State v. Paulsen, Nos. 61487

CourtUnited States State Supreme Court of Iowa
Writing for the CourtMcCORMICK; All Justices concur except REYNOLDSON, C. J., and REES, J., who dissent in part, and LeGRAND; REES; REYNOLDSON
Citation286 N.W.2d 157
PartiesSTATE of Iowa, Appellant, v. Kenneth Ray PAULSEN, Dennis John Hammill, Albert Epperly, Richard Moritz, Richard Fee, James C. Hartog, Glen Lamp and Carl Simms, Appellees. to 61501.
Docket NumberNos. 61487
Decision Date19 December 1979

Page 157

286 N.W.2d 157
STATE of Iowa, Appellant,
v.
Kenneth Ray PAULSEN, Dennis John Hammill, Albert Epperly, Richard Moritz, Richard Fee, James C. Hartog, Glen Lamp and Carl Simms, Appellees.
Nos. 61487 to 61501.
Supreme Court of Iowa.
Dec. 19, 1979.

Page 158

Thomas J. Miller, Atty. Gen., Garry D. Woodward, Sp. Asst. Atty. Gen., and Kathy A. Krewer, Asst. Atty. Gen., for appellant.

Thomas M. Kelly, Jr., and Doren M. Shifley, Davenport, for appellees.

Considered en banc.

McCORMICK, Justice.

This appeal involves questions about the regularity of proceedings of a grand jury. On defendants' joint motion, the trial court dismissed the indictments of defendants on two grounds. One was that the grand jury was illegally impaneled because the original grand jury for the quarter was not shown to have been discharged when the indicting grand jury was selected. The other was that the defendants were denied due process of law under the Iowa and United States Constitutions because an assistant attorney general improperly influenced the grand jury. In resisting the State's appeal, defendants also rely on a ground which they urged unsuccessfully in their motion, a claim that the indictments were invalid because returned by the grand jury when two members were absent. We find no merit in any of these grounds and therefore reverse the trial court.

The indictments involved here resulted from a grand jury investigation of mileage expense collection and payment practices of the Scott County Sheriff's office which was conducted in August and September 1977. The eight indicted persons included the sheriff and seven of his deputies. They were charged with obtaining money by false pretenses and conspiracy to obtain money by false pretenses, in violation of §§ 713.1 and 719.1, The Code 1977.

Defendants' motion to dismiss the indictments was submitted on written and oral stipulations and deposition testimony of Assistant Attorney General Michael Sheehy and grand juror Kristy Looney. After the trial court sustained the motion, the State moved to reopen the record to show that the original third quarter grand jury had been discharged before the indicting grand jury was impaneled. The court overruled this motion. On appeal, the State assigns the trial court rulings on both motions as error.

I. Legality of the grand jury. The impaneling of the grand jury was governed by the 1977 Code. The trial court agreed with defendants that the grand jury was illegally impaneled because a prior grand jury for the same calendar quarter was not shown to have been discharged when the second grand jury was selected.

In Steinbeck v. Iowa District Court, 224 N.W.2d 469, 474 (Iowa 1974), we held section 770.1 implies there shall be only one grand jury each quarter. However, a variance from statutory procedures in the selection of a grand jury will not invalidate an indictment unless the defendant shows he has been prejudiced. State v. Dohrn, 259 N.W.2d 801, 804 (Iowa 1977). A defendant has no constitutional or statutory right to have his case considered by a particular grand jury. Therefore a defendant is not automatically prejudiced when a court impanels a new grand jury instead of recalling a discharged one. State v. Disbrow, 130 Iowa 19, 21-23, 106 N.W. 263, 263-64 (1906).

Here the trial court found the prior grand jury had not been discharged before the new one was impaneled. Assuming this fact would make a difference if shown, we find no evidence to support the trial court's finding. It was based on the State's failure to prove the first grand jury was discharged. However, in the absence of evidence to the contrary, we presume public officials have done their duty. State v. Bastedo, 253 Iowa 103, 110, 111 N.W.2d 255, 259 (1961); State v. Critelli, 237 Iowa 1271, 1281, 24 N.W.2d 113, 118 (1946). This

Page 159

means a grand jury is presumed to be legally constituted. Cole v. State, 68 Ga.App. 179, 180, 22 S.E.2d 529, 531 (1942); State v. Anderson, 120 N.J.Super. 345, 347, 293 A.2d 752, 753 (Law Div.1972), Aff'd, 132 N.J.Super. 231, 233, 333 A.2d 291, 292 (App.Div.1975) (per curiam). The burden was on defendants to establish the court's failure to discharge the original grand jury, and they did not fulfill it.

Consequently we hold that the trial court erred in sustaining defendants' motion to dismiss on this ground. We do not decide whether the ground would have been sufficient if the failure to discharge the first grand jury had been established. Moreover, because the State's motion to reopen was based on its desire to prove the first grand jury had been discharged, it is moot and we need not decide whether the trial court erred in overruling it.

II. The prosecutor's conduct. The trial court held that defendants were denied due process of law in violation of Iowa Const. art. I, § 9, and U.S.Const. amend. XIV, § 1, because prosecutor Sheehy improperly influenced the grand jury "and subtly dominated the final decision to indict." No issue of statutory authority is raised.

The court summarized its findings as follows:

When the Grand Jury had completed called witnesses, a discussion was held about the evidence, in the presence of Assistant Attorney General Sheehy. Mr. Sheehy says he does not recall the actual words used, but they were to the effect, "What do we vote on? Do we vote on everybody who testified, or do we vote on everybody we think is guilty of something?" Mr. Sheehy previously had gone through Uniform Jury Instructions and Code sections on false pretenses and conspiracy. He then, on his own and not at the jury's request, made up a list of eleven names. Beside the first eight names he wrote criminal Code section numbers or the names of criminal charges. Beside the last three names he wrote "unindicted co-conspirator." He said that he told the grand jurors it was up to them whether or not they indicted these people, or others. Mr. Sheehy said, "I tried to avoid numerous indictments on matters I personally did not think could be proved."

Mr. Sheehy left the Grand Jury to its deliberations and was called back from two to four times to be asked questions about conspiracy. He explained to the jurors that the three persons beside whose names he had written "unindicted co-conspirator" would meet the evidentiary test for being indicted, but that the jurors might, for some other reason, consider them as unindicted co-conspirators, and he thought he told them that one of the reasons for considering them as such was, "If you feel someone has cooperated, you may do that." He told them further, "If you do indict him (referring to one of the unindicted) I will probably have to negotiate some type of arrangement with his attorney to use his testimony." Mr. Sheehy states, "I think I gave an example of a grant of immunity, or reducing charge."

The Grand Jury then met and indicted the eight people he had first listed, on the identical charges that he had written beside their names, and did not indict the three he had listed as unindicted co-conspirators. On Wednesday, September 13th, at its last meeting, Mr. Sheehy called to the Grand Jury's attention that he had forgotten one charge against Hammill. This was taken up by the Grand Jury and it indicted Hammill on the charge suggested.

One of the Grand Jurors (Kristy Looney), in answer to a question of whether or not Mr. Sheehy's recommendations did have a substantial influence upon her, replied: "Whether he thought there was enough evidence? Yes, I think so." Asked if she relied on Mr. Sheehy's recommendation, she answered, "We didn't rely on it completely. We took it into consideration because he knows what he is talking about, but we still went on our own, too."

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Because a constitutional challenge is involved, we make an independent evaluation of the evidence. State v. Hall, 235 N.W.2d 702, 712-13 (Iowa 1975).

In doing so, we give no weight to the testimony of grand juror Looney. First, her testimony is equivocal; it does not support defendants' claim that the grand jury abdicated its decisionmaking function to the prosecutor. Second, a grand juror is not allowed to impeach an indictment by stating what influenced it any more than a petit juror...

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8 practice notes
  • Hood v. State, No. 57463
    • United States
    • United States State Supreme Court of Mississippi
    • March 16, 1988
    ...exists that it may induce action other than that which the grand jurors in their uninfluenced judgment would take," State v. Paulsen, 286 N.W.2d 157, 160 (Iowa 1979), or the misconduct usurps the grand jury role, State v. Pulawa, 62 Hawaii 209, 614 P.2d 373, 377 (1980). Most courts require ......
  • In re 2018 Grand Jury of Dall. Cnty., No. 18-1534
    • United States
    • United States State Supreme Court of Iowa
    • February 14, 2020
    ...judicial oversight of the grand jury as a shield against prosecutorial misconduct. In support, Doe observes that in State v. Paulsen , 286 N.W.2d 157, 159–61 (Iowa 1979) (en banc), that we considered but rejected on the merits a due process claim that a prosecutor "improperly influenced" th......
  • People v. Rickard, No. 86SA386
    • United States
    • Colorado Supreme Court of Colorado
    • September 12, 1988
    ...324; see, e.g., State v. Good, 10 Ariz.App. 556, 460 P.2d 662 (1969); State v. Joao, 53 Haw. 226, 491 P.2d 1089 (1971); State v. Paulsen, 286 N.W.2d 157 (Iowa 1979). Because it is difficult to find specific evidence establishing that the misconduct influenced the grand jury, serious miscond......
  • In re Doe, No. 18-1534
    • United States
    • United States State Supreme Court of Iowa
    • February 14, 2020
    ...judicial oversight of the grand jury as a shield against prosecutorial misconduct. In support, Doe observes that in State v. Paulsen, 286 N.W.2d 157, 159-61 (Iowa 1979) (en banc), that we considered but rejected on the merits a due process claim that a prosecutor "improperly influenced" the......
  • Request a trial to view additional results
8 cases
  • Hood v. State, No. 57463
    • United States
    • United States State Supreme Court of Mississippi
    • March 16, 1988
    ...that it may induce action other than that which the grand jurors in their uninfluenced judgment would take," State v. Paulsen, 286 N.W.2d 157, 160 (Iowa 1979), or the misconduct usurps the grand jury role, State v. Pulawa, 62 Hawaii 209, 614 P.2d 373, 377 (1980). Most courts require a ......
  • In re 2018 Grand Jury of Dall. Cnty., No. 18-1534
    • United States
    • United States State Supreme Court of Iowa
    • February 14, 2020
    ...judicial oversight of the grand jury as a shield against prosecutorial misconduct. In support, Doe observes that in State v. Paulsen , 286 N.W.2d 157, 159–61 (Iowa 1979) (en banc), that we considered but rejected on the merits a due process claim that a prosecutor "improperly influence......
  • People v. Rickard, No. 86SA386
    • United States
    • Colorado Supreme Court of Colorado
    • September 12, 1988
    ...324; see, e.g., State v. Good, 10 Ariz.App. 556, 460 P.2d 662 (1969); State v. Joao, 53 Haw. 226, 491 P.2d 1089 (1971); State v. Paulsen, 286 N.W.2d 157 (Iowa 1979). Because it is difficult to find specific evidence establishing that the misconduct influenced the grand jury, serious miscond......
  • In re Doe, No. 18-1534
    • United States
    • United States State Supreme Court of Iowa
    • February 14, 2020
    ...judicial oversight of the grand jury as a shield against prosecutorial misconduct. In support, Doe observes that in State v. Paulsen, 286 N.W.2d 157, 159-61 (Iowa 1979) (en banc), that we considered but rejected on the merits a due process claim that a prosecutor "improperly influenced......
  • Request a trial to view additional results

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