Wireman v. State

• Decision Date: 26 March 1982
• Docket Number: No. 382S118,382S118
• Citation: 432 N.E.2d 1343
• Parties: Lewis T. WIREMAN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1343

432 N.E.2d 1343

Lewis T. WIREMAN, Appellant, v. STATE of Indiana, Appellee.

No. 382S118.

Supreme Court of Indiana.

March 26, 1982.

Susan Carpenter, Public Defender, David P. Freund, Deputy Public Defender, R. Davy Eaglesfield, III, Sp. Asst. Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

ON PETITION TO TRANSFER

PIVARNIK, Justice.

This cause comes to us on a petition to transfer from the Court of Appeals, Fourth District. Appellant-defendant Lewis T. Wireman was convicted of theft and first degree burglary in the Superior Court of Tippecanoe County on May 26, 1977. The Court of Appeals reversed the conviction of Wireman, finding that the jury commissioners had failed to substantially comply with the relevant statutes for selection of prospective grand and petit jurors from which the grand jury that returned the Wireman indictments was drawn. Wireman v. State, Ind.App., 418 N.E.2d 1182. Petition for rehearing was denied by the Court of Appeals on June 16, 1981. We find the Court of Appeals in error on this issue and accordingly vacate its opinion. We will further consider all other issues raised by defendant Wireman in his appeal.

Defendant listed eight errors on appeal, concerning: 1) whether there was substantial compliance with the statutes covering grand jury selection; 2) whether it was error to allow certain witnesses to testify for the State when the prosecutor had violated a witness separation order; 3) whether it was error to refuse defendant's request to inquire into a witness' sexual relationship with another witness; 4) whether inconsistent verdicts require reversal of conviction on one count; 5) whether the State complied with a proper answer to a notice of alibi; 6) whether there was sufficient evidence to secure a conviction for theft of property valued at one hundred dollars ($100) or more; 7) whether proper instructions on circumstantial evidence was given; and 8) whether the instruction convicting defendant on Counts 3 and 6 was erroneous.

Defendant raised three additional errors but these have been waived on appeal. He contends that instruction 10 was improper but he has failed to set out instruction 10 verbatim in the argument section of his brief; in addition, objection to instruction 10 was not raised in defendant's motion to correct errors. Defendant has, accordingly, waived this issue and we will not consider it. Miller v. State, (1978) 267 Ind. 635, 641, 372 N.E.2d 1168, 1171; Murphy v. State, (1978) 267 Ind. 184, 187, 369 N.E.2d 411, 413; Ind.R.App.P. 8.3(A) (7). Defendant further alleges error concerning the denial of his tendered instruction 4. He presents no legal argument or citation of authority to support his contention that the trial court committed error by refusing this instruction. This issue has been waived. Millar v. State, (1981) Ind., 417 N.E.2d 1105, 1107; Bledsoe v. State, (1980) Ind., 410 N.E.2d 1310, 1312; Ind.R.App.P. 8.3(A)(7). Finally, defendant alleges error in the giving of the trial court's instruction 4 but he has failed to set out this instruction in the argument section of the brief. As noted above, Miller, supra, and Murphy, supra, this issue has therefore been waived.

Defendant Wireman was charged and tried on a nine-count indictment as follows: 1) first degree burglary; 2) conspiracy to commit a felony; 3) theft by obtaining control over stolen property; 4) theft by obtaining control over stolen property; 5) conspiracy to commit a felony; 6) theft by obtaining control over stolen property; 7) conspiracy to commit a felony; 8) first degree burglary; and 9) theft by obtaining control over stolen property. The jury found the defendant guilty of Count 1, Count 3, and Count 6. He was subsequently sentenced by the court to imprisonment for not less than ten nor more than twenty years on his conviction of Count 1, a term of not less than one nor more than ten years on Count 3, and not less than one nor more than ten years on Count 6.

On or about February 1, 1974, Richard Dean Smith, David Banton, and Paul Banton, broke into the home of Alvin E. Morehouse, in West Lafayette, and took coins and coin cases. Smith testified that he and David Banton had been advised by Wireman the day before the crime that Morehouse and his wife had left town and that it would be a good time to burglarize their home. He further advised them that there was a coin collection in the home. On February 8, 1974, Paul Banton and Smith burglarized the home of William R. Osborn, after again having been advised by Wireman that there was a gun collection of value in this home and that he would buy the guns if they could obtain them. Four of the antique firearms taken during the burglary of the Osborn home were subsequently found in Defendant's possession. On March 8, 1974, the trailer home of George Gourko was broken into by Smith and both Bantons. The testimony was that Wireman had given Smith and the Bantons a down payment on this job and told them there was a valuable coin collection in the home. He further informed them that Gourko was out of town. Coins from this collection were found in the possession of Lewis Wireman. Lewis Wireman was the judge of the Lafayette City Court during the time these burglaries took place.

I.

It was the opinion of the Court of Appeals that there was such a substantial lack of compliance in the selection of the grand jurors in this cause that the trial court should have granted a Motion to Dismiss. The Motion to Dismiss was heard by the trial court on April 30, 1976, and June 14, 1976, and denied in all specifications. It is not now our burden nor was it that of the Court of Appeals to re-weigh the evidence to determine if there was sufficient evidence on which to challenge the selection process of the grand jury but to ascertain if there is sufficient evidence, together with all reasonable inferences to be drawn therefrom to support the ruling. We will consider the evidence favorable only to the State. Kimmel v. State, (1981) Ind., 418 N.E.2d 1152, 1158; James v. State, (1980) Ind., 411 N.E.2d 618, 622. The evidence shows that the clerk was Republican and the Democratic commissioner kept the key to the jury box. He never opened the box unless the other commissioner and the clerk were there. The commissioners always used the same size of white paper on which to write names to go into the box and both commissioners, as well as the clerk, were present when names were put into the box. The clerk always obtained an order from the judge for the number of names when it was necessary to replenish the box and names were drawn by the clerk or one of the commissioners and listed in the order drawn. The major filling of the box was around the first of each year. Defendant contends the basis for lack of substantial compliance of statutory requirements for grand jury selection was that some of the names had gotten into the box at a time when the jury commissioners selected names of prospective jurors from yellow voter registration cards; those cards showed voter preference as to political party. Also, the box was not totally purged at any particular time and the commissioners did not always select names in the presence of each other.

The facts showed that prior to mid-1974 or possibly early 1975, depending on the testimony of the commissioners themselves, names were selected from yellow voter registration cards which showed voter preference. This practice stopped somewhere between mid-1974 to early 1975, and after that time names were selected from registration cards which did not show voter preference. During all of this period, however, selection was made purely by chance and in a random manner by selecting every fifth or sixth name from such cards without reference to the party designation of the person being selected. This was testified to by all of the commissioners. The commissioners were business people in the town of Lafayette, Indiana, and there were times when one or the other of the commissioners would go to the voter's list and select the names in the method they had agreed upon by going to every fifth or sixth name in a random manner through the list. Sometimes they would do this individually and sometimes they would do it when both were present. In either event, both were always present when the names were put into the box. They did not have a practice of regularly purging the box but it would be filled by court order whenever the box became low on names. There was one time, in 1974, when the box contained only three or four names and those were left in the box. Orders for the addition of names to the box were obtained by the clerk when it appeared that the number of slips in the box was getting low. In 1975, such orders were entered on January 20, 1975, for one-thousand (1,000) names; June 18, 1975, for six-hundred (600) names; August 29, 1975, for six-hundred (600) names; and November 3, 1975, for six-hundred (600) names. Names for the grand jury which returned the Wireman indictments were drawn on December 17, 1975, and on January 2, 1976.

Defendant made much of the fact that he was in a political office and claimed there was a political conspiracy that was out to "get him" and that these criminal charges were brought as a result of that conspiracy. There is no evidence whatever that the grand jury was selected in furtherance of any conspiracy or that it was handpicked in any manner to bring about a calculated result. As a matter of fact, this record does not show the political affiliation of the defendant nor does it show, in any manner, the political makeup of the grand jury. There is no fact in the record that would even give rise to an inference as to the political makeup of the grand jury that indicted this defendant. The selection of voters, from the voter registration cards which indicated voter preference, was put in the box,...