State ex rel. Pollard v. Criminal Court of Marion County, Division One, 375S70

Decision Date11 June 1975
Docket NumberNo. 375S70,375S70
PartiesSTATE of Indiana ex rel. George Melvin POLLARD et al., Relators, v. CRIMINAL COURT OF MARION COUNTY, DIVISION ONE, and Honorable John W. Tranberg, Respondents.
CourtIndiana Supreme Court

John C. Ruckelshaus, Paul G. Roland, Ruckelshaus, Robbitt & O'Connor, Indianapolis, for relators.

David W. Bahlmann, Indianapolis, for amicus curiae. Ind. Pros. Attys. Council.

James F. Kelley, Pros. Atty., John Muller, Deputy Pros. Atty., for respondents.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for amicus curiae, State of Ind.

HUNTER, Justice.

Relators, members of the Indianapolis Police Department, commenced this original action for a temporary writ of prohibition after respondent denied their motion to quash a subpoena duces tecum ordering them to produce certain financial records before the grand jury. Relators contend that the statutory power of Indiana grand juries to issue subpoenas is limited to the issuance of subpoenas ad testificandum and does not include the power to issue subpoenas duces tecum. Relators' claim, if valid, would require that the subpoena duces tecum be quashed.

Following an emergency hearing on March 20, 1975, with three members of the Court participating, it was our unanimous opinion that relators' claim was not without merit. We, therefore, issued a temporary writ of prohibition ordering the trial court to stay its hand in enforcing the subpoenas. On the basis of briefs submitted by the parties following the emergency hearing, we now dissolve the temporary writ and remand this cause to the trial court for further proceedings not inconsistent with the guidelines enunciated in this opinion.

As a preliminary matter, the Court takes judicial notice that following the granting of the temporary writ, relator Robert McNeil released certain records to the Marion County prosecutor. To the extent such release is deemed to be in compliance with the subpoena issued to him, his interest in this action is now moot. See State ex rel. Garber v. Circuit Court of Kosciusko County (1960), 241 Ind. 133, 170 N.E.2d 370.

As this opinion was being prepared, a separate grand jury issued identical subpoenas duces tecum to relators Sergi and Klein. On April 21, 1975, we modified our temporary writ to include those relators in this cause. In setting out the procedural history which follows, we have referred to the first relators as 'original' relators and Sergi and Klein as 'additional' relators. The substantive law set forth in this opinion applies to all relators.

We note that original actions are disfavored under our rules. Ind.Rules Proc. for Original Actions, OA. (A). An original action does not serve as a vehicle for circumventing normal appellate procedures. Thus, the narrow question presented in this action for writ of prohibition is framed in terms of the jurisdiction of the trial court to enter an order enforcing a grand jury subpoena duces tecum. More precisely, we are concerned with the antecedent question of whether the prosecutor or the grand jury may subpoena the records of witnesses, which subpoena the trial court sought by its order to enforce. Both parties recognize the extraordinary nature and necessarily limited scope of this writ. State ex rel. Mock v. Whitley Circuit Court (1937), 212 Ind. 224, 8 N.E.2d 829. The exercise of this writ as a 'strong arm of the court,' State ex rel. Emmert v. Hamilton Circuit Court (1945), 223 Ind. 418, 61 N.E.2d 182, is limited to deciding whether the court was acting without jurisdiction. If the court had jurisdiction the assertedly improper exercise thereof is ordinarily a matter for appeal. In this case, we resolve the jurisdictional question in favor of the respondents. However, in view of the important issues raised, it is also imperative that we delineate the trial court's functions vis-a-vis the exercise of the subpoena power by the prosecutor or the grand jury.

Each original relator received two subpoenas, identical in form. The first subpoena was summarily issued on the order of the grand jury, as provided for by IC 1971, 35--1--15--19, Ind.Ann.Stat. § 9--822, supra. A motion to quash was filed. Before the motion could be ruled upon, the term of the grand jury expired. IC 1971, 35--6--1--1, Ind.Ann.Stat. § 9--819, authorizes the prosecuting attorney to:

'* * * cause to be issued by the clerk of the circuit court having jurisdiction of the offense, a subpoena for any and all witnesses having knowledge of the commission of any crime in the state, before the beginning of the term of court in the county, requiring such witnesses to appear before any regular session of the grand jury of such county to be thereafter impaneled.'

To exercise this authority, the prosecutor msut comply with the procedure set forth in IC 1971, 35--6--1--2, Ind.Ann.Stat. § 9--820, which provides:

'The prosecuting attorneys within the state in their respective jurisdictions, when in their opinion it is necessary to further the ends of justice, to issue a subpoena, provided in section one (§ 9--819) of this act, shall file with the clerk a praecipe containing the names of all the witnesses he deems necessary for the investigation of any crime or crimes about which they are to testify before such regular session of the grand jury and designate the date upon which said witnesses are required to appear and testify.'

and IC 1971, 35--6--1--3, Ind.Ann.Stat. § 9--821, which provides:

'Immediately after the filing of such praecipe by the prosecuting attorney with the clerk of the court, as in this act provided, he shall issue a subpoena as therein ordered and immediately deliver the same to the sheriff of such county for service.'

The second subpoena, issued under this latter procedure, is the one with which the trial court ordered compliance. The additional relators were issued subpoenas pursuant to IC 1971, 35--1--15--19, Ind.Ann.Stat. § 9--822, which, because of our modified writ, have not yet been challenged by motions to quash.

Relators place great reliance upon the fact that the powers of the grand jury in this state are controlled by statute. Specifically, relators contend that the emphasized portion of the following statute limits the grand jury subpoena power to the issuance of subpoenas ad testificandum. IC 1971, 35--1--15--19, Ind.Ann.Stat. § 9--822 (Burns Repl.1956) provides:

'Subpoenas for witnesses--Refusal to answer--Oath of witnesses.--Subpoenas for witnesses before the grand jury shall be issued on the order of the grand jury, if in session, and, if not in session, on the order of the prosecuting attorney; and such witnesses may be compelled to appear and testify before the grand jury. If a witness before the grand jury refuse to answer an interrogatory, the fact shall be communicated to the court in writing, in which writing the question to be answered shall be stated, together with the excuse for the refusal, if any be given by the person interrogated; and the court shall thereupon determine whether the witness is bound to answer, and the grand jury shall be immediately informed of the decision. Each witness shall also be sworn not to divulge except when legally called upon to do so, any portion of his testimony before the grand jury, for a violation of which portion of such oath such witness shall be liable to punishment as for a contempt.' (Emphasis added.)

In avoidance of relators' invocation of the expressio unius est exclusio alterius rationale for interpreting the above statute, respondents assert that legislative policy vis-a-vis the investigative powers of the grand jury require that it be mepowered to issue subpoenas duces tecum. Respondents find support for their proposition in the charge of the grand jurors' oath to 'diligently inquire, and true presentment make, of all felonies and misdemeanors, committed or triable within this county, of which you shall have or can obtain legal evidence.' IC 1971, 35--1--15--7, Ind.Ann.Stat. § 9--807 (emphasis added). Respondents also emphasize the specific legislative authorization for grand jury investigation 'Into wilful and corrupt misconduct in office of public officers of every description, and into any charge of extortion preferred against any such officer.' IC 1971, 35--1--15--21, Ind.Ann.Stat. § 9--824. Moreover, respondents urge the applicability to grand jury proceedings of Ind.Rules Crim.Proc. CR. 2, which provides for subpoenas duces tecum in criminal proceedings.


The grand jury is an ancient institution with roots older than this state and the United States. The first criminal grand jury was established by the crown in 1164, to provide the centralized government with the benefit of local knowledge in the apprehension of criminals. The first grand jury was composed of twelve knights whose duty was to accuse those who, according to public knowledge, had breached the king's laws. See 2 Pollock & Maitland, The History of English Law, 642 (2d ed. 1959). As the institution developed, the grand jury acquired a protective role in the criminal justice system through its power to refuse to return a true bill against those whom it believed to be innocent. Thus, the grand jury stood as a shield between the citizen who had incurred the wrath of the crown and was therefore being prosecuted on trumped-up charges. The dual function of the English grand jurors is expressly embodied in their oaths that '. . . they would accuse none whom they believed innocent, nor conceal any whom they thought guilty.' Washburn, Manual of Criminal Law, 122 (1878).

Although not a part of the original Constitution of the United States, the grand jury system was early implemented by the fifth amendment, which provides that, 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment by a Grand Jury . . ..' The framers of the Indiana...

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