State v. Superior Court In and For Pima County

• Citation: 430 P.2d 408,102 Ariz. 388
• Decision Date: 19 July 1967
• Docket Number: No. 8922--PR,8922--PR
• Parties: The STATE of Arizona and Pima County, State of Arizona, Petitioners, v. The SUPERIOR COURT IN AND FOR the COUNTY OF PIMA, State of Arizona, and the Honorable John P. Collins, Judge of the Superior Court, Division One, In and For the County of Pima, Respondents.
• Court: Supreme Court of Arizona

Page 408

430 P.2d 408

102 Ariz. 388

The STATE of Arizona and Pima County, State of Arizona, Petitioners, v. The SUPERIOR COURT IN AND FOR the COUNTY OF PIMA, State of Arizona, and the Honorable John P. Collins, Judge of the Superior Court, Division One, In and For the County of Pima, Respondents.

No. 8922--PR.

Supreme Court of Arizona, In Banc.

July 19, 1967.

Rehearing Denied Sept. 19, 1967.

Darrell F. Smith, Atty. Gen., Phoenix, William J. Schafer, III, County Atty. of Pima County, Edward W. Scruggs, Sp. Asst. Atty. Gen., Tucson, for petitioners.

Johnson, Darrow, D'Antonio, Hayes & Morales, by Lawrence P. D'Antonio, Tucson, for respondents.

McFARLAND, Vice Chief Justice:

The Attorney General of Arizona, acting in behalf of the State of Arizona and the County of Pima, hereinafter referred to as petitioners, was granted certiorari by the Arizona Court of Appeals in State v. Superior Court in and for Pima County, 4 Ariz.App. 373, 420 P.2d 945, rehearing denied 4 Ariz.App. 562, 422 P.2d 393. The Pima county Superior Court and the judge of Division One of that court, the Honorable John P. Collins, hereinafter referred to as respondents, have petitioned for and been granted review of that decision.

On December 17, 1965, the Superior Court of Pima County impaneled a grand jury. This grand jury subsequently returned an indictment against one Sol Ahee, charging him with one count of bribery and five counts of perjury.

Sol Ahee's case was assigned to the respondent judge, whereupon Ahee filed a motion to quash the grand jury indictment on the basis, inter alia, that there was ground for a challenge to the panel or to an individual grand juror. Rule 169, subsec. A 2(a), Rules of Criminal Procedure, 17 A.R.S. The challenge to the entire panel was founded on the allegation that at the time of its impanelment the members of the grand jury were not examined by either the court or the prosecuting attorney in regard to their qualifications as jurors.

Respondent also contends that it was the duty of the impaneling court to have excused one of the jurors for the reason that this juror was an employee of the Internal Revenue Service and was bound by federal law to report any violations of the tax laws which might come to his attention. This duty is alleged to be in conflict with the oath of secrecy demanded of grand jurors by this state.

The respondent judge received evidence on the question of the challenge to the panel, consisting primarily of the reporter's transcript of the examination of the jury, and found the allegation to be true in fact; that the members of the grand jury had not been properly examined in regard to their qualifications. The motion to quash was granted as to all counts of the indictment, and it was further ordered that the grand jury 'be called to immediate session and discharged forthwith.'

A petition for certiorari was granted by the Arizona Court of Appeals, Division 2, and it was held that the order of discharge was beyond the jurisdiction of the respondent judge and that portion of the order was set aside. 4 Ariz.App. 373, 420 P.2d 945. This court has granted the petition for review of the decision of the Court of Appeals, Division 2, in this cause.

The history of the grand jury system and the object and purpose of its use is set forth in Corpus Juris Secundum as follows:

'One of the purposes of the grand jury system is to obtain a group of persons who represent a fair and impartial cross section of the citizens of the county, each with his or her own individual thoughts, experiences, and reactions; and preservation of complete freedom of thought and expression is essential to the maintenance of the institution. * * *' 38 C.J.S. Grand Juries § 6, p. 987.

The selection of a grand jury is very important. By its very nature a grand jury is an inquisitorial, informing and accusing body; however its functions are of a judicial nature--a proceeding before a grand jury is a judicial inquiry. In order to insure the selection of a grand jury which represents a fair and impartial cross-section of the citizens of the county, the Legislature has set forth the qualifications of grand and petit jurors as follows:

'Every juror, grand and petit, shall be a citizen of the United States, a resident of the county for at least six months next prior to being summoned as a juror, sober and intelligent, of sound mind and good moral character, over twenty-one years of age, able to understand the English language, and shall not have been convicted of a felony or be under indictment or other legal accusation of any felony.' A.R.S. § 21--201.

The responsibility of seeing that jurors have those qualifications of placed upon the court and the county attorney or other prosecuting officer. Rule 82 of the Arizona Rules of Criminal Procedure, 17 A.R.S., provides:

'When a grand jury is drawn and appears, the court and the county attorney or other prosecuting officer shall examine the jurors touching their qualifications as such jurors.'

An individual being investigated does not have an opportunity to take part in the selection of a grand jury or to make objection to the panel or to the selection of any individual juror prior to the returning of an indictment against him. This makes the responsibility of the court, the county attorney or the prosecuting officer greater because the proceeding is ex parte and a grand jury which does not have the proper qualifications could do irreparable harm to an individual by improperly returning an indictment. The setting aside of such an indictment does not altogether undo the wrong that has been done the individual. It was for this reason that the responsibility of the examination of jurors regarding their qualifications was placed upon the court, the county attorney or other prosecuting officer.

The first question presented in the instant case is whether a proper determination of the qualifications of the grand jurors was made.

The record shows the only reference made by the court in regard to the qualifications of the jury as set forth in A.R.S. § 21--201 was a general statement that 'the law says any person shall not be a juror who has been convicted of a felony or who stands charged with a felony,' after which the court told the jury that if any members were in that class they should come up and tell the court and they would be excused. No reference was made or questions asked as to the remainder of the qualifications. The record therefore shows that the procedure set forth in Rule 82 of the Arizona Rules of Criminal Procedure was not substantially followed.

The next question is whether a superior court judge may order a grand jury discharged where a defendant in a criminal action pending before him has presented facts showing a determination of the qualifications of the jury was not made; the facts having been presented under Rule 169, subsec. A 2(a), Rules of Criminal Procedure, 17 A.R.S., after an indictment had been returned.

The applicable portions of Rule 169 provide:

'Rule 169. Motion to quash, grounds

'A. A motion to quash the indictment or information shall be available only on one or more of the following grounds. In the case of:

'2. An indictment:

(a) That there was ground for a challenge to the panel or to an individual grand juror.'

As the order in question in the instant case was predicated on a showing of grounds for a challenge to the entire panel, we are led to consideration of Rule 84, Rules of Criminal Procedure, 17 A.R.S., which provides as follows:

'A challenge to the panel may be made only on the ground that the grand jurors were not selected or drawn according to law.'

Petitioner contends that the words 'not selected or drawn according to law' do not encompass the situation in the case at bar, wherein the impaneling court has failed to examine the jury in conformity with Rule 82.

We cannot agree with this contention. The word 'selected' when used in connection with the selection of juries has been given a broad meaning. In State v. Mason, 326 Mo. 973, 33 S.W.2d 895, it was said:

'* * * In an ordinary trial a jury is 'selected' by bringing before the court the requisite number of veniremen, swearing them to answer questions touching their qualifications to sit as jurors and try the issues, Examining them as to such qualifications, and challenging for cause those veniremen deemed by the parties to be disqualified. * * *' (Emphasis added.) 33 S.W.2d at 897.

See also Dixon v. State, 27 Ala.App. 64, 167 So. 340, Ohio River R. Co. v. Blake, 38 W.Va. 718, 18 S.E. 957. That the Court's duty to assure that the jury is properly qualified is an integral part of the process of selecting and drawing a grand jury is revealed in the following statement of the law as summarized in 24 Am.Jur., Grand Jury, § 19, p. 845:

'Statutory provisions regulating the manner of selecting or drawing a grand jury are either mandatory or directory, depending more on their purpose than their language. Those which relate to the number and qualifications of jurors, or which are designed to secure impartiality or freedom from unfair influences, are ordinarily deemed to be mandatory; those which prescribe mere details as to the manner of selection or drawing are usually regarded as directory. * * *'

The court should first swear the jurors in regard to the questioning provided for in Rule 82. After such questioning they must be generally sworn to carry out their duties as grand jurors as provided in Rule 91, Ariz. Rules of Criminal Procedure, 17 A.R.S. The grand jury panel has not been truly 'selected' until it is properly sworn and ready to hear the evidence to be presented to it.

The object of Rule 82 requiring that jurors be examined, 'touching their qualifications' is for the protection of the defendant's statutory right to have only qualified jurors return an indictment against him. In Viers v. State, 10 Okl.Cr. 28, 134 P. 80, the court stated some of the reasons...