State ex rel. Burns v. Sharp

• Decision Date: 06 August 1979
• Docket Number: No. 279S48,279S48
• Parties: STATE of Indiana on the relation of Milton BURNS and Charles Reberger, Relators, v. William T. SHARP, Special Judge of the Clay Circuit Court, Clay County, Indiana, and the Clay Circuit Court, Clay County, State of Indiana, Respondents. STATE of Indiana on the relation of Norval PICKETT, Jr., Milton Burns, Charles Reberger, Relators, v. William T. SHARP, Special Judge of the Clay Circuit Court, Clay County, Indiana, and the Clay Circuit Court, Clay County, State of Indiana, Respondents. STATE of Indiana on the relation of Norval PICKETT, Jr., Relators, v. William T. SHARP, Special Judge of the Clay Circuit, Clay County, Indiana, and the Clay Circuit Court, Clay County, State of Indiana, Respondents.
• Court: Indiana Supreme Court

Page 127

393 N.E.2d 127

271 Ind. 344

STATE of Indiana on the relation of Milton BURNS and Charles

Reberger, Relators, v. William T. SHARP, Special Judge of the Clay Circuit Court, Clay County, Indiana, and the Clay Circuit Court, Clay County, State of Indiana, Respondents.

STATE of Indiana on the relation of Norval PICKETT, Jr., Milton Burns, Charles Reberger, Relators, v. William T. SHARP, Special Judge of the Clay Circuit Court, Clay County, Indiana, and the Clay Circuit Court, Clay County, State of Indiana, Respondents.

STATE of Indiana on the relation of Norval PICKETT, Jr., Relators, v. William T. SHARP, Special Judge of the Clay Circuit, Clay

County, Indiana, and the Clay Circuit Court, Clay

County, State of Indiana, Respondents.

No. 279S48.

Supreme Court of Indiana.

Aug. 6, 1979.

Hansford C. Mann, Terre Haute, George N. Craig, Brazil, for relators.

Theodore L. Sendak, Atty. Gen., David A. Arthur, Deputy Atty. Gen., Indianapolis, for respondents.

PIVARNIK, Justice.

On the petition of relators, we issued a temporary writ of prohibition on February 15, 1979, prohibiting the respondent court from making any further orders or conducting any further proceedings in causes numbered CR 78-63, CR 78-64, and CR 78-65, now pending in the Clay Circuit Court, until further order of this Court. We now address the question of whether a permanent writ should issue.

Relators, Milton Burns, Charles Reberger, and Norval Pickett, Jr., were charged with criminal acts in the above causes by way of indictments returned by a grand jury of the Clay Circuit Court. Relators filed Motions to Dismiss, alleging that the grand jury was improperly selected by the jury commissioners. Those motions were denied, and this action followed. Relators contend that the commissioners failed in every respect to comply with the statute governing the selection of grand and petit jurors, and with the instructions of the Clay Circuit Court ordering them to make said selections.

The statute directing the manner in which jury commissioners are to select jurors is Ind.Code (Burns 1975) § 33-4-5-2, which provides as follows:

Selection of grand and petit jurors Special procedure in counties exceeding 650,000 population. Said commissioners Shall immediately, from the names of legal voters and citizens of the United States on the latest tax duplicate and the tax schedules of the county, examine for the purpose of determining the sex, age and identity of prospective jurors, and proceed to select and deposit, in a box furnished by the clerk for that purpose, the names, written on separate slips of paper of uniform shape, size and color, of twice as many persons as will be required by law for grand and petit jurors in the courts of the county, for all the terms of such courts, to commence with the calendar year next ensuing. Each selection shall be made as nearly as possible in proportion to the population of each county commissioner's district. In making such selections, they shall in all things observe their oath, and they shall not select the name of any person who is not a voter of the county, or who is not either a freeholder or householder, or who is to them known to be interested in or has cause pending which may be tried by a jury to be drawn from the names so selected. They shall deliver the box, locked, to the clerk of the circuit court, after having deposited therein the names as herein directed. The key shall be retained by one (1) of the commissioners, not an adherent of the same political party as is the clerk. (Emphasis supplied.)

The court instructed the commissioners to draw the names of 400 persons from the voters registration list, to draw the names of persons from each county commissioner's district as nearly as practicable in proportion to the population of each district, and to place the names of said prospective jurors on slips of paper of uniform size and color.

Jury commissioners Adeline Meyer and Barbara Pollom filed an affidavit with the trial court in which they stated that they were instructed by Judge Robert W. Neal as to their duties regarding the selection of names for prospective jurors for 1978, and were ordered by him to obtain the names of 400 persons for such duty. Mrs. Meyer and Mrs. Pollom further stated in their affidavit that they each compelled a list of 200 names of persons residing in different areas of the county whom they believed to be of good repute for intelligence and honesty. They obtained the telephone numbers and addresses of these prospective jurors from telephone directories and elsewhere. One made her list on yellow tablet paper, the other on white tablet paper.

The commissioners then met with circuit court clerk Helen White and checked the names previously selected against the official voter registration list in the clerk's office, discarding names of persons not registered as voters and adding names of other individuals. Additional names were verified and selected from the voter registration list. Because the hour was late and the clerk's office was about to close, the clerk and commissioners left the remaining names on the yellow or white paper, cut them apart from the total page, folded them, and put them into the jury selection box. Each strip of paper contained only one name from the list, and all were approximately the same size.

Helen White filed two affidavits in which she stated that when the jury commissioners came to her office, one commissioner had written names of prospective jurors on yellow tablet paper, and the other had written the names on white tablet paper. It was also Mrs. White's understanding from the commissioners that the names written on the paper were taken from a telephone directory. The names were then checked in the clerk's office against the voter registration rolls to determine that they were registered.

Mrs. White stated further that, according to the 1970 census, the population of the first commissioner's district is 16,500; the population of the second district is 3,522; and the population of the third district is 4,406. The respective proportions of the total county population are as follows: first district, 67.54 per cent.; second district, 13.59 per cent.; third district, 18.03 per cent. Of the first 351 names drawn from the original 400 selected, 185 were from the first district, 39 from the second, and 127 from the third. Based on the 351 figure, 52.4 per cent. of the names drawn were from the first district, 11.1 per cent. were from the second district, and 36.18 per cent. were from the third district. Mrs. White stated that the first 351 names were used as a base because after that number was drawn, an additional 70 names were selected from the voter registration list by the commissioners and placed in the box with the 49 names remaining from the original 400 names. The percentages pertaining to the 49 names remaining from the original selection, therefore, cannot be calculated. After these names were all put into the selection box, Mrs. White then drew therefrom the 18 names that composed the grand jury list from which the grand jury in question in these causes was selected.

It is readily apparent that relators' argument is well taken. The commissioners were instructed to draw the names of 400 persons from the voter registration list. Instead, they obtained the names of 400 potential jurors from those persons "whom we believed to be of good repute for intelligence and honesty from different areas of the county, and obtained their telephone numbers and addresses from telephone directories and elsewhere." They were ordered to draw the names of persons from each county commissioner's district as nearly as practicable according to the population proportions of the districts. In fact, the percentage of the names drawn that were from the third district...