Robert W. Geddes
Robert W. Hammerle
John C. Stark
Duge Butler, Jr.
Scott C. Newman
Lawrence J. Brodeur
Edward F. Harney, Jr.
Joseph M. Cleary
Thomas A. Brodnik
Richard B. Kaufman
Indianapolis, IndianaATTORNEYS FOR APPELLEE
Marion County Prosecuting Attorney
Deputy Prosecuting Attorney
Robert W. Geddes
Robert W. Hammerle
John C. Stark
Duge Butler, Jr.
Scott C. Newman
Lawrence J. Brodeur
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
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
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.See footnote 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 countySee footnote 3 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.See footnote 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, ___ N.E.2d ___, ___ & n.6 (Ind. 1999), 1999 WL 398967 at *8. 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, 191 Ind. 580, 589, 134 N.E. 194, 197 (1922). If an issue arises that is not expressly
governed by statute, a grand jury's statutory functions may be interpreted with reference to
common law principles, see State ex rel. Reichert v. Youngblood, 225 Ind. 129, 140-42, 73
N.E.2d 174, 177 (1947), but the grand jury has no authority to take any action not authorized
by statute. Coons, 191 Ind. at 588-89, 134 N.E. at 196-97; see also Kerr, supra § 9.2(a) at
33. Despite this clear recognition of the General Assembly's authority to determine the
functions and responsibilities of a grand jury, the General Assembly has not enacted a clear
statement of a grand jury's functions and responsibilities. Kerr, supra § 9.2(a) at 33.
There are, however, some important provisions relevant to Turpin's claims.
1. Precluding Direct Questions by the Grand Jury
Indiana statutes provide that a grand jury shall hear and examine evidence concerning crimes and shall take action with respect to this evidence as provided by law. Ind. Code § 35-34-2-2(a) (1998). No statutory provision specifically addresses the ability of grand jurors personally to question witnesses called before them.See footnote 5 However, the oath administered to grand jurors provides that they diligently inquire . . . of all offenses committed or triable within this county, of which you have or can obtain legal evidence . . . . See id. § 35-34-2-3(e).See footnote 6 The statute also provides that [t]he grand jury shall be the
exclusive judge of the facts with respect to any matter before it. Id. § 35-34-2-4(j). Although the statute is ambiguous on the point of whether grand jurors must be permitted to ask questions directly of witnesses, our decisional law has recognized the importance of allowing questioning for at least a century. See State v. Turley, 153 Ind. 345, 347, 55 N.E. 30, 30 (1899) (The duty of the grand jury is to 'diligently inquire,' to obtain 'legal evidence', to discover and detect crime, and for that purpose they have the right to interrogate witnesses concerning all matters which may tend to accomplish that result.). In the face of this longstanding understanding of the role of grand jurors, the statutory oath relied upon in Turley has remained essentially unchanged for a century. See 1 Revised Statutes § 1652 (1881). And the usual practice in Indiana, as we understand it, is to allow grand jurors to pose questions directly to witnesses that appear before them. We believe this to be the better practice, and also, in light of this history, required by the statute. The State argues that, even if direct questioning is required, no prejudice has been shown by the procedure adopted here. We agree that immaterial irregularities are not a basis for dismissal of an indictment. On this record, the effect, if any, of this failure to follow conventional procedure is impossible to evaluate, and we cannot conclude that it constituted any significant interference with the grand jury's role. It is speculative what the record, if there were one, would reveal of the exchanges between the prosecutor and the grand jurors, and even more speculative how prejudice might be shown. In any event, in the absence of any
such showing, this alleged statutory violation does not present a basis for dismissal of the
indictment. Cf. State v. Bitz, 487 N.W.2d 533, 535 (Minn. Ct. App. 1992) (irregular
appointment of a grand jury foreperson and clerk does not warrant application of a per se
rule of dismissal).
2. Failure to Record the Proceedings
Turpin also seeks reversal based on Indiana Code § 35-34-2-3(d),See footnote 7 which provides in relevant part:
The court shall supply a means for recording the evidence presented before the grand jury and all of the other proceedings that occur before the grand jury, except for the deliberations and voting of the grand jury and other discussions when the members of the grand jury are the only persons present in the grand jury room. The evidence and proceedings shall be recorded in the same manner as evidence and proceedings are recorded in the court that impaneled the grand jury. . . .
The manner of recording evidence in trial courts is governed by Criminal Rule 5, which provides for the recording or stenographic reporting of any and all oral evidence and testimony given in all cases and hearings, including both questions and answers, all rulings of the judge in respect to the admission and rejection of evidence and objections thereto, and any other oral matters occurring during the hearing in any proceeding.
Accepting at face value the prosecutor's account of the procedures followed in the grand jury, we agree with Turpin that this statute was violated by the prosecutor's discussion of potential questions with the grand jurors off the record before recalling witnesses to pose
questions himself. The State again argues that Turpin has shown no prejudice from this
error. We do not agree that a showing of prejudice is required for a failure to keep a record
to warrant dismissal. Indiana 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. We agree that this does not require dismissal for
immaterial irregularities. Here, however, because there are no transcripts of the
conversations between the prosecutor and grand jurors, Turpin is foreclosed from
establishing prejudice. This focuses the major problem with this procedure: the error itself
renders it impossible for a reviewing court to evaluate what, if any, interference with or
domination of the grand jurors occurred.
A prosecutor exerts considerable control over a grand jury. Statistics show that grand juries issue no-bills in only a very small percentage of cases presented to them. See LaFave & Israel, supra §15.2 at 283. Some suggest this shows an almost compete lack of grand jury independence. Id. The legislature's requirement that a record be kept of grand jury proceedings can only be designed to serve as an important check on the potential of prosecutorial abuse of the grand jury process. Moreover, the Code requires that transcripts of a witness's testimony be disclosed to a defendant upon court order after a showing of particularized need. Ind. Code § 35-34-2-10(b) (1998). In Marion County transcripts of the testimony of persons who the prosecuting attorney intends to call as witnesses at the hearing or trial must be disclosed to a defendant in the normal course of automatic discovery. See Rules of Organization and Procedure of the Marion Superior
Court, Criminal Division, Rule 7(2)(a)(3). Although there may be immaterial violations of
the statute, failure to record the proceedings to permit evaluation of what occurred is not one
of them. Unlike the interposition of the prosecutor between the grand jury and the witnesses,
the failure to keep a record cannot be defended on the basis that no prejudice is shown.
Despite the violation of Indiana Code § 35-34-2-3(d), reversal is not appropriate in this case. Turpin sought dismissal in the trial court on the ground that the grand jury proceedings were fatally defective because the Grand Jurors in this case were forbidden to participate in the interrogation of witnesses . . . . He further contended that the State's actions amounted to prosecutorial misconduct because the grand jury was unable to serve its proper function of examining evidence, unable to serve its oath to diligently inquire, and unable to serve as the exclusive judge of the facts.See footnote 8 It was not until his petition to transfer that Turpin argued for reversal under Indiana Code § 35-34-2-3(d), which was not cited to the trial court.See footnote 9
It is well settled that a party may not raise one ground before the trial court and a
different ground on appeal. See, e.g., Malone v. State, 700 N.E.2d 780, 784 (Ind. 1998);
Willsey v. State, 698 N.E.2d 784, 793 (Ind. 1998). The changing of theories is substantially
indistinguishable from having never raised the issue in the first instance. 4A Kenneth M.
Stroud, Indiana Practice § 3.2 at 33 (1990). We can only speculate as to how this case
would have unfolded if the statutory violation had been presented to the trial court. In this
case, the trial court and Court of Appeals properly found no error on the grounds argued
before them. The new grounds advanced in the petition for transfer do not warrant reversal
at this stage.
is a failure of proof on venue at the close of the State's case-in-chief, Turpin is entitled to
move for a judgment on the evidence pursuant to Ind. Trial Rule 50. Wurster, 708 N.E.2d
at 599.See footnote
To the extent that this language suggests that venue may not be challenged in a
pretrial motion, it is contrary to statute, decisional law, and concerns of fairness and judicial
economy, and we do not agree.
According to statute, [w]hen it appears, at any time before verdict or finding, that the prosecution was brought in an improper county, the court shall order that all papers and proceedings be certified and transferred to a court with jurisdiction over the offense in the proper county . . . . Ind. Code § 35-32-2-5(a) (1998). The statute explicitly permits a challenge to the venue of a prosecution at any time before verdict . . . which plainly includes a pretrial motion. Cf. Crowder v. State, 398 N.E.2d 1352, 1356 (Ind. Ct. App. 1980) (observing that the statute places no burden upon the defendant in a criminal case to move for transfer for improper venue, but rather places the duty upon the court to cause the transfer.). Indeed, State v. Moles, 166 Ind. App. 632, 337 N.E.2d 543 (1975), on which the State relies for its argument on the merits of this issue, was a case in which venue was transferred from Marion County to Lake County based on a pretrial venue challenge.
Although this transfer was found to be improper on appeal because the offenses were
committed in Marion County, the Court of Appeals did not there, as it does here, suggest that
the challenge to venue was premature or otherwise not properly raised before trial.
Moreover, in Kindred v. State, 540 N.E.2d 1161, 1166 (Ind. 1989), this Court observed that
a pretrial motion challenging venue is proper. However, the proper motion is a motion to
transfer rather than a motion to dismiss. Id.See footnote
Finally, concerns for judicial economy and
fairness dictate that defendants should be permitted to challenge venue in a pretrial motion.
In many cases there will be only one county of proper venue for all counts. Here, the result
may be to multiply litigation because Turpin is charged with other counts that are properly
venued in Marion County. The statute, indeed the Constitution, gives him the right to
demand a transfer of the improperly venued count. See Ind. Const. art. I, § 13; Ind. Code
§ 35-32-2-1(a) (1998). If the result is the considerable financial and emotional expense of
a second trial, that is his choice. In the vast majority of cases, a challenge to venue at an
early stage will serve not only the interests of the parties but also those of judicial economy.
B. Venue for a False BMV Affidavit
The question remains whether Turpin's pretrial challenge to venue was properly denied on the facts of his case. The perjury count of the grand jury's indictment reads as
On or about October 21, 1994, Samuel R. Turpin did make a false material statement under oath or affirmation, by submitting an affidavit to the Indiana Bureau of Motor Vehicles, for processing at a Bureau of Motor Vehicles center in Marion County, Indiana, which affidavit was under oath or affirmation subject to penalties for perjury, and in such affidavit Samuel R. Turpin stated that the actual purchase date for a vehicle was October 21, 1994, when Samuel R. Turpin knew that such statement was false in that the actual purchase date for such vehicle was May 30, 1994.
Although the allegedly perjurious affidavit is not in the record before us, the parties
stipulated that the allegedly perjurious affidavit was submitted to a Bureau of Motor Vehicles
branch office in Hendricks County.
Article I, Section 13 of the Indiana Constitution provides in relevant part that an accused shall have a right to a public trial in the county in which the offense shall have been committed . . . . This principle is also embodied in statute: Criminal actions shall be tried in the county where the offense was committed, except as otherwise provided by law. Ind. Code § 35-32-2-1(a)(1998). Although the term commit is not defined by statute, its plain and ordinary meaning is to carry into action deliberately : perpetrate . . . . Merriam- Webster's Collegiate Dictionary 231 (10th ed. 1993); see also Black's Law Dictionary 273 (6th ed. 1990) (defining commit as [t]o perpetrate, as a crime). Perjury is defined by statute as: A person who: (1) makes a false, material statement under oath or affirmation, knowing the statement to be false or not believing it to be true . . . . Ind. Code § 35-44-2-1 (1998). The question of venue accordingly turns on the county in which Turpin allegedly made a false material statement. The State concedes that this statement was made in an affidavit for a title transfer that was submitted to a BMV office in Hendricks County.
According to the State, however, a representative of the BMV
testified before the Marion County Grand Jury that the documents submitted by the Defendant in Hendricks County had no effect until those documents were transmitted and received by the Indiana Bureau of Motor Vehicles office in Marion County. . . . The representative . . . testif[ied] that the actual transfer of title to the motor vehicle would not occur until the transfer papers were prepared at the office of the Indiana Bureau of Motor Vehicles in Marion County. The branch office . . . in Hendricks County only had the authority to transmit the papers submitted by the Defendant to the office in Marion County.
Accordingly, the Marion County grand jury charged Turpin with perjury because this
affidavit was submitted for processing at a Bureau of Motor Vehicles center in Marion
County, Indiana . . . .
The State argued in the trial court that the crime of perjury for submitting a false affidavit to the Indiana Bureau of Motor Vehicles occurs when that affidavit is filed in the office of the Indiana Bureau of Motor Vehicles in Marion County, Indiana. It relied on State v. Moles, 166 Ind. App. 632, 337 N.E.2d 543 (1975) to support this contention. In Moles, the Court of Appeals considered the proper venue for charges of making false tax returns. Id. at 634-35, 337 N.E.2d at 545. The defendants argued that the alleged offenses were committed where the tax returns were prepared (Lake County). The State, however, contended that the offenses were committed where the tax returns were filed (Marion County). Id. at 637-38, 337 N.E.2d at 547. Relying on a number of federal cases, the Court of Appeals held that a taxpayer does not 'make' a tax return until the return is filed with the Department of Revenue. Id. at 639, 337 N.E.2d at 548. Accordingly, the only proper venue for the offenses was held to be Marion County.
individuals statewide who are charged with submitting false affidavits to their county BMV
offices. For the reasons stated above, we decline to extend to the Marion County prosecutor
the authority to prosecute individuals alleged to have submitted perjurious affidavits to BMV
offices in counties other than Marion.
The State also points to Indiana Code § 35-32-2-1(d), which provides [i]f an offense is committed in Indiana and it cannot readily be determined in which county the offense was committed, trial may be in any county in which an act was committed in furtherance of the offense. The Court of Appeals similarly observed that [i]f the commission of an offense is commenced in one county and is consummated in another county, trial may be had in either of the counties. Wurster, 708 N.E.2d at 599 (citing Andrews v. State, 529 N.E.2d 360, 363 (Ind. Ct. App. 1988)). As explained above, the allegedly perjurious statement was submitted to a BMV office in Hendricks County. Turpin is not alleged to have done anything in Marion County. Rather, the BMV merely sent Turpin's affidavit there for processing. There is no basis for venue in Marion County.
a fraudulent report is affirmed. This case is remanded with instructions to dismiss the
bribery counts against all three defendants, the unlawful lobbying count against Wurster, and
to transfer the perjury count against Turpin to Hendricks County.
SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.
subpoena the witness.
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