State v. Bowman, 781S196

Docket NºNo. 781S196
Citation423 N.E.2d 605
Case DateJuly 24, 1981
CourtSupreme Court of Indiana

Page 605

423 N.E.2d 605
23 A.L.R.4th 390
STATE of Indiana, Appellant (Plaintiff below),
Steven M. BOWMAN, Appellee (Defendant below).
No. 781S196.
Supreme Court of Indiana.
July 24, 1981.

Theodore L. Sendak, Linley E. Pearson, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., Indianapolis, for appellant (plaintiff below).

James L. Brand, Michael J. Tosick, Free, Brand, Tosick, Van Winkle & Allen, Greenfield, for appellee (defendant below).


HUNTER, Justice.

This cause is before us on the petition to transfer of Steven Bowman, wherein he seeks review of the Court of Appeals' opinion found at State v. Bowman, (1981) Ind.App., 417 N.E.2d 360. We hereby grant transfer, vacate the decision of the Court of Appeals, and reinstate the judgment of the trial court.

A Hancock County grand jury indicted Steven M. Bowman for involuntary manslaughter, Ind.Code § 35-42-1-4 (Burns 1979 Repl.), criminal recklessness, Ind.Code § 35-42-2-2(b) (Burns 1979 Repl.), and reckless homicide, Ind.Code § 35-42-1-5 (Burns 1979 Repl.). The charges stemmed from Bowman's involvement in a fatal automobile accident in Hancock County on August 20, 1978.

Page 606

Bowman filed a motion to dismiss the three-count indictment. He based his motion on the fact that unauthorized persons (two police officers) were present during the grand jury proceedings. Following an evidentiary hearing, the trial court granted Bowman's motion and dismissed the indictment. The court subsequently denied the state's motion to reinstate the charges and its motion to correct errors. The state appealed and presented the following issue for consideration by the Court of Appeals:

Whether the unauthorized presence of two police officers during the grand jury proceedings prejudiced Bowman's substantial rights and warranted dismissal of the indictment.

The Court of Appeals concluded that no prejudice to Bowman's substantial rights was demonstrated by the evidence. The trial court was consequently ordered to reinstate the indictment.

As the Court of Appeals noted, there is no question that the presence of the police officers during the grand jury proceedings was unauthorized and improper. Ind.Code § 35-1-15-23 (Burns 1979 Repl.); Ind.Code § 35-1-15-10 (Burns 1979 Repl.); Ind.Code § 35-1-15-16 (Burns 1979 Repl.); Fair v. State, (1977) 266 Ind. 380, 364 N.E.2d 1007; Rennert v. State, (1975) 263 Ind. 274, 329 N.E.2d 595; State v. Bates, (1897) 148 Ind. 610, 48 N.E. 2. Shattuck v. State, (1858) 11 Ind. 473. As the state has argued, however, that fact by itself does not warrant dismissal of the indictment. For as this Court reiterated the rule in Fair v. State, supra :

"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." 266 Ind. at 390, 364 N.E.2d at 1012 quoting State v. Bates, (1897) 148 Ind. 610, 48 N.E. 2.

To determine if the trial court erred in ruling that Bowman's substantial rights were prejudiced by the unauthorized presence of the two police officers, we must examine the evidence produced at the hearing on the motion to dismiss and the record of the grand jury proceedings.

The evidence reveals that the officers who attended the grand jury proceedings were James Bradbury, a Hancock County Deputy Sheriff, and Paul Weiler, an Indiana State Police Officer. Bradbury had been called to the scene of the automobile accident. He enlisted Weiler's help in a continuing investigation of the events and circumstances surrounding the accident; the investigation eventually culminated in the decision to convene a grand jury to determine whether Bowman should be prosecuted for his role in the mishap.

Prior to the grand jury proceedings, the two officers interviewed most of the witnesses who testified before the grand jury. Both Bradbury and Weiler discovered they were acquainted with many of the witnesses. Bradbury knew over half of them, several of whom he counted as friends. Weiler stated that he was personal friends with "some," and had a "speaking acquaintance" with a "large percentage" of the witnesses.

Weiler was the first witness called to testify before the grand jury. He appeared in civilian dress and was introduced as the state police investigator who had assisted Bradbury in the investigation of the auto accident at issue. Following his testimony, the prosecutor requested permission from the grand jury for Weiler to remain throughout the proceedings:

BY MR. DOBBINS: "Okay, let the record show that I have requested the Grand Jury, permission to have Paul Weiler present during further investigation of other witnesses in this same cause does the Grand Jury have an opinion at this time, whether or not Mr. Weiler will be permitted to assist me in the case?

"Is that the consensus of the Grand Jury?

"As I understand it is your desire that he may be present keeping in mind that he is under oath not to disclose any evidence that may be heard here."

Bradbury was the second witness called to testify. He also appeared in civilian clothes and was introduced as the deputy sheriff who investigated the accident. Likewise, at

Page 607

the close of his testimony, the prosecutor obtained permission from the grand jury for Bradbury to remain in the courtroom. The record reads:

BY MR. DOBBINS: "Jury Panel, Mr. Bradbury has indicated that he would like to be present during the questioning of Scorchy Woods, I'd request permission in his behalf to be present at that time. Are there any objections, does everybody consent to have him present. He is under oath, so that would apply. Okay."

The evidence reveals Bradbury remained beyond Scorchy Woods's testimony for the duration of the remaining witnesses' testimony.

The reason for the officers' continued presence is unclear. The prosecuting attorney explained at one point that the two men were present to be informed of the evidence so as to facilitate their "continuing investigation"; at another juncture, he stated that they were merely present to "assist" him throughout the proceedings. Weiler indicated he was present to "assist" the prosecutor;...

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12 cases
  • Averhart v. State, 1182S414
    • United States
    • Indiana Supreme Court of Indiana
    • October 29, 1984 participated in the proceedings, nor that witnesses Page 679 were oppressed in any manner. State v. Bowman, (1981) Ind., 423 N.E.2d 605. The only allegation is that certain evidence was irrelevant or prejudicial and led to a lack of impartiality on the part of the grand Even if tru......
  • Hood v. State, 57463
    • United States
    • United States State Supreme Court of Mississippi
    • March 16, 1988
    ...states require prejudice to the defendant. Commonwealth v. Levinson, 239 Pa.Super. 387, 362 A.2d 1080, 1089 (1976); State v. Bowman, 423 N.E.2d 605 (Ind.1981); Commonwealth v. Beneficial Finance Co., 360 Mass. 188, 275 N.E.2d 33, 45 (1971). As many states, including Mississippi, have an abs......
  • Dwire v. State, CX-85-1420
    • United States
    • Court of Appeals of Minnesota
    • February 18, 1986
    ...298, 300 (1974); State v. Pacific Concrete Page 876 and Rock Co., 57 Haw. 574, 575-76, 560 P.2d 1309, 1310 (1977); State v. Bowman, 423 N.E.2d 605, 606 (Ind.1981); State v. Revere, 232 La. 184, 199, 94 So.2d 25, 31 (1957); Commonwealth v. Pezzano, 387 Mass. 69, 72-75, 438 N.E.2d 841, 843-45......
  • Terry v. State, 69A01-9106-CR-164
    • United States
    • Indiana Court of Appeals of Indiana
    • November 5, 1992 indictment, unless it appears that the person indicted was thereby injured in his substantial rights." State v. Bowman (1981), Ind., 423 N.E.2d 605, 606 (citing State v. Bates (1897), 148 Ind. 610, 48 N.E. 2). The issue of prejudice to substantial rights involves a factual determination ......
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