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State v. Cameron (06/03/2005) ap-1986
State v. Cameron (06/03/2005) ap-1986
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No.A-8785
Appellant, ) Trial Court No. 3AN-03-11027 Cr
)
v. )
) O P I NI O N
NEIL MICHAEL CAMERON, )
)
Appellee. ) [No. 1986 June 3, 2005]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Michael L.
Wolverton, Judge.
Appearances: Kenneth J. Diemer, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for the Appellant. Wayne Anthony Ross, Ross
& Miner, P.C., Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Alaska Criminal Rule 6(p) states that the grand jury
has no duty to hear evidence on the behalf of the defendant,
[but] it may do so. In this case, the defendant notified the
prosecutors office that he wished to appear before the grand jury
and testify to a particular exculpatory version of the episode
under consideration. The prosecutor did not apprise the grand
jurors of the defendants request, and the grand jury subsequently
indicted the defendant without hearing the defendants testimony.
We must decide whether, under these circumstances, a
prosecuting attorney has a duty to forward the defendants request
to the grand jurors so that they, themselves, can decide whether
they wish to hear the defendants testimony.
Alaska Criminal Rule 6(q), as interpreted in Frink v.
State, 597 P.2d 154 (Alaska 1979), already obliges prosecutors to
present exculpatory evidence to the grand jury. But, for this
purpose, the term exculpatory has been defined narrowly; it
refers only to evidence that tends, in and of itself, to negate
the defendants guilt.1 For the reasons explained here, we
conclude that this remains the proper scope of a prosecutors duty
to apprise the grand jury of evidence potentially favorable to
the defendant. Criminal Rule 6(p) imposes no additional duty on
a prosecutor to apprise the grand jury of evidence favoring the
defendant even if this evidence consists of the defendants own
proposed testimony.
In the present case, the defendants proposed testimony
did not, in and of itself, tend to negate the defendants guilt.
We therefore conclude that the prosecutor was not required to
notify the grand jury that the defendant wished to offer this
testimony.
Underlying facts
Shortly before midnight on October 15, 2003,
Brian and Tamara Walker, the owners of Acme Towing and
Recovery, drove their tow truck to the residence of
Neil Michael Cameron; the Walkers had come to repossess
Camerons Chevy Suburban. While Mr. Walker was
preparing to hitch the Suburban to the tow truck,
Cameron came out of his house, armed with an assault
rifle. Cameron pointed this weapon at the Walkers and
told them that they had three seconds to leave his
property. The Walkers got back into their tow truck
and drove away. They then reported this incident to
the police. A short time later, the police went to
Camerons residence, interviewed him, and then arrested
him on two counts of third-degree assault.
Because third-degree assault is a felony,2
the district attorneys office was obliged to obtain a
grand jury indictment to prosecute these charges.3
Before the grand jury met to consider Camerons case,
Camerons attorney notified the district attorneys
office that Cameron wished to testify at the grand jury
hearing. According to the defense attorney, Cameron
would testify that he had indeed threatened the
Walkers, but that he had done so because he was
attempting to prevent a nighttime trespass on his
property and what appeared to be [the] theft of his
vehicle.
The assistant district attorney handling
Camerons case did not respond to Camerons request, nor
did he apprise the grand jury that Cameron wished to
testify.
The grand jury heard testimony from three
witnesses: the Walkers, and a police officer who went
to Camerons house and interviewed him about the
incident. According to this police officer, the
Walkers tow truck was clearly marked with their towing
company logo, and the Walkers attempt to hitch the
Suburban to their tow truck occurred in a well-lit area
in plain view of Camerons house. Moreover, Cameron
admitted to the officer that he knew that the Suburban
could be repossessed. Based on this testimony, the
grand jury indicted Cameron for third-degree assault.
Cameron asked the superior court to dismiss
this indictment because the prosecutor failed to
apprise the grand jurors of Camerons request to appear
before them and testify. Cameron conceded that he had
no right to demand to testify before the grand jury.
However, Cameron contended that once he notified the
district attorneys office that he wished to testify,
the prosecutor had no authority to unilaterally decide
not to allow Cameron to testify. Rather, Cameron
argued, the prosecutor had a duty to inform the grand
jurors of Camerons request, so that the grand jurors
themselves could decide whether they wished to hear
from him.
Superior Court Judge Michael L. Wolverton
agreed with Cameron that, after a putative defendant
notifies the district attorneys office of their desire
to testify before the grand jury, it is the grand jury
and not the district attorneys office who must decide
whether to allow the defendant to testify. Thus, Judge
Wolverton concluded, a prosecutor is duty-bound to
forward the defendants request to the grand jury and to
let the grand jurors decide whether they wish to hear
from the defendant. Because the prosecutor in Camerons
case had not done this, Judge Wolverton dismissed
Camerons indictment.
The State now appeals this ruling, and
Cameron defends the superior courts dismissal of the
indictment on two bases.
Cameron argues that his proposed testimony
was exculpatory evidence, and that therefore the
prosecutor violated Alaska Criminal Rule 6(q), as
interpreted in Frink, by failing to apprise the grand
jury of Camerons proposed testimony.
(This was not the rationale that Judge
Wolverton relied on when he dismissed the indictment,
but Cameron, as the appellee, may defend the superior
courts decision on any basis revealed by the record.4)
Cameron also argues that, regardless of
whether his proposed testimony constituted exculpatory
evidence for purposes of Criminal Rule 6(q), the
prosecutor violated Criminal Rule 6(p) by failing to
apprise the grand jury that Cameron wished to testify,
so that the grand jurors could decide whether they
wished to hear from Cameron.
Was Camerons proposed testimony exculpatory evidence
for purposes of the Frink rule?
Alaska Criminal Rule 6(q) states: When the
grand jury has reason to believe that other available
evidence will explain away the charge, it shall order
[this] evidence to be produced and for that purpose may
require the prosecuting attorney to subpoena witnesses.
On its face, this provision of Criminal Rule
6(q) seems to place a duty on the grand jury rather
than on the prosecutor. But in Frink v. State, our
supreme court interpreted the rule to mean that a
prosecutor has a duty to apprise the grand jury of
evidence [that] will explain away the charge:
A requirement that the prosecutor
present exculpatory evidence to the grand
jury is implicit in the mandate of Criminal
Rule 6(q). The grand jury cannot be expected
to call for evidence of which it is kept
ignorant. The vital function of the grand
jury is protection of the innocent against
oppression and unjust prosecution. The grand
jury cannot fulfill this function unless it
hears evidence tending to refute, as well as
establish, guilt. It is the prosecutor who
mainly presents evidence to the grand jury,
and if the prosecutor does not present
exculpatory evidence to the grand jury, it
probably will not hear such evidence.
Frink, 597 P.2d at 165 (citations, footnotes,
and internal quotations omitted).
At the same time, however, the
supreme court indicated that the prosecutors
duty to present exculpatory evidence to the
grand jury did not encompass a duty to
present all evidence tending to cast doubt on
the governments case:
[T]he prosecutors obligation to present
exculpatory evidence does not turn the
prosecutor into a defense attorney; the
prosecutor does not have to develop evidence
for the defendant [or] present every lead
possibly favorable to the defendant.
Id. at 166. The following year, in Preston
v. State, 615 P.2d 594 (Alaska 1980), the
supreme court explained that this narrow
definition of exculpatory evidence was
intended to prevent grand jury proceedings
from turning into a mini-trial.5
In our own cases interpreting Frink
and Preston, we have followed the principle
that evidence is exculpatory for purposes of
Criminal Rule 6(q) and the Frink rule only if
[the] evidence ... tends, in and of itself,
to negate the defendants guilt.6
This narrow definition strikes a
balance between the grand jurys two main
functions. A grand jury is to authorize the
trial of a defendant when the government has
established a probability of the defendants
guilt.7 But at the same time, the grand jury
is to shield a defendant from trial when, in
the words of Frink, the defendant has been
subjected to unjust prosecution. The facts
of Camerons case illustrate a situation in
which these two goals might appear to
conflict.
Taking the grand jury evidence and
the inferences to be drawn from it in a light
favorable to the States case, the State
established a probability of Camerons guilt
a probability that Cameron understood that
the Walkers had come to repossess the
vehicle, and that he therefore committed
assault when he threatened them with a rifle.
According to the States evidence, the Walkers
were driving a tow truck that had a light bar
on top of the cab, and their truck was
clearly marked with their company logo. The
Suburban that the Walkers had come to
repossess was parked at the foot of Camerons
front stairs, and the Walkers were in the
process of hitching the vehicle to their tow
truck when Cameron came out of the house and
stood at the top of the stairs, some six feet
above them. The police officer who visited
Camerons house testified that anyone standing
at the top of the stairs would have been able
to see over the top of the Suburban and
observe the tow truck with its light bar on
top.
But Cameron was apparently willing
to testify under oath that he did not
understand the Walkers purpose, and that he
thought that the Walkers were car thieves.
Assuming that neither the States position nor
Camerons position is implausible on its face,
should a grand jury confronted with this type
of factual dispute attempt to resolve it for
themselves? Or should the grand jurors leave
that task for a trial jury?
We conclude that the question of
Camerons state of mind when he threatened the
Walkers with his rifle is the type of issue
that should be left to the trial jury. We
derive this conclusion from the historical
function of the grand jury, and from our
supreme courts admonition that grand jury
proceedings are not intended to be a mini-
trial.
Under English common law, the grand
jury normally heard only the case against the
defendant. William Blackstone, in his
Commentaries on the Laws of England,
explained that the grand jury heard only the
prosecutions side of the case because the
finding of an indictment is only in the
nature of ... an accusation, which is
afterwards to be tried and determined; and
the grand jury are only to enquire ...
whether there is sufficient cause to call
upon the [person] to answer it.8
Alaska has altered this common-law
rule. Our Criminal Rule 6(q), as interpreted
in Frink, requires the grand jury to hear
and the prosecutor to present evidence
which, in and of itself, tends to negate the
defendants guilt.
One could argue that Camerons
proposed testimony directly negated his
guilt: Cameron was prepared to testify that
he did not know that the Walkers had come to
repossess his vehicle, and that he believed
instead that they were attempting to steal
it. This proposed testimony was certainly
exculpatory as that word is normally used.
However, Cameron did not dispute
the essential facts of the encounter in
particular, his act of threatening the
Walkers with his assault rifle and forcing
them to leave his property. The disputed
issue was Camerons state of mind when he did
so.
To resolve this issue, the grand
jury would have to weigh the competing
inferences that could be drawn from the
circumstances of the encounter, and the grand
jury would also have to assess the personal
credibility of the witnesses who testified
about this encounter.
Our supreme court has declared that
Criminal Rule 6(q) was not intended to turn
grand jury proceedings into a mini-trial of
this sort. Other courts with analogous
statutes or rules have also construed them to
avoid such a result. For example, in State
v. Evans, 799 A.2d 708 (N.J. App. 2001), the
Appellate Division of the New Jersey Superior
Court ruled that a notarized letter from a co-
defendant, asserting the defendants
innocence, did not constitute clearly
exculpatory evidence for grand jury purposes.
The court explained:
Clearly exculpatory evidence ... must carry
[its own] indicia of reliability ... [so that
it] is capable of complete consideration by
the grand jury without the need of any
extrinsic information also being supplied.
Clearly exculpatory evidence is also
evidence which does not require the grand
jurors to engage in any extensive weighing of
credibility factors that could substantially
affect the value of the evidence. Any
evidence that requires such a process would
serve to alter the well-recognized function
of the grand jury, transforming it from an
accusative [body] to an adjudicative ...
body.
Evans, 799 A.2d at 717-18.
Based on these considerations, we
conclude that Camerons proposed testimony was
not the type of exculpatory evidence whose
presentation is required by Criminal Rule
6(q).
Even though Camerons proposed testimony was not
exculpatory evidence for purposes of Criminal Rule
6(q), was the prosecutor nevertheless obliged to
inform the grand jurors of Camerons desire to
testify, and to let the grand jurors decide
whether to hear his testimony?
Alaska Criminal Rule 6(p) declares: Although
the grand jury has no duty to hear evidence on the
behalf of the defendant, it may do so. In Frink, the
Alaska Supreme Court construed Criminal Rules 6(p) and
6(q) as a complementary pair: together, the two rules
mean that the grand jury may hear evidence on behalf of
the defendant, [but the grand jury] has no duty to do
so, ... except to the extent required by Criminal Rule
6(q).9
In the preceding section of this opinion, we
concluded that Camerons proposed testimony was not the
kind of exculpatory evidence whose presentation is
required by Criminal Rule 6(q). Thus, the grand jury
had no obligation to hear Camerons testimony. However,
under Criminal Rule 6(p), the grand jury had the
discretion to allow Cameron to present his explanation
of his actions.
In Frink, the supreme court held that even
though Criminal Rule 6(q) is worded so as to impose a
duty on the grand jury to order the production of
exculpatory evidence, that rule implicitly imposes a
correlative duty on the prosecutor to present the
exculpatory evidence to the grand jury, or at least to
inform the grand jury of its existence and its nature
for [t]he grand jury cannot be expected to call for
evidence of which it is kept ignorant.10
In Camerons case, Judge Wolverton interpreted
Criminal Rule 6(p) in a similar manner. That is, even
though Rule 6(p) speaks only of the grand jurys
discretionary power to hear evidence on behalf of the
defendant, Judge Wolverton concluded that Rule 6(p)
imposes a duty on prosecutors: when a prosecutor knows
that the defendant wishes to present evidence to the
grand jury, Rule 6(p) imposes a duty on the prosecutor
to notify the grand jury of the evidence that the
defendant wants to present, and to let the grand jury
decide whether it wishes to hear this evidence.
In reaching this conclusion, Judge Wolverton
relied on the supreme courts decision in Webb v. State,
580 P.2d 295 (Alaska 1978). Webb is the only reported
Alaska case, other than Frink, to discuss Criminal Rule
6(p).
The defendant in Webb was charged with being
an accessory after the fact to murder conduct that
would now be hindering prosecution in the first degree
under AS 11.56.770. Webb contended that he had helped
to cover up the murder only because the murderers
threatened to kill him too.11 Webb notified the grand
jury prosecutor that he wished to appear before the
grand jury and present this defense of duress.12 (The
supreme courts opinion does not explain whether this
defense would have been presented through Webbs own
testimony, or the testimony of others, or both.)
However, Webb was indicted without being allowed to
present his defense to the grand jury.
On appeal, Webb argued that his indictment
was invalid because the prosecutor refused to let him
present his defense to the grand jury. The supreme
court rejected this claim because it was not supported
by the facts of the case. The record showed that the
prosecutor informed the grand jury of Webbs request,
and it was the grand jurors who decided that they did
not wish to hear Webbs explanation of his conduct.13
In the supreme courts words, The grand jury transcript
len[t] no support whatever to [Webbs] claim that it was
the prosecutor who prevented the grand jury from
hearing Webb.14
Judge Wolverton interpreted Webb as meaning
that the indictment would indeed have been invalid if
the prosecutor had failed to inform the grand jurors of
Webbs desire to present a duress defense. But the
supreme court did not say this. Moreover, given the
facts of Webb, it was not necessary for the supreme
court to decide this question of law. We read the Webb
decision as saying only that, even if Criminal Rule
6(p) were interpreted to require the prosecutor to
forward Webbs request to the grand jury, Webb would not
be entitled to relief because the prosecutor did just
that.
Now, in Camerons case, we are directly
confronted with the legal issue that the supreme court
did not have to decide in Webb: When a defendant (or
the defendants attorney) informs the prosecutor of
their desire to present evidence to the grand jury,
does Criminal Rule 6(p) implicitly impose a duty on the
prosecutor to notify the grand jury and to let the
grand jurors decide whether to hear this evidence?
Cameron asks us to construe Rule 6(p) to mean
that, whenever the target of a grand jury proceeding
indicates the desire to present a defense (either
personally or through the testimony of others), the
prosecutor is obliged to initiate a conversation with
the grand jurors and ask them to decide whether they
wish to hear the proposed defense testimony. But Rule
6(p) merely states that the grand jury may hear
evidence on the behalf of the defendant. The rule does
not specify whether it is completely up to the grand
jurors to decide whether they wish to seek input from
the defendant, or whether instead the defendant has a
right to force the grand jurors to discuss this issue
and expressly vote on whether to hear evidence favoring
the defendant.
If we construed Criminal Rule 6(p) in the
manner Cameron proposes, this would be a departure from
the common law. As explained above, grand juries
traditionally heard only the governments side of the
case because the grand jury has no power to decide
guilt or innocence, but only to decide whether someone
should be brought to trial. This rule was reiterated
in one of Americas earliest reported court decisions on
this subject, Respublica v. Shaffer.15
In Shaffer, a representative of the defendant
gave the grand jury a list of eleven witnesses who were
purportedly ready to offer exculpatory testimony. The
attorney general sought a ruling from the chief justice
of Pennsylvania as to whether he was obliged to summon
these defense witnesses to the grand jury. The chief
justice responded:
Were the proposed examination of
witnesses, on the part of the Defendant, to
be allowed, the long established rules of law
and justice would be at an end. ... If [the
grand jury were] to enquire, not only upon
what foundation the charge is made, but,
likewise, upon what foundation it is denied,
[the grand jury would], in effect, usurp the
jurisdiction of the Petty Jury [and]
supercede the legal authority of the court
... .
Respublica v. Shaffer, 1 U.S. (1 Dall.) at
236, 1 L.Ed. at 116, 1788 WL 181.
This rule continues to govern grand
jury practice in most American jurisdictions
that require prosecution by indictment. For
instance, the Supreme Court of Hawaii
recently declared that [t]he function of a
grand jury to protect against unwarranted
prosecution does not entail a duty to weigh
the prosecutions case against that of the
defense[.]16 And the United States Supreme
Court has rejected various attempts [to]
alter the grand jurys historical role [by]
transforming it from an accusatory body
[into] an adjudicatory body (i.e., a body
that sits to determine guilt or innocence).17
Moreover, prosecutors have
traditionally had sole discretion to choose
the evidence to be presented to the grand
jury.18 As we discussed in the preceding
section of this opinion, Alaska Criminal Rule
6(q) alters the grand jurys role, and the
prosecutors traditional evidentiary
discretion, by requiring the presentation of
exculpatory evidence. But Criminal Rule 6(q)
contains an express directive to the grand
jury: When the grand jury has reason to
believe that other available evidence will
explain away the charge, it shall order
[this] evidence to be produced. In contrast,
the rule at issue in Camerons case, Criminal
Rule 6(p), does not direct the grand jury to
do anything, nor does the rule clearly alter
grand jury practice in the manner Cameron
suggests (i.e., by giving defendants the
power to initiate grand jury discussions on
the question of whether to hear defense
evidence).
Cameron points out that the United
States Department of Justice has adopted a
policy which calls upon United States
Attorneys to allow the targets of grand jury
investigations to testify before the grand
jury upon request, so long as the targets
testimony will not delay the investigation or
otherwise burden the grand jury.19 But this
is merely the policy decision of one
prosecuting agency. Even assuming that we
shared the Department of Justices views about
the wisdom of such a policy (an issue on
which we express no opinion), we would not
have the authority to force Alaska
prosecutors to follow this same policy simply
because we thought it might be a good thing
to do.
Cameron also points out that some
half-dozen states have enacted statutes or
court rules that explicitly give potential
defendants the right to testify before the
grand jury. For example, New Mexico Statute
31-6-11(C) declares that the targets of grand
jury investigations shall be notified of
their target status and shall be given an
opportunity to testify, if they desire to do
so, unless the presiding judge determines (by
clear and convincing evidence) that
notification of the target may result in the
targets flight, or may endanger other
persons, or may give rise to an attempt to
obstruct justice.
But the existence of such laws in a
handful of states underscores the difficulty
in Camerons position.
At common law, the grand jury had
no obligation to consider evidence on behalf
of the defendant. This type of obligation
was seen as inconsistent with the grand jurys
function because the grand jury was not to
weigh the prosecutions case against the
defendants case, but rather to decide whether
the prosecutions case was sufficiently well-
founded to warrant a trial. A few states,
such as New Mexico, have enacted laws that
expressly alter the grand jurys obligation in
this regard. But the Alaska Supreme Court
(which has a legislative function with regard
to court rules20) has not done so or, at
least, has not clearly done so.
Camerons contention in this appeal
that the grand jury must be apprised of a
defendants wish to present evidence, and that
the grand jurors must then affirmatively
decide whether to hear the proposed defense
evidence is based on one proposed
interpretation of a court rule that is, at
best, ambiguous on this point. Moreover,
Camerons proposed interpretation of Criminal
Rule 6(p) would alter the common-law rule.
When courts are presented with a question
concerning the proper construction of a
statute or rule that potentially modifies the
common law, courts should interpret the
statute or rule so as to preserve the
pre-existing common law unless the
legislature or, in this case, the supreme
court has clearly indicated its purpose to
change that law.21 This rule of construction
leads us to reject Camerons proposed
interpretation of Rule 6(p).
It may be that Camerons suggested
rule would be a beneficial amendment to
Alaskas current grand jury law. But it would
be an amendment. Camerons suggested rule of
procedure is not required by any existing
Alaska statute, rule, or appellate court
decision.
Accordingly, we REVERSE the
decision of the superior court, and we
reinstate Camerons indictment.
_______________________________
1Cathey v. State, 60 P.3d 192, 195 (Alaska App. 2002),
quoting State v. McDonald, 872 P.2d 627, 639 (Alaska App. 1994).
2See AS 11.41.220(d).
3See Alaska Constitution, Article I, 8, and Alaska Criminal
Rule 7(a)-(b).
4Torrey v. Hamilton, 872 P.2d 186, 188 (Alaska 1994);
Demoski v. New, 737 P.2d 780, 786 (Alaska 1987); Millman v.
State, 841 P.2d 190, 195 (Alaska App. 1992); Russell v.
Anchorage, 626 P.2d 586, 588 n. 4 (Alaska App. 1981).
5Preston, 615 P.2d at 602.
6Cathey v. State, 60 P.3d 192, 195 (Alaska App. 2002); State
v. McDonald, 872 P.2d 627, 639 (Alaska App. 1994).
Accord, Hughes v. State, 56 P.3d 1088, 1090 (Alaska
App. 2002); Mustafoski v. State, 954 P.2d 1042, 1045
(Alaska App. 1998).
7Sheldon v. State, 796 P.2d 831, 836-37 (Alaska App. 1990).
8Sir William Blackstone, Commentaries on the Laws of England
(First Edition, Clarendon Press, Oxford, 1765-69),
Fourth Book, Of Public Wrongs, Chapter 23, Of the
Several Modes of Prosecution, p. 300.
The complete text of this first edition of the Commentaries
is available online from the Yale University Law
Schools Avalon Project. See
http://www.yale.edu/lawweb/avalon/blackstone/blacksto.htm
9Frink, 597 P.2d at 165 n. 18.
10Id. at 165.
11Webb, 580 P.2d at 296-97.
12Id. at 299.
13Id.
14Id.
151 U.S. (1 Dall.) 236, 1 L.Ed. 116, 1788 WL 181 (Ct. of
Oyer & Terminer, Phila. 1788).
16State v. Wong, 40 P.3d 914, 920 (Haw. 2002).
17United States v. Williams, 504 U.S. 36, 51; 112 S.Ct.
1735, 1744; 118 L.Ed.2d 352 (1992).
18See Wurster v. State, 708 N.E.2d 587, 593 (Ind. App.
1999).
19United States Attorneys Manual (August 2002), 9-11.152.
20See Alaska Constitution, Article IV, 15.
21Lee v. Anchorage, 70 P.3d 1110, 1112-13 (Alaska App.
2003).
