Wurster v. State, No. 49A02-9802-CR-126

Docket NºNo. 49A02-9802-CR-126
Citation708 N.E.2d 587
Case DateMarch 29, 1999
CourtCourt of Appeals of Indiana

Page 587

708 N.E.2d 587
James A. WURSTER, Samuel R. Turpin, Willis R. Conner,
Appellants-Defendants,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 49A02-9802-CR-126.
Court of Appeals of Indiana.
March 29, 1999.

Page 589

Robert W. Geddes, Edward F. Harney, Jr., Hume Smith Geddes Green & Simmons, Robert W. Hammerle, Joseph M. Cleary, Hammerle Foster Allen & Long-sharp, John C. Stark, Thomas A. Brodnik, Richard B. Kaufman, Stark Doninger & Smith, Duge Butler, Jr., Butler Hahn Hill & Schembs, Indianapolis, Indiana, Attorneys for Appellants.

Scott C. Newman, Marion County Prosecuting Attorney, Lawrence J. Brodeur, Marion

Page 590

County Prosecutor's Office, Indianapolis, Indiana, Attorneys for Appellee.
OPINION

RILEY, Judge

STATEMENT OF THE CASE

Defendants-Appellants Samuel Turpin ("Turpin"), James Wurster ("Wurster") and Willis Conner ("Conner") appeal from the trial court's denial of their motions to dismiss the grand jury indictment charging each of the three defendants with bribery, Wurster and Conner with unlawful lobbying, and Turpin with five counts of filing a fraudulent report and one count of perjury.

We affirm in part and reverse in part.

ISSUES

The following consolidated issues are presented for our review:

1. Whether the trial court erred in denying motions to dismiss the indictment due to the allegedly defective grand jury proceedings.

2. Whether the trial court erred in denying motions to dismiss Count I of the indictment charging Turpin with bribery and Count II of the indictment charging Wurster and Conner with bribery.

3. Whether the trial court erred in denying Wurster's motion to dismiss Count III of the indictment charging him with unlawful lobbying.

4. Whether the trial court erred in denying Turpin's motion to dismiss Counts VI through X of the indictment charging him with filing a fraudulent report.

5. Whether the trial court erred in denying Turpin's motion to dismiss Count XI of the indictment charging him with perjury.

STATEMENT OF THE FACTS

In 1984, Turpin was elected to the Indiana House of Representatives, where he served in various capacities until the end of 1996. 1 He did not run for re-election during 1996. American Consulting Engineers, Inc. ("ACE") is a large engineering firm located in Indianapolis. ACE engages in a wide variety of engineering services, with a significant amount of its business being contracted with governmental entities. During the relevant time periods, Wurster was the CEO and part-owner of ACE. Conner was the President and part-owner of ACE.

In June of 1993, Turpin, doing business as Turpin & Associates, entered into a contract with ACE, whereby Turpin would serve as an independent marketing consultant for ACE, marketing ACE to local governmental entities and the private sector. Under the terms of the contract, ACE would pay Turpin & Associates a monthly sum of $1,500.00. By its terms, the contract specifically excluded marketing ACE's services for state government projects. The contract was terminated by agreement of the parties in May of 1996. During the life of the contract, Turpin & Associates received fees from ACE in the approximate sum of $52,500.00.

In an unrelated transaction, ACE sent a $10,000.00 check to the Indiana Motor Truck Association ("IMTA") in December of 1995. During this same time period, approximately fifteen Indiana engineering firms made contributions to the IMTA to aid the Association's efforts in helping overcome the State's shortfall of available highway construction dollars. Later in December of 1995, ACE sent an additional check to IMTA in the amount of $1,250.00.

In 1996, the Marion County Grand Jury began investigating Turpin and the other defendants. The investigation was sparked by a series of stories in The Indianapolis Star and The Indianapolis News. It was reported in these stories that Turpin accepted more than $50,000.00 from ACE, while effectively hiding the employment relationship. It was further reported in these news stories that Turpin took official action that benefitted ACE during the time he was accepting payments from ACE. At the direction of then House Speaker Paul Mannweiler,

Page 591

the Legislative Ethics Committee began an investigation of Turpin. In June of 1996, Turpin resigned as the chairman of the House Ways and Means Committee, and informed the full House that he would not seek re-election after serving out his term. In April of 1997, Turpin's residence was searched and several boxes of records were seized by the Indianapolis police. In May of 1997, the Marion County Grand Jury returned an eleven count indictment naming Turpin, Wurster, Conner and a fourth individual as defendants. Turpin was charged with bribery, perjury and five counts of filing a fraudulent report. In Count II of the indictment, Wurster and Conner were charged with bribery; and in Count III, Wurster was charged with unlawful lobbying. The charge of unlawful lobbying related to the payments ACE made to IMTA, and ACE's failure to timely file required reports with the Indiana Lobby Registration Commission. Turpin's filing a fraudulent report charges stemmed from campaign finance reports filed by Turpin, and Turpin's perjury charge related to an affidavit he submitted to the Bureau of Motor Vehicles in Hendricks County after purchasing a truck from a neighbor.

In October of 1997, each of the three defendants filed motions to dismiss the indictment in its entirety, and the bribery counts. Also, Turpin moved to dismiss Counts VI through X, charging him with filing a fraudulent report, and Count XI charging him with perjury. Wurster filed a motion to dismiss Count III of the indictment charging him with unlawful lobbying. The State filed its responses to each motion and the court heard oral arguments on the motions to dismiss and other pending motions to sever. In January of 1998, the court denied each of the defendants' motion to dismiss.

Wurster and Conner filed a motion to certify the court's denial of their motions to dismiss Count II of the indictment, and Wurster and Turpin filed separate motions to certify the court's denial of their respective motions to dismiss. The trial court promptly certified the interlocutory appeal, and we accepted jurisdiction in March of 1998. This permissive interlocutory appeal followed. 2 We heard oral argument on November 17, 1998.

DISCUSSION AND DECISION

I. Motion to Dismiss Indictment Defective Grand Jury Proceedings

The defendants each argued in their respective motions to dismiss that the entire indictment should be dismissed due to the alleged irregularity in which the grand jury proceedings were conducted. Specifically, the defendants take issue with the fact that significant portions of the proceedings were not of record, that the grand jurors were not permitted to ask questions directly to the witnesses and that exculpatory evidence known to the State was not presented to the grand jury.

The court may dismiss an indictment or information, upon motion of the defendant, if the grand jury proceeding is defective. Ind.Code § 35-34-1-4(a)(3). Ind.Code § 35-34-1-7 provides that "[a]n indictment shall be dismissed upon motion when the grand jury proceeding which resulted in the indictment was conducted in violation of IC 35-34-2." The functions of a grand jury are not judicial, they are merely inquisitorial. Ajabu v. State, 677 N.E.2d 1035 (Ind.Ct.App.1997), trans. denied, (citing Adams v. State, 214 Ind. 603, 605, 17 N.E.2d 84, 85 (1938)). Grand jury proceedings are not a trial, or even an adversary proceeding. Ajabu, 677 N.E.2d at 1039. Rather, the grand jury is an independent body which is charged with investigating the facts to determine "whether probable cause exists that a crime has been committed and whether an indictment (true bill) should be returned against one for such a crime." Id. (citing BLACK'S LAW DICTIONARY 855 (6th ed.1990)). Unlike a petit jury, the grand jury does not determine the guilt or innocence of the accused. Rather, the grand jury determines if there is probable cause to believe that the accused has

Page 592

committed a crime. Ajabu, 677 N.E.2d at 1039.

Here, the defendants argue that because the grand jurors were not permitted to question the witnesses on the record, the grand jury was stripped of its investigative role and reduced to a mere "hand puppet of the State." (Turpin's Brief at 28). At the hearing on the defendants' respective motions to dismiss, the State stipulated that the grand jurors did not ask any direct questions to the witnesses. Specifically, the State stated as follows:

I simply set up a procedure whereby witnesses were brought in. I asked questions of the witnesses. When I concluded with my questions, I sent the witnesses--the witness outside the room and then discussed with the members of the Grand Jury if they had any further questions, areas they wanted to go over, or whatever, with this particular witness. If they did, ... then I would bring that witness back in and there are several transcripts that have been turned over to defense in discovery which indicate the witness comes back in for further interrogation and I did ask the questions.

(Turpin Record, 481-82). Our review of the transcripts referred to by the State reveal that several of the witnesses were called back to give additional testimony. Although the questions were ultimately asked by the prosecutor, they represented original questions from the grand jurors.

The prosecuting attorney may be present with the grand jury for the purpose of giving information and advice upon legal matters, and he may interrogate witnesses thereby assisting the grand jury in developing evidence. Turpin v. State, 206 Ind. 345, 189 N.E. 403, 404 (Ind.1934). Only in cases in which there is such "flagrant imposition of the grand jurors' will or independent judgment" will the court find a violation of due process. Averhart v. State, 470 N.E.2d 666, 680 (Ind.1984), cert. d...

To continue reading

Request your trial
10 practice notes
  • Chavez v. State, No. 79A02-9812-CR-986.
    • United States
    • Indiana Court of Appeals of Indiana
    • 28 Enero 2000
    ...is the State's burden to prove that the offense charged occurred in the county identified in the charging information. Wurster v. State, 708 N.E.2d 587, 599 (Ind.Ct.App.1999), affirmed, 715 N.E.2d 341 (Ind.1999). Venue must be proven by a preponderance of the evidence and may be established......
  • Johnson v. State, 21A-CR-1234
    • United States
    • Indiana Court of Appeals of Indiana
    • 19 Agosto 2022
    ...Any 26 reasonable doubt as to the offense charged must be resolved in favor of the accused. Garcia, 433 N.E.2d at 1209. Wurster v. State, 708 N.E.2d 587, 595 (Ind.Ct.App. 1999), aff'd by Wurster v. State, 715 N.E.2d 341 (Ind. 1999), reh'g denied. "The State is not required to include detail......
  • Wurster v. State, No. 49S02-9907-CR-404.
    • United States
    • Indiana Supreme Court of Indiana
    • 28 Julio 1999
    ...Background A full explanation of the facts related to this case appears in the Court of Appeals' opinion. See Wurster v. State, 708 N.E.2d 587, 590-91 (Ind.Ct.App.1999). In short, a Marion County grand jury indicted Turpin on one count of bribery, five counts of filing a fraudulent report, ......
  • Perry v. City of Indianapolis, 1:11-cv-0172-RLY-TAB
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • 23 Abril 2013
    ...that a crime has been committed and whether an indictment (true bill) should be returned against one for such a crime." Wurster v. State, 708 N.E.2d 587, 591-92 (Ind. Ct. App. 1999) (citations omitted). A grand jury ultimately returned an indictment against Candi Perry for Official Miscondu......
  • Request a trial to view additional results
10 cases
  • Chavez v. State, No. 79A02-9812-CR-986.
    • United States
    • Indiana Court of Appeals of Indiana
    • 28 Enero 2000
    ...is the State's burden to prove that the offense charged occurred in the county identified in the charging information. Wurster v. State, 708 N.E.2d 587, 599 (Ind.Ct.App.1999), affirmed, 715 N.E.2d 341 (Ind.1999). Venue must be proven by a preponderance of the evidence and may be established......
  • Johnson v. State, 21A-CR-1234
    • United States
    • Indiana Court of Appeals of Indiana
    • 19 Agosto 2022
    ...Any 26 reasonable doubt as to the offense charged must be resolved in favor of the accused. Garcia, 433 N.E.2d at 1209. Wurster v. State, 708 N.E.2d 587, 595 (Ind.Ct.App. 1999), aff'd by Wurster v. State, 715 N.E.2d 341 (Ind. 1999), reh'g denied. "The State is not required to include detail......
  • Wurster v. State, No. 49S02-9907-CR-404.
    • United States
    • Indiana Supreme Court of Indiana
    • 28 Julio 1999
    ...Background A full explanation of the facts related to this case appears in the Court of Appeals' opinion. See Wurster v. State, 708 N.E.2d 587, 590-91 (Ind.Ct.App.1999). In short, a Marion County grand jury indicted Turpin on one count of bribery, five counts of filing a fraudulent report, ......
  • Perry v. City of Indianapolis, 1:11-cv-0172-RLY-TAB
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • 23 Abril 2013
    ...that a crime has been committed and whether an indictment (true bill) should be returned against one for such a crime." Wurster v. State, 708 N.E.2d 587, 591-92 (Ind. Ct. App. 1999) (citations omitted). A grand jury ultimately returned an indictment against Candi Perry for Official Miscondu......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT