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State v. Leighton (10/24/2014) ap-2431

State v. Leighton (10/24/2014) ap-2431


          The text of this opinion can be corrected before the opinion is published in the  

          Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

          errors to the attention of the Clerk of the Appellate Courts.   

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STATE OF ALASKA,                                          )  

                                                          )         Court of Appeals No. A-11389 

                                      Appellant,          )        Trial Court No. 4FA-11-4262 CR  


                  v.                                      )  

                                                          )                  O P I N I O N  

TARA LEIGHTON,                                            )  


                                      Appellee.           )          No. 2431- October 24, 2014        


                   Petition  from  the  Superior  Court,  Fourth  Judicial  District,  

                   Fairbanks, Randy M. Olsen, Judge.  

                   Appearances:    Tamara  E.  de  Lucia  and  Timothy  W.  Terrell,  

                   Assistant Attorneys General, Office of Special Prosecutions and  


                   Appeals,   Anchorage,   and   Michael   C.   Geraghty,   Attorney  

                   General,  Juneau,  for  the  Appellant.              Wendy  M.  Doxey,  Law  


                   Offices   of   William   R.   Satterberg   Jr.,   Fairbanks,   for   the  



                   Before:  Mannheimer, Chief Judge, Allard, Judge, and Hanley,  


                   District Court Judge.*  


                   Judge HANLEY.  

     *    Sitting  by  assignment  made  pursuant  to  article  IV,  section  16  of  the  Alaska  

Constitution and Administrative Rule 24(d).  

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

                     In this appeal, we are asked to decide whether the grand jury clause of the   

Alaska Constitution (article I, section 8) requires grand juries to be instructed that they   

have absolute discretion to refuse to return an indictment, even when the State presents                       

sufficient evidence to support the accusation.   In this case, the superior court ruled that  

grand  juries  must  be  instructed  in  this  fashion.    For  the  reasons  explained  here,  we  

reverse that decision.  

           Underlying facts and the superior court's ruling  

                     Tara Leighton was indicted on five counts of first-degree sexual abuse of  


a minor for engaging in sexual penetration with a thirteen-year-old girl who played on  


a sports team that Leighton coached.  Leighton moved to dismiss her indictment, arguing  


that the grand jurors should have been instructed that they could refuse to return the  


indictment even though the State's evidence was sufficient to justify the charges.  

                     The Alaska Supreme Court has recognized that the grand jury acts "as both  


a shield and [a] sword of justice."1  

                                                        On the one hand, the grand jury is an accusatory and  

investigative body "tasked with determining whether criminal proceedings against the  

accused  should  be  instituted."2  

                                                        But  the  grand  jury  also  plays  a  protective  role,  


"operat[ing] to control abuses by the government and protect[ing] the interests of the  


                     In accordance with this law, the presiding judge of the Fourth Judicial  

District instructed Leighton's grand jury that its duty was two-fold:  

      1    Cameron v. State, 171 P.3d 1154, 1156 (Alaska 2007).

     2    Id. (citing  United States v. Calandra, 414 U.S. 338, 343-44 (1974)).

     3    Id. (alterations in  Cameron) (quoting Preston v. State , 615 P.2d 594, 602 (Alaska

1980) (internal quotation marks omitted)).  

                                                                    2                                                                 2431  

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

                   First, grand jurors have an obligation to the people of the  

                   State  of  Alaska  to  compel  persons  charged  with  serious  


                   criminal  conduct  to  answer  for  that  conduct  if  there  are  


                   grounds for the charge.  At the same time, however, grand  


                   jurors have an obligation to every individual to ensure that no  

                   one is subjected to criminal prosecution without good cause.  

The presiding judge then gave the instruction that is at issue in this case.  We have  

italicized the language that Judge Olsen believed was improper:  

                   Once you have heard the State's evidence along with any  

                   additional evidence presented at the request of the grand jury,  


                   you  must  decide  whether  that  evidence,  if  unexplained  or  

                   uncontradicted, would warrant conviction of the defendant.  


                   If  at  least  ten  of  you  believe  the  evidence  has  met  that  

                   standard, the indictment should be endorsed "a true bill" and  

                   signed by your foreperson.  If not, the proposed indictment  

                   should  be  endorsed  "not  a  true  bill"  and  signed  by  your  


                   Judge  Olsen  concluded  that  the  above-quoted  three  sentences  did  not  


properly convey the grand jury's "absolute, unfettered discretion" under the Alaska  

Constitution to refuse to return a true bill.  

                   The judge acknowledged that the word "should" means something different  

from the word "shall" - that "should" does not convey a command, but rather "an  

expectation of what ought to be done, with some inherent flexibility as to the actor's  

ability to depart from the expectation."  

                   Nevertheless,  Judge Olsen concluded that "should" did not sufficiently  


convey  the  grand  jury's  complete  and  unfettered  discretion  to  refuse  a  proposed  


indictment.  The judge ruled that the presiding judge was required to use the word "may"  


when describing the grand jury's authority to return a true bill because this was the word  


                                                            3                                                      2431

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

used in article I, section 8 of the state constitution:  "The grand jury shall consist of at       

least twelve citizens, a majority of whom concurring may return an indictment."4  

                     Judge Olsen further concluded that this error in instructing the grand jury  


could not be harmless because no one could predict how any particular grand jury might  

exercise this absolute discretion in any particular case.  

                     After the superior court denied the State's motion for reconsideration, the  


 State filed this petition for review.  

           Why   we   conclude   that   the   superior   court's   ruling   is   based   on   a  

           misinterpretation of the grand jury clause of the Alaska Constitution  

                     Judge Olsen's ruling that the grand jury should be instructed that it "may"  

return an indictment was based on a misreading of the grand jury clause of the Alaska  

Constitution (article I, section 8).  This clause provides, in pertinent part:  

                     The grand jury shall consist of at least twelve citizens, a  

                     majority of whom concurring may return an indictment.  

                     As the State points out in its brief, the first part of this sentence fixes the  

minimum number of citizens required to form a grand jury, while the second part of this  


sentence defines the minimum number of grand jurors - "a majority" of the entire grand  


jury - who must concur in an indictment before the grand jury is allowed to indict  


                     In  this  sentence,  the  phrase  "may  return  an  indictment"  stands  for  the  

concept of "is authorized to return an indictment."  This phrase does not refer to the legal  


test for when an indictment is justified, nor does this phrase refer to the grand jury's  


power to refuse to endorse a proposed indictment.  

     4     Emphasis added.  

                                                                  4                                                              2431  

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

                     There   is   nothing   in   the   language   of   this   sentence,   and   nothing   in  the  

discussions  in  the  Alaska  Constitutional  Convention  pertaining  to  this  sentence,5  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.  

                     Moreover,  to  the  extent  that  grand  juries  in  Alaska  have  a  power  of  

nullification (an issue we do not decide), the instruction used by the presiding judge  

adequately conveyed this concept.  As we explained earlier, the presiding judge told the  


grand jurors that if at least ten of them believed that the State's evidence met the standard  

for issuing an indictment, "the indictment should be endorsed 'a true bill' and signed by  


your foreperson."  

                     Judge Olsen himself acknowledged that the word "should" did not convey  


a command, but only an "expectation of what ought to be done" - and that this word  

conveyed   to   the  grand  jurors  "some  inherent  flexibility  ...  to  depart  from  the  



                     To  support  his  ruling,  Judge  Olsen  additionally  relied  on  a  statute,  

AS 12.40.050, which provides:  "The grand jury may indict or present a person for a  

crime upon sufficient evidence, whether that person has been held to answer for the  


crime or not."  While this statute uses the word "may," it does not address the grand  

jury's  discretion  to  refuse  to  return  an  indictment.    Rather,  the  statute  addresses  a  


different issue:  the grand jury's authority to return an indictment on charges that the  

      5    6 Proceedings of the Alaska Constitutional Convention 63-64, 71 (Dec. 15, 1955).  

      6    See United States v. Navarro-Vargas, 408 F.3d 1184, 1204 (9th Cir. 2005) (holding     

that instructing the grand jurors that they "should" indict if they find probable cause did not         

violate the grand jury's independence because "[a]s a matter of pure semantics" this wording   

"does not eliminate discretion on the part of the grand jurors" and it "leav[es] room for the   

grand jury to dismiss even if it finds probable cause").  

                                                                    5                                                            2431

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


State has not proposed, if the evidence justifies the charges.                                    Again, the word "may" is   

being used in the sense of "is authorized to."  

                     In sum, neither Judge Olsen nor Leighton has offered us a convincing basis  


for  concluding  (1)  that grand  jurors  have  absolute  discretion  to  refuse  to  return  an  


indictment - for any reason, or for no reason at all - and (2) that the superior court is  


prohibited from instructing grand jurors that they "should" return an indictment if the  

evidence justifies it.  

                     We  acknowledge  that  the   assistant  district  attorney  who  presented  

Leighton's  case  to  the  grand  jury  gave  the  grand  jurors  additional  instructions  that  


arguably contradicted the presiding judge's instructions. But Judge Olsen's ruling in this  


case was based solely on the wording of the presiding judge's instructions, and that is  


the only ruling before us.  


                     The superior court's decision is REVERSED, and the indictment against  

Leighton is REINSTATED.  

     7     See Sleziak v. State, 454 P.2d 252, 261 & n.30 (Alaska 1969).  

                                                                    6                                                                 2431  

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