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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Cameron v. State (11/30/2007) sp-6207
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| NEIL CAMERON, | ) |
| ) Supreme Court No. S- 11975 | |
| Petitioner, | ) |
| ) Court of Appeals No. A-8785 | |
| ) Superior Court No. 3AN-03-11027 CR | |
| v. | ) |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| ) | |
| Respondent. | ) No. 6207 - November 30, 2007 |
| ) | |
Petition for Hearing from the Court of
Appeals of the State of Alaska, on Appeal
from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Michael L. Wolverton, Judge.
Appearances: Wayne Anthony Ross, Ross &
Miner, P.C., for Petitioner. Kenneth J.
Diemer, Kenneth M. Rosenstein Assistant
Attorneys General, Anchorage, and David W.
M rquez, Attorney General, Juneau, for
Respondent.
Before: Fabe, Chief Justice, Matthews,
Bryner, and Carpeneti, Justices. [Eastaugh,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
I. Neil Cameron, who was accused of committing a felony,
asked the district attorneys office to inform the grand jury that
he wished to testify before it. The prosecutor in charge of
Camerons case declined to do so and Cameron was indicted. The
superior court dismissed the indictment but the court of appeals
reinstated it. We are now asked to decide if a prosecutor, who
has been informed of a potential defendants desire to testify
before the grand jury, must inform the grand jury of that
request. We conclude that the Alaska Rules of Criminal Procedure
require a prosecutor to inform the grand jury of the accuseds
request to testify. We therefore reverse the court of appealss
decision and vacate Camerons indictment.
II. FACTS AND PROCEEDINGS
A. Facts
Shortly before midnight on October 15, 2003, two tow
truck operators attempted to repossess Camerons Chevy Suburban,
which was parked in front of his home in Anchorage. Cameron
appears to have known that his vehicle could be repossessed, but
was not notified that repossession was imminent. As the tow
truck operators positioned their tow truck behind Camerons
vehicle, Cameron awoke. Seeing two unknown individuals acting
suspiciously near his vehicle, he armed himself with a rifle and
stepped onto his front porch. From the porch Cameron pointed the
rifle at the tow truck operators and informed them that they had
three seconds to get out of his yard. The operators retreated to
their tow truck and drove away.
In late October 2003 Cameron was charged by information
with two counts of third-degree assault, a felony.1 On November
10, 2003, Camerons attorney sent a letter to the assistant
district attorney requesting that Cameron be afforded the
opportunity to appear and testify before the grand jury. The
letter explained that Camerons actions represented an attempt[]
to prevent a nighttime trespass on his property and what appeared
to be a theft of his vehicle. The district attorneys office did
not respond to this letter.
B. Proceedings
On December 8, 2003, the prosecutor presented the case
against Cameron to the grand jury. The prosecutor presented
testimony from both tow truck operators and the investigating
police officer. At no point during the grand jury proceedings
did the prosecutor call Cameron as a witness or inform the grand
jury of Camerons request to testify. During the grand jury
proceedings, grand jurors asked the prosecutor several questions
that showed their interest in Camerons state of mind. One grand
juror asked a question about the legal consequences of Cameron
being in fear when he exited his home. Another asked the
prosecutor if one of the witnesses could testify as to whether
Cameron had been able to identify the repossessors truck as a tow
truck. The prosecutor stated that he would direct the witnesses
not to speculate into the defendants mind set. The grand jury
indicted Cameron.
Cameron moved to dismiss the indictment in the superior
court. He argued that the prosecutor improperly failed to inform
the grand jury that he requested to appear before it. Cameron
asserted that he should have been allowed to testify about his
fear, and why he armed himself before confronting the apparent
car thieves. Superior Court Judge Michael L. Wolverton granted
Camerons motion, concluding that Alaska Rule of Criminal
Procedure (Criminal Rule) 6(p) and Webb v. State2 required the
prosecutor to inform the grand jury of an accuseds desire to
appear before it.
The state appealed, arguing that neither Webb nor the
Criminal Rules required a prosecutor to inform the grand jury of
an accuseds request to testify. In a published opinion, the
court of appeals agreed with the state and reinstated Camerons
indictment.3 In so doing, the court held that the prosecutor did
not have a duty under Criminal Rule 6(q) to present Camerons
proposed testimony because the testimony was not exculpatory.
The court reasoned that requiring the presentation of evidence
about the accuseds state of mind would require the grand jury to
weigh competing inferences and to assess the personal credibility
of the witnesses who testified about [an] encounter. Asking the
grand jury to make these determinations, the court explained,
would distort the grand jury process and possibly turn grand jury
proceedings into mini-trials. The court of appeals concluded
that testimony relating to an accuseds state of mind was not the
type of exculpatory evidence whose presentation is required by
Criminal Rule 6(q).
We granted Camerons petition for hearing of the court
of appealss decision in order to address whether a prosecutor has
a duty under the Criminal Rules to inform the grand jury of an
accuseds request to testify.
III. STANDARD OF REVIEW
Whether the trial court applied the correct legal rule
is a question of law that we review de novo using our independent
judgment.4 When reviewing questions of law we adopt the rule of
law that is most persuasive in light of precedent, reason, and
policy.5
IV. DISCUSSION
A. Grand Jury Proceedings in Alaska
A. In Alaska felony charges must be initiated by grand jury
indictment unless the defendant waives indictment.6 This
requirement ensures that a group of citizens will make an
independent determination about the probability of the accuseds
guilt before the accused suffers any of the grave inconveniences
which are apt to ensue upon the return of a felony indictment.7
The grand jurys decision whether to indict requires that it act
as both a shield and sword of justice.8 On the one hand, the
grand jury acts as an investigatory and accusatory body, tasked
with determining whether criminal proceedings against the accused
should be instituted.9 On the other hand, the grand jury plays a
protective role by operat[ing] to control abuses by the
government and protect[ing] the interests of the accused. 10 We
have previously noted that the protection of the innocent against
oppression and unjust prosecution ranks among the grand jurys
vital function[s].11 This case focuses primarily on the grand
jurys protective function.
Grand jury proceedings are fairly straightforward. A
prosecutor prepares an indictment and presents evidence in
support of the indictment to the grand jury through witnesses the
prosecutor examines.12 During the grand jury proceedings, the
prosecutor act[s] as the grand jurys legal advisor, advising it
of the applicable law and answering legal questions that the
grand jurors have.13 The grand jury itself may question witnesses
and may request that additional witnesses be brought before it.14
The grand jury is instructed to issue an indictment when all the
evidence taken together, if unexplained or uncontradicted, would
warrant a conviction of the defendant.15
The Criminal Rules contain several provisions designed
to strengthen the grand jurys protective function. Criminal Rule
6(p)16 permits grand juries to review evidence favoring the
accused, although it does not require them to do so. When the
jury is aware of evidence that will explain away the charge,
Criminal Rule 6(q) states that the grand jury shall order such
evidence to be produced and for that purpose may require the
prosecuting attorney to subpoena witnesses. Moreover, the
Criminal Rules have restricted the admissibility of hearsay
evidence in grand jury proceedings in order to promote the
reliability of the evidence that the grand jury may consider.17
Our interpretation of the Criminal Rules has further
strengthened the grand jurys protective role. Because the
prosecutor should seek justice, not simply indictment or
conviction, we held in Frink that Criminal Rule 6(q) requires the
prosecutor to present exculpatory evidence to the grand jury.18
We explained that if the prosecutor were not required to present
exculpatory evidence, the grand jury probably w[ould] not hear
such evidence19 because [t]he grand jury cannot be expected to
call for evidence of which it is kept ignorant.20
In sum, both the Criminal Rules and this court have
taken special care to preserve the grand jurys ability to
ensur[e] fair and effective law enforcement.21 This attention to
the grand jurys protective role helps prevent the grand jury from
becoming a mere rubber stamp for the prosecutor22 or an
administrative arm of the district attorneys office.23 With this
background in mind, we turn to Camerons claims.
B. Under the Criminal Rules the Prosecutor Had a Duty To Inform
the Grand Jury of Camerons Request To Testify.
Relying on Criminal Rule 6(p) and this courts decision
in Webb v. State,24 the superior court concluded that the
prosecutor had a duty to inform the grand jury of Camerons
request to testify. The court of appeals held that the Criminal
Rules did not recognize such a duty.25 In his briefing, Cameron
suggests that policy considerations justify the recognition of a
duty to disclose an accuseds request to testify. The state
argues that no such duty exists because Criminal Rules 6(i) and
6(p) do not explicitly require the prosecutor to inform the grand
jury of the accuseds request to testify.
The issue whether the Criminal Rules recognize a duty
to inform the jury of an accuseds request to testify is an issue
of first impression for this court. For the reasons explained
below, we conclude that the Criminal Rules require the prosecutor
to inform the grand jury of an accuseds request to testify.
Under Criminal Rule 6(i)26 the prosecutor acts as the
grand jurys legal advisor, informing the grand jury of the legal
standards applicable to the case before it and answering legal
questions that the grand jury may have. As we noted in Coleman
v. State,27 a well-informed prosecutor is in a position to furnish
guidance to the grand jury on the law and the weight of the
evidence and should be free to do so whether this leads to a
determination to indict or not to indict.28 Importantly, because
grand jury proceedings are not adversarial and are not conducted
before a judge, the prosecutor is the grand jurys sole legal
advisor.29 Thus, the prosecutor, and only the prosecutor, is both
in a position to remind the grand jury of the extent of its
investigatory powers and has a mandate to do so.
The transcript of the grand jury proceedings convinces
us that the prosecutor did not adequately fulfill his advisory
role. The grand jurors questions to the prosecutor and to the
witnesses evinced a strong desire to hear testimony from Cameron
about his state of mind. One grand juror asked a witness, [s]o
[Cameron] had no idea if you were trying to steal [the vehicle]
. . . you just went and started to take the vehicle? Another
juror asked the prosecutor what if [Cameron] felt like he was in
fear? Finally, a grand juror asked the prosecutor whether a
witness could be recalled to testify as to whether Cameron was
able to identify the repossessors truck as being a tow truck.
That the prosecutor recognized that these questions involved
Camerons state of mind is evidenced by his explanation that
witnesses cant speculate into what Mr. Cameron was thinking and
his decision to provide the grand jury with the legal
requirements for self defense, which focuses on the
reasonableness of the accuseds belief that the use of deadly
force was necessary.30 The grand jurors questions clearly evinced
substantial interest in hearing testimony from Cameron about his
state of mind. Further, in light of the fact that Camerons
attorney had clearly and unconditionally requested that Mr.
Cameron [have] the opportunity to appear and testify before [the
grand jury], the prosecutor knew that Cameron would testify if
called as a witness.
The prosecutor should have informed the grand jury of
Camerons request to testify. As the grand jurys advisor, the
prosecutor should have reminded the grand jury that they had the
power under Criminal Rule 6(p) to hear evidence on the behalf of
a defendant and that the accused had offered to provide just such
evidence. The grand jurys power to hear evidence on behalf of
the accused allows the grand jury to fulfill a more active
investigatory role, which, in turn, helps ensure a more informed
grand jury that is better able to fulfill its protective
function.31 In order to fulfill his duties under Criminal Rule
6(i) and to give effect to Criminal Rule 6(p), the prosecutor
should have informed the grand jury that Cameron was willing to
testify and that the grand jury had the power to call Cameron as
a witness.
We have previously relied on the consequences of
prosecutorial inaction to recognize a prosecutorial duty under
the Criminal Rules. In Frink we noted that Criminal Rule 6(q)s
requirement that the grand jury hear evidence that will explain
away the charge would be empty if the prosecutor were not
required to inform the grand jury of the existence of such
evidence.32 This was so because if the prosecutor does not
present exculpatory evidence to the grand jury, [the grand jury]
probably will not hear such evidence.33 This reasoning is equally
applicable to the present case. Where the prosecutor, knowing of
the accuseds desire to testify, does not advise the grand jury of
its ability to hear evidence on the accuseds behalf, the grand
jury is unlikely to call the accused to testify however much it
may desire to do so.
Thus, we hold that under Criminal Rule 6(p), the
prosecutor must inform the grand jury whenever the accused
clearly and unconditionally indicates to the state that he or she
desires to testify before the grand jury. Once the prosecutor
has informed the grand jury of the accuseds desire to testify and
reminded the grand jury of its ability to call the accused as a
witness under Criminal Rule 6(p), the prosecutors advisory duty
under Criminal Rule 6(i) is fulfilled and the decision whether to
permit the accused to testify lies solely within the province of
the grand jury.34
We note in passing that many other states have seen fit
to go well beyond the duties that the Criminal Rules impose on
Alaska prosecutors and have instead recognized an accuseds right
to appear before the grand jury.35 And it is the official policy
of the United States Attorneys Office to ordinarily afford the
accused an opportunity to testify before the grand jury where he
or she so desires.36 These practices reflect the well-considered
belief that the grand jury system often benefits from hearing
testimony from the accused and that such testimony does not
disrupt the grand jurys accusatory role.
In sum, the prosecutor must inform the grand jury of
the defendants clear and unconditional request to testify. In
this case, the prosecutor may have been attempting to focus the
grand jurys attention to what he believed to be the salient legal
issues in the case, but by ignoring Camerons request to testify
and the grand jurors interest in hearing testimony about Camerons
state of mind, the prosecutor did not fulfill his advisory role
under Criminal Rule 6(i). Because we do not believe that this
error was harmless, Camerons indictment must be vacated.
V. CONCLUSION
The judgment of the court of appeals is REVERSED, the
judgment of the superior court is REINSTATED, and Neil Camerons
indictment is DISMISSED.
_______________________________
1 AS 11.41.220(a)(1)(A).
2 580 P.2d 295 (Alaska 1978).
3 State v. Cameron, 113 P.3d 687, 691 (Alaska App. 2005).
4 James v. State, 84 P.3d 404, 406 (Alaska 2004) (quoting
Martin v. Martin, 52 P.3d 724, 726 (Alaska 2002)).
5 Alderman v. Iditarod Props., Inc., 32 P.3d 373, 380
(Alaska 2001) (citing Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska
1979)).
6 Alaska Const. art. I, 8 (No person shall be held to
answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a grand jury . . . .); see also AS
12.80.020; Criminal Rule 7(a) (felony offenses shall be
prosecuted by indictment, unless indictment is waived).
7 State v. Gieffels, 554 P.2d 460, 465 (Alaska 1976).
8 Preston v. State, 615 P.2d 594, 602 (Alaska 1980).
9 United States v. Calandra, 414 U.S. 338, 343-44 (1974).
10 Preston, 615 P.2d at 602 (quoting Coleman v. State, 553
P.2d 40, 47 (Alaska 1976); accord Calandra, 414 U.S. at 343
(grand jury responsible for the protection of citizens against
unfounded criminal prosecutions).
11 Frink v. State, 597 P.2d 154, 165 (Alaska 1979)
(quoting Gieffels, 554 P.2d at 464).
12 Criminal Rule 6(i).
13 Coleman, 553 P.2d at 47-48 (Alaska 1976). See also
Criminal Justice Standards Comm., American Bar Assn, ABA
Standards for Criminal Justice: Prosecution and Defense Function,
3-3.5(a) at 63 (3d ed. 1993) (Where the prosecutor is authorized
to act as legal adviser to the grand jury, the prosecutor may
appropriately explain the law and express an opinion on the legal
significance of the evidence but should give due deference to its
status as an independent legal body.).
14 Criminal Rule 6(p), 6(q).
15 Criminal Rule 6(q).
16 Criminal Rule 6(p) provides: Although the grand jury
has no duty to hear evidence on the behalf of the defendant, it
may do so.
17 Criminal Rule 6(r) provides in relevant part: Except
[for three limited exceptions], hearsay evidence shall not be
presented to the grand jury absent compelling justification for
its introduction.
18 Frink, 597 P.2d at 164-65.
19 Id. at 165.
20 Id. (quoting Johnson v. Superior Court, 15 Cal. 3d 248,
251 (1975)).
21 See United States v. Calandra, 414 U.S. 338, 343
(1974).
22 See United States v. Al Mudarris, 695 F.2d 1182, 1188
(9th Cir. 1983).
23 State v. Gieffels, 554 P.2d 460, 465 (Alaska 1976).
But see Editorial, Do We Need Grand Juries?, N.Y. Times, Feb. 18,
1985 at A16 (quoting Chief Judge Sol Wachtler of New York Court
of Appeals as stating that district attorney has so much
influence over grand jury that district attorney could convince
grand jury to indict a ham sandwich).
24 580 P.2d 295 (Alaska 1978).
25 The court of appeals also held that the superior courts
reliance on Webb was misplaced. We agree. The accused in that
case, Webb, requested that the prosecutor inform the grand jury
that he wished to testify. Id. at 299. Because the prosecutor
did inform the grand jury of Webbs request to testify and of its
power to call Webb as a witness, the issue of whether the
prosecutor had a duty to disclose Webbs request was not before
the court. Id.
26 Criminal Rule 6(i) provides: The prosecuting attorney
shall prepare all indictments and presentments for the grand
jury, and shall attend their sittings to advise them of their
duties and to examine witnesses in their presence.
27 553 P.2d 40 (Alaska 1976) (quoting ABA Project on
Standards Relating to the Prosecution Function and the Defense
Function, 3.5 at 87 (Approved Draft 1971)).
28 Id. at 48.
29 Criminal Rule 6(e)(2) requires the court to charge the
jury with written instructions, which the court deems proper,
concerning the powers and duties of the grand jury. But the
courts instructions are general, not case-specific, and occur
only once, at the beginning of the grand jurys term; see Criminal
Rule 6(e)(2). And as the record in this case demonstrates, grand
jurors may not remember their powers and duties during the actual
grand jury proceedings.
30 AS 11.81.335.
31 See United States v. Mandujano, 425 U.S. 564, 573
(1976) (It is in keeping with the grand jurys historic function
as a shield against arbitrary accusations to call before it
persons suspected of criminal activity, so that the investigation
can be complete.)
32 Frink v. State, 597 P.2d 154, 165 (Alaska 1979).
33 Id.
34 Because Criminal Rule 6(p) is permissive, not
mandatory, the grand jury can decline to call the accused as a
witness. See Webb v. State, 580 P.2d 295, 299 (Alaska 1978).
Nevertheless, there still remains the prosecutors Criminal Rule
6(q) duty to present exculpatory evidence; accordingly, if the
accused possesses exculpatory evidence and has notified the state
that he or she wishes to testify, it is the duty of the
prosecutor to present that testimony, even if it is not requested
by the grand jury.
35 See, e.g., Ga. Code. Ann. 45-11-4(g) (West 2006) (The
accused shall have the right to appear before the grand jury to
make such sworn statement as he or she shall desire at the
conclusion of the presentation of the states evidence.); Nev.
Rev. Stat. 172.241(1) (West 2006) (A person whose indictment the
district attorney intends to seek . . . may testify before the
grand jury if he requests to do so and executes a valid waiver in
writing of his constitutional privilege against
self-incrimination.); N.M. Stat. Ann. 31-6-11(C) (West 2007)
([T]he target of a grand jury investigation shall be notified in
writing . . . [of] the targets right to testify.); cf. Colo.
Rev. Stat. 16-5-204(4)(l) (West 2007) (requiring grand jury or
prosecuting attorney to record reason for declining to hear
accused and allowing accused to petition court for hearing on
refusal)); Neb. Rev. Stat. 29-1410.01 (2006) (same).
36 U.S. Dept of Justice, U.S. Attorney Manual 9-11.152
(Sept. 2006) ([U]nder normal circumstances, where no burden upon
the grand jury or delay of its proceedings is involved,
reasonable requests by a subject or target of an investigation .
. . to testify personally before the grand jury ordinarily should
be given favorable consideration . . . .).
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