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Wassillie v. State (2/16/2018) sp-7222

            Notice:   This opinion is subject to correction before publication in the P                            ACIFIC  REPORTER.  

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                         THE SUPREME COURT OF THE STATE OF ALASKA                                              

ALVIN  E.  WASSILLIE,                                                  )  

                                                                       )          Supreme  Court  No.  S-16239  

                                   Petitioner,                        )           Court  of  Appeals  No.  A-11080  



                       v.                                              )          Superior Court No. 3AN-10-01901 CR  



STATE OF ALASKA,                                                                                         

                                                                       )          O P I N I O N  



                                                                       )          No. 7222 - February 16, 2018  



                          etition 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:  Josie Garton, Assistant Public Defender, and


                        Quinlan Steiner, Public Defender, Anchorage, for Petitioner.


                        Diana L. Wendlandt, Assistant Attorney General, and Jahna


                        Lindemuth, Attorney General, Anchorage, for Respondent.


                        Before:           Stowers,  Chief  Justice,  Maassen,  Bolger,  and

                                                                                                            *   [Winfree,


                        Carney, Justices, and Eastaugh, Senior Justice. 

                        Justice, not participating.]


                        MAASSEN, Justice.


                        BOLGER, Justice, with whom STOWERS, Chief Justice,


                       joins, dissenting in part.


            *           Sitting by assignment made under article IV, section 11, of the Alaska                                               

Constitution and Alaska Administrative Rule 23(a).                                

----------------------- Page 2-----------------------


                    A jury found a criminal defendant guilty of escaping from a halfway house,  


and the court of appeals affirmed his conviction. We granted a petition for hearing on the  


issue of whether the conviction should be overturned because of the invalidity of the  


grand  jury's  indictment.               The  defendant  argues  that  the  indictment  was  based  on  


inadmissible hearsay evidence - an incident report prepared by a staff member at the  


halfway house, relaying another resident's description of the defendant's conduct and  


introduced to the grand jury through the testimony of an uninvolved supervisor.  The  


State counters that the incident report falls under the business records exception to the  


hearsay rule, and that even if it is inadmissible hearsay the conviction should not be  


reversed because any error in the grand jury proceeding was later made harmless by the  


error-free trial.  


                    We hold that the incident report does not fall under the business records  


exception to the hearsay rule and should have been excluded.  Because the evidence was  


otherwise insufficient to support the grand jury's decision to indict, the indictment was  


invalid and the conviction must be reversed. We decline the State's invitation to overrule  


our precedent requiring this result.  We therefore reverse the court of appeals' decision  


affirming the conviction.1  




          A.        Facts  

                    In early 2010 Alvin Wassillie was serving out the remainder of a felony  


sentence at the Parkview Center halfway house in Anchorage.  On February 19 he left  


Parkview on a pass to look for a job.  Around the time of his return that afternoon a staff  


           1         We commend both parties' counsel for the excellence of their briefs and  



                                                              -2-                                                            7222  

----------------------- Page 3-----------------------

member saw someone toss a white bag through an open window into an upstairs room.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                

Other staff members searched the room and found a white bag with a bottle of vodka in                                                                                                                                                                                                                                                                                                                                                                                                                                                            


                                                                                   Parkview's security                                                                                                       manager, JoshuaHenry,reviewedfootagefromsecurity                                                                                                                                                                                                                                                 

cameras and identified Wassillie as the person who threw the bag (and presumably the                                                                                                                                                                                                                                                                                                                                                                                                                                                      

vodka) into the building.   Bringing alcohol into the facility is a violation of its rules, so                                                                                                                                                                                                                                                                                                                                                                                                           

Henry told Wassillie to wait in the lobby while he prepared a report and contacted the                                                                                                                                                                                                                                                                                                                                                                                                                                                   

Department of Corrections (DOC) to take Wassillie back to jail.                                                                                                                                                                                                                                                                                                                      

                                                                                   After waiting several hours in the lobby, Wassillie walked out of the facility.                                                                                                                                                                                                                                                                                                                                                                                               

Another inmate, Jason Lavin, reported Wassillie's departure to a staff member, and the                                                                                                                                                                                                                                                                                                                                                                                                                                                    

 staff confirmed from security videos and two headcounts that Wassillie had left without                                                                                                                                                                                                                                                                                                                                                                                                                     

 signing out.                                                                

                                                                                         Staff member Eric Dulany filled out the "Incident Report" form that is                                                                                                                                                                                                                                                                                                                                                                                  

      central to this case.                                                                                                  The report related Lavin's statement that Wassillie had walked out                                                                                                                                                                                                                                                                                                                                          

      of the facility and briefly described the staff's commencement of Parkview's escape                                                                                                                                                                                                                                                                                                                                                                                                                         

                                                                               2                 The  Parkview  staff  also  completed  an  absence  report,  in  which  they  


                                               2                                        The entire narrative of the incident report is as follows:                                                                                                                                                                                                                                         

                                                                                                                                  Wassillie Alvin was reported missing to myself when

                                                                                        I approached Lavan [sic] Jason about him wanting to fight

                                                                                         someone at 1930.  He reported that Wassillie Alvin was the

                                                                                        one that through [sic] the Vodka in his room in an attempt to

                                                                                        get him in trouble.                                                                                                       He also stated then [Wasillie] just left

                                                                                        through the front door at 1719[.] I checked Wassillie's room

                                                                                        and paged for him twice with no success . [Grygurko, another

                                                                                         staff member,] and I were doing the room searches on 501

                                                                                        and 201 at 1625 to 1655[.] [Grygurko] went straight upstairs

                                                                                        to continue the head count on second and third floors and I


                                                                                                                                                                                                                                                                          -3-                                                                                                                                                                                                                                                   7222

----------------------- Page 4-----------------------

initialed   and   time-stamped   a   series   of   actions   taken   as   part   of   the   standard   escape  


                        Police found Wassillie a few miles away several hours after he left and took                                               


him into custody.                He was taken to jail and later charged with second-degree escape.                                                       

            B.	 	       Proceedings  

                        A grand jury considered the charges in March 2010 and heard from two  


witnesses,  neither  of  whom  had  first-hand  knowledge  of  Wassillie's  conduct.                                                                  A  


probation officer testified that Wassillie had been serving a felony sentence while at  


Parkview.             Parkview's director,  Robert Graber,  testified  that when  an  inmate goes  


missing Parkview staff complete "a discharge summary report and a[n] escape report and  


an incident report which tells about the escape . . . within two hours of the . . . notice that  


a resident is missing."  He testified that copies of the reports are sent to the Department  


of Corrections and that the originals are placed in the inmate's Parkview file, which is  


kept for five years.  Graber testified that Parkview "regularly keep[s] and maintain[s]  


these [forms]."  With this foundation, the State presented to the grand jury the "resident  


discharge summary, incident reports, intake packet paperwork, [and an] escape report."4  


Graber testified about Wassillie's escape from the facility based on the information he  


            2		         (...continued) 


                        did the 15 min[.] walkthrough.  I attempted to call Josh and 


                        DID call Bob notifying him on [sic] the runaway at 1945. 


                        Building on lockdown[;] escape procedures started. 

            3 	         See AS 11.56.310(a)(1)(B).  


            4           Our  record,  and  a  submission  by  Wassillie's  counsel  following  oral  


argument, show that the grand jury exhibit contained the "Incident Report," a "Resident  


Discharge Summary," an "Absence Report," and several pages of intake paperwork.  


                                                                          -4-	 	                                                                 7222

----------------------- Page 5-----------------------

had obtained from the reports.                                                                     After considering this evidence the grand jury indicted                                                                                                 

Wassillie for second-degree escape, a felony.                                                                           

                                           Wassillie was tried in December 2010, but the jury was unable to reach a                                                                                                                                                               

verdict, and the superior court declared a mistrial.                                                                                                                 A month later Wassillie moved to                                                                          

dismiss the indictment, arguing in part that the prosecutor had improperly relied on                                                                                                                                                                                        

inadmissible hearsay at the grand jury proceeding. The court denied the motion without                                                                                                                                                                       


                                           Wassillie was tried again in April and May 2011. The jury heard testimony                                                                                                                                  

from Dulany, the Parkview employee who had prepared the incident report, and several                                                                                                                                                                           

other staff members with first-hand knowledge ofWassillie's departure fromthe facility.                                                                                                                                                                                                

The second jury returned a guilty verdict.                                                                                              

                                           Wassillie appealed.  He argued to the court of appeals that it was error to                                                                                                                                                         

deny his motion to dismiss the indictment because the indictment was based on Dulany's                                                                                                                                                                  

incident report, which was inadmissible hearsay.                                                                                                               The court of appeals held, however,   

that   the   report   "was  presumptively   admissible   under   the   business   records   hearsay  


exception" and affirmed Wassillie's conviction.                                                                                                                

                                           Wassillie petitioned for hearing.   We granted his petition so we could  


consider two questions:  first, whether the incident report was admissible as a business  


record under Alaska  Evidence Rule 803(6); and second, if it was not, whether the  


presentation of the incident report to the grand jury was necessarily harmless because of  


Wassillie's subsequent conviction following an error-free trial.  


III.                  STANDARDS OF REVIEW  


                                           "When the admissibility of evidence 'turns on a question of law, such as  


the "correct scope or interpretation of a rule of evidence," we apply our "independent  


                      5                     Wassillie v. State, 366 P.3d 549, 552-54 (Alaska App. 2016).  


                                                                                                                                      -5-                                                                                                                             7222  

----------------------- Page 6-----------------------


judgment." ' "              We apply the same standard of review to "constitutional issues of law,"                                            


 such as the scope of a party's right to indictment by grand jury.                                                                                

                                                                                                                         In exercising our  


independent  judgment  on  such  issues  "we  will  adopt  'a  reasonable  and  practical  


interpretation in accordance with common sense based upon "the plain meaning and  

                                                                                                           8  And in determining the  


purpose of the provision and the intent of the framers." ' " 

 appropriate remedy for an error in a grand jury proceeding, we will "adopt the rule of  


law that is most persuasive in light of precedent, reason, and policy."9  


IV.         DISCUSSION  

                        Wassillie first challenges the evidence on which the grand jury decided to  


indict  him.            Of  the  evidence  presented  to  the  grand  jury,  only  the  incident  report  


describes Wassillie's departure from Parkview and contains enough information, if  


 admissible, to apprise the jury of the facts of his alleged offense; our discussion therefore  


 focuses on this one-page document.10                                  Wassillie argues that the incident report was  


inadmissible  hearsay;  that  without  it  the  evidence  was  insufficient  to  support  an  


            6           Sandersv.State             , 364 P.3d 412, 419-20                 (Alaska2015) (omission                     in original)  

 (quoting  Barton v. N. Slope Borough Sch. Dist.                                   , 268 P.3d 346, 350 (Alaska 2012)).                

            7           Cameron v. State, 171 P.3d 1154, 1156 & n.6 (Alaska 2007); Simpson v.  


Murkowski, 129 P.3d 435, 440 (Alaska 2006).  


            8           Simpson, 129 P.3d at 440 (quoting Alaska Legislative Council v. Knowles ,  


21 P.3d 367, 370 (Alaska 2001)).  


            9           Cameron, 171 P.3d at 1156 (quoting Alderman v. Iditarod Props., Inc. , 32  


P.3d 373, 380 (Alaska 2001)).  


            10          The "Absence Report" documents only the steps taken by Parkview staff  


 following their discovery of Wassillie's absence.  The "Resident Discharge Summary"  


notes that Wassillie was discharged for a "Violation" but does not describe it.   The  


remaining few pages of records are from Wassillie's intake a month before the incident  


 for which he was charged.  


                                                                          -6-                                                                  7222

----------------------- Page 7-----------------------

indictment; and that because the indictment was invalid his conviction must be reversed                                            


under the rule we applied in                    Adams v. State           .     

                      The State disagrees. It argues that the incident report was admissible under  


                                                                                        12   it also argues that even if the  

the business records  exception to the hearsay rule;                                                                                       


incident  report  contained  inadmissible  hearsay,  we  should  not  reverse  Wassillie's  


conviction because any error in the grand jury proceeding was made harmless by his  


subsequent conviction by a petit jury in an error-free trial.  To reach this result the State  



asks that we overrule contrary holdings in both Adams and Taggard v. State.  


                      We conclude that the incident report was not admissible under the business  


records exception to the hearsay rule.  Because without the report the evidence before  


the grand jury was insufficient to support an indictment, we go on to consider whether  


this error was rendered harmless by Wassillie's later conviction in an error-free trial. We  


decide that the error was not rendered harmless; our precedent, which we decline to  


overrule, requires that the conviction be reversed.  


           A.	 	      TheIncident Report Was NotAdmissibleUnderTheBusiness Records  


                      Exception To The Hearsay Rule.  


                      "Hearsay  is  a  statement,  other  than  one  made  by  the  declarant  while  


testifying at the trial or hearing, offered in evidence to prove the truth of the matter  


asserted."14  As a general rule hearsay statements are inadmissible at trial unless they fall  


           11         598  P.2d  503  (Alaska   1979).  

           12         Alaska  R.  Evid.  803(6).  

           13         500  P.2d  238  (Alaska   1972).  

           14         Alaska  R.  Evid.  801(c).  

                                                                      -7-	                                                             7222

----------------------- Page 8-----------------------


under an enumerated exception or exclusion;                                               the same general rule applies to grand                        


jury proceedings.                      

                         The only hearsay exception the State argues applies here - the business  


                                  17  - requires that a record satisfy five requirements in order to be  

records exception                                                                                                                                             



                         first, the record must be of a "regularly conducted business  


                         activity"; second, the record must "be regularly kept"; third,  


                         the source of information "must be a person who has personal  


                         knowledge";   fourth,   the   information   must   have   been  


                         "recorded contemporaneously with the event or occurrence";  


                         and  fifth,  "foundation  testimony  by  the  custodian  of  the  


                         record" must be provided.[18]  


             15          AlaskaR. Evid. 801(d) (exclusions fromhearsay rule); AlaskaR. Evid.802                                                             

 (hearsay rule); Alaska R. Evid. 803 (exceptions to hearsay rule); Alaska R. Evid. 804                                                                      

 (additional exceptions).   

             16          Alaska R. Evid. 101 (general applicability of evidence rules); Alaska R.  


 Crim. P. 6(r)(1) ("Evidence which would belegally admissibleat trial shall be admissible  


before the grand jury. . . [And] hearsay evidence shall not be presented to the grand jury  


 absent compelling justification for its introduction.").  


             17          Alaska  R.  Evid.  803(6)  ("exclud[ing]"  from  the  hearsay  rule  "[a]  


memorandum,  report,  record,  or  data  compilation,  in  any  form,  of  acts,  events,  


 conditions, opinions, or diagnoses, made at or near the time by, or from information  


transmitted by, a person with knowledge acquired of a regularly conducted business  


 activity, and if it was the regular practice of that business activity to make and keep the  


memorandum, report, record, or data compilation, all as shown by the testimony of the  


 custodian or other qualified witness, unless the source of information or the method or  


 circumstances of preparation indicate lack of trustworthiness").  


             18          Noffke   v.   Perez,   178   P.3d   1141,   1147   (Alaska   2008)   (quoting  


4 C 

       HRISTOPHER  B. M                 UELLER  & L           AIRD  C. K         IRKPATRICK, F              EDERAL  EVIDENCE   8:78 (3d                     

 ed. 2007)).   

                                                                               -8-                                                                       7222

----------------------- Page 9-----------------------

Wassilliecontends                                          that theParkviewincident report lacked thetrustworthiness ofreports                                                                                                                             

prepared as part of a "regularly conducted business activity."                                                                                                                                   He argues that "[r]eports                        

of this character are not routine, ministerial, objective, or created in a nonadversarial                                                                                                                                     

setting." He also argues that the incident report was prepared in anticipation of litigation,                                                                                                                                                      

further undermining its trustworthiness.                                                                                       For the reasons that follow, we agree.                                                                

                                          1.                   The principles behind the business records exception                                                                                             

                                          The tradition of excepting business records from the hearsay rule derives                                                                                                                                       

from the "unusual reliability of business records . . . supplied by systematic checking, by                                                                                                                                                                              

regularity and continuity which produce habits of precision, by actual experience of                                                                                                                                                                                     

business in relying upon them, or by a duty to make an accurate record as part of a                                                                                                                                                                                         



continuing job or occupation."                                                                         Traditionally, business records are "routine reflections  

                                                                                                                                       20       It follows that routinely prepared records  



of the day to day operations of a business." 

such as "payrolls, accounts receivable, accounts payable, bills of lading,"21  


                                                        22       medical  records,23                                            and  social  security  records24                                                                   are  ordinarily  


property  listings, 

admissible under the business records exception.  


                                          Whether a report has been prepared in the regular course of business is  


measured by whether the circumstances of its preparation give the report "the reliability  


                     19                   Alaska  R.  Evid.  803(6)  cmt.  

                     20                   Palmer  v.  Hoffman,  318  U.S.   109,   114  (1943).  

                     21                   Id.  

                     22                   Hayes  v.  State,  581  P.2d  221,  222  n.1  (Alaska   1978).  

                     23                   Dobos  v.  Ingersoll,  9  P.3d  1020,  1027  (Alaska  2000)  ("[M]edical  records,  

including  doctors'  chart  notes,  opinions,  and  diagnoses,  fall  squarely  within  the  business  

records  exception  to  the  hearsay  rule.").  

                     24                   Noffke v. Perez, 178 P.3d 1141, 1147 (Alaska 2008).  


                                                                                                                                    -9-                                                                                                                          7222

----------------------- Page 10-----------------------


business records are ordinarily assumed to have."                                                                        A court considering the record's                          

admissibility may take into account "such factors as . . . the purpose for which the record                                                                                             

was prepared," "any possible motive to falsify including whether the record's use in                                                                                                             

prospective litigation was a motive for its preparation," "how routine or non-routine the                                                                                                      

record is," and "how much reliance the business places on the record for business                                                                                                 


                               To apply these principles to the facts of this case, we are helped by the  


landmark  case  of  Palmer  v.  Hoffman,  in  which  the  United  States  Supreme  Court  


considered whether an accident report prepared by a railroad engineer was a business  


record under the analogous federal rule.27   Concluding that it was not, the Court held that  


"the fact that a company makes a business out of recording its employees' versions of  


their accidents does not put those statements in the class of records made 'in the regular  


course'  of  the  business  within  the  meaning  of"  the  business  record  exception.28  


" '[R]egular course' of business must find its meaning in the inherent nature of the  


business in question and in the methods systematically employed for the conduct of the  


business as a business."29                                      In Palmer  the accident report's "primary utility [wa]s in  


litigating, not in railroading"; accordingly, that kind of report, even if regularly prepared,  


               25              2  KENNETH   S.  BROUN  ET  AL.,  MCCORMICK   ON  EVIDENCE     288  (7th  ed.  

2016);  see  also  2  FRED  LANE, LANE  GOLDSTEIN TRIAL TECHNIQUE    12:59  (3d  ed.  2016).  

               26              Owens-Illinois,  Inc.  v.  Armstrong ,  604  A.2d  47,  50-51  (Md.   1992).  

               27              318  U.S.   109,   110-15  (1943).  

               28             Id.  at   113.  

               29             Id.  at   115.  

                                                                                              -10-                                                                                        7222

----------------------- Page 11-----------------------

lacked "thecharacter of[business]records                                   and their earmarks ofreliability acquired from                           

their source and origin and the nature of their compilation."                                              30  


                        2.          Factors affecting the reliability of certain kinds of reports  


                        A number of federal and state courts have held that investigative reports  

                                         31                                                                              32  


such  as  police  reports                     and  correctional  facility  incident  reports                                 are  inadmissible  

            30          Id.  at 114.   

            31          See, e.g.,  United States v. Weiland                       , 420 F.3d 1062, 1074-75 (9th Cir.                           2005);  

Oliver v. State           , 475 So. 2d 655, 656 (Ala. Crim. App. 1985);                                     People v. Richardson                   , 362   


N.E.2d 1104, 1106 (Ill. App. 1977); Solomon v. Shuell, 457 N.W.2d 669, 678-82 (Mich.  


            32          See,  e.g.,  Bracey  v.  Herringa,  466  F.2d  702,  703-05  (7th  Cir.  1972)  


(holding that business records exception did not apply to prison records, including  


guards' "conduct reports," that "included the self-serving statements of the defendants"  


and other guards potentially subject to liability); People v. Smith, 565 N.E.2d 900, 912- 


 17  (Ill.  1990)  (finding  that  prison  incident  reports  lacked  the  trustworthiness  and  


reliability of regularly kept business records and thus were not admissible);  Peschetta  


v.  Commonwealth,  12  N.E.3d  1053,  2014  WL  3858378,  *2  (Mass.  App.  2014)  


(unpublished table decision) (holding that correctional officers' reports incorporating  


inmates' statements were not admissible as business records); Bermen v. State, 798  


S.W.2d 8, 12 (Tex. App. 1990) (holding that prison escape report was inadmissible  


because it was not prepared "as a result of ministerial objective observations" and lacked  


"the necessary indicia of reliability"); Layton City v. Pronek, 803 P.2d 1294, 1296, 1298  


(Utah App. 1990) (holding that jail incident report noting inmate's consumption of  


alcohol  was  not  prepared  in  the  regular  course  of  business  but  rather  was  an  


"investigatory report intended for prosecutorial purposes").  


                        But cf. United States v. Chong, 98 F. Supp. 2d 1110, 1118-19 (D. Haw.  


 1999) (holding that prison disciplinary records were admissible under business records  


exception for sentencing phase); State v. Brooks, 394 S.W.3d 454, 456 (Mo. App. 2013)  


(holding that jail incident reports were admissible at sentencing); Paey Assocs., Inc. v.  


Pa. Liquor Control Bd., 78 A.3d 1187, 1195 (Pa. Commw. 2013) (holding that police  


incident reports were admissible at administrative agency hearing if officers who created  



                                                                          -11-                                                                     7222

----------------------- Page 12-----------------------


because of reliability concerns. The Alaska                                 public  records exception                     to the hearsay rule       

similarly exempts all "investigative reports by police and law enforcement personnel"   

                                                                                                34  it also states that "investigative  

from the exception "because they are often unreliable";                                                                           

reports prepared by or for a government, a public office or an agency when offered by  


it in a case in which it is a party" do not fall within the public records exception.35  


                        But investigative reports from state agencies that are not admissible under  


the public  records exception may be admissible under the business records exception  


when the agency "has no motive to attempt to affect the outcome in a particular case"  


and the report meets the other elements of the business records exception.36                                                                 This is  


            32          (...continued)  


the reports attested to preparing them).  

            33          Alaska R. Evid. 803(8).       

            34          See Alaska R. Evid. 803(8) cmt. (citing Menard v. Acevedo, 418 P.2d 766  


(Alaska 1966)); cf. Rockwell v. State, 176 P.3d 14, 26 (Alaska App. 2008) (holding that  


passport stamps and immigration card were admissible because they "were not made and                                                                

maintained for the primary purpose of criminal investigations, and the government  


employees who stamped the documents performed a ministerial duty that had nothing  


to do with prosecuting a particular person for criminal activity").  


            35          Alaska R. Evid. 803(8)(b)(ii).  The incident report in this case would be  


inadmissible under the public records exception because it is investigative in nature, it  


was prepared by an agent of the DOC, and it was used by the State in a case in which the  


State is a party.  


            36          State v. Huggins, 659 P.2d 613, 616 (Alaska App. 1982) ("An official  


would haveno motiveto misrepresent those facts [regarding breathalyzer calibration and  


certification]  because  the  nexus  between  his  findings  and  a  particular  result  on  a  


particular prosecution is too attenuated."); see also Wilson v. State, 756 P.2d 307, 313  


(Alaska App. 1988).  Contra United States v. Oates, 560 F.2d 45, 78 (2d Cir. 1977);  


State v. Hammel, 917 A.2d 1267, 1271 (N.H. 2007) ("[T]he business records exception  


cannot be used as a 'back door' to introduce evidence that would not be admissible under  



                                                                         -12-                                                                    7222

----------------------- Page 13-----------------------

because a reporter with "no knowledge of a specific case" is presumed to have "no                                                        


incentive to misrepresent."                                                                                                         

                                                For instance, a breathalyzer certification by a state official  


at the Department of Health and Social Services who has "no knowledge of a specific  

                                                                   38   And "routine and unambiguous" records -  



case" is reliable enough to be admissible. 

such as arrestees' fingerprints and photographs - usually allow the reporter "[n]either  


motive  [n]or  opportunity  to  fabricate  or  falsify"  them,  thereby  justifying  their  


admissibility under a hearsay exception.39  


                      In contrast, investigative reports preparedby aparticipant or observer to the  


incident  being  investigated  raise  concerns  about  the  reporter's  "motivations  to  


misrepresent."40  A reporter involved in the incident may wish to hide evidence of her  


own  mistakes or  misconduct or  inflate evidence more likely  to  lead  to  her  desired  


outcome. Such reports may take on an "adversarial nature," in which the reporter targets  


           36         (...continued)  


Rule 803(8)(B)." (quoting United States v. Horned Eagle, 214 F. Supp. 2d 1040, 1042  


(D.S.D. 2002))); Bermen, 798 S.W.2d at 12 ("We are of the view that there is no point  


in having Texas rule 803(8)(B) if it can be bypassed by resort to Texas rule 803(6).").  

           37         Huggins, 659 P.2d at 616.  


           38         Id. at 615-16 (holding breathalyzer packet admissible under Evidence Rule  


803(8)); see also Alaska R. Evid. 803(8) cmt. (noting that the breathalyzer certification  


found admissible in Wester v. State, 528 P.2d 1179 (Alaska 1974), would be admissible  


as a business record under Evidence Rule 803(6)).  


           39         United States v. Weiland, 420 F.3d 1062, 1075 (9th Cir. 2005) (applying  


the public records exception).  


           40         Alaska R. Evid. 803(6) cmt. (quoting Hoffman v. Palmer, 129 F.2d 976,  


991 (2d Cir. 1942)).  


                                                                    -13-                                                              7222

----------------------- Page 14-----------------------


 an individual and accuses him of misconduct.                                                                                                                                                                                                      This kind of report thus has an elevated                                                                                                                        

 risk of unreliability; it is possible that the reporter's biases about the accused have                                                                                                                                                                                                                                                                                                                                           

                                                                                                                                                                                          42             These reliability concerns are particularly acute  

 compromised the report's accuracy.                                                                                                                                                                                                      

 when reports have been prepared in anticipation of litigation in a particular case, as  


 "many of the normal checks upon the accuracy of business records are not operative" in  


 such circumstances.43  


                                   41                                See, e.g.                                  ,  Weiland, 420 F.3d at 1074-75 (" '[P]olice officers' reports of their                                                                                                                                                                                                                                               

 contemporaneous observations of crime' . . . might be biased by the adversarial nature                                                                                                                                                                                                                                                                                                                                      

 of the report." (quoting                                                                                                  United States v. Orozco                                                                                                        , 590 F.2d 789, 794 (9th Cir. 1979)));                                                                                                                  

Allstate Ins. Co. v. Clarke                                                                                                           ,   Nos. 248934, 249398, 2007 WL 2710821, *5                                                                                                                                                                                                         (Mich. App.   

 2007) ("Reports prepared by police officers or their affiliates are not admissible under                                                                                                                                                                                                                                                                                                                                      

  . . . the business records exception[] or . . . the public records exception[] because they                                                                                                                                                                                                                                                                                                                                         

 are adversarial investigatory reports prepared in anticipation of litigation and thus lack                                                                                                                                                                                                                                                                                                                                            

 the requisite indicia of trustworthiness.").                                                                         

                                   42                                See generally 5 A                                                                            M. J                 UR. 2                      D   Trials    807 (2017) (describing the various                                                                                                                                                   


 ways a witness's perception of an event may be distorted);                                                                                                                                                                                                                                              see also Bermen v. State                                                                                                     , 798   

  S.W.2d 8, 11 (Tex. App. 1990) (indicating that "the subjective features of reports made                                                                                                                                                                                                                                                                                                                                        

 in a[n] . . . adversarial setting" lack the inherent reliability of reports about "unambiguous                                                                                                                                                                                                                                                                                    

 factual matter" and therefore holding escape reports inadmissible).                                                                                                                                                                                                           

                                   43                                 2 K                ENNETH   S. B                                                     ROUN ET AL                                                    ., M                 CCORMICK ON                                                                 EVIDENCE    288 (7th ed.                                                                                          

 2016);  seealso Palmer v. Hoffman                                                                                                                                             , 318 U.S. 109, 114 (1943) (excluding accident reports                                                                                                                                                                                     

 from business records exception because unlike business records, "these reports are                                                                                                                                                                                                                                                                                                                                                        

 calculated for use essentially in the court, not in the business[; t]heir primary utility is in                                                                                                                                                                                                                                                                                                                                                   

 litigating, not in railroading").                                                                                                                                Compare Norris v. Gatts                                                                                                                 , 738 P.2d 344, 351 (Alaska                                                                               

  1987)   (finding  reports   "not   untrustworthy   or   unreliable"   because   they   "were   not  

 compiled in anticipation of litigation"),                                                                                                                                                                         and Smiley v. State                                                                                       , 1998 WL 90897, at *4                                                                                           

 (Alaska App. Mar. 4, 1998) (statements "made in anticipation of litigation . . . would                                                                                                                                                                                                                                                                                                                      

 normally be inadmissible because they lacked guarantees of trustworthiness"),                                                                                                                                                                                                                                                                                                                                                       with  

Rockwell   v.   State,   176   P.3d   14,   25   (Alaska   App.   2008)   (finding   immigration   card  

 admissible under Evidence Rule 803(8) because it was prepared "in the course of normal                                                                                                                                                                                                                                                                                                                                  

 governmental duties" and "was not prepared in anticipation of litigation").                                                                                                                                                                                                                                                                                                                       

                                                                                                                                                                                                                      -14-                                                                                                                                                                                                           7222

----------------------- Page 15-----------------------

                         Accordingly, "an ordinary policeaccidentreport"is not admissiblebecause                                                   

the officer's report may be "colored" by circumstances surrounding the investigation,                                                   

including "opinions gathered from second-hand sources who have a stake in pending                                                                 

                    44   And documents reporting on a prisoner's escape - at least according to  


a Texas appellate court - are inadmissible for similar reasons:   "The objectionable  


statements contained in these documents were not merely made as a result of ministerial  


objective observations, but rather, had the features of statements made in an adversarial  


setting, since they resulted from the criminal investigation of the escape."45  


                         3.          The incident report presented to the grand jury  


                         The Parkview incident report presented to the grand jury in this case lacks  



many of the hallmarks that make other business records so "unusual[ly] reliab[le]"                                                                          as  



to warrant admissibility under an exception to the hearsay rule. The report was prepared  


by someone who knew Wassillie and who therefore could have been, consciously or  


unconsciously, swayed by pre-existing opinions of him.  And the reporter, Dulany, a  


Parkview staff member, was an active participant in an investigation that resulted in a  


determination  that  Wassillie  had  violated  Parkview's  rules  on  alcohol  and  then  


committed a criminal escape.  


                         The report also may have been "colored" by "opinions gathered from [a]  

                                                                                                                    47 - inmate Lavin, who  

second-hand source[] who ha[d] a stake in pending litigation" 

first  reported  Wassillie's  escape  to  Dulany.                                             According  to  the  report,  Dulany  


"approached [Lavin] about him wanting to fight someone"; Lavin told Dulany that  


            44           State  v.  Huggins,  659  P.2d  613,  616  (Alaska  App.   1982).  

            45           Bermen,  798  S.W.2d  at   12.  

            46           Alaska  R.  Evid.  803(6)  cmt.  

            47           Huggins,  659  P.2d  at  616.  

                                                                             -15-                                                                      7222

----------------------- Page 16-----------------------

Wassillie was the one who threw the vodka through the window "in an attempt to get                                                                         

[Lavin] in trouble" and that Wassillie had "just left through the front door." When Lavin                                                                  

described these events to Dulany, Lavin was not "under a duty of accuracy" or "acting                                                                   

                     48   He may have had a motive to be untruthful in some or all of his statement,  


as he had been accused of scheming with Wassillie to bring alcohol into Parkview; he  


may also have had a motive to deflect attention away from himself, as the reason Dulany  


approached him was apparently Lavin's announced desire "to fight someone." Reliance  


on a source who is not under a "duty of accuracy" takes a business record outside the  


scope of the business records exception.49  


                          It is also relevant to our analysis that the incident report accuses Wassillie  


of escape - a violation of 22 Alaska Administrative Code (AAC) 05.400(b)(3) and a  


              50      Dulany  evidently  expected  the  conduct  he  reported  to  have  punitive  


consequences.  The form on which the incident report appears provides two boxes that  


allow the reporter to designate the "Course of Action" to be taken on the basis of the  


report, "Disciplinary" and "Information"; Dulany checked "Disciplinary." And not only  


are  incident  reports  "a  basis  for  returning  [a  furloughed  inmate  like  Wassillie]  to  


custody," as the probation officer testified at trial, they also must be sent to the DOC's  


             48          Alaska R. Evid. 803(6) cmt.                    

             49           The Commentary to Alaska Evidence Rule 803(6) explains that in the  


context of "ordinary business records," all those who are "furnishing the information to  


be recorded . . . are acting routinely, under a duty of accuracy, with employer reliance  


on the result."  But if one of the individuals supplying information "does not act in the  


regular course, an essential link is broken."  Id.  


             50          See AS 11.56.310(a)(1)(B).  


                                                                               -16-                                                                         7222

----------------------- Page 17-----------------------

assistant superintendent and to the district attorney for possible criminal prosecution, as                                                                                                                           

happened here.                         51  

                                  Overall, theincident report in its lack of assured neutrality resembles police  


reports,  which  are  not  admissible  under  any  exceptions  to  the  hearsay  rule.  The  


information  contained  in  the  report  could  foreseeably  be  used  against  a  particular  


individual  in  a  particular  criminal  case,  and  the  report  could  be  influenced  by  the  


reporter's  incentives  to  misrepresent,  including  a  "motive  to  attempt  to  affect  the  


outcome in a particular case."52  We conclude that the incident report cannot be accorded  


the presumption of accuracy that Evidence Rule 803(6) recognizes in business records,  


and we therefore reverse the court of appeals' holding that the report was admissible  


under the business records exception.  


                 51               22 AAC 05.400(b)(3) (2017) (identifying evasion as major infraction); 22                                                                                                           

AAC 05.410 (requiring written reports and referral of those reports to the assistant                                                                                                                

superintendent);   22   AAC   05.460(a)   (requiring   facility   superintendent   to   notify   the  

district attorney of any infraction that could amount to a felony);                                                                                                       see Layton City v.                          

Peronek,   803   P.2d   1294,   1297   (Utah   App.   1990)   (finding   a   jail   incident  report  

inadmissible   because   it   "was   made   with   the   intent   to  submit  it  to   the   court   for  

 'prosecution' of a probation violation").                               

                 52               Huggins, 659 P.2d at 616.  


                                                                                                        -17-                                                                                                  7222

----------------------- Page 18-----------------------

                  B.                The Error In The Grand Jury Proceeding Requires Reversal.                                                                                            

                                    Because the incident report was inadmissible, and because it was the grand                                                                                                           

jury's only source for the facts essential to the escape charge, we next need to consider                                                                                                                        

 the effect this error in the grand jury proceedings has on the validity of Wassillie's                                                                                                                  

 subsequent conviction.  The State urges us to hold that if there was an error, "the later                                                                 

 error-free trial rendered the earlier error harmless."                                                                                    

                                    1.	 	             Grand jury indictment is a critical part of Alaska's                                                                                               

                                                      constitutional framework.                                                                  

                                    We begin by emphasizing the grand jury's importanceas                                                                                               apreliminary step                    

 in felony prosecutions. The Alaska Constitution provides that "[n]o person shall be held                                                                                                                                   

 to   answer   for   a   capital,   or   otherwise   infamous   crime,   unless   on   a   presentment   or  


 indictment of a grand jury."                                                                                                                                                                                                

                                                                                    We have repeatedly recognized the importance of this  


 right, emphasizing that "an accused is entitled, under Alaska law, to a decision by a  



grand jury that there is probable cause to hold him for trial." 


                                    Alaska's retention of the criminal grand jury followed spirited debate on  


 the subject at the Constitutional Convention.  The Committee on the Preamble and the  


 Bill of Rights introduced a proposal that would allow prosecutors to proceed in any case  


 by either  indictment  or  information; it read,  in  pertinent part, "No person  shall be  


 prosecuted criminally for [a] felony other than by indictment or information, which shall  

                                                                    55     Delegate Dorothy Awes, the committee's chair, described  


 be concurrent remedies." 

                  53                Alaska  Const.  art.  I,    8.  

                  54                Michael  v.  State,  805  P.2d  371,  374  (Alaska  1991)  (emphasis  in  original).  

                  55                2  Proceedings  of  the  Alaska  Constitutional  Convention  (PACC)  1281,  1286  

 (Jan.   5,   1956);   6  PACC  App.  V   at   64   (Dec.   15,   1955).   The  proposed  provision was  

patterned  after  Missouri's.   See  2  PACC  1325  (Jan.  6,  1956)  (statement  of  Delegate  John  


                                                                                                               -18-	 	                                                                                                    7222

----------------------- Page 19-----------------------

the "unanimous feeling of the Committee that the grand jury should be preserved for                                                                


[the] purpose [of returning indictments],"                                                                                                            

                                                                            but her explanation cast the grand jury in a  


secondary role behind the more common practice of charging by information:   "By  


retaining the grand jury and the indictment, if you should have a district attorney, say,  


who is bringing in too many informations and acting in a pre-emptory matter [sic], then  



the governor has the right to call the grand jury." 

                       The next day Delegate Edward Davis introduced an amendment reflecting  


what he understood to be prevailing Territorial practice.58  The amendment eliminated  

the concept of "concurrent remedies" and required indictment by a grand jury in all  


felony cases unless the defendant waived it.59                                    Delegate Davis explained:  


                       In my practice it appears to me that the grand jury serves a  


                       useful purpose.   In some cases, not often it is true, but in  


                        some cases a person against whom criminal charges have  


                       been filed by the district attorney or by private parties[] is  


                       released by the grand jury as there does not appear to be  


                        sufficient cause to hold him for trial.  That of course is the  


                       purpose of the indictment .[60]  


            55         (...continued)  

Hellenthal).   The  Missouri  Constitution,  Article  I,  section  17,  provides:   "That  no  person  

shall  be  prosecuted  criminally  for  felony  or  misdemeanor  otherwise  than  by  indictment  

or  information,  which  shall  be  concurrent  remedies  .  .  .  ."  

            56         2 PACC 1286.  


            57         Id. at 1281.  


            58         Id. at 1322-23 (statement of Delegate Edward Davis); id. at 1323 (statement  


of Delegate Seaborn Buckalew).  


            59         Id. at 1322 (statement of Chief Clerk).  


            60         Id. at 1322 (emphasis added).  


                                                                        -19-                                                                   7222

----------------------- Page 20-----------------------

                            Other delegates                 argued vigorously against retaining the criminal grand jury                                                    

at all.       They argued that it afforded no protection against a prosecutor who exercised                                                                    

                                                                                                        61    that  prosecutors'  abuse  of  the  

complete   control   over   the   evidence   presented;                                                                                                                    

                                                          62   and  that  overzealous  prosecutors  could  eventually  be  

information  was  very  rare;                                                                                                                                                


checked by petit juriesor by grand juries specially appointed to investigateout-of-control  


prosecutions.63   They argued that in Territorial practice grand juries met too seldom and  


left arrestees languishing in jail while awaiting the next session;64  that grand juries were  


expensive, served no "useful purpose," and did "not afford any additional protection to  


the accused";65  that most of the states had given up the institution except for the limited  


purpose of investigating local corruption;66   and that retaining the grand jury merely  


              61           Id.  at 1325 (statement of Delegate Buckalew) ("It is a secret proceeding                                                       

which is more or less geared and controlled by the prosecutor and most of the time it is                                                                                       

something that is just sort of a rubber stamp deal, and actually I can't see that it affords                                                                        

an accused person much protection at all . . . .");                                              id.  at 1336 (statement of Delegate Steve                             


              62           Id. at 1334 (statement of Delegate Hellenthal).  


              63           Id.  at 1326 (statement of Delegate Buckalew) ("[The prosecutor] is not  


going to be rushing in there filing informations without merit because the first time he  


does and it is thrown out or the case does not go to the jury, he would stop that practice  


right quick, because it would be fresh in the public minds that he [filed] an information  


and two weeks later he was miserably defeated."); id. (Delegate Buckalew) ("I think the  


superior [court] judge would convene a grand jury, certainly if there was anything  


unusual going on in his district or any other district, and I think too that if the prosecutor  


got out of hand and was running like a brush fire, that the court would probably convene  


a grand jury and require him to indict everybody by grand jury.").  


              64           Id. at 286 (statement of Delegate Warren Taylor).  


              65           Id. at 1323, 1325 (statement of Delegate Buckalew).  


              66           Id.  at  1323 (statement of Delegate Buckalew); id. at  1324 (statement of  



                                                                                     -20-                                                                               7222

----------------------- Page 21-----------------------

because it was a "historical tradition dating from the time of the drawing of the Federal                                                      

Constitution" would run counter to the Convention's attempts "to formulate a modern               



                        Delegate  Davis  responded  by  conceding  that  grand  juries  could  be  


expensive, that the concept "is something historic," and that grand jury "proceedings are  

                                                                           68   But at the same time, he observed, "there  


under the control of the district attorney." 

isn't any question [but] that each grand jury that sits returns some 'no true bills'."  He  



                        The   present   grand   jury   [that]   just   finished   sitting   in  


                        Anchorage has returned probably 10 "no true bills".   For  


                        those  who  are  not  lawyers,  a  "no  true  bill"  means  that  


                        somebody  has  been  charged  with  a  crime  by  the  district  


                        attorney[,] and the district attorney, with all the control of the  


                        proceedings before the grand jury, has presented all of his  


                        evidence to the grand jury and in spite of that the grand jury  


                        has said that there is no cause to hold this man for trial, and  


                        the man has been released without going through a trial to a  


                        regular jury.  Certainly under those circumstances it can't be  


                        said that the grand jury serves no useful purpose.  It serves a  


                        distinctly useful purpose, and not[,] as Mr. Hellenthal said,  


                        only to persons evilly disposed.  It might be me, it might be  


                        you, it might be anybody that was charged with [a] crime and  


                        was not guilty of that crime and should be released by a  


            66          (...continued)  


Delegate Taylor).  

            67          Id.   at   1324   (statement   of   Delegate   Taylor);   id.  at  1325   (statement   of  


Delegate Hellenthal) (arguing that "to require indictment in felonies is archaic, it is not  

modern, and I think it serves very little[,] if any, useful purpose").                               

            68          Id. at 1327.  


                                                                          -21-                                                                     7222

----------------------- Page 22-----------------------

                        grand jury when the evidence was produced before the grand                                       

                        jury .[69]  

Acknowledging that the then-current grand jury schedule meant that most defendants  


would waive indictment, Delegate Davis concluded, "I certainly hope that we preserve  


the right to have the criminal matters investigated by a grand jury if the accused wants  


it done that way."70  


                        Other delegates echoed Delegate Davis's faith in the grand jury as a check  


 on the government's decision to prosecute.  Delegate Ralph Rivers agreed that grand  


juries "serve a useful purpose." 71                            He explained, "Sometimes, as Mr. Davis said, the  


grand jury will bring in a 'no true bill' meaning they just refused to accuse anybody  


because the evidence is too flimsy . . . ."72                               Delegate Yule Kilcher agreed:  "I think that  


the grand jury essentially is an added  protection to the citizens."73  

                                                                                                                               Delegate M.R.  


Marston related the "case of an Arctic friend of mine who came afoul of the law and  


landed in the jail," but the grand jury brought a no true bill "and he is a free citizen. . . .  


 On that basis I am going to vote for Mr. Davis's amendment and preserve that grand  


jury."74        Delegate Robert McNealy noted that "at least four of us here . . . have been  


United States attorneys and have handled the matters before the grand juries and are  


            69          Id .  

            70          Id.  

            71          Id.  at 1323.          

            72          Id.  at 1323-24.   

            73          Id.  at 1324.   

            74          Id. at 1330.  


                                                                         -22-                                                                   7222

----------------------- Page 23-----------------------


conversant with them."                       Stressing the importance of "this grand jury situation," he first                                     

acknowledged that if a prosecutor "really wants an indictment, in I would say 99 out of                                                               

                                                        76  But he then focused his comments on the rare case:  

 100 cases he could secure [it]."                                                                                                                          

"[O]ccasionallyour appointed prosecutors becomealittleoverzealousandwantto secure  


a number of convictions and in some of those instances a grand jury will return a no true  


bill."77      He described "four or five instances" in which "more or less prominent citizens  


of the town" were subject to criminal investigation; the grand jury, however, refused to  


indict, and because the grand jury proceedings were secret there was no harm done "to  


the reputation of these few people where it was not warranted."78                                                         Delegate Mildred  


Hermann seconded that view, explaining that in her "20 years experience as an attorney  


in  the  courts  of  Alaska"  she  had  "seen  the  misplaced  zeal  of  some  of  our  district  


attorneys"; she said, "I have from personal experience found that the grand jury protects  


the public, not the criminal nor the alleged criminal, but the public as a whole," and for  


that reason she supported the Davis amendment.79  


                        Delegate Davis had the last word on his proposed amendment.  He said:  


                        I am interested in the occasional person who is charged with  


                        crime and who is completely innocent of that crime, and so  


                        far as I am concerned if even one person is charged with  


                        crime,  who  is  innocent,  and  who  may  have  the  matter  


                        disposed of without having to stand trial, it's worth the cost,  


                        and it seems to be apparent here from everything that has  


            75         Id.  at 1331.   

            76         Id.  

            77         Id.  

            78         Id.  

            79         Id.  at 1334-35.   

                                                                         -23-                                                                   7222

----------------------- Page 24-----------------------

                                    been said that, in spite of the fact the district attorney controls                                                                         

                                    the grand jury, in spite of the fact that he presents evidence                                                                           

                                    that would not be received in a court at law, in spite of the                                                                                            

                                     fact that the grand jury hears only one side of the thing, the                                                                                          

                                     grand jury occasionally, and we might say even frequently,                                                                         

                                     finds there is not cause to hold a man for trial who has been                                                  

                                     charged by the district attorney.  That ought to be sufficient                                                          

                                    to show that the grand jury serves a distinct useful purpose,                                 

                                    not for those evilly disposed but for you and for me and for   

                                     all of us.             [80]  

 Alaska's constitutional framers went on, of course, to adopt the Davis amendment as  


 Article I, section 8 of the Constitution.  


                                     The  focus  of  the  framers'  discussion  on  "no  true  bills"  reflects  the  


 importance of the grand jury's traditional filtering function.  "Rubber stamp" and "ham  


                                                                                                         81 the requirement that felony charges be initiated  

 sandwich" metaphors notwithstanding,                                                                                                                                                                               


by grand jury indictment "ensures that a group of citizens will make an independent  


 determination about the probability of the accused's guilt 'before the accused suffers any  


 of  the  grave  inconveniences  which  are  apt  to  ensue  upon  the  return  of  a  felony  


 indictment.' "82                              As we explained in Cameron v. State, the grand jury acts "as both a  


                   80               Id.  at   1336-37.  

                   81               See   id.   at   1325   (statement   of   Delegate   Buckalew)   ("[The   grand  jury]   is  

 more  or  less  geared  and  controlled  by  the  prosecutor  and  most  of  the  time  it  is  something  

 that  is  just  sort of  a  rubber stamp  deal  .  .  .  .");  Cameron v.  State,   171  P.3d   1154,   1157  

 (Alaska  2007)  ("[A]ttention  to  the  grand  jury's protective role helps  prevent  the  grand  

jury  from  becoming  a  mere  'rubber  stamp'  for  the  prosecutor.");  id.  at  1157  n.23  (noting  

 the  comment  of  New  York  Court  of  Appeals  Chief  Judge  Sol  Wachtler  that  the  district  

 attorney   has   enough   influence   over   a   grand   jury   to   convince   it   to   "indict   a   ham  

                                                                                                                                                                        TIMES,  Feb.  18,  1985,  at  

 sandwich"  (citing  Editorial,  Do   We  Need  Grand  Juries?,  N.Y.  


                   82                Cameron, 171 P.3d at 1156 (quoting State v.  Gieffels, 554 P.2d 460, 465  


                                                                                                                -24-                                                                                                        7222

----------------------- Page 25-----------------------


shield and sword of justice."                         As a shield, it "plays a protective role 'by operat[ing] to                                   


control abuses by the government and protect[ing] the interests of the accused.' "                                                                       

While it "protects against the danger that a defendant will be required to defend against  


                                                                                                                       85  it also "serv[es]  

a charge for which there is no probable cause to believe him guilty,"                                                          


the invaluable function in our society of standing between the accuser and the accused  


. . . to determine whether a charge is founded upon reason or dictated by an intimidating  


power or by malice and personal ill will."86  


                       We need not decide in this case whether the grand jury has the discretion  


to refuse to indict when the only reasonable view of the evidence supports the charges  


as framed by the prosecution.87                        It is sufficient for purposes of today's analysis for us to  


            82         (...continued)  

(Alaska   1976)).   

            83         Id.  (citing  Preston  v.  State,  615  P.2d  594,  602  (Alaska   1980)).  

            84         Id.  (alterations  in  original)  (quoting  Preston,  615  P.2d  at  602).  

            85          United  States  v.  Mechanik,  475  U.S.  66,  70  (1986).  

            86         Id.   at   74   (O'Connor,   J.,   concurring   in   the  judgment)   (quoting   Wood   v.  

Georgia,  370  U.S.  375,  390  (1962)).  

            87         See State v.Markgraf, 913 P.2d 487, 487 (Alaska 1996)(Mem.) (Matthews,  


J., dissenting) ("[W]hile a petit jury  conviction eliminates any question as to whether  


probable cause existed, it does not preclude the possibility that an untainted grand jury,  


as a discretionary matter, might have indicted for a lesser offense, or not indicted at all.").  


                       The court of appeals recently found "nothing in the language of [the first  


sentence of article I, section 8 of the Alaska Constitution], and nothing in the discussions  


of the Alaska Constitution pertaining to this sentence, to suggest that the purpose of this  


language was to create or acknowledge a grand jury right of 'nullification' - a right to  


refuse to indict someone for any reason the grand jurors  might see fit"; however, the  


court declined to decide "to [what] extent . . . grand juries  in Alaska have a power of  



                                                                        -25-                                                                  7222

----------------------- Page 26-----------------------

highlight the grand jury's critical role in what the framers created as a constitutional                                                       

 criminal process.                  Indictment is not just a step in this process; it is a foundation stone.                                                                 

Accordingly, we have "consistently held that courts should not hesitate to reverse a                                                                                     

 conviction when a substantial flaw in the underlying indictment is found, regardless of                                                                                

the strength of the evidence against the accused or the fairness of the trial leading to the                                                                          



                           2.	 	        Wassillie's  indictment  based  on  inadmissible  hearsay  was  



                           Alaska's atypically strict evidentiary standards for grand jury proceedings  


reflect the constitutional framers' concerns about prosecutors' control over what the  


 grand jury hears.  The State's presentation of evidence to the grand jury is generally  


 limited to that "which would be legally admissible at trial,"89  


                                                                                                                        although "[i]n appropriate  

              87           (...continued)  


nullification."   State v. Leighton, 336 P.3d 713, 715 (Alaska App. 2014).   Compare  


Alaska  R.  Crim.  P.  6(q)  (providing  that  a  grand  jury  "shall  find  an  indictment"  if  


presented with sufficient evidence to convict), with AS12.40.050 (providing that agrand  


jury "may indict" upon sufficient evidence).  See also People v. Sullivan, 503 N.E.2d 74,  


 77 (N.Y. 1986) (explaining that the grand jury's "power to extend lenity" includes "the  


 extreme choices of complete absolution or indictment on the top count supported by  


 legally sufficient evidence" as well as "returning a true bill for only a lesser offense");  


People v. Lin, 647 N.Y.S.2d 411, 414 (N.Y. Sup. 1996) ("[A] grand jury 'may' indict if  


the applicable standards have been met; therefore, the grand jury may, without violating  


 its duty, 'extend lenity' to the defendant by not indicting the defendant for a charge that  


 is supported by the evidence." (quoting Sullivan, 503 N.E.2d at 77)).  

              88          Atchak v. State , 640 P.2d 135, 151 (Alaska App. 1981) (citing Keith v.  


State, 612 P.2d 977, 980-81 (Alaska 1980); Adams v. State , 598 P.2d 503, 510 (Alaska  



              89           Alaska R. Crim. P. 6(r)(1). The federal courts and many state courts do not  


                                                       AYNE  LAFAVE ET AL                      ., C   RIMINAL  PROCEDURE   15.2(d) (4th                            

 share this requirement.  4 W 



                                                                                  -26-	 	                                                                        7222

----------------------- Page 27-----------------------

cases, witnesses may be presented to summarize admissible evidence if the admissible                         


evidence   will  be   available   at   trial."                                                                                                

                                                                          Alaska  Rule  of  Criminal  Procedure  6(r)(1)  


addresses hearsay specifically, instructing that "hearsay evidence shall not be presented  


to the grand jury absent compelling justification for its introduction" unless the hearsay  

                                                                                91   An indictment based upon inadmissible  


falls into one of three enumerated exceptions. 

evidence is considered invalid;92  but if sufficient admissible evidence was presented to  


the grand jury for it to indict, then the presentation of inadmissible evidence is harmless  




                        Having decided that the incident report was inadmissible hearsay - and  


absent any argument that there was a  "compelling justification for its introduction" in  


            89          (...continued)  


ed. 2016).  

            90          Alaska R. Crim. P. 6(r)(1).         

            91          Id.   Those exceptions are for statements by child victims of sexual assault;                                         

statements   made   by   peace   officers   to   other   peace   officers   during   the   course   of   an  


investigation if otherwise corroborated; and evidence of prior convictions when relevant  

to prosecutions for driving while intoxicated.                                     See  Alaska R. Crim. P. 6(r)(2), (3), (6).                              

            92          Adams , 598 P.2d at 509; Taggard v. State, 500 P.2d 238, 243-44 (Alaska  


1972), disapproved of on other grounds by McCracken v. Corey, 612 P.2d 990, 992, n.6  


(Alaska  1980);  see  also  AS  12.40.100(c)  (stating  that  valid  indictment  is  one  that  


complies with requirements of this statutory provision and rules promulgated by Alaska  


Supreme Court); State v. Skan, 511 P.2d 1296 (Alaska 1973) (affirming dismissal of  


indictment before trial when indictment was based on hearsay evidence).  


            93          E.g., Frink v. State, 597 P.2d 154, 161, 163 (Alaska 1979); Metler v. State,  


581 P.2d 669, 672 (Alaska 1978).  This is because "[t]he general rule in Alaska is that  


events, occurrences, or happenings before the grand jury will not invalidate a subsequent  


indictment unless they contributed in some way to the return of that indictment."  Soper  


v. State, 731 P.2d 587, 591 (Alaska App. 1987) (citing Frink, 597 P.2d at 161; Hohman  


v. State, 669 P.2d 1316, 1319-20 (Alaska App. 1983)).  


                                                                          -27-                                                                    7222

----------------------- Page 28-----------------------


lieu of live testimony                           - we must conclude that it was error to present the report to the                                                                


grand   jury.                                                                                                                                                            

                                And  the  grand  jury's  decision  to  indict  on  an  escape  charge  clearly  


depended on the hearsay evidence in both the incident report and Graber's testimony, as  




the evidence contained no other description of the relevant facts. 

                            We  turn  to  the  issue  of  how  to  remedy  the  error  in  the  grand  jury  


proceeding now that the defendant has been convicted by a petit jury in an apparently  


                                                                                                                                   97                                                98  

error-free trial.  We addressed this question in Adams v. State                                                                        and Taggard v. State,  


holding  that  an  indictment  based  on  inadmissible  hearsay  was  invalid  and  that  a  


conviction based on an invalid indictment must be reversed.99                                                                               The State asks us to  


overturn this precedent, relying primarily on  United States v. Mechanik, in which the  


United States Supreme Court held that under federal law an error-free trial renders  


              94            The State candidly acknowledges that "in Wassillie's case, the prosecutor                                                             

did not utilize this ['compelling justification'] exception" and that "there is no evidence                                                                           

as to why the prosecutor presented the incident reports in lieu of in-person testimony."                                                                                                  

              95            Alaska R. Crim. P. 6(r)(1).  


              96            There may be an argument that the "Absence Report" was an admissible  


business record, as it is largely a checklist of Parkview staff's routine responses to  


Wassillie's reported absence. But lacking any description of what the staff was reacting  


to other than a reported absence, the Absence Report gave the grand jury no basis for  


distinguishing between escape (the crime charged) and the usually less serious crime of  


evasion.  Generally, a person commits "escape" by "remov[ing] oneself from official  


detention"  by  various  means,  see  AS  11.56.300-.330,  whereas  a  person  commits  


"evasion" by "fail[ing] to return to official detention" when required to do so, see  


AS 11.56.335-.340.  


              97             598 P.2d 503 (Alaska 1979).  


              98             500 P.2d 238 (Alaska 1972).  


              99            Adams , 598 P.2d at 509-10; Taggard, 500 P.2d at 243-44.  


                                                                                        -28-                                                                                 7222

----------------------- Page 29-----------------------


harmless a rule violation in the grand jury proceedings.                                                                But we decline to overturn our                           

contrary precedent for the reasons that follow.                                    

                            3.	 	          Taggard   and  Adams   require reversal of convictions following                                                                              

                                          indictments based on inadmissible hearsay.                                      

                            In   Taggard   we first addressed how to remedy an indictment based on                                                                               

hearsay evidence when the other admissible evidence presented to the grand jury was                                                                                            

                                                                                                101     In that case a police officer testified  

insufficient to support its decision to indict.                                                                                                                       

before a grand jury about incriminating information he learned from an informant, but  


no evidence was offered that would enable the grand jury to evaluate the informant's  



                             We held "that the hearsay evidence presented to the grand jury . . . lacks  

                                                                                                      103      This defect in the indictment was  


sufficient reliability to support the indictment." 

"substantial"  and  "of  the  substance  and  not  mere  form."104   We  therefore  held  that  


dismissal of the indictment was the appropriate remedy "even after a conviction"; "[t]he  


conviction must be overturned when an indictment is invalid and the error was properly  


preserved by a timely objection prior to trial."105   We explained that "[t]he indictment is  


the foundation underlying a criminal prosecution.  If the indictment is seriously flawed,  


              100	 	        475 U.S. 66, 72 (1986).             

              101           500 P.2d at 242-44. Some of the                                           Taggard   court's discussion about the                                     

admissibility of hearsay evidence at grand jury proceedings has been superseded by the  


adoption  of  Criminal Rule  6(r)  concerning  admissibility  of  evidence  in  grand  jury  



              102	 	        Id. at 243.  


              103	 	        Id.  

              104	 	        Id. at 243-44.  


              105           Id. at 243.  In contrast, "[a] mere formal defect does not require dismissal  


of an indictment after the guilt of the defendant has been established at a fair trial."  Id.  


                                                                                       -29-	 	                                                                               7222

----------------------- Page 30-----------------------


the conviction cannot stand."                                      This reflects the constitutional framers' view of the                                              

 grand jury's constitutional significance.             

                                                                                                                                               107  Adams was  

                           Several years later we reaffirmed this conclusion in                                                 Adams.                               

                                                                                                        108    On appeal we found that while  

 convicted of mayhem for engaging in a street brawl.                                                                                                              


the evidence at trial was sufficient to sustain his conviction,109  the only evidence before  


the grand jury to support the injury element of the mayhem charge came from a police  


 officer's testimony relating what hospital personnel had told him about the victim's  


 injuries.110            "Because  the  [admissible]  evidence  standing  alone  would  not  justify  a  


 conviction, the grand jury did not have enough evidence before it to indict Adams of  


mayhem. Thus, the indictment was invalid."111                                                      We concluded again that this defect  


required reversal:  "If we were to find that a trial could validate an otherwise invalid  


 indictment, the right to indictment by a grand jury would become a nullity and the grand  


jury would cease to operate as a check upon the district attorney's power to initiate  



                           Federal law has no clear analog to this Alaska rule.  But federal courts and  


 our  courts  apply  different  rules  to  grand  juries,  including  different  evidentiary  


              106          Id.  

              107          598 P.2d 503, 507, 510 (Alaska 1979).

              108          Id. at 505.




                           Id. at 510.

              110          Id.  at 508-09.



                           Id. at 509.

              112          Id. at 510.


                                                                                  -30-                                                                            7222

----------------------- Page 31-----------------------

                       113                                                                                                                                            114  

standards.                      And   the   State's   reliance   on   United   States   v.   Mechanik                                                                        is   not   apt,  

considering the error before us; the                                              Mechanik  rule arises out of an error that, although       

a violation of Federal Rule 6(d) (regarding who may be present during grand jury                                                                                                             

                                115                                                                                                                                           116 and was  

                                      did not necessarily compromise the validity of the indictment                                                                                           


not challenged before trial.117   While the Court in Mechanik held that the grand jury rule  


violation was rendered harmless once the defendant was convicted by a petit jury,118  it  


                113            See  LAFAVE ET AL.,  supra  note 89,  15.2(d) ("In the federal system, and                                        

in a substantial majority of the states (including a substantial majority of the eighteen                                                                                          

indictment   states,   the   rules   of   evidence   .   .  .  simply   do   not   apply   to   grand   jury  

proceedings.");  id.   15.5(c) (noting that federal courts and a "substantial majority of the                                                                                                  

states" will not dismiss an indictment when the grand jury relied on evidence that would                                                                                                 

be inadmissible at trial).                              Compare  Fed. R. Crim. P. 6,                                      and Costello v. United States                                     , 350   

U.S.   359 (1956) (hearsay permissible),                                                      with   Alaska R. Crim. P. 6(q), (r) (requiring                                   

sufficient uncontradicted, competent evidence to indict).                                                         

                114            475 U.S. 66 (1986).  


                115            Federal Criminal Rule 6(d) is similar to Alaska Criminal Rule 6(k).  


                116            The State asserts that the indictment in Mechanik  was "presumed to be  


invalid.  Otherwise, there would have been no call to consider whether the error in the  


indictment process required reversal of the subsequent conviction."  But the Mechanik  


Court never describes the indictment as defective or invalid.  See 475 U.S. at 67-73.  It  


speaks instead of an "error in the grand jury proceeding" and concludes that the error did  


"not affect[] substantial rights." Id. at 70-71 (emphasis added). Errors in the grand jury  


proceeding need not necessarily invalidate an indictment, just as errors at trial need not  


necessarily invalidate a trial verdict.  See Bank of Nova Scotia v. United States, 487 U.S.  


250,  263  (1988)  (indictment  valid  despite  prosecutorial  misconduct  because  the  


misconduct did not have a substantial effect on grand jury's decision to indict); Gieffels  


v. State, 590 P.2d 55, 59 (Alaska 1979) (indictment valid despite use of inadmissible  


hearsay when other, admissible evidence was presented that justified the indictment).  


                117           Mechanik, 475 U.S. at 68-69, 71-72.  


                118           Id. at 67 ("[T]he petit jury's verdict of guilty beyond a reasonable doubt  



                                                                                               -31-                                                                                        7222

----------------------- Page 32-----------------------

also "express[ed] no opinion as to what remedy may be appropriate for a violation of                                                                              

[Criminal] Rule 6(d) that has affected the grand jury's charging decision and is brought                                                               

                                                                                                                               119  Mechanik can be  

to the attention of the trial court before the commencement of trial."                                                                                            

thus distinguished from our own governing precedent and from the case now before us.  


                          4.          Stare decisis counsels against overturning our precedent.  


                         A party asking us to overturn precedent "bears a heavy threshold burden  


of showing compelling reasons for reconsidering the prior ruling"; we "will overrule a  


prior decision only when clearly convinced [(1)] that the rule was originally erroneous  


or is no longer sound because of changed conditions, and [(2)] that more good than harm  


would result from a departure from precedent."120  


                                                                                                  "The stare decisis doctrine rests on  


a solid bedrock of practicality: 'no judicial systemcould do society's work if it eyed each  



issue afresh in every case that raised it.' " 


                                      a.           The "originally erroneous" requirement  


                         A decision is "originally erroneous" if it "proves to be unworkable in  


practice" or the other party "would clearly have prevailed if [relevant issues the prior  

             118          (...continued)  


demonstrate[d] a fortiori that there was probable cause to charge the defendants with the  


offenses for which they were convicted." ).  

             119         Id. at 72.  


             120          Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937, 943 (Alaska  


2004) (quoting State, Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 859  


(Alaska 2003)).  


             121         Id. (quoting Pratt & Whitney Can., Inc. v. United Techs., 852 P.2d 1173,  


 1175 (Alaska 1993)).  


                                                                               -32-                                                                         7222

----------------------- Page 33-----------------------


 court failed to address] had been fully considered."                                                                                                                               The State "does not contend that                                                                  

 the  Adams/Taggard  rule is 'unworkable in practice,' " but it does argue that the analysis                                                                                                                                                                           

 in those cases "is seriously flawed."                                                      

                                             The State first argues that reversal of a conviction following an error-free                                                                                                                                         

 trial may result in "perceived injustice" by causing "such a sense of outrage and injustice                                                                                                                                                                          

 among   victims   and   the   public   that   the   legitimacy   of   criminal   convictions   and   the  

 effectiveness and integrity of the justice system may validly be called into question."                                                                                                                                                                                                             

 Perceptions about the legitimacy of the criminal justice system are very                                                                                                                                                                     important.   But  

 the potential for "perceived injustice" cannot outweigh the need for actual procedural                                                                                                                                                                       

justice   in   the   individual   case.     The   Alaska   criminal   justice   system   includes   a  

 constitutional right to indictment by grand jury, and Alaska's legislature and courts take                                                                                                                                                                                         

 that right seriously enough to impose standards on the evidence the grand jury may                                                                                                                                                                                                

                                123  Adams held that protecting the legitimacy and integrity of the grand jury was  


 a critical concern; it concluded that reversal was required because to hold otherwise  


                                                                                                                                                                                                                      124        This reasoning was  

 would render the right to indictment by a grand jury "a nullity."                                                                                                                                                                                                                   


 not originally erroneous.  


                                             The State also argues that Adams and Taggard - in emphasizing the grand  


jury's function "as a check upon the district attorney's power to initiate prosecution" 125  


 - erroneously "assume[d] that prosecutors will intentionally disregard Criminal Rule  


 6(r) and that trial courts will look the other way when they do."   But "overzealous  


 prosecutors," though perhaps a rarity, were a repeated concern of the constitutional  


                       122                   Id.  (emphasis in original) (quoting                                                                                 Pratt & Whitney                                         , 852 P.2d at 1176).

                       123                   See  Alaska R. Crim. P. 6(r).

                       124                    598 P.2d 503, 510 (Alaska 1979).

                       125                   Id.  

                                                                                                                                           -33-                                                                                                                                   7222

----------------------- Page 34-----------------------

 framers, and that concern shaped our constitutional right to a grand jury indictment. And                                                                                                

the fact that prosecutors adhere to the rules of evidence and criminal procedure in most                                                                                                

 cases does not obviate the need for a remedy in the unusual case. Though errors may be                                                                                                       

rare they do occur, and they do occasionally slip past trial courts; in  Adams, Taggard                                                                                                           ,  

                                                                                                                                              126  And the infrequency  

 and this case, a trial court failed to dismiss an invalid indictment.                                                                                                   

with which a grand jury error requires a post-conviction remedy does not negate the need  


 for a remedy.   The remedy  should match the severity of the violation - it should  


realistically account for the fact that the indictment was invalid.  As we observed in  


 Taggard,"[t]heindictmentis thefoundationunderlying a criminal prosecution."127  Only  


by reversing a conviction based on an invalid indictment can we safeguard the grand  


jury's role as a check on overzealous prosecution. 128  


                               The State also suggests that in Adams and Taggard we mischaracterized the  


nature of the defect in an indictment based on inadmissible hearsay evidence.  The State  


 asks us to draw a line between jurisdictional defects in indictments (such as the failure  


 to allege an essential element of the offense) - which the State concedes warrant  


reversal - and nonjurisdictional defects (such as the hearsay rule violation at issue here)  


- which the State argues are rendered harmless by an error-free trial.  The errors in  


Adams and Taggard, according to the State, were not jurisdictional and thus, as here, did  


not merit reversal.  


                126           Id. ;  Taggard v. State                        , 500 P.2d 238 (Alaska 1972).                         

                127            Taggard, 500 P.2d at 243.  


                128            Cf. S 

                                        ARA  SUN  BEALE,  ET AL                              .,GRAND  JURY  LAW  & P                              RACTICE    1:9 (2d ed.                    

 2016)   (describing   proposals   for   federal   grand   jury   reform   premised   on   belief   that  

prosecutorial abuses are common in federal system because of insufficient procedural                                                                                       


                                                                                             -34-                                                                                       7222

----------------------- Page 35-----------------------

                                          But we are unpersuaded that we should draw the line, as the State suggests,                                                                                                                              

between jurisdictional and nonjurisdictional errors.   We draw the line instead between                                                                                                                        

errors   that   have   the   effect  of   invalidating   an   indictment   and   those   that   do   not.   

Indictments may be invalid because of a nonjurisdictional error if the error "contributed                                                                                                                                               

                                                                                                                                                129   And an invalid indictment - whether  

in some way to the return of th[e] indictment."                                                                                                                                                                                                       

the error that made it invalid was jurisdictional or nonjurisdictional -requires a remedy.  


None of the State's arguments against reversal as a remedy overcome the concern we  


expressed in Adams that affirming a conviction based on an invalid indictment would  


render the right to indictment by grand jury a "nullity."130  


                                          Nor do the State's arguments show that we were incorrect in Taggard to  


conclude that dismissal of an indictment subsequent to conviction need not result in  


injustice; after all, we said, defendants can be reindicted and retried "on a record not  


tainted   with  irregularity."131                                                                       In   Taggard  we  acknowledged  the  "unfortunate"  


                     129                  Soper v. State                            , 731 P.2d 587, 591 (Alaska App. 1987) (citing                                                                                                  Frink v. State                            ,  

597 P.2d 154, 161 (Alaska 1979);                                                                             Hohman v. State                                        , 669 P.2d 1316, 1319-20 (Alaska                                                   

App. 1983));                              see also United States v. Mechanik                                                                          , 475 U.S. 66, 78 (1986) (O'Connor, J.,                                                                            

concurring in the judgment).                            

                                          Again,werecognizethatnotall ruleviolations result                                                                                                               in invalidindictments.                                                  

For   example,   the   admission   of   hearsay  in  violation   of   Criminal   Rule   6(r)   will   not  

invalidate an indictment if the grand jury had sufficient admissible evidence to support                                                                                                                                                                

its decision to indict.                                           Webb v. State                              , 527 P.2d 35, 36 (Alaska 1974). And "an indictment                                                                              

will not be dismissed for a violation of Rule 6(k) [governing who may be present during                                                                                                                                                                    

grand jury proceedings] unless the defendant shows that the violation prejudiced the                                                                                                                                                                                 

fairness of the grand jury proceedings."                                                                                     Hurn v. State                              , 872 P.2d 189, 193 (Alaska App.                                                        

 1994) (citing                            Soper, 731 P.2d at 591-92;                                                          Boggess v. State                                    , 783 P.2d 1173, 1176 (Alaska                                        

App. 1989)).   

                     130                 Adams , 598 P.2d at 510.  


                     131                  Taggard, 500 P.2d at 244 (quoting United States v. Beltram, 388 F.2d 449,  



                                                                                                                                  -35-                                                                                                                          7222

----------------------- Page 36-----------------------

consequence "that, at this stage of the proceedings, after a conviction has been properly                                                         

obtained on sufficient evidence, the indictment must be dismissed because of the . . .                                                                         

                                                                                                        132   We held nevertheless that a  

failure to present sufficient evidence to the Grand Jury."                                                                                                      

                                                                                                                         133    Again, we are not  

valid conviction could not be obtained on an invalid indictment.                                                                                            


convinced that this original conclusion was erroneous.  


                                     b.           The "intervening changes" requirement  


                         As an alternative to proving that the precedential decisions were erroneous  


when decided, the State could instead make a "clear and convincing showing that the  


decision is no longer sound  because conditions have changed" - for instance, "if  


'related principles of law have so far developed as to have left the old rule no more than  


a remnant of abandoned doctrine, [or] facts have so changed or come to be seen so  


differently, as to have robbed the old rule of significant application."134  


                         The Statecontendsthat in Taggard our "solerationale for requiring reversal  


of the conviction after an error-free trial was that other courts have done so," and it notes  


that "other courts now rarely overturn convictions after an evidentiary  error in the  


indictment." However, we do not follow other courts blindly, but rather because we find  


             131         (...continued)  


453 (2d Cir. 1968) (Medina, J., dissenting)).  

             132         Id.   at 243-44 (quoting                     People v. Jackson                  , 223 N.E.2d 790, 792 (N.Y.                   


             133         Id. at 244.  


             134         Thomas v. AnchorageEqual RightsComm'n, 102P.3d937,945 (alteration  


in original) (quoting Pratt & Whitney Can., Inc. v. United Techs., 852 P.2d 1173, 1176  


(Alaska 1993)).  


                                                                             -36-                                                                       7222

----------------------- Page 37-----------------------


their opinions persuasive "in light of precedent, reason, and policy."                                                                 The State "bears     


a heavy threshold burden"                                                                                                                                       

                                                        to move us from our earlier considered position.  The fact  


that other courts - applying different evidence rules to grand jury proceedings - have  


drawn different conclusions about whether evidentiary errors invalidate indictments or  


warrant reversal of convictions does not convince us that our existing framework is  


                          The State also argues that the criminal justice system's increased emphasis  


on victims' rights makes the Adams/Taggard rule outdated.  But "[a] victim's right to a  


timely disposition of a criminal case is satisfied if the proceedings take place in a timely  


manner, even if an appellate court later concludes that the proceedings were flawed and  


must be repeated."138                       And the State does not show that the victim's interest in being  


spared a new trial outweighs the defendant's constitutional right to a valid indictment.  


                          Finally, the State argues that dwindling government resources counsel  


against using reversal as the remedy for grand jury error. The State suggests that a more  


efficient and less costly remedy already exists in the form of interlocutory appeals from  


             135          See Young v. State                   , 374 P.3d 395, 404, 415-16 (Alaska 2016) (quoting                                     

Brooks v. Horner                  , 344 P.3d 294, 297 (Alaska 2015)).                     

             136          Thomas,  102  P.3d  at  943  (citing  State,  Commercial  Fisheries  Entry  


Comm'n v. Carlson, 65 P.3d 851, 859 (Alaska 2003)).  


             137          Cf. Michael v. State, 805 P.2d 371, 373-74 (Alaska 1991) (concluding that  


constructiveamendment of an indictment was reversible error, even though "most states"  


apply a different rule, because of the Alaska constitutional guarantee of grand jury  



             138          Cooper v. District Court, 133 P.3d 692, 701 (Alaska App. 2006).  


                                                                               -37-                                                                          7222

----------------------- Page 38-----------------------


denials of motions to dismiss, and the dissent endorses that remedy as well.                                                                      But the   

State does not show us that the                           Adams/Taggard  rule has caused any significant burden                                     

over the decades it has been the law of Alaska.                                           Approximately five percent of felony                       

                                                                   140  and the percentage of those who raise timely,  

defendants are convicted after trial,                                                                                                              

colorable objections to error in the grand jury proceedings is surely smaller still.  Once  


identified, the grand jury error results in dismissal of a conviction only if the superior  


court failed to recognize the error when it was raised, the case went to trial, and the  


defendant was convicted.141                            It seems that very few cases are likely to require retrial  


because of a grand jury error.  The cost of this rare consequence, even in light of the  


State's newly dire finances, is not a "changed condition" that compels us to reconsider  


our long-standing precedent.  


                         Because we are not "clearly convinced" of the first element required for  


overruling the Adams/Taggard rule - that the rule "was originally erroneous or is no  


longer sound because of changed conditions" - we decline to overrule it. We therefore  


             139         Dissent at 43.      

             140         See ALASKA  JUDICIAL  COUNCIL,A                               LASKA  FELONY  SENTENCING  PATTERNS :   

   ELECTED               FINDINGS                 83       (2016),     



(showing that 94% of convictions were by plea agreement); Antonia Moras,                                                                   The Felony   

Case Process in Alaska:                            The Judicial Council Analysis                             ,  ALASKA   JUSTICE   FORUM,  


Winter 2004, at 3, 4 (showing that of the 85% of felony defendants who are convicted,  


4.7% are convicted at trial and the remaining 95.3% through plea agreements).  

             141         Superior courts can and do dismiss indictments before trial due to errors in  


grand  jury  proceedings.                          See  State  v.  Skan,  511  P.2d  1296,  1297  (Alaska  1973)  


(affirming dismissal of indictment because the grand jury relied on the uncorroborated  


hearsay statements of an alleged accomplice).  


                                                                             -38-                                                                      7222

----------------------- Page 39-----------------------

need not reach the second element, whether "more good than harm would result from a                                                                                                                     

departure from precedent."                                     142  

V.              CONCLUSION  


                               We REVERSE the court of appeals' decision that the incident report was  


admissible under the business records exception.  Because the indictment of Wassillie  


was invalid, we REVERSE his conviction.  

                142             Thomas, 102 P.3d at 943 (quoting                                                Carlson, 65 P.3d at 859).                       

                                                                                                -39-                                                                                                   7222  

----------------------- Page 40-----------------------

 BOLGER, Justice, with whom STOWERS, Chief Justice, joins, dissenting in part.                                                                                                                                                                                                                                                                 

                                                          I agree with the court's conclusion about the grand jury error in this case.                                                                                                                                                                                                                                                   

 The incident report was probably not admissible as a business record.                                                                                                                                                                                                                                   So the grand jury                                         

presentationwasbasedonhearsaypresentedwithout                                                                                                                                                                                compelling justification in violation                                                                            

 of Alaska Criminal Rule 6(r).                                                                              

                                                          But I disagree with the court's conclusion that Wassillie's conviction must                                                                                                                                                                                                                           

be reversed.                                          The prosecution presented the same basic evidence at trial through the live                                                                                                                                                                                                                                   

testimony   of   the   Parkview   staff   members.     The   trial   jury   then   determined   that   the  

 evidence established beyond a reasonable doubt that Wassillie had committed the crime                                                                                                                                                                                                                                                                      

 of second-degree escape. This factual determination "necessarily means that there [was]                                                                                                                                                                                                                                                                     

                                                                                                                                                                                                                                                                                                  1       In other words, if  

probable cause to believe" that Wassillie had committed that crime.                                                                                                                                                                                                                                                                                                          

the same evidence had been submitted to the grand jury, then the grand jury would have  


been required to return the same indictment.2  


                                                          The court's opinion on this issue is inconsistent with the way we have  


treated other issues involving preliminary proceedings.  Recently we addressed a case  


where the superior court ruled that even though the police had violated the defendant's  


Miranda rights, the prosecution could use the police interview if the defendant took the  


                             1                            State v. Markgraf                                                         , 913 P.2d 487, 487 (Alaska 1996) (Mem.) (Matthews, J.,                                                                                                                                                                                


                             2                            See  Alaska R. Crim. P. 6(q) ("The grand jury shall find an indictment when                                                                                                                                                                                                                        

 all   the   evidence   taken   together,   if   unexplained   or   uncontradicted,   would   warrant   a  

 conviction of the defendant.");                                                                                                       see also State v. Leighton                                                                                         , 336 P.3d 713, 715 (Alaska                                                             

App. 2014) (noting nothing in the text of the Alaska Constitution or the minutes of the                                                                                                                                                                                                                                                                                

 convention suggesting a right to grand jury nullification).                                                                                                                                

                                                                                                                                                                                  -40-                                                                                                                                                                          7222

----------------------- Page 41-----------------------

                        3                                                                                   4  

stand at trial.            But the defendant chose not to testify at trial.                                     We declined to review his                  

claim that the superior court's ruling was incorrect, in part because he could not establish                                                    

                                                                                                                5   Similarly, in McConnell  

that the      Miranda  error had affected the trial court proceedings.                                                                      

v. State, we stated that "[i]t is well-established that an illegal arrest or detention does not  


bar the state from prosecuting criminal conduct or void a subsequent conviction."6  


                         Likewise, in a civil case, we generally decline to review on appeal an order  


that denies a defendant's motion for summary judgment on factual grounds, even when  


the defendant argues that there were no genuine factual issues for trial. The reason is that  


appellate review of such orders "serves no purpose after a case is tried and a trial record  


has been developed."7                        And in a close analogy, we have recognized that errors in a  


probable  cause  hearing  are  generally  cured  by  an  error-free  trial  on  a  petition  to  


                                                          8   I believe that we should follow the logic of these cases  

adjudicate a child in need of aid.                                                                                                                     


and hold that an evidentiary error at the grand jury presentation can be cured if the  


defendant is convicted after an error-free trial.  


            3            Wagner  v.  State,  347  P.3d   109,   111  (Alaska  2015).  

            4            Id .  

             5           Id .  at   114-16.  

             6           595  P.2d   147,   155  n.26  (Alaska   1979)  (citing  Gerstein  v.  Pugh,  420  U.S.  

 103,   119  (1975);  Ker  v.  Illinois,   119  U.S.  436,  439  (1886)).  

             7           Larson  v.  Benediktsson,  152  P.3d  1159,  1166  (Alaska  2007)  (citing  


Johnson Int'l Co. v. Jackson Nat'l Life Ins. Co., 19 F.3d 431, 434 (8th Cir. 1994)).  


             8          Alyssa B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth  


Servs.,165 P.3d 605, 610 (Alaska 2007); D.E.D.  v. State, 704 P.2d 774, 782 (Alaska  



                                                                            -41-                                                                      7222

----------------------- Page 42-----------------------

                       In declining this rule, the court's opinion relies on our prior opinions in                                               

                             9                                    10  

Taggard v. State                                                                                                                            

                                and Adams v. State .                   But I believe that both these decisions were  



incorrect at the time they were decided. 


                       In  Taggard, we held that hearsay evidence presented to the grand jury  

                                                                                               12    We decided to reverse the  


lacked sufficient reliability to support the indictment. 

defendant's conviction based on the recognition that other courts had done so when a  


defect in the indictment is substantial.13                                But the cases this court relied on for this  


proposition did not involve any defect in the evidence presented to the grand jury.  The  


cases that the Taggard court relied on were based on fundamental defects in the text of  


the indictment or information - these charges failed to allege an essential element of the  


offense.14        This type of defect implicates the defendant's right to notice of the charge, a  


                                                                                                             15   The  Taggard court  

right that undoubtedly has an impact on the trial proceedings.                                                                             


           9           500  P.2d  238  (Alaska   1972).  

            10         598  P.2d  503  (Alaska   1979).  

            11         See  Kinegak  v.  State,  Dep't  of  Corr.,  129  P.3d  887,  889-90  (Alaska  2006)  

("A  prior  decision   should  be  overruled  only  if  the  court  is  clearly  convinced  that  the  

precedent  is  erroneous  or  no  longer  sound  because  of  changed  conditions,  and  that  more  

good   than   harm   would   result   from   overturning   the   case."   (citing   State   v.   Fremgen,  

914  P.2d   1244,   1245-46  (Alaska   1996))).  

            12         Taggard, 500 P.2d at 243.  


            13         Id . (citing People v.Fain, 173 N.E.2d 825 (Ill. App. 1961); State v. Bridges,  


412  S.W.2d  455  (Mo.  1967); State  v. Nolan,  418  S.W.2d  51  (Mo.  1967); State  v.  


Sossamon, 130 S.E.2d 638 (N.C. 1963)).  


            14         See  Fain,  173  N.E.2d  at  825;  Bridges,  412  S.W.2d  at  457;  Nolan,  


418 S.W.2d at 55; Sossamon, 130 S.E.2d at 640.  


            15         See, e.g., Alto v. State, 565 P.2d 492, 495 (Alaska 1977) ("Nothing is more  



                                                                      -42-                                                                 7222

----------------------- Page 43-----------------------

mistakenly relied on these cases involving apleading errorto reverse an evidentiary error                                                                                     

that easily could be corrected at trial.                             

                             In   Adams ,   we   concluded   that   if   an   error-free   trial  "could   validate   an  

otherwise invalid indictment, the right to indictment by a grand jury would become a                                                                                                 

nullity and the grand jury would cease to operate as a check upon the district attorney's                                                                         

                                                                16  But this conclusion ignored the defendant's right to file  

power to initiate prosecution."                                                                                                                                                  

a pretrial motion to dismiss an indictment based on the grand jury presentation, and the  


trial  court's  obligation  to  grant  such  a  motion  if  the  indictment  is  not  properly  


 supported.17                If the trial court improperly denies such a motion, then the defendant is  


entitled to petition for review.18   "Though interlocutory review is 'not a matter of right,'  


 such review is particularly appropriate in a case such as this, involving constitutional  


                                                                                           19    These pretrial remedies establish that the  

issues that would otherwise evade review."                                                                                                                                       


Adams court erred when it concluded that post-trial review was necessary to protect the  


right to a grand jury indictment.  


               15            (...continued)  

fundamental  to  our  system  of  justice  than  the  requirement  that  the  accused  be  informed  

of  the  charges  against  him.").  

               16            598  P.2d  503,  510  (Alaska   1979)  (footnotes  omitted).  

               17           State  v.  Markgraf,  913  P.2d  487,  487  (Alaska  1966)  (Mem.)  (Matthews,  J.,  


               18           See   Alaska   R.   App.  P.   402(b)(1)   (allowing   interlocutory   review   when  

postponement  "will  result  in  injustice  because  of  impairment  of  a  legal right"); Alaska  

R.  App.  P.  402(b)(4)  (allowing  review  when  the  issue  "might  otherwise  evade  review").  

               19            Wagner  v.  State,  347  P.3d  109,  115  (Alaska  2015)  (quoting  Alaska  R.  App.  

P.  402(b)).  

                                                                                       -43-                                                                                  7222

----------------------- Page 44-----------------------

                     Moreover, the circumstances have changed since we decided                                    Taggard  and  

            20                                               21  

Adams .                                                                                                                              

                In United States v. Mechanik,                   the United States Supreme Court addressed a  


similar  issue.          In  that  case  two  law  enforcement  agents  were  sworn  together  and  

                                                                    22  This procedure violated Federal Rule of  



questioned before the grand jury in tandem. 

Criminal Procedure 6(d), which generally allows only specified persons to be present,  


including "the witness under examination."  But the Court concluded that the guilty  


verdict returned at trial rendered this grand jury error harmless beyond a reasonable  



                     The Court recognized that there was no way to restore a defendant to the  


position he would have been in if the indictment had been dismissed before the trial: "He  


will already have suffered whatever inconvenience, expense, and opprobrium that a  


                                                                24  And the Court recognized that "reversal of  

proper indictment may have spared him."                                                                                             


a conviction  entails substantial social costs:                           it forces jurors,  witnesses, courts,  the  


prosecution, and the defendants to expend further time, energy, and other resources to  


repeat a trial that has already once taken place; victims may be asked to relive their  


disturbing experiences."25                  Balancing these interests, the Court concluded that "the  


societal costs of retrial after a jury verdict of guilty are far too substantial to justify  


           20        See  Kinegak   v. State,  Dep't   of   Corr.,   129   P.3d   887,   890   (Alaska   2006)  

(concluding  that  changes  in  federal  case  law  were  "changed  conditions"  that  supported  

overruling  a  precedent).  

           21        475 U.S. 66 (1986).  


           22        Id . at 67.  


           23        Id. at 70.  


           24        Id . at 71.  


           25        Id . (citing Morris v. Slappy, 461 U.S.  1, 14 (1983)).  


                                                                -44-                                                          7222

----------------------- Page 45-----------------------

setting   aside   the   verdict   simply   because   of   an   error   in   the   earlier   grand   jury  


                     I believe that the rule adopted in Mechanik is much better than a rule that  


encourages the defendant to rely on post-trial review. This case is a good example. The  


error  in  the grand jury presentation was committed seven years ago, and the order  


denying Wassillie's motion to dismiss was entered more than six years ago. If Wassillie  


had an incentive to pursue a petition for review, then the error could have been corrected  


at that time, and both parties would have avoided the time, expense, and anxiety of an  


intervening jury trial.  If the issue had been decided at that time, then the State would  


have had a reasonable chance to make a proper presentation to both the grand jury and  


the trial jury - a chance that is likely foreclosed by the passage of time. And if the State  


did not seek another indictment, then Wassillie could have avoided the six-year prison  


sentence that he has now likely completed.  Thus both parties would have benefitted  


from a pretrial determination of this issue.  


                     In my opinion, the better rule is to view this type of grand jury error as  


harmless if the defendant is convicted following an error-free trial.  I would affirm the  


court of appeals on this basis.  




                    Id . at 73.  

                                                               -45-                                                              7222  

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