State v. Dohrn

• Decision Date: 23 November 1977
• Docket Number: Nos. 60061,60073,s. 60061
• Citation: 259 N.W.2d 801
• Parties: STATE of Iowa, Appellant, v. Charles R. DOHRN and Charles J. Munson, Appellees.
• Court: Iowa Supreme Court

Page 801

259 N.W.2d 801

STATE of Iowa, Appellant, v. Charles R. DOHRN and Charles J. Munson, Appellees.

Nos. 60061, 60073.

Supreme Court of Iowa.

Nov. 23, 1977.

Richard C. Turner, Atty. Gen., John R. Perkins, and William F. Raisch, Asst. Attys. Gen., for appellant.

John J. Carlin, Davenport, for appellee Charles R. Dohrn.

Wayne C. Collins and Patrick M. Roby, of Shuttleworth & Ingersoll, Cedar Rapids, for appellee Charles J. Munson.

Heard before MOORE, C. J., and RAWLINGS, REES, UHLENHOPP and McCORMICK, JJ.

McCORMICK, Justice.

Defendants Charles R. Dohrn and Charles J. Munson were each indicted on six charges of securities law violations and indicted together for conspiracy to commit one such violation. On defendants' motions the trial court dismissed these 13 indictments because of an alleged irregularity in the manner of summoning the grand jurors who comprised the indicting grand jury. The State appealed, and we reverse and remand.

Although the record is silent regarding some material aspects of the grand jury selection process, the parties agree on what the record does show. Two principal events are involved. One relates to the impaneling of the 1976 first quarter Scott County grand jury on January 5, 1976, and the other relates to the reconvening of the grand jury on February 23, 1976. Defendants were indicted by the reconvened grand jury on February 25, 1976.

A grand jury panel to serve during 1976 was selected in December 1975. See § 609.25, The Code. The clerk of court then The twelve persons on the grand jury panel appeared on that date, and a seven-member grand jury was selected, impaneled and sworn in the manner provided by law. See § 770.1-770.14, The Code. This constituted the 1976 first quarter grand jury for Scott County.

issued a precept to the sheriff directing him to summon the panel to appear January 5, 1976. See § 609.30, The Code. The sheriff summoned the twelve persons but did not make return of the precept to the clerk's office. See § 609.31, The Code. Cynthia Olson, a secretary in the county attorney's office, was appointed grand jury clerk pursuant to § 770.17, The Code. She notified the panel members by letter to appear on January 5, 1976, the date for which they had been summoned.

The record does not show how long this grand jury remained in session. However, it was not in session on February 6, 1976. On that date the county attorney's office presented an application and proposed order to Judge Robert K. Stohr. The application was as follows:

APPLICATION TO RECONVENE

IN THE MATTER OF RECONVENING THE 1976 GRAND JURY.

Comes now, Edward N. Wehr, Scott County Attorney, and makes Application to the Court to reconvene the Scott County Grand Jury for Monday, February 23, 1976, at 9:15 A.M. pursuant to a request from the Attorney General's office.

WHEREFORE, your Applicant prays for Order of Court.

The court signed the proposed order:

NOW, on this 6 day of February, 1976, the Application of Edward N. Wehr, Scott County Attorney, comes to the attention of this Court, and the Court being fully advised in the premises,

ORDERS that the Grand Jury be reconvened on February 23, 1976, at 9:15 A.M., and the Clerk of the District Court shall issue his precepts to the Sheriff of Scott County, Iowa, to summon the persons drawn as Grand Jurors to appear at the Court House on February 23, 1976, at 9:15 o'clock A.M.

/s/ R. K. Stohr

Seventh Judicial District of Iowa

The clerk of court did not issue a precept to the sheriff. Instead the grand jury clerk notified the grand jurors to appear. The record does not show how this notice was given or whether all members of the panel were contacted. On February 23, 1976, ten members of the grand jury panel appeared. They included at least six of the seven members of the first quarter grand jury. The record does not show whether the seventh grand jury member, Mark E. Higgins, appeared on that date. It does reveal that panel member Gary Koenig was selected to take Higgins' place on the grand jury. The parties stipulated that Judge James Havercamp presided on February 23, 1976, and that Koenig "was properly selected, drawn and sworn * * *."

Thus these defendants were indicted by the first quarter grand jury as impaneled on January 5, 1976, except that panel member Koenig was substituted for grand juror Higgins for reasons which the record does not disclose.

Defendants moved to set aside the indictments on the ground provided in § 776.1(7), The Code, that the grand jury was not selected, drawn, summoned, and impaneled as prescribed by law. Specifically, defendants alleged that the grand jury which indicted them was not comprised of the same persons who constituted the grand jury which had been impaneled January 5, 1976. They alleged that the clerk failed to issue a precept to the sheriff as required by Judge Stohr's order of February 6, 1976, as a consequence of which the sheriff did not in fact summon the grand jury as required by the order and by statute.

The trial court sustained defendants' motion on the ground that the procedures employed in connection with the appearance of the grand jury which indicted defendants did not comply with law within the meaning of § 776.1(7), The Code. The State appealed.

Our statutes establishing grand jury selection procedures are directory. Deviations are reviewed in accordance with this principle:

It has long been the settled law of this state that a substantial compliance with the statute in the selection of grand jurors is sufficient, and that a slight deviation from statutory methods and a merely technical irregularity will not invalidate an indictment, unless it may reasonably be inferred from the circumstances that some prejudice has resulted to the defendant. State v. Heft, 148 Iowa 617, 619-620, 127 N.W. 830, 831 (1910).

A defendant is not prejudiced by a variance from statutory procedure in the selection of the grand jury which indicted him unless the variance infringes his substantial rights. Prejudice is not presumed when a departure from statutory procedure occurs. The burden to show prejudice rests with the defendant. State v. Hassan, 149 Iowa 518, 128 N.W. 960 (1910); State v. Heft, supra; State v. Carter, 144 Iowa 371, 375, 121 N.W. 801, 802 (1909) ("The defendants had no constitutional or statutory right to have their case acted upon by a particular grand jury, and, if the one returning the indictment was legally drawn and selected, they have no ground for complaint."); State v. Clark, 141 Iowa 297, 119 N.W. 719 (1909) (grand jury list contained 73 names instead of 75 as required by law); State v. Pell, 140 Iowa 655, 119 N.W. 154 (1909); State v. Johnson, 136 Iowa 601, 111 N.W. 827 (1907) (one panel member excused before appearance date and a second excused then not a material or substantial statutory departure to draw grand jury from panel of ten rather than twelve grand jurors); State v. Disbrow, 130 Iowa 19, 106 N.W. 263 (1906) (defendant not prejudiced when court impaneled a new grand jury instead of recalling a discharged one); State v. DeBord, 88 Iowa 103, 55 N.W. 79 (1893); State v. Hart, 67 Iowa 142, 25 N.W. 99 (1885); State v. Hughes, 58 Iowa 165, 11 N.W. 706 (1882) (when the defendant's only objection to a second grand jury is that the first was illegally discharged, no substantial right of the defendant is affected); State v. Carney, 20 Iowa 82, 84 (1865), aff'd, 72 U.S. 480, 18 L.Ed. 675 (1866) ("The provisions (of the statute), in relation to the mode of obtaining jurors, are directory."); State v. Knight, 19 Iowa 94 (1865); State v. Ansaleme, 15 Iowa 44 (1863).

Prejudice has been found in a few cases. See State v. Beckey, 79 Iowa 368, 44 N.W. 679 (1890); State v. Bowman, 73 Iowa 110, 34 N.W. 767 (1887); State v. Brandt, 41 Iowa 593 (1875), overruled on other grounds, State v. Swearengen, 43 Iowa 336 (1876).

In the present case, it appears the State sought to reconvene the first quarter grand jury on February 23, 1976. No method for reconvening a grand jury is prescribed by statute. Here Judge Stohr executed the order prepared by the State providing that the grand jurors were to be summoned by the sheriff. That procedure was not used. Instead the grand jury clerk notified the grand jurors to appear. If the grand jurors did appear and defendants were indicted by the reconvened grand jury as originally constituted, they would have no basis for attacking the State's failure to comply literally with Judge Stohr's order. If the purpose of the order were achieved, defendants would be in no position to complain. See 38 C.J.S. Grand Juries § 15 ("It has been held that, if a grand juror receives notice and attends, it is immaterial by whom he was served.").

However, the record shows that grand juror Higgins was replaced by panel member Koenig when the grand jury reconvened February 23, 1976. The question then becomes whether a basis for setting aside the indictments arises from the circumstances in which this substitution was made. Defendants have stipulated that Koenig was properly selected, drawn and sworn. Nevertheless they contend the substitution was unlawful because the grand jurors had not been summoned to appear as required by law.

The procedure for filling out a grand jury which has been reduced to less than seven members is contained in § 770.9, The Code, which provides:

If such grand jury has been reduced to a less number than seven by reason of challenge to individual jurors being allowed, or from any other cause, the additional jurors required to fill the panel shall be summoned, first, from such of the twelve jurors originally summoned which were not drawn on the grand jury as first impaneled, or excused, and if they are exhausted, the additional number required shall be drawn from the grand jury list and the court shall, when necessary, issue a venire to secure the attendance of such additional jurors. The persons so summoned shall serve only in the case, or cases,...