Wheeler v. State, 74A01-8611-PC-314
| Decision Date | 26 March 1987 |
| Docket Number | No. 74A01-8611-PC-314,74A01-8611-PC-314 |
| Citation | 505 N.E.2d 496 |
| Parties | Larry L. WHEELER, Petitioner-Appellant, v. STATE of Indiana, Respondent-Appellee. |
| Court | Indiana Appellate Court |
Larry L. Wheeler, pro se.
Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for respondent-appellee.
Petitioner-appellant, Larry L. Wheeler (Wheeler), appeals the Spencer Circuit Court's denial of his petition for post-conviction relief.
We affirm.
Wheeler, along with two co-defendants, was convicted after a jury trial of criminal confinement while armed with a deadly weapon, criminal confinement, conspiracy to commit criminal confinement, two counts of attempted theft, and conspiracy to commit kidnapping. On direct appeal, our supreme court vacated the criminal confinement conviction as a lesser included offense, but affirmed the other convictions. Hopper v. State (1985), Ind., 475 N.E.2d 20.
Wheeler filed a petition for post-conviction relief, alleging that the prosecutor, Eric K. Ayer, was related to a juror, Ellen Schroeder, in the original proceeding. Neither the prosecutor nor the juror was aware of their relationship until after the jury returned its verdicts. Wheeler also raised the issue of entrapment.
On December 27, 1985, the trial court entered its Findings of Fact and Conclusions of Law. It found that Ayer and Schroeder are second cousins once removed, that there was no intentional concealment of their relationship, and that neither the prosecutor nor the juror committed misconduct. The trial court concluded that the relationship between the prosecutor and the juror was too remote to warrant a retrial, and declined to entertain the issue of entrapment, as it had been litigated both at the original trial and on direct appeal. Wheeler then instituted this appeal.
Wheeler presents the following issues for our review:
I. Whether the trial court erred in denying a retrial based upon the familial relationship between the prosecutor and the juror.
II. Whether Wheeler could raise the issue of entrapment when it had been adjudicated on direct appeal.
Wheeler claims that he was denied a fair trial as guaranteed by the United States and Indiana Constitutions because the prosecutor and a juror are related.
The trial court found that the prosecutor's great-grandfather was the brother of the juror's grandfather; in other words, the prosecutor's great-great-grandfather and the juror's great-grandfather were the same person. Thus, the juror and the prosecutor are second cousins once removed, which is the seventh degree of consanguinity. See Scott v. Scott (1965), 140 Ind.App. 320, 209 N.E.2d 518, trans. denied.
Wheeler asserts that the prosecutor and juror "are related in the degree at three and one-half," and "by no strech [sic] of the immagination [sic] can one ever bring the degree higher than the fourth degree of relationship." Appellant's Reply Brief at 3. Wheeler apparently added the three degrees separating the juror from her great-grandfather to the four degrees separating the prosecutor from his great-great-grandfather, and then divided by two. Wheeler makes this tortuous computation even though the genealogical chart contained in his brief clearly shows that the degree of relationship is seven, not three-and-a-half.
IND. CODE 35-37-1-5(a)(4) states that a juror's relationship within the fifth degree of a victim, complainant, or defendant constitutes good cause to challenge that juror. Although the statute does not include a juror's relationship with a prosecutor, it is sufficiently analogous. In addition, IND. CODE 1-1-4-1(11) provides:
"When a person is required to be disinterested or indifferent in acting on any question or matter affecting other parties, consanguinity or affinity within the sixth degree, inclusive, by the civil law rules, or within the degree of second cousin, inclusive, disqualifies the person from acting, except by consent of the parties." (Emphasis added).
Since seven degrees of consanguinity separate the juror and the prosecutor in this case, neither statute is applicable, and the juror was not subject to being challenged as a...
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