*1 sentencing. In of indeterminate concept
Grеenholtz, Supreme CROSS, Appellant the United States E. Robin parole (Defendant below), Court stated that determination alia, include, necessarily must inter consid- gravity of the offense. Id. eration Indiana, Appellee STATE agree 8, 15, S.Ct. below). (Plaintiff Murрhy authority note has cited no that -- contrary. No. 1276S424.
ISSUE V Supreme Court of Indiana. Board did Murphy contends that the Nov. pertinent information consider all of reaching their deci concerning him essence, argument
sion. is that the it his in his consider of the data
Board did not because, had, they if they file
institutional parole. amounts granted negative a appeal plea for an from required.
verdict, clearly could not
To repeat portion quote of our earlier Penal In Greenholtz Nebraska is,
mates, supra, “The inquiry entire
sense, ‘equity’ type judgment that can an
not always be articulated in traditional Elsewhere, therein, it was writ
findings.”
ten, ‘discretionary deсision turns on a “The multiplicity inpondera of a
assessment
bles, man is and entailing primarily what a simply may he become rather than what ” Accordingly, there he has done.’
what respect
being no standards established consider, may that the Board the factors
it were with they could never be said that
out to a conclu unerringly and lead conflict
sion the one different than reached.
Additionally, it must be noted expectancy of statute created an
Nebraska (the
release, it requiring release “unless
Board) opinion his release * * list- because: should be deferred justifying Our four reasons denial. however,
statute, expressly provides parole
“A for the best shall be ordered of clem- society, not as an award
interest
ency; to be it shall not be considered pardon.”
reduction sentence is af- judgment of the trial court
firmed. DeBRULER,
GIYAN, J., and HUNT- PIVARNIK, JJ.,
ER concur. *2 color, many persons
size and of twice as required grand will law for by as be and jurors county, petit of the in the courts courts, for the terms of such to com- year mence with the calendar next ensu- as ing. Each selection shall be made nearly possible proportion as to the county population of each commissioner’s selections, they district. such oath, things in all their and shall observe any they shall not the name of select county, person who is not a voter of the or who is not freeholder or house- either a holder, be or who is them known to pending which interested in or has cause may by jury tried be drawn from They the names so shall deliver selected. box, locked, clerk to the of the circuit court, deposited having after therein the key names as herein The shall directed. Colman, Colman, David J. Lowenthal & of by be retained one the commission- Loftman, Bloomington, for appellant. ers, political not an the same adherent of party as is the clerk.” Sendak, Gen., Theodorе Atty. Terry L. G.
Duga, Atty. Gen., Deputy Indianapolis, for Uncontroverted affidavits attached to de- appellee. errors fendant’s motion to correct indicate selecting the venire for
HUNTER, Justice. of County Brown at and the time trial. affidavits were Crоss, defendant’s Verified Defendant, E. was convicted Robin County submitted Vio- jury degree, of murder the second Commissioner, Wayman, Jury let and one Ind.Code (Burns 1975), § 35-1-54-1 and Maurice “Pods” Both affidavits Miller. sentenced to twenty-five years’ fifteen to part read in as imprisonment. follows: raising now appeals He sev- However, eral issues for panel our review. be- When jury “3. was selected cause March, of our disposition regard- issue for followed ing jury procedures, we reverse was:
upon consideration of this issue. Jury The “a. Commissioners selected every regis- tenth name from the voter challenges procedures Defendant em- County tration records in the Brown ployed selecting the venire for cause this Office, through going Clerk’s such lists being of violative Ind.Code 33-4-5-2 § precinct by precinct. (Burns 1975). provides statute That rele- placed “b. The names were on a list in part: vant the same which they order in were “Said immediately, commissioners shall drawn alphabetized precinct from the lеgal of names voters and citi- registration voter lists. zens of the United States on latest given then “c. list was to the duplicate tax the tax and schedules of the presented Clerk who it to the county, examine for the purpose of deter- sex, Cirсuit Court. mining age pro- of identity spective jurors, proceed to select and “4. There was no randomization deposit, in a box clerk placing slips furnished uniform of on purpose, names, paper written on of on the names of separate box, slips paper of shape, panel, placing slips uniform in a those locked the official Indi- heading to this section of having the Clerk the box shaken well Code, counties jurors; who would then draw names from ana “Selection (1976 650,000.” box.” IC 33-4-5-2 more than Ed.). carefully the text read Had the state addressing Prior the merits discovered that statute it would have objections this our issue we turn to two *3 (1976 IC 33-4-5-2 paragraph the of second First, review raised the state. the state procedure for Ed.) special establishes a claims that defendant waived this issue County. paragraph The first Marion of case. accepting the on the trial the County, Marion clearly applicable to State, (1926) In Fenwick v. 572, 150 197 Ind. county of Indiana. County every other 764, N.E. this Court found that the defend irregularities ant in the selection of waived proce- to the now must look whether prospective jurors jury commission by to at amounts followed in the case bar dure Fenwick, jurors. by accepting ers In statutory compliance with substantial the time trial defendant claimed that at of State, (1952) 231 requirements. Rudd v. alleged irregulari he was unaware of the State, v. 168; Shack 105, Ind. 107 N.E.2d However, ties. this Court noted: 450, 155. (1972) 288 N.E.2d 259 Ind. public “An examination of the records in Bass, (1936) 181, 1 Ind. N.E.2d State v. 210 any the clerk’s office time after his arrest 927, we said: 25, April and before the date of the meth- times rules and “From earliest have disclosed the facts of .would juries drawing ods have been devised ignorance.” 197 Ind. at he claims of selection insure the in an еffort to 574, 150 764. N.E. at a to jurors, with view disinterested However, bar, in the Brown the case at jury as an of the preserving purity affidavit, County her said: in of method statutory institution. Our “The records the Brown Clerk’s in pur- for the drawing juries was devised Office do not that the above-dе- reflect beyond sus- pose of the selection putting followed, process scribed selection was or advantage picion or favoritism. of any impropriety that there was in the by a strict only result can achieved procеss selection utilized.” requirements conformance to the 184, The state claims that defendant fails to at 1 N.E.2d 210 Ind. at statute.” diligence show that he exercised due attempting alleged to discover the errors. indi- statute language the current The оf
We are what sort of at loss determine determined legislature has cates that diligence require of a de- the state would jury can best be obtained impartial an require fendant. For routine this Court process. random selection cоunty jury com- interviews clerks and case at bar employed in the The juries would missioners to voir dire of nor the of the law neither the letter meets burden, defendants, unduly but not re- The trial court spirit of randomization. public as well. We will not those officiаls alpha- jurors in of prospective ceived a list on Fenwick place interpretation so broad an geographical order. as some betical well as State, supra. Where the records of likely would not employed county irregularities do reveal clerk not goal in the statute: stated achieve the selection, acceptance jury will venire nearly as shall be made “Each selection irregulari- of said not be deemed a waiver pоpulation possible proportion ties. district.” county commissioner’s of each argues Next state Ind.Code 1975). (Burns 33-4-5-2 Ind.Code § (Burns 1975) apply 33-4-5-2 does § the venire We find that applies only this case because that statute not sub bar did case at in the exceeding population counties with a requirements stantially with the 650,000, e., comply County, Indiana. The i. Marion 1975). (Burns When a compiler’s Ind.Code 33-4-5-2 astray § state has been led
268 system rect
defendant fails to show lack errors. It is true that of substantial compliancе requirements, with statutory jury selection used commissioners showing this Court will require preju- comply improper here was and did not dice to the rights. defendant’s Shack v. however, true, the statutes. is also It State, State, supra; (1968) Leonard v. 249 appellant public at the did not look records 361, However, Ind. N.E.2d when any or the Clerk’s office make other there is a compliance, lack of substantial attempt statutory to determine whether the preju- defendant need not show actual procedure had the ma been followed. As dice. out, State, pointed jority has Fenwick “It seems to proper us that the construc- 764, places N.E. 197 Ind. accused, tion is to regardless hold that an duty on a defendant to examine the records guilt innoсence, of his right has the and raise the issue a time when trial *4 insist that compli- there be substantial problem discharg by court can correct the statute], ance with pro- and if these [the ing jurors improperly selected the who were visions arе substantially complied not to select a requiring the commissioners with, rights his substantial are harmed. júry proper statutory in This the method. State, 105, 111, Rudd v. (1952) 231 Ind. Fenwick, is supra, the law under and its 168, 107 N.E.2d 170. State, (1951) progeny. See v. 229 Sturrock Furthermore, Judge Emmert noted that: 226; 161, State, Ind. 96 N.E.2d Anderson v. only “The way this court to has enforce 705; (1941) 299, 218 Ind. N.E.2d Souer 32 compliance substantial the statutes State, 523, 15 dike (1938) 214 Ind. N.E.2d juries on is to reverse the when issue is 379; Lines, Greyhound Kark v. Central properly presented in the trial court and 303, Ind.App. 85 N.E.2d 113, 107 here.” 231 Ind. at N.E.2d at 171. argues Appеllant that he did not discover Moreover, the record before us includes a problem the until after four five months certified transcript of another cause which the question when the was raised in depicts the which brought events the non- the anоther unrelated case. When trial compliance to the attention of defendant in court the it this other had issue before in the hearing case at bar. After Judge case, jurors been were the who had selected discharged Woods vеnire the the in other proper excused and new selected ones in procedure cause because of the selection appellant gives manner. The no reason employed. We to deny are not inclined this why he сould this in. not have discovered protection defendant the of the law because May case, in at the trial of when fact it his he could not discover the of the jury errors was discoverable another a few case commissionеrs an examination of months later. never Appellant’s counsel public the clerk’s records. attempt looked to to discover it. The reasons, For the foregoing judgment the other is by exhibit the record an affidavit is reversed and the cаuse remanded for a simply which new trial. states could improper by looking not have at her been determined PRENTICE, JJ., DeBRULER and concur. bewildering, records. affidavit PIVARNIK, J., opinion dissents with least, say certainly and is not sufficient J., GIVAN, which concurs. proposition adopted establish PIVARNIK, Justice, dissenting. opinion appellant did not majority —that facts gave waive the issue. The Clerk no respectfully I must dissent from the ma- statement jority substantiate bare opinion, it appel- wherein finds that impropriety process would lant did not concerning waive the issue looking jurors been at the manner which the disclosed were selected by accepting failing at Without conclu- explanation, them trial and records. her question raise the until his motion to cor- sion is not sufficient.
If in the Clerk’s office failed the records selected, PORTER, at all how the were Appellant, show James S. if he given appellant, this alone would have records, grounds for rais- had examined the Indiana, Appellee. STATE оf question in the trial court. He No. 179S33. proprie- question could have called into by a ty impanelling jury proc- selected Supreme Court Indiana. ess not revealed the records. On Dec. hand, show other facts would other if described improper selection used, actually but the records Clerk was falsely showed that a com- followed,
plied was this with the statutes give looking rise to claim those relying on them that the records
they actually had been as to what misled be excused
happened and therefore should wrong conclusion as to concerning the
whether to raise an issue procedure.
correctness of either these
have no basis here,
findings furnished we have been
nothing by appellant accept- except
ed fact that he made no effort whatever
investigate this issue at timé Clerk that simple
and the statement
he it if he had could not determined
investigated. clearly appellant
This record shows that diligence attempt-
failed exercise due alleged discover the errors and there- I therefore waived the issue. issue and
affirm the trial court on this
proceed to the other issues raised consider appeal.
in this
GIVAN, J., concurs.