Wireman v. State

432 N.E.2d 1343, 1982 Ind. LEXIS 777
CourtIndiana Supreme Court
DecidedMarch 26, 1982
Docket382S118
StatusPublished
Cited by22 cases

This text of 432 N.E.2d 1343 (Wireman v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wireman v. State, 432 N.E.2d 1343, 1982 Ind. LEXIS 777 (Ind. 1982).

Opinions

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. >

[1346]*1346Defendant 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 seetion 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. 8.8(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. 8.8(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 Ban-ton, broke into the home of Alvin E. More-house, in West Lafayette, and took coins and coin cases. Smith testified that he and David Banton had been advised by Wire-man the day before the crime that More-house 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 Wire-man 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 [1347]*1347State. 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.

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Wireman v. State
432 N.E.2d 1343 (Indiana Supreme Court, 1982)

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Bluebook (online)
432 N.E.2d 1343, 1982 Ind. LEXIS 777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wireman-v-state-ind-1982.