STATE v SCANLON

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No. 13476 I N THE SUPREME COURT O THE STATE O MONTANA F F 1976 THE STATE O MONTANA, F P l a i n t i f f and Appellant, -vs - JACK Me SCANLON, Defendant and Respondent. Appeal from: D i s t r i c t Court o f t h e F i r s t J u d i c i a l D i s t r i c t , Honorable Gordon R. Bennett, Judge p r e s i d i n g . Counsel of Record: For Appellant : Hon. Robert L. Woodahl, Attorney General, Helena, Montana Thomas Budewitz argued, A s s i s t a n t Attorney General, Helena, Montana A l b e r t Melloling argued, S p e c i a l A s s i s t a n t Attorney General, Helena, Montana For Respondent : Donald G a r r i t y argued, Helena, Montana Submitted: Decided : October 21, 1976 m- $a 197~ c % Filed: E c % 0 1976 Mr. Justice John Conway Harrison delivered the Opinion of the Court. The state appeals from dismissal of eighteen counts of perjury returned by the grand jury against Jack M. Scanlon, defendant. The grand jury in Lewis and Clark County initiated an investigation into defendant's Workers' Compensation related activities. The foreman of the grand jury stated: "* * * Pursuant to this inquiry, the Grand Jury will examine the activities of Jack Scanlon in his representation of claimants before the Industrial Accident Board and the Workmen's Compensation Division during the period between mid-1969 and mid-1973 and thereafter. "This inquiry will include a review of each step of Mr. Scanlon's professional representation, commencing with initiation of the attorney-client relationship and continuing through the conclusion of such representation, including any related third-party litigation involving subrogation rights." part of this investigation a number defendant's clients were called and testified to the manner the attorneyclient relationship was initiated. After this testimony, the grand jury requested the attorney general to file a complaint with the Commission on Practice charging defendant did solicit without legal cause or permission, the individuals who testified. Defendant was called to testify before the grand jury and refused to answer questions posed to him asserting his right against self-incrimination. Thereafter, in an effort to find where defendant received the information, defendant was granted immunity against prosecution except prosecution for contempt and perjury. He testified for two days before the grand jury,denying he solicited these persons and offered explanation for the manner in which they became his clients. Following defendant's testimony there was further inquiry and some clients were recalled. Some people, whom defendant said referred these clients to him, were called to testify. The grand jury returned anindictment charging eighteen counts of perjury. Defendant filed a motion to dismiss these charges, which was granted. The state appeals. We summarize the issues presented to be: 1. Whether the evidentiary standard required for proof of perjury was met? 2. Whether the allegedly perjured testimony was material? 3. Whether off-the-record statements made to the grand jury were grounds for dismissal? 4. Whether there was sufficient prosecutorial misconduct to warrant dismissal of the indictment? 5. Whether the admonition of secrecy delivered to the grand jury witnesses was grounds for dismissal? First, we consider the strict evidentiary standard required for the proof of perjury. Section 94-7-202(7), Three Montana statutes are applicable: R.C.M. 1947, provides: "No person shall be convicted of an offense under this section where proof of falsity rests solely upon the testimony of a single person other than the defendant .I ' Section 93-401-1, R.C.M. 1947, provides: "The direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact, except perjury and treason." Section 93-1401-2, R.C.M. 1947, provides: "Perjury and treason must be proved by testimony of more than one witness; treason by the testimony of two witnesses to the same overt act; and perjury by the testimony of two witnesses, or one witness and - . corroboratinp; circumstances." (Emphasis added.) The basis for unusually stringent evidence requirements is set out in an article in 19 UCLA Law Review 638, 642,643 entitled "Perjury and Related Offenses Under t h e Proposed C a l i f o r n i a Criminal Code." That same a r t i c l e p o i n t s o u t a t p . 645, t h a t T e n t a t i v e D r a f t No. 6 of t h e Model Penal Code on t h i s p o i n t reads: "Corroboration. Proof of g u i l t beyond a reasonable doubt s h a l l s u f f i c e f o r conviction under t h i s s e c t i o n a s i n o t h e r criminal c a s e s , without s p e c i a l requirement of two witnesses o r corroborating circumstances. o [-- l t e r n a t e , r e j e c t e d by t h e c o u n c i l : N person s h a l l A - -be convicted of an offense under t h i s Section where proof of f a l s i t y r e s t s s o l e l y upon c o n t r a d i c t i o n by testimony of a person o t h e r than t h e defendant.]" " The o f f i c i a l d r a f t of t h e Model Penal Code, which served a s t h e b a s i s f o r s e c t i o n 94-7-202(7), R.C .M. provision. 1947, used the a l t e r n a t e I n Montana Criminal Code, 1973, Annotated, Prof. William F. Crowley - E d i t o r , a t page 293 t h e annotator p o i n t s o u t : "The common law r u l e t h a t falsehood be e s t a b l i s h e d by two witnesses i s adopted i n p a r t by subsection ( 7 ) . A t t h e common'law t h i s r u l e was adopted t o d e a l with t h e problem of an oath a g a i n s t an oath. The modern r a t i o n a l e i s a policy determination based on a balancing of t h e need f o r p r o t e c t i o n of witness and t h e need t o maintain t h e sanctions f o r f a l s e testimony. I n adopting t h e requirement of more than one witness Montana has followed t h e majority of s t a t e s i n a f f o r d i n g a d d i t i o n a l p r o t e c t i o n t o t h e witness a t t h e p o s s i b l e c o s t of being *I1 unable t o convict an apparent p e r j u r e r . ** A s noted above, t h e standard of proof required i n Montana under t h e new code s e c t i o n 94-7-202(7), R.C.M. 1947, r e q u i r e s t h a t t h e proof of t h e f a l s i t y of a statement must be more than t h e contrad i c t i o n testimony of a person o t h e r than t h e defendant. The l e g i s - l a t u r e r e c e n t l y made t h i s policy determination and d e s p i t e t h e c o n t r a r y r u l e urged by t h e s t a t e , t h i s i s t h e r u l e i n Montana. The exact requirements of t h i s e v i d e n t i a r y r u l e i n p e r j u r y cases a r e apparent from an examination of t h e C a l i f o r n i a c a s e s i n t e r p r e t i n g t h e s e c t i o n of t h e C a l i f o r n i a C i v i l Code, i d e n t i c a l t o Montana's section 93-1401-2, R.C.M. 1947. In an article entitled "Proof of Perjury: The Two Witness Requirement", 35 Southern California Law Review 86,97, it is stated: II In summary, the California attitude is, and remains, that direct testimony of at least one witness must always be introduced to prove the falsity of the statement set forth in the indictment; circumstantial evidence alone will not support a perjury conviction." In People v. Roubus, 53 Cal.Rptr. 281, 417 P.2d 865, 866, 867, the California Supreme Court, sitting In Bank, outlined this evidentiary requirement: "Perjury must be proved by the testimony of two witnesses, ** or of one witness and corroborating circumstances. This statutory provision has been interpreted as prescribing not only the amount but also the kind of evidence necessary to support a perjury conviction. * * * Direct, as distinguished from circumstantial, evidence of the falsity of the defendant's testimony by at least one witness is generally required. * * * This does not mean that there must be a denial in the very words of the defendant's testimony * but that there muet be testimony by at least one witness furnishing direct evidence of facts contrary to, or absolutely incompatible or physically inconsistent with, that sworn to by the accused * * *, Evidence that establishes facts from which the falsity of an alleged perjured statement may or may not be inferred is insufficient under the direct evidence rule. ** * * * * "The rule requiring proof of falsity by direct evidence has been criticized. * * However, this requirement was early established in this state by decisions construing our statutory provision. It is noteworthy that a majority of jurisdictions which apply the rule that falsity must be proved by the testimony of two witnesses, or of one witness and corroborating circumstances, hold that circumstantial evidence alone is generally insufficient to establish falsity.'' * An early Montana case indica tEs this is the law in Montana as well, In State v. Gibbs, 10 Mont. 213, 219, 25 P. 289, it is said: "'It is not necessary that there should be two living witnesses in contradiction of the statement of the defendant to justify a confiction of perjury. It is sufficient if, in addition to one directly opposing witness, corroborating circumstances sufficient to turn the scale and overcome the oath of the defendant and the legal presumption of his innocence are proved. 1 1 1 The Court i n Gibbs approved t h i s i n s t r u c t i o n a s t o proof of p e r j u r y : ** t h a t such a c t of perjury has been e s t a b l i s h e d t o your s a t i s f a c t i o n beyond a reasonable doubt by more than one witness, o r t h a t t h e testimony of such witness has been corroborated upon t h a t p o i n t by o t h e r f a c t s and circumstances proved on t h e t r i a l . I n o t h e r words, t h e d i r e c t evidence of one witness alone i s not s u f f i c i e n t t o convict of t h e crime of p e r j u r y , u n l e s s corroborated by o t h e r f a c t s and circumstances proved on t h e t r i a l . t 11 If'* I n Gibbs t h e Court was construing t h e then equivalent code s e c t i o n t o s e c t i o n 93-401-1, enacted a t t h a t time. R.C.M. 1947. Section 93-1401-2 had not been I n S t a t e v. Jackson, 88 Mont. 420, 293 P. 309, t h e Court c i t e d Gibbs a s a u t h o r i t y of t h e requirement t h a t p e r j u r y must be proved by t h e testimony of two w i t n e s s e s , o r one witness and corroborating circumstances i n d i c a t i n g t h a t t h i s was t h e law even p r i o r t o t h e passage of s e c t i o n 93-1401-2, A s u b s i d i a r y question t o be determined R.C.M. 1947. regards t h e n a t u r e of t h e corroborating circumstances t h a t must be proved. The r u l e i n * C a l i f o r n i a , t h a t t h e s t a t e argues we should adopt, i s s t a t e d i n People v. Casanova, 54 Cal.App. 439, 202 P. 45,47: * *The s t a t u t e respecting t h e quantum of evidence necessary i n p e r j u r y cases w i l l be s a t i s f i e d , i f t h e r e be t h e testimony of one witness t o f a c t s t h a t a r e a b s o l u t e l y incompatible with t h e innocence of t h e accused, corroborated by circumstances which, of thems e l v e s and independently of such d i r e c t l y inculpatory evidence, tend, with a reasonable degree of c e r t i t u d e , t o show t h a t t h e accused i s g u i l t y a s charged." 'I* See a l s o : People v. Pustau, 39 C.A.2d 407, 103 P.2d 224,228. t h e Court s a i d t h a t "corroborating circumstances s u f f i c i e n t t o t u r n t h e s c a l e and overcome t h e oath of t h e defendant and t h e l e g a l presumption of h i s innocence" a r e a l l t h a t i s required. I n People v. Todd, 9 C.A.2d 237, 49 P.2d 611, 614, i t i s pointed out : "It i s a l s o w e l l s e t t l e d t h a t motive and design t o commit a crime, i f . p r o v e d , may be considered a q u i l t y circumstance and consequently maylserve l e g a l l y a s c o r r o b o r a t i v e evidence; and i n t h i s behalf i t has been repeatedly h e l d t h a t where, a s h e r e , i t i s claimed t h a t s e v e r a l o f f e n s e s have been cormitted a s p a r t of one scheme o r plan, a l l of t h e same g e n e r a l c h a r a c t e r , tending t o t h e same common end, evidence thereof may be received t o show t h e process o r motive and design t o commit t h e p a r t i c u l a r offense w i t h which t h e accused i s charged, and a s tending t o show l o g i c a l l y t h a t t h e p a r t i c u l a r offense f o r which he i s being t r i e d was p a r t of such common scheme." *** The second i s s u e involves t h e requirement t h a t t h e a l l e g e d p e r j u r e d statement be m a t e r i a l . 202(3), R.C.M. The Montana s t a t u t e , s e c t i o n 94-7- 1947, provides: " F a l s i f i c a t i o n i s m a t e r i a l , r e g a r d l e s s of t h e a d m i s s i b i l i t y of t h e statement under r u l e s of evidence, i f i t could have a f f e c t e d t h e course o r outcome of t h e proceeding. I t i s no defense t h a t t h e d e c l a r a n t mistakenly belidved t h e f a l s i f i c a t i o n to--be immaterial. Whether a f a l s i f i c a t i o n i s m a t e r i a l i n a given f a c t u a l s i t u a t i o n i s a question of law." The Commission Comment p o i n t s out: "The proposed d e f i n i t i o n of ' m a t e r i a l i t y ' i n subsection ( 3 ) does n o t d i f f e r s u b s t a n t i a l l y from t h a t given by p r i o r law. " I n S t a t e v. H a l l , 88 Mont. 297, 304, 292 P. 734, t h e Court said : "* * *Also i t may be conceded t h a t t h e g e n e r a l r u l e i s t h a t anything so connected with t h e matter a t i s s u e a s t o have a l e g i t i m a t e tendency t o prove o r disprove some m a t e r i a l i s s u e by giving weight o r p r o b a b i l i t y t o , o r d e t r a c t i n g from, t h e testimony of a w i t n e s s , i s m a t e r i a l and t h a t , i f evidence i s c i r c u m s t a n t i a l l y m a t e r i a l , i t i s s u f f i c i e n t t o s u s t a i n a p e r j u r y charge." *** The t e s t f o r m a t e r i a l i t y a s s e t out by t h e s t a t u t e i s n o t p a r t i c u l a r l y d i f f i c u l t t o meet, i t r e q u i r e s only t h a t i n t h e a c t u a l f a c t u a l s i t u a t i o n involved would i t be reasonable t o f i n d t h a t t h e defendant's statement, i f believed, could have a l t e r e d t h e course of t h e i n vestigation. While it i s t r u e t h a t a f a l s e answer t o a t r i v i a l o r i r r e l e v a n t question does n o t i n and of i t s e l f hamper t h e £unctioning of t h e s t a t e , t h e c o u r t , whose i n t e g r i t y depends on t h e t r u t h , has a s p e c i a l i n t e r e s t i n seeing those who do n o t t e l l t h e t r u t h , whether t o a r e l e v a n t o r i r r e l e v a n t m a t t e r , do not go unpunished. See s e c t i o n 94-7-203, R.C.M. 1947, which provides f o r t h e punish- ment of a f a l s e statement i n an o f f i c i a l proceeding whether t h a t statement was m a t e r i a l o r n o t , and makes such f a l s e statement a misdemeanor. W n o t e h e r e t h a t n e a r l y a l l c a s e s c i t e d by both p a r t i e s e involve a p o s t - t r i a l , n o t post-indictment determination of t h e s e required elements. W a r e considering h e r e p e r j u r y counts before e a grand jury and n o t a f t e r a t r i a l . /' (3 95-1&9-(c) , R.C.M. The grand j u r y s t a t u t e , s e c t i o n 1947, provides: "The grand j u r y s h a l l f i n d an indictment when a l l t h e evidence before i t , taken t o g e t h e r , i f unexplained o r uncontradicted, w o a , i n i t s judgment, warrant a conviction by a t r i a l jury ." The d i s t r i c t c o u r t dismissed each of t h e eighteen counts based on t h e absence of one of t h e s e elements---lack of d i r e c t evidence a s t o t h e f a l s i t y of t h e statement, l a c k of corroboration o r l a c k of m a t e r i a l i t y . Several of t h e counts a g a i n s t defendant a r o s e out of t r a n s a c t i o n s wherein defendant t e s t i f i e d t h e c l i e n t s were r e f e r r e d t o him by an uncle and a u n t , M r . and Mrs. Richard Mullins o r by a M r . and Mrs. Herman Meyers, long time family f r i e n d s . A t t h e time defendant t e s t i f i e d a l l of t h e s e people were deceased. The c l i e n t s who appeared before t h e grand j u r y denied ever knowing ank of t h e named people, however, t h e s e deaths prevented t h e s t a t e from g e t t i n g t h e necessary d i r e c t evidence required t o prove p e r j u r y . The d i s t r i c t c o u r t dismissed these counts f o r l a c k of d i r e c t evidence a s t o t h e f a l s i t y and t h e s e d i s m i s s a l s were proper. W have c a r e f u l l y reviewed a l l o t h e r counts, and hold t h a t e with t h e exception of counts 9 and 10, they should have been dismissed. The d i s m i s s a l of those counts comes from t h e f a c t they were n o t supported by d i r e c t evidence of t h e f a l s i t y of t h e defendant's statements o r due t o & l a c k of s u f f i c i e n t proof t o o f f s e t defendant's f a i l u r e t o remember c e r t a i n f a c t s . A summary of count 9 . charges t h a t Jack M. Scanlon, f a l s e l y t e s t i f i e d t h a t Grace A . Rieker f i r s t contacted him on t h e telephone, when i n t r u t h and f a c t he knew t h a t he had i n s t i g a t e d t h e telephone conversation with claimant f o r t h e purpose of i n i t i a t i n g a c l i e n t a t t o r n e y r e l a t i o n s h i p ; and t h a t he s o t e s t i f i e d t o deceive and f r u s t r a t e t h e grand j u r y i n i t s i n v e s t i g a t i o n c o n t r a r y t o s e c t i o n 94-7-202, R.C.M. 1947. A summary of count 10 charges t h a t defendant f a l s e l y t e s t i f i e d t h a t p r i o r t o t h e telephone c a l l from claimant he had L never heard of t h e claimant nor t h e f a c t t h a t she was i n j u r e d , / while i n t r u t h and f a c t he knew t h e claimant and t h a t she had been i n j u r e d p r i o r t o ever t a l k i n g t o h e r , and he s o t e s t i f i e d f o r t h e purpose of deceiving and f r u s t r a t i n g t h e grand j u r y c o n t r a r y t o s e c t i o n 94-7-202, R.C.M. 1947. When asked how he came t o r e p r e s e n t Mrs. Grace Rieker and h e r claims before t h e I n d u s t r i a l Accident Board, defendant i n answer t o questions t e s t i f i e d : "Q. How d i d she come t o know you? you w i . 1 1 have t o a s k h e r t h a t . A. I don' t know The f i r s t c o n t a c t with Grace Rieker was by h e r t e l e phoning you? A. A s I r e c a l l , yes. "Q. Let m give you your f i l e s , i n c a s e you need them e t o r e f r e s h your memory. Did she c a l l you i n your o f f i c e i n Helena? A . A s I r e c a l l , yes. "Q. "Q. What d i d she say t o you? A . She asked m about, e a s I r e c a l l , r e p r e s e n t i n g h e r i n h e r i n d u s t r i a l accident claim. "Q. Now which c l a i m was t h i s ? A . As I r e c a l l , t h e r e were two claims. One was f o r a neck i n j u r y , and she c a l l e d me r e l a t i v e t o t h a t ? A l l r i g h t . I n response t o h e r phone c a l l , what d i d you do? A . I met w i t h h e r . "Q. "Q. Where? A. I n Boulder. "Q, And who was p r e s e n t ? am n o t s u r e . A . I t h i n k h e r husband was, b u t I Q . Now, t h i s was t h e very f i r s t c o n t a c t t h a t you e v e r had w i t h h e r , was when she phoned you? A . A s b e s t I can r e c a l l , yes. And p r i o r t o h e r phoning you, you had never heard of Grace Rieker o r h e r i n j u r y o r anything e l s e ? A . No. "Q. But, you a r e c o n f i d e n t t h a t you d i d n o t s o l i c i t t h e "Q. a t t o r n e y - c l i e n t r e l a t i o n s h i p y o u r s e l f ? A. Yes, I am confident I d i d n ' t s o l i c i t the attorney-client relationship myself . I 1 M r . F u l l e r t e s t i f i e d a s t o h i s r e c o l l e c t i o n of t h e Rieker c a s e i n d i c a t i n g he and defendant were h i g h school f r i e n d s and they had k e p t t h a t r e l a t i o n s h i p going over t h e y e a r s . He s a i d t h a t a f t e r he had t a l k e d w i t h i n v e s t i g a t o r s o f t h e Workmen's Compensation i n v e s t i g a t i o n team, and j u s t b e f o r e he t e s t i f i e d b e f o r e t h e grand j u r y , he c a l l e d Scanlon about t h e Rieker c a s e because i t was one they had asked q u e s t i o n s about. He t e s t i f i e d : "Q. Well, d i d you c h ~ c k i t h him t o make s u r e t h a t h i s w r e c o l l e c t i o n of t h e Grace Rieker i n c i d e n t was t h e same a s yours? J u s t t o make s u r e t h a t i n your own mind t h a t your memory--- A . Xes I d i d . So you went through w i t h him how he developed h i s "Q. r e l a t i o n s h i p w i t h Grace Rieker i n s o f a r a s you were concerned? A . The only t h i n g I asked him was r e l a t e d t o i f he r e c a l l e d t h a t t h e r e were two c a l l s made by me, i f I ever t o l d him t h a t , o r i f he had made a phone c a l l from m home. y "Q. What d i d he say? A. He s a i d no. "Q. I n o t h e r words, according t o what Scanlon t o l d you on t h e phone on March 26th, Grace Rieker made t h e f i r s t c o n t a c t with Scanlon? A . Yes. And i t was e i t h e r t h a t she phoned him, asking f o r "Q. r i g h t ? A. Right. a s s i s t a n c e of an a t t o r n e y --- "Q. -- o r t h a t she came t o h i s o f f i c e ? A . Right. But did he t e l l you t h a t i n no way t h a t he con"Q. t a c t e d Grace Rieker, telephoned h e r , o r through, t a l k e d t o h e r ? A . Right . I 1 F u l l e r a l s o t e s t i f i e d he d i d not remember e i t h e r giving t h e Riekers t h e phone number of Scanlon; o r giving Scanlon t h e Riekers ' number. Mrs. Rieker t e s t i f i e d before t h e grand jury t h a t she was a s e c r e t a r y - r e c e p t i o n i s t a t t h e Boulder Riyer School and on December 22, 1967, she had slipped down t h e school s t e p s and received an i n j u r y t h a t i n c a p a c i t a t e d h e r f o r a period of time. For t h a t period she received no compensation o t h e r than from h e r s i c k leave. She returned t o work and s e v e r a l years l a t e r on June 18, 1970, she was i n j u r e d and from t h i s i n j u r y she received compensation on an o f f and on b a s i s . She t e s t i f i e d t h a t during h e r recovery a M r . Ron F u l l e r of Boulder asked h e r i f she was i n t e r e s t e d i n a lawyer t o help h e r g e t h e r i n d u s t r i a l a c c i dents payments. He t o l d h e r . h e had a f r i e n d t h a t was a lawyer and would she l i k e him t o come t o t a l k t o . h e r . Her testimony on t h e F u l l e r c a l l s was: "Q. A s a r e s u l t of t h i s d i f f i c u l t y , d i d someone make a c o n t a c t with you? Did some a t t o r n e y make a c o n t a c t with you, e i t h e r personally o r through someone e l s e ? A . Yes. "Q. And what was t h e name of t h a t a t t o r n e y ? Scanlon. A. M r . Jack P r i o r t o t h i s contact being made t o you, had you ever personally known Scanlon? A . No. "Q. H w d i d t h i s i n i t i a l contact regarding Scanlon take o place. A . A gentleman by t h e name of Ron F u l l e r - - - "Q. "Q. So F u l l e r volunteered over t h e phone t h a t he had a f r i e n d who was a lawyer and might be a b l e t o h e l p you? A. Yes. o Q . N w d i d you have a d d i t i o n a l problems with t h e I n d u s t r i a l A. Y e s . Accident Board? Did you, a s a r e s u l t of those a d d i t i o n a l problems say, hey, I remember t h a t fellow Scanlon and go and c a l l Scanlon? A . No. "Q. II Were you contacted a second time? "Q. And who d i d t h i s ? Q. A l l right. p a r t ? A . Yes. "Q. A. A. Yes. M r . F u l l e r again. And was t h i s without a request on your Was t h e r e anybody e l s e t h e r e with F u l l e r a t t h a t time? A. Yes. "Q. "Q. W o was t h a t ? h A. M r . Scanlon. And how do you know t h a t ? A. Because M r . F u l l e r asked m i f I would l i k e t o t a l k t o him on t h e phone and e I s a i d , w e l l , I supposed I could t a l k w i t h him about m y problem, so I d i d t a l k t o him on t h e phone. "Q. Q . Iday, so what d i d Scanlon say when he g o t on t h e phone? A. Told m he would l i k e t o handle m c a s e , he had heard e y about i t , was i n t e r e s t e d i n i t and thought he could h e l p me. Q . Did he eventually come over t o your your house? A. And when he t a l k e d with you, d i d he seem t o know t h e d e t a i l s of your c u r r e n t a c c i d e n t ? A . Yes. "Q. Yes. "Q. H w d i d he l e a r n about t h e 1967 a c c i d e n t ? A. He o asked m a t t h a t p o i n t i f I had ever had a previous e i n j u r y , and I s a i d yes." A 1 Rieker, husband of Grace, t e s t i f i e d corroborating h e r testimony t h a t a f t e r h e r 1971 i n j u r y she was contacted by Ron F u l l e r about whether she needed a lawyer and they t o l d him IIno1' . About t h e second c o n t a c t by F u l l e r he t e s t i f i e d : '* * * "Q. Now, a t a l a t e r time do you r e c a l l being home when t h e telephone rang? A. Yes. "Q. it. Did you answer o r did your w i f e ? A. M wife answered y *** "Q. Now, a f t e r she f i n i s h e d t a l k i n g on t h e phone d i d she t e l l you who had c a l l e d ? A. Yes, she d i d . "Q. And who d i d she say? A. She s a i d Ron had c a l l e d and he had put Jack Scanlon on and she t a l k e d t o Jack Scanlon. Q . While you were i n t h e house? A. Yes. "Q. A l l r i g h t . Did Scanlon e v e n t u a l l y come over t o your home? A , Yes, he d i d . "Q. Now, when Scanlon came t o your home, d i d he t e l l you what t h e reason was t h a t he t a l k e d t o your w i f e over t h e phone? A . y e s , he d i d . He s a i d he had been i n c o n t a c t with Ron F u l l e r and they had t a l k e d over our c a s e and thought we needed a lawyer, o r t h a t he might h e l p . "Q. That he, Scanlon might help? A. Yes. Okay. So t h a t Scanlon t o l d you he had found out "Q. about your w i f e ' s claim before t a l k i n g t o your w i f e , from F u l l e r himself. A . Right. "Q. And t h a t was t h e reason t h a t he had t a l k e d t o your wife on t h e phone? A. That i s c o r r e c t . "Q. And then l a t e r on, a t a l a t e r t i m e , he came t o your house and he confirmed t h a t t o you. A . Yes. 1I A s t o t h e s e counts t h e r e a r e c l e a r l y c o n t r a d i c t o r y statements t o defendant's testimony t h a t p r i o r t o a c t u a l l y speaking t o Grace Rieker, he was both unaware of t h e claimant o r h e r i n j u r i e s . The necessary corroboration i s provided by t h e testimony of A 1 Rieker, whose testimony was t h a t defendant came t o t h e Rieker home and t o l d them t h a t before t a l k i n g t o Grace Rieker he had been i n c o n t a c t with Ron F u l l e r and had t a l k e d over t h e Grace Rieker injuries. Such testimony i s adequate t o corroborate t h a t he knew of h e r i n j u r y from F u l l e r , p r i o r t o coming t o t h e Rieker home. The remaining t h r e e i s s u e s do n o t go t o t h e a c t u a l m e r i t s of t h e charges i n d i v i d u a l l y b u t they a l l e g e d general procedural and p r o s e c u t o r i a l improprieties a s t h e b a s i s f o r t h e d i s m i s s a l of a l l charges a g a i n s t defendant. These a t t a c k s must be viewed a g a i n s t t h e function of t h e grand jury. I n United S t a t e s v. I Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 38 L ed 2d 561, 569, t h e United S t a t e s Supreme Court pointed o u t : "A grand j u r y proceeding i s not an adversary hearing i n which t h e g u i l t o r innocence of t h e accused i s adjudicated. Rather, i t i s an ex p a r t e i n v e s t i g a t i o n t o determine whether a crime has been committed and whether criminal proceedings should be i n s t i t u t e d a g a i n s t any person.'' These a l l e g e d improper procedures do n o t reach t h e m e r i t s of t h e i n d i v i d u a l charges b u t r a t h e r a t t a c k t h e matter i n which t h e otherwise v a l i d c r i m i n a l charges a r e determined and i n s t i t u t e d and a r e a weak b a s i s f o r asking f o r d i s m i s s a l of t h e charges. The f i r s t of t h e s e i s t h e request t h a t t h e c r i m i n a l charges be dismissed f o r off-the-record statements made by t h e s p e c i a l a s s i s t a n t a t t o r n e y s general p r i o r t o t h e r e t u r n i n g of t h e i n d i c t ment. There was no record of what was s a i d because t h e s t a t u t e , s e c t i o n 95-1406(e)(l), R.C.M. mony of witnesses be recorded. 1947, r e q u i r e s only t h a t t h e t e s t i This s e s s i o n , c h a r a c t e r i z e d by t h e d i s t r i c t c o u r t a s a "prep session", could not have r e s u l t e d i n t h e grand jury r e t u r n i n g improper o r unsupported indictments. The s t a t e urged t h e d i s t r i c t c o u r t t o l i m i t i t s examination t o t h e probable cause and t h e e v i d e n t i a r y support f o r each count. The d i s t r i c t c o u r t s a i d i t "would p r e f e r t o do so and leave t h e matter up t o t h e committee on p r a c t i c e b u t we can n o t overlook t h e d e v a s t a t i n g e f f e c t of t h e grand j u r y indictment of t h e person charged .'I While t h i s Court does not overlook t h e e f f e c t of t h e indictment, i t cannot uphold t h e d i s m i s s a l of otherwise v a l i d c r i m i n a l counts because of p o s s i b l e improper statements made t o t h e grand jury p r i o r t o t h e indictment. The m e r i t s of i n v a l i d counts may be challanged i n d i v i d u a l l y and t h e defendant's r i g h t s thus protected . The same may be s a i d of t h e a l l e g a t i o n t h a t t h e r e was s u f f i c i e n t p r o s e c u t o r i a l misconduct t o warrant d i s m i s s a l of t h e indictment. Nothing i n t h e record h e r e approaches t h i s l e v e l . The admonition of secrecy t h a t was given t o witnesses before t h e grand jury was n o t proper because i t d i d not follow t h e procedure o u t l i n e d i n s e c t i o n 95-1409, R.C.M. 1947. However, t h e requirement was l i f t e d a f t e r indictment so t h a t defendant's a b i l i t y t o prepare h i s defense has n o t been impaired. The d i s t r i c t c o u r t d i d n o t expressly base d i s m i s s a l of t h e charges on t h i s error, i t said: "While t h i s apparent u t t e r d i s r e g a r d f o r t h e o r d e r s of t h i s c o u r t and t h e requirements of t h e law may n o t have demonstrably prejudiced t h e defendant, i t i s n e v e r t h e l e s s suspect a s an unauthorized i n t i m i d a t i o n of witnesses by t h e S t a t e , which could, i f l e f t standing o r f u r t h e r ignored redound t o t h e p r e j u d i c e of t h e defendant. This should not be condoned o r disregarded i n considering whether t h e indictment should be dismissed.'' Under t h e circumstances d i s c l o s e d h e r e ; t h e e r r o r i s n o t that fatal. The two remaining v a l i d charges a r e remanded t o t h e d i s t r i c t c o u r t f o r t r i a l on t h e m e r i t s . ................................. ................................. Justices. i t t i n g i n p l a c e of M r . Wesley C a s t l e s . M r . J u s t i c e Gene B. Daly d i s s e n t i n g : I dissent: There w i l l be a change i n t h e makeup of t h i s Court on January 3 , 1977. Therefore t h e Court a s p r e s e n t l y c o n s t i t u t e d must complete i t s work assignments no l a t e r than Thursday, December 30, 1976 a t 5:00 p.m. The majority opinion i n t h i s case was d e l i v e r e d t o m y chambers f o r study and comment FJednesday, December 29, 1976. I was n o t , previous t o r e c e i p t of t h i s opinion, accorded an opportunity t o j o i n w i t h t h e Court i n conference regarding t h e i r views o r t o express mine. I have been p r e s e n t a t Court a t a l l times during which t h e majority view could have been reached and reduced t o w r i t i n g . Obviously t h e time required t o research and properly prepare a responsible l e g a l d i s s e n t t o t h e m a j o r i t y ' s p o s i t i o n i s no longer a v a i l a b l e . Therefore, I would advise t h a t I have strong views that d i f f e r from t h e majority p o s i t i o n and wish t o reserve t h e r i g h t t o prepare and f i l e them a t a l a t e r d a t e . .@ . Justice. I%

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