Stevens v. State

Decision Date24 September 1976
Docket NumberNo. 1275S366,1275S366
PartiesJohn W. STEVENS, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Gary L. Gerling, Daniel J. McGinn, Gerling & Moore, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., James N. Shumacker, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant was charged with first degree murder in the shooting death of his wife's friend, one Norman Ward. In April, 1973, appellant learned of his wife's affection for Mr. Ward, and on May 22, 1974, after appellant had received notice that his wife had filed for divorce, he borrowed a pistol from a friend. He then located his wife and the victim at a friend's house, and there confronted them and fired five shots at the victim, four of which entered his body causing death. Appellant then returned the pistol to its owner and stated that he had shot a man and thought he had killed him. Appellant then proceeded to his mother-in-law's house and told her to call the police for he had just killed the victim. Appellant was then taken into custody by a police officer. The jury rejected appellant's defense of insanity and he was convicted as charged and sentenced to life imprisonment.


Appellant first claims that the trial court committed error in denying his motion to dismiss the indictment. The motion was based upon the allegation that the grand jury which returned the indictment against him was improperly constituted because a grand juror, Michael Stewart, was not qualified to be a grand juror. Two distinct grounds of disqualification are presented by appellant. The first is that Stewart was biased and not impartial since he was awaiting trial on three charges of his own. The second is that Stewart was not a freeholder or householder. Ind.Code § 35--3.1--1--7 (Burns 1975) sets forth the grounds upon which an indictment is to be dismissed. That statute, Including those provisions of it upon which dismissal on these bases might arguably be predicated provides:

'(a) An indictment shall be dismissed upon motion when the grand jury proceeding which resulted in the indictment was defective.

(b) A grand jury proceeding is defective when:

(1) The grand jury was illegally constituted; or

(4) For any other ground arising out of the grand jury proceeding which heretofore would have been cause for abatement of the action.'

We take subsection (b)(1) to mean that a grand jury would be 'illegally constituted' if it was drawn or impanelled contrary to statutory or constitutional standards or if members of it did not have the legal qualifications to serve as grand jurors. The processes of drawing and impanelling are not challenged. The legal qualifications of grand jurors, the absence of which may render the jury 'illegally constituted' are set out in Ind.Code § 33--4--5--7 (Burns 1975) which provides in pertinent part:

'To be qualified as a juror, either grand or petit, a person must be a resident voter of the county, and a freeholder or householder, or the spouse of a householder.'

Since freedom from personal bias is not one of these initial legal qualifications for a grand juror, the presence of such bias in a member would not render the grand jury 'illegally constituted' and cannot serve as a proper legal basis for a motion to dismiss an existing indictment under subsection (b) (1) of the dismissal statute.

Likewise appellant's claim of disqualification by reason of bias cannot be a predicate for dismissal under subsection (b)(4). In Williams v. State, (1918) 188 Ind. 283, 123 N.E. 209, and Pontarelli v. State, (1931) 203 Ind. 146, 176 N.E. 696, this Court held that bias or lack of impartiality of a grand juror could not serve as the basis for a plea in abatement to a prosecution already commenced upon an indictment. As it was not formerly a ground for abatement, it is not a ground for dismissal under subsection (b)(4).

The second ground posited for disqualification of Stewart is that he was not a freeholder or householder as required by Ind.Code § 33--4--5--7. This ground is properly urged under subsection (b)(1) as it goes to his legal qualifications for grand jury service. The trial court concluded that Stewart was a householder upon a record which showed that Stewart was twenty years of age, and lived in the county in an apartment with his nineteen year old brother. The two resided in the apartment on a regular day to day basis without supervision from parents or others, cared for themselves and the apartment, and together paid the rent. Appellant contends that he was not a householder because he was not the head of a household or family. In appellant's view, a person cannot be such a head of a household unless other live with such person, and are dependent upon him. Appellant draws support for his contention that such a relationship of dependency must exist from the case of Carpenter v. Dame, (1858) 10 Ind. 125. Such a meaning does arise from the discussion in that case about the meaning of the requirement that a petit juror be a householder, however, the Court did not make a holding on the point, and, therefore, the case is only persuasive, in effect, and not binding upon us. No other Indiana case discussing this requirement for jurors has been presented to us.

We take the statutory requirement that a grand juror be a householder to have several purposes. By it, the Legislature intended that grand jurors be actual members of the community served by the grand jury. They must also have had the experience of making important and binding practical decisions of everyday living. And they must be capable of making important decisions independently of family or relatives or others.

Given these purposes of the statutory requirement, we have no difficulty in concluding that Stewart was a householder, and that his presence on the grand jury did not render the proceedings of that body defective, thereby requiring that the indictment returned by it against appellant be dismissed. He was making the decisions and choices affecting every aspect of his own welfare, and was doing so independently of the supervision and guidance of parents, relatives or others. And he enjoyed the status of full participant in the life of the community in which he resided.


Appellant also assigns error with regard to the alleged misconduct of a member of the petit jury which tried appellant. During the course of the trial appellant's counsel was informed that a juror, who had denied knowledge of the facts of this case in pre-trial voir dire questioning, had in fact discussed the case with a defense witness, Mary Underwood. The trial court held a hearing on the matter, hearing testimony from the juror and two defense witnesses. The juror testified that he had, about a year before the trial, worked with Mary Underwood, appellant's sister-in-law, and that she had told him that her brother-in-law had been arrested in a shooting. He said that he had not realized any connection with this case until he saw Mrs. Underwood's husband, a police officer, testify for the State. The juror testified that he had not formed any conclusions of guilt or innocence, and that he was not prejudiced in favor of or against appellant. The trial court overruled appellant's motion for a mistrial, and belated challenge to the juror.

In Barnes v. State, (1975) Ind., 330 N.E.2d 743, a juror on voir dire denied having relatives on the staff of the prosecutor. It was later discovered that the juror's wife's second cousin was a member of the prosecuor's staff with some connection to that case. This was raised by defendant Barnes in his motion to correct errors. In Barnes we held that this inaccurate voir dire esponse presented a possibility of bias on the juror's part, and therefore remanded to the trial court for a hearing to determine whether the juror had been aware of the relationship either during voir dire or thereafter prior to the verdict. The possibility of bias was sufficient to require that the defendant be afforded an opportunity to explore the juror's prejudices so as to challenge for cause if bias existed.

Here appellant was afforded such an opportunity during trial (outside the presence of the rest of the jury). The trial court heard and overruled his objection to the juror for cause. The sustaining or overruling of a challenge for cause is within the trial court's discretion. Klink v. State, (1932) 203 Ind. 647, 179 N.E. 549. We cannot say that that court's ruling was without a proper basis under the facts in this case.

The issue remains whether it was proper for the trial court, when apprised of apparently inaccurate answers of a juror during voir dire, to hold a hearing on the matter after the jury has been sworn. Appellant argues that the singling out of one juror for questioning about bias will create bias even if none existed before. We agree that this is a real danger. However, this risk must be balanced against the great waste of discharging the jury and terminating the trial. In many cases an honest and sincere juror may be unaware or unable to recall, under the pressure of his first contact with the courts, some tangential relationship with a party, or some tenuous knowledge of the facts. If this relationship or knowledge would not be sufficient to secure the juror's excusal for cause, it should not be sufficient to require a mistrial.

We believe that the trial court pursued the proper course in dealing with the potential prejudice of this juror: a hearing, out of the presence of the remainder of the jury to determine whether (1) the juror's inaccurate response indicates bias or lack of disinterest, and (2) whether the hearing itself has created a bias in the juror. The court should then allow the defendant to challenge the juror for cause, and should excuse the juror and declare a mistrial if bias is found to be present. To the extent that Johnston v. State, (1959) 239 Ind. 77, 155 N.E.2d...

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