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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-6793
Appellant, ) Trial Court No. 4BE-97-665 Cr.
)
v. ) O P I N I O N
)
JOHN ALOYSIUS, )
)
Appellee. ) [No. 1621 - February 19, 1999]
______________________________)
Appeal from the Superior Court, Fourth Judi-
cial District, Bethel, Dale O. Curda, Judge.
Appearances: Marcelle K. McDannel, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Bruce
M. Botelho, Attorney General, Juneau, for
Appellant. Michele Power, Angstman Law
Office, Bethel, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
John Aloysius was indicted on several counts of third-
degree assault. The superior court dismissed the indictment
because of irregularities in the presentation of telephonic
testimony to the grand jury and because the prosecutor excused the
wrong two alternate grand jurors when reducing the grand jury panel
to eighteen. The State concedes that these irregularities
occurred, but the State argues that these errors (whether
considered separately or in combination) were not a legally
sufficient reason for dismissing the indictment. We agree, and we
therefore reinstate the indictment.
Irregularities in Telephonic Testimony
In order to preserve the secrecy of grand jury
proceedings, Alaska Criminal Rule 6(u)(3) establishes
several rules governing the presentation of telephonic
testimony:
If a witness participates telephonically
in grand jury proceedings, after the witness
is sworn, the prosecuting attorney shall
require the witness to:
(A) state the location from which the
witness is testifying; and
(B) verify
(i) that the witness' conversation
cannot be overheard;
(ii) that no extension for the tele-
phone from which the witness is
testifying is in use; and
(iii) that the witness will notify
the grand jury immediately if any person
can overhear the witness' testimony or if
the witness becomes aware that an
extension for the telephone enters use
during the testimony.
In Aloysius's case, nine witnesses
testified before the grand jury, and all nine
did so telephonically. The prosecutor asked
seven of these witnesses to verify (1) that
they were alone and (2) that no one else could
hear what they were saying. However, the
prosecutor asked these questions before these
seven witnesses were sworn, not after (as the
rule specifies). In addition, the prosecutor
failed to admonish these witnesses to
immediately inform the grand jury if that
situation changed. Finally, the prosecutor
completely failed to comply with Rule 6(u)(3)
when the other two witnesses testified.
Under Alaska law, irregularities in
grand jury procedure will not invalidate an
ensuing indictment unless the defendant shows
that the irregularities affected either the
testimony of a witness or the grand jury's
decision to return the indictment.1 For
example, in Hurn v. State2, the prosecutor
stepped into the grand jury room while the
grand jury was deliberating - a violation of
Criminal Rule 6(k). (The prosecutor wished to
tell the grand jurors that their deliberations
were audible in the adjoining hallway.) This
court held that a violation of Rule 6(k) will
invalidate an indictment only when the
defendant demonstrates that the violation
prejudiced the fairness of the grand jury
proceedings.3 We further stated that, "to
establish prejudice, the defendant must show
that the policies behind the rule of grand
jury secrecy have been undermined, or that the
grand jury or a witness appearing before them
has been unduly influenced by the
irregularity."4
Before the enactment of Criminal
Rule 6(u) in 19925, irregularities in the
presentation of telephonic testimony were
analyzed under Rule 6(k). See Boggess v.
State.6 In Boggess, the prosecutor failed to
inquire whether a witness testifying by
telephone was in fact alone when she
testified. This court upheld the indictment
because there was no indication that this
omission had affected the witness's testimony
or the grand jury's deliberations.7
Although Rule 6(u) now governs
telephonic grand jury testimony, we will
continue to apply the same analysis when we
assess the legal effect of procedural
irregularities in the taking of telephonic
testimony. An irregularity in the taking of
telephonic testimony at grand jury will not
invalidate an ensuing indictment unless the
defendant shows that the irregularity affected
the testimony heard by the grand jury or
affected the grand jury's deliberations.
As explained above, the prosecutor
made incomplete inquiries at the beginning of
seven witnesses' testimony: the prosecutor
asked these witnesses to affirm that they were
alone and that no one else could hear what
they were saying, but the prosecutor failed to
instruct these witnesses to immediately inform
the grand jury if that situation changed.
This was a lapse from the rule, but there is
no indication in the record that this lapse
affected the witnesses' testimony. In fact,
the record indicates that the first witness
took affirmative action - moving into an
office at the Holy Cross Mercantile - so that
they would be in a room where no one else
could hear their testimony. The record also
reflects that each witness had to "go get" the
next witness when they completed their
testimony.
Thus, the record fails to suggest
that the prosecutor's lapse had any effect on
grand jury secrecy or on the testimony of the
various witnesses. Aloysius suggests that
someone else might have heard one or more of
the witnesses testify, either by walking in
during the testimony or by picking up a remote
telephone extension, but there is no evidence
to support such speculation. Aloysius also
suggests that, because the prosecutor asked
the witnesses about their physical privacy
before the witnesses were actually placed
under oath, the witnesses may have felt free
to give disingenuous answers to the
prosecutor's inquiries. Again, there is
nothing in the record to support such
speculation.
The violation of Rule 6(u) was more
egregious with respect to the remaining two
witnesses, for the prosecutor failed to ask
these witnesses any of the preliminary
questions required by the rule. Nevertheless,
the record fails to demonstrate any reason to
believe that these violations of Rule 6(u)
prejudiced the grand jury proceedings.
Finally, Aloysius suggests that,
because all of the witnesses were gathered at
the Holy Cross Mercantile building to give
their testimony, witnesses who had already
given their testimony may have spoken to other
witnesses who were still waiting to testify.
This claim has nothing to do with the fact
that the witnesses were testifying by
telephone. The same potential for inter-
witness discussion exists whenever two or more
grand jury witnesses gather together outside a
grand jury room, waiting to give their
testimony in person.
We note, moreover, that grand jury
witnesses are apparently free to reveal and
discuss the grand jury testimony they have
given. Criminal Rule 6(l)(1) imposes a duty
of secrecy upon judges, grand jurors,
attorneys, interpreters, court clerks, and
stenographers and transcribers. But the rule
does not impose a duty of secrecy upon
witnesses. In fact, subsection (3) of Rule
6(l) expressly declares that "[n]o obligation
of secrecy may be imposed upon any person
except in accordance with this rule".
For these reasons, we conclude that
the irregularities in taking the witnesses'
telephonic testimony did not constitute a
ground for dismissing the indictment.
Excusal of the Two Alternate Grand Jurors
Another grand jury irregularity occurred when
the grand jurors were impaneled, before any testimony was
received. Criminal Rule 6(d) states that a grand jury
must have at least twelve members and no more than
eighteen. When the prosecutor began presenting
Aloysius's case, twenty grand jurors (including several
alternates) were present. This meant that two of the
alternates had to be excused in order to reduce the panel
to eighteen. The prosecutor told the grand jurors:
PROSECUTOR: Okay, I'm going to excuse
[two of] the [alternate] grand jurors now. I
guess we'll just - well, rather than go from
the top, we should probably do something a
little fairer and get the middle. [To the
clerk] Okay, what are the ...
CLERK: Number 6 and Number 5 are in the
middle.
PROSECUTOR: Okay, we'll do those two.
[Alternates] 5 and 6 can go.
This procedure was flawed. Criminal
Rule 6(f) declares that when alternate grand
jurors are placed on the grand jury panel,
they are to be impaneled "in the order in
which they were designated". Thus, Rule 6(f)
prohibited both the prosecutor's first plan
(to excuse the two alternates at the top of
the list) and the prosecutor's ultimate action
(excusing two alternates from the middle of
the list). The rule required the prosecutor
to excuse the two alternates who were
designated last - the ones who presumably
appeared at the bottom of the list.
Nevertheless, the record is fairly
clear that the prosecutor was acting from
ignorance of Rule 6(f) and was not attempting
to manipulate the selection of alternates in
order to obtain a favorable panel. As can be
inferred from the excerpt of the proceedings
quoted above, the prosecutor apparently did
not know the identities of alternate grand
jurors 5 and 6 when he announced that these
two alternates were excused. After reviewing
the record, the superior court concluded that
the prosecutor had "acted in good faith".
This finding is not clearly erroneous.8
In cases involving challenges to the
composition of a grand jury, this court has
ruled that a defendant must demonstrate
prejudice from the irregularity before an
indictment will be dismissed.9 In Harris v.
State10, several grand jurors were impaneled
even though they resided beyond a fifty-mile
radius of the grand jury site - a fact that
should have disqualified them from the grand
jury venire.11 We held that this error did not
require dismissal of the indictment because
"[t]here was no showing [of] any systematic
exclusion of any class or group" from the
grand jury venire, nor any showing that the
irregular selection "prejudiced [the
defendant] in any conceivable way."12
In Aloysius's case, the superior
court found that the prosecutor acted in good
faith, and there is no indication that the
grand jury's consideration of the charges
against Aloysius was affected by the irregular
method of impaneling the grand jury
alternates. We therefore conclude that this
irregularity did not constitute a ground for
dismissing the indictment.
We reach this conclusion for a
second reason as well. This court has
recognized that unqualified grand jurors may
nevertheless be de facto grand jurors whose
acts remain legally valid. In State v. Roark
13, some alternate grand jurors served on the
grand jury panel even though, through
administrative error, these alternates had
never taken the grand jury oath required by
Criminal Rule 6(e)(1). This court held that
the unsworn alternates were nevertheless de
facto members of the grand jury, and thus the
indictments returned by that grand jury panel
remained valid.14
In Aloysius's case, all of the
alternate grand jurors were apparently
qualified to serve and had taken the required
oath. The sole irregularity lay in the fact
that the prosecutor, acting in good faith,
excused the wrong two alternates. Because of
this mistake, the two alternates from the
bottom of the list - that is, the two
alternates who should have been excused
pursuant to Rule 6(f) - were allowed to stay
and serve on the grand jury panel. Under
these circumstances, these two alternates
should be deemed de facto grand jurors; their
participation on the grand jury panel does not
invalidate the acts of that panel.
Conclusion
Neither of the two irregularities in the grand
jury process prejudiced the fairness of the proceedings.
Because there was no prejudice to Aloysius, the superior
court should not have dismissed the indictment.
The decision of the superior court is
REVERSED, the indictment is reinstated, and this case is
remanded to the superior court for further proceedings on
that indictment.
Footnotes
1 See Soper v. State, 731 P.2d 587, 591-92 (Alaska App. 1987)
(stating the general rule); see also Frink v. State, 597 P.2d 154,
161 (Alaska 1979) (noting that even when inadmissible evidence is
presented to the grand jury, the ensuing indictment should not be
dismissed unless the inadmissible evidence was probably significant
to the grand jury's decision); Boggess v. State, 783 P.2d 1173,
1176 (Alaska App. 1989) (holding that an indictment will stand
despite a violation of Criminal Rule 6 unless the violation
contributed to the return of the indictment or otherwise gave rise
to unfair prejudice).
2 872 P.2d 189 (Alaska App. 1994).
3 See id. at 193.
4 Id.
5 See Supreme Court Order No. 1115.
6 783 P.2d 1173, 1177 (Alaska App. 1989).
7 See id. at 1177-78.
8 See Bobby v. State, 950 P.2d 135, 138 (Alaska App. 1997)
(the superior court's factual determinations will stand unless the
defendant shows them to be clearly erroneous).
9 See Hampton v. State, 569 P.2d 138, 148-49 (Alaska 1977)
(holding that the defendant's right to an impartial jury was not
impaired when there was no common thread or similarity among the
group of excluded jurors); Peterson v. State, 562 P.2d 1350, 1366
(Alaska 1977) (stating that "[s]o long as no group of citizens has
been systematically excluded from the grand jury selection process,
a conviction on an indictment which is otherwise sufficient will be
upheld").
10 678 P.2d 397 (Alaska App. 1984), rev'd on other grounds,
Stephan v. State, 705 P.2d 410 (Alaska 1985).
11 See Criminal Rule 6(c)(1).
12 Harris, 678 P.2d at 399.
13 705 P.2d 1274 (Alaska App. 1985).
14 See id. at 1279.
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