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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

Cameron v. State (11/30/2007) sp-6207, 171 P3d 1154

     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,


) Supreme Court No. S- 11975
Petitioner, )
) Court of Appeals No. A-8785
) Superior Court No. 3AN-03-11027 CR
v. )
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

          Before:    Fabe,  Chief  Justice,   Matthews,
          Bryner,  and Carpeneti, Justices.  [Eastaugh,
          Justice, not participating.]

          CARPENETI, Justice.

          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.
     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.
          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
     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.

          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

     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

     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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