a trial. Adams v. State (1938), 214 Ind. 603, 17 N.E.2d 84.

Inasmuch as...