Wurster v. State

• Decision Date: 28 July 1999
• Docket Number: No. 49S02-9907-CR-404.,49S02-9907-CR-404.
• Citation: 715 N.E.2d 341
• Parties: James A. WURSTER, Samuel R. Turpin, Willis R. Conner, Appellants (Defendants Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

715 N.E.2d 341

James A. WURSTER, Samuel R. Turpin, Willis R. Conner, Appellants (Defendants Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 49S02-9907-CR-404.

Supreme Court of Indiana.

July 28, 1999.

Rehearing Denied September 28, 1999.

Robert W. Geddes, Edward F. Harney, Jr., Robert W. Hammerle, Joseph M. Cleary, John C. Stark, Thomas A. Brodnik, Richard B. Kaufman, Duge Butler, Jr., Indianapolis, Indiana, Attorneys for Appellants.

Scott C. Newman, Marion County Prosecuting Attorney, Lawrence J. Brodeur, Deputy Prosecuting Attorney, Indianapolis, Indiana, Attorneys for Appellee.

ON PETITION TO TRANSFER

BOEHM, Justice.

This case raises a number of issues. We summarily affirm the Court of Appeals under Appellate Rule 11(B)(3) as to all except three. The issues summarily affirmed include the Court of Appeals' dismissal of the indictments of former State Representative Samuel R. Turpin, James A. Wurster, and Willis R. Conner for bribery and of Wurster for unlawful lobbying. We also summarily affirm the Court of Appeals' ruling that the prosecution of Turpin on five counts of filing a fraudulent report may proceed.

We hold today that (1) a prosecutor may not prevent grand jurors from directly questioning witnesses; (2) the requirement that a record be kept of grand jury proceedings applies to exchanges between the prosecutor and the grand jurors; and (3) submission of an allegedly perjurious affidavit to a BMV office in Hendricks County is not prosecutable in Marion County over the objection of the defendant, and accordingly Turpin's perjury count must be transferred to Hendricks County.

The proceedings before the grand jury that issued the indictment in this case violated both the right of the grand jurors to question witnesses and the requirement that a complete record of the proceedings be kept. As to the former, however, we find no showing of prejudice. Failure to keep a record of the proceedings requires no showing of prejudice because, by its nature, it forecloses the defendant from knowing or being able to prove what occurred in the grand jury. That error, however, was not presented to the trial court and is not available on appeal. Accordingly, we reach the same disposition of this appeal as the Court of Appeals directed, except we order the perjury count transferred to Hendricks County.

Factual and Procedural 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, and one count of perjury. The same indictment also charged Wurster with one count of bribery and one count of unlawful lobbying and Conner with one count of bribery. All three defendants filed motions to dismiss the indictment on several grounds. The trial court denied the motions after a hearing, but granted the defendants' request for certification for interlocutory appeal. After accepting jurisdiction and consolidating the three separate appeals, the Court of Appeals ordered dismissal of all of the bribery counts and Wurster's unlawful lobbying count, but affirmed the denial of the motion to dismiss the indictment in its entirety, as well as Turpin's motion to dismiss the filing a fraudulent report counts and the perjury count. See id. at 599-600. Both the State and Turpin petitioned for transfer.

I. Grand Jury Proceedings

Turpin challenges the procedure used to interrogate witnesses before the grand jury, and argues that the indictment must be dismissed as the product of a fatally flawed proceeding for two reasons: (1) grand jurors were not permitted to ask direct questions of witnesses and (2) no record was kept of conversations between the prosecutor and grand jury about the questions to be asked. At the hearing on the motion to dismiss the State stipulated that the grand jurors did not ask any direct questions of the witnesses. The trial court then asked if the deputy prosecutor who presented the case to the grand jury had instructed the grand jurors that they could not ask questions. The deputy responded:

No, Your Honor. I did not. 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.

The record contains partial transcripts of testimony from several witnesses, some of whom were recalled for further questioning after the prosecutor apparently conferred with the grand jurors.¹ No record was made of these dialogs between the prosecutor and the grand jury.

The grand jury was at one time seen as a shield against abuse of prosecutorial discretion in selecting cases to be pursued to trial. See generally 1 CHARLES A. WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 101 (1999). Ideally, a grand jury serves as "an investigative body acting independently of either prosecuting attorney or judge, whose mission is to clear the innocent, no less than to bring to trial those who may be guilty." United States v. Dionisio, 410 U.S. 1, 16-17, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (internal quotation marks and citation omitted). In modern times that function is often thought to have eroded to the point where a skilled prosecutor can secure an indictment in the great majority of circumstances. See generally 2 WAYNE R. LAFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE § 15.2(a) at 282-83 (1984).

Indiana has reduced the role of the grand jury over time, consistent with Article VII, § 17 of our state constitution, which provides that "[t]he General Assembly may modify, or abolish, the grand jury system." See generally 16A WILLIAM A. KERR, INDIANA PRACTICE § 9.1.² Today, consistent with the federal and state constitutions and Indiana's statutes, an Indiana prosecutor can charge a defendant by information rather than indictment by grand jury, and bypass the grand jury process altogether. See IND.CODE § 35-34-1-1(a) (1998) ("Any crime may be charged by indictment or information.").

Despite the considerable power of the prosecutor in a modern grand jury proceeding, the role of the grand jury is nonetheless an important and meaningful one if an indictment is to be pursued. In Indiana, the voters of each county³ elect a prosecutor every four years. Once elected, these officials acquire the awesome power to bring any citizen into court to face criminal charges. This may be done by information or by indictment, subject only to the procedural checks built into each process. If an information is used, the prosecutor alone bears responsibility for the decision to charge the defendant. If the prosecutor chooses to proceed via grand jury indictment, the grand jury shares that responsibility. In either case, the prosecutor must abide by both constitutional restrictions and the statutory requirements imposed by the General Assembly in the interest of both fairness to the defendant and accountability and reviewability of the process.

A. The Constitutional Claim

Turpin argues that the failure of the prosecutor to allow direct questioning of witnesses by the grand jurors constitutes prosecutorial misconduct and accordingly violates his right to due process. See U.S. CONST. amend. 14.⁴ Although the Fifth Amendment to the federal constitution precludes prosecution for a "capital or otherwise infamous crime" without grand jury action, neither that amendment nor Fourteenth Amendment due process requires a state system to include grand jury proceedings. See Hurtado v. California, 110 U.S. 516, 4 S.Ct. 292, 28 L.Ed. 232 (1884). Nevertheless, when prosecutors elect to pursue an indictment before a grand jury, they must comply with the requirement of due process and the statutory requirements governing grand jury proceedings. As put in an oft quoted footnote, "[t]he fact that there is no constitutional requirement that States institute prosecutions by means of an indictment returned by a grand jury does not relieve those States that do employ grand juries from complying with the commands of the Fourteenth Amendment in the operation of those juries." Rose v. Mitchell, 443 U.S. 545, 557 n. 7, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979) (citation omitted).

Although, as explained in Part B, the statutes contemplate grand jurors questioning witnesses without a prosecutorial filter, not every failure to observe a rule or statute constitutes a denial of constitutional due process. See, e.g., Willey v. State, 712 N.E.2d 434, 444-45 & n.6 (Ind.1999). The procedure here of having grand jurors submit their questions to the prosecutor to have him pose the questions to the witnesses does not violate due process as prosecutorial misconduct. As the Court of Appeals correctly observed, "[o]nly 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." Wurster, 708 N.E.2d at 592 (quoting Averhart v. State, 470 N.E.2d 666, 679 (Ind.1984)). There was no showing of "flagrant imposition" here, but because there was no record kept, we can only speculate as to the degree, if any, of imposition of will or impairment of independent judgment that occurred.

B. The Statutory Claims

Turpin also attacks the indictment on the ground that it was issued in violation of Indiana laws regulating grand juries. The functions of a grand jury in Indiana are purely statutory, and grand juries have "no rights or privileges based upon the common law." Coons v. State...