Wireman v. State

• Decision Date: 06 April 1981
• Docket Number: No. 2-1277A480,2-1277A480
• Citation: 418 N.E.2d 1182
• Parties: Lewis T. WIREMAN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1182

418 N.E.2d 1182

Lewis T. WIREMAN, Appellant (Defendant Below), v.STATE of Indiana, Appellee (Plaintiff Below).

No. 2-1277A480.

Court of Appeals of Indiana, Fourth District.

April 6, 1981.

Harriette Bailey Conn, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, R. Davy Eaglesfield, Sp. Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Victoria R. Van Duren, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Judge.

Lewis T. Wireman was convicted by a jury of theft and burglary.Although he raises numerous issues for our consideration on appeal, we find it necessary to discuss only one, since it is our ultimate conclusion Wireman's conviction must be reversed on this question alone.In particular, we conclude the trial court should have granted Wireman's motion to dismiss his initial indictment due to irregularities in the grand jury selection process.¹

Significantly, the State does not dispute the essential factual bases of these challenged practices.By way of background to our consideration of such facts, we initially observe that Wireman had served as city judge for the City of Lafayette from 1972 until the end of 1975, after which the grand jury returned its indictment against him, and that the alleged criminal acts with which he is charged occurred while he was employed in that capacity.²We also note the grand jury which indicted him had generally been charged by prior court order with the responsibility of assisting a special prosecuting attorney ³ in his investigation of "certain allegations (which) have been publicly made concerning possible criminal conduct by public officials and concerning the possible commission of crimes which have not been properly investigated or prosecuted...."That court order, dated October 22, 1975, noted that among the public allegations to be considered was the charge the regular prosecuting attorney "has been influenced in the conduct of his office by political considerations."

With respect to Wireman's attack on the grand jury selection procedures, the following essentially unchallenged evidence was elicited at a hearing on his motion to dismiss: In December of 1975, and early January of 1976, the grand jury which returned the indictment against Wireman was formed by drawing two panels of names from an appropriate jury box.Significantly, while the names were placed in the box and drawn from it with both of the commissioners (and the county clerk) being present, each commissioner acted individually in selecting and preparing the pool of names which later were put into the box.Names had been added to the box as recently as November of 1975, and on several other occasions during the year.⁴Apparently, it was a common practice in Tippecanoe County at that time for names to be added to the box as it became "depleted," although the evidence reveals the box was never actually exhausted of names.In fact, at least during the several years preceding the drawing of the grand jury in question, no effort had been made to purge old names from the box.One jury commissioner, Emil Ebner, testified that during his six years of service ending in December of 1975he had never had occasion to "completely empty the box in which the names are deposited," and a current commissioner, Robert Brown, testified merely that "perhaps one time in about 19 sometime in 1974 I think we were down to three or four names...."

Most significant to our opinion is the source of the unpurged names remaining in the jury box at the time Wireman's grand jury was drawn.It was uncontradicted these names were selected by the jury commissioners, acting individually, from (among other sources) voter registration records which clearly indicated the political affiliations of the prospective jurors.⁵In this regard, commissioner Ebner acknowledged this practice on his part may have continued until the middle of 1975 and thus that such records may have been used, for example, as late as the June, 1975, deposit of names in the box.Similarly, commissioner Brown, who was appointed in 1973, also testified he used the politically-labeled lists through the spring of 1975.In addition, at the special hearing on April 30, 1976, a voter registration officer who had observed the commissioners at various times as they selected names for the jury box also testified it was not until "six or nine months ago" that the commissioners began using a master voter registration list which did not disclose political party.Thus, it was established the potential grand jury members were selected from a jury box which had not been purged for a substantial number of years of names selected from politically-labeled voter lists.

Admittedly, there was no specific showing that the foregoing practices resulted in a politically biased or otherwise prejudicially constituted grand jury.Thus, no attempt was made, for example, to reveal the political affiliations of any jurors, grand or petit, whose names were drawn from the box, for the purpose of demonstrating any disproportionality based on politics.However, Wireman's attack on such practices and any other alleged irregularities proceeds not from any actual demonstrated harm, but on an alleged substantial departure with the policies expressed in the language of the applicable statutes, Ind. Code 33-4-5-1 et seq.andInd. Code 33-15-22-1, and in the decisions of our Supreme Court applying these statutes or similar provisions enacted by the Legislature.By way of background to his particular contentions we note IC 33-4-5-2 provides in pertinent part:

"Said commissioners shall immediately, from the names of legal voters and citizens of the United States on the latest tax duplicate and the tax schedules of the county, examine for the purpose of determining the sex, age and identity of prospective jurors, and proceed to select and deposit, in a box furnished by the clerk for that purpose, the names, written on separate slips of paper of uniform shape, size and color, of twice as many persons as will be required by law for grand and petit jurors in the courts of the county, for all the terms of such courts, to commence with the calendar year next ensuing.Each selection shall be made as nearly as possible in proportion to the population of each county commissioner's district.In making such selections, they shall in all things observe their oath, and they shall not select the name of any person who is not a voter of the county, or who is not either a freeholder or householder, or who is to them known to be interested in or has cause pending which may be tried by a jury to be drawn from the names so selected...."⁶

Once the names of prospective jurors have been so selected, it is provided in IC 33-15-22-1 in part that

"(t)he clerk, having first well shaken the box, shall open the same in his office, and in the presence of the jury commissioners he shall publicly draw therefrom such number of names of competent persons as the judge of such court shall have ordered to be summoned as prospective jurors for such court."

Finally, IC 33-4-5-3 states that if the names in the box have been exhausted, the circuit court or judge shall "by order" direct the commissioners to deposit additional names selected in the manner provided in IC 33-4-5-2, from which group of additional names the clerk will draw new jurors.

Wireman contends, in essence, these statutory procedures were not appropriately followed and the grand jury was thus illegally constituted.In response, the State argues merely that even if such irregularities did occur, it is incumbent upon Wireman to show "prejudice" or "bad faith" with respect to the irregularities, citing Holland v. State, (1976)265 Ind. 216, 352 N.E.2d 752;Flowers v. State, (1956)236 Ind. 151, 139 N.E.2d 185;andAnderson v. State, (1941)218 Ind. 299, 32 N.E.2d 705.

We cannot agree with the State's formulation of the rule regarding this threshold aspect of Wireman's appeal.It is true, as the State alleges, that such a showing of harm is required where there has been a substantial compliance with the appropriate procedures and the errors alleged appear to have been of only a technical or minor nature, such as in the cases cited by the State and in Shack v. State, (1972)259 Ind. 450, 288 N.E.2d 155(commissioners appointed in December rather than November as required by statute) and in Leonard v. State, (1968)249 Ind. 361, 232 N.E.2d 882(failure to draw names of prospective jurors for both grand and petit juries at the same time).It is equally clear, however, that a different rule pertains where compliance has not been substantial, as our Supreme Court has recently asserted in Cross v. State, (1979) Ind., 397 N.E.2d 265, 267-68, as follows:

"When a defendant fails to show lack of substantial compliance with statutory requirements, this Court will require a showing of prejudice to the defendant's rights.Shack v. State, supra;Leonard v. State, (1968)249 Ind. 361, 232 N.E.2d 882.However, when there is a lack of substantial compliance, the defendant need not show actual prejudice.

'It seems to us that the proper construction is to hold that an accused, regardless of his guilt or innocence, has the right to insist that there be substantial compliance with (the statute), and if these provisions are not substantially complied with, his substantial rights are harmed.(')Rudd v. State, (1952)231 Ind. 105, 111, 107 N.E.2d 168, 170.

Furthermore, Judge Emmert noted that:

'The only way this court has to enforce substantial compliance with the statutes on juries is to reverse when the issue is properly presented in the trial court and here.'231 Ind. at 113, 107 N.E.2d at 171."(Emphasis added.)

See alsoState ex rel. Burns v. Sharp, (1979) Ind., 393 N.E.2d 127, 130, where it is stated "a grand jury which is not organized substantially in accordance with the statutory requirements is held...