Oxereok v. State, 3902

• Citation: 611 P.2d 913
• Decision Date: 02 May 1980
• Docket Number: No. 3902,3902
• Parties: Nathan OXEREOK, Appellant, v. STATE of Alaska, Appellee.
• Court: Supreme Court of Alaska (US)

Page 913

611 P.2d 913

Nathan OXEREOK, Appellant, v. STATE of Alaska, Appellee.

No. 3902.

Supreme Court of Alaska.

May 2, 1980.

Walter Share, Asst. Public Defender, Juneau, Brian Shortell, Public Defender, Anchorage, for appellant.

W. H. Hawley, Jr., Asst. Atty. Gen., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellee.

Before CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.

OPINION

BURKE, Justice.

After trial by jury on a charge of first degree murder, ¹ Nathan Oxereok was convicted of the lesser included offense of murder in the second degree. ² In this appeal Oxereok challenges that conviction on several grounds.

I. CONVENING OF THE GRAND JURY

Oxereok was indicted by a grand jury convened by a judge of the district court. At the time of the omnibus hearing, Oxereok moved to dismiss the indictment, arguing, among other things, that a grand jury can be lawfully convened only by a judge of the superior court, and that such authority cannot be delegated to a judge of the district court. ³ Contending that the indictment returned against him was therefore invalid, Oxereok moved for dismissal. His motion to dismiss on this ground was denied.

Judge Ethan Windahl, who convened the grand jury, did so under the authority of an order entered by the presiding superior court judge of his judicial district, Judge William H. Sanders. Judge Sanders' order, entitled: "ORDER OF APPOINTMENT," provided in part:

(Y)ou are here and now appointed Master for the Superior Court for the purpose of holding arraignments, bail hearings, plea hearings, motion hearings, issuing warrants and summonses, perpetuating testimony, qualifying and instructing grand jurors, receiving reports and Indictments from grand jurors and order the filing of same . . . . Your authorization is unlimited in felony cases with the exception that you are not to hold felony criminal trials or conduct felony sentencing hearings. (Emphasis added.)

Prior to its entry, such order was formally approved by this court's then chief justice.

Article IV, section 16 of the Constitution of Alaska provides, in part: "The chief justice of the supreme court shall be the administrative head of all courts. He may assign judges from one court or division thereof to another for temporary service." (Emphasis added.) We think the order described in the foregoing paragraph, once it was approved by the chief justice, was tantamount to an assignment made pursuant to article IV, section 16. Cf. Delahay v. State, 476 P.2d 908, 914 (Alaska 1970) (appointment of a district judge by letter from governor was effective due to lack of statutory or constitutional provisions prescribing appointment procedures). The only question is whether such an assignment can be lawfully made when the assigned judge is a judge of a court of limited jurisdiction, whose necessary qualifications, term of office and authority are substantially different from those of judges of the court to which he is assigned.

Article IV, section 1 of the state constitution provides, in part: "The judicial power of the State is vested in a supreme court, a superior court, and the courts established by the legislature." Exercising the authority given to it by that section the legislature "established a district court of the State of Alaska for each of the four judicial districts of the superior court of this state." AS 22.15.010. The district court is a court of limited criminal and civil jurisdiction, ⁴ whose judges, according to statute, need not possess the same qualifications as judges of the superior court. Compare AS 22.10.090 ⁵ with 22.15.160(a). ⁶ The superior court is a "trial court of general jurisdiction." Alaska Const. art. IV, § 3. The constitution requires those appointed to the superior court to be "citizens of the United States and of the State, licensed to practice law in the State," but otherwise leaves the matter of their qualifications to the legislature. Alaska Const. art. IV, § 4. AS 22.15.160(a) does require district court judges to be "citizen(s) of the United States and of the state . . . and at the time of (their) appointment licensed to practice law in the State of Alaska." Thus, at the present time, district court judges must in fact possess the same minimal qualifications required by the constitution for appointment to the superior court. See Alaska Const. art. IV, § 4. ⁷ Like the judges of constitutional courts, the district court judges are appointed by the governor from a list of candidates approved by the judicial council. AS 22.15.170.

The framers of our state constitution clearly anticipated that courts in addition to those created by the constitution itself might be needed to properly carry out the judicial power of the state. The legislature was given the authority to create such courts and to prescribe the qualifications of the judges thereof. But the framers also authorized the legislature to establish qualifications in addition to those required by the constitution for appointment to the supreme court and the superior court. Thus, in adopting article IV, section 16, authorizing the chief justice to assign a judge from one court or division thereof to another for temporary service, they must also have anticipated that some of the judges so assigned might not possess the qualifications that would be required for appointment to that court on a permanent basis. ⁸ Given these considerations and the clear language of article IV, section 16 we can, therefore, perceive of no reason why the chief justice's authority to assign a judge "from one court . . . to another for temporary service," should not include the authority to appoint a judge of the district court to serve as judge of the superior court pro tempore, regardless of the differences that presently exist in the qualifications required by statute for permanent appointment to either of those courts.

Thus, we hold that Judge Windahl was authorized to convene the grand jury that indicted Oxereok, as a duly assigned judge of the superior court pro tempore. Although certain limitations were placed on his authority to act as such, by the terms of the order of assignment itself, his authority to at least convene the grand jury, receive its indictment and order the filing of that indictment is clear.

II. HEARSAY BEFORE THE GRAND JURY

Oxereok also moved to dismiss the indictment upon the ground that inadmissible hearsay evidence was presented to the grand jury in violation of Criminal Rule 6(r). ⁹

The record of the proceedings before the grand jury contains more than sufficient evidence to justify the return of an indictment for first degree murder without resort to the hearsay statement complained of. Moreover, we are satisfied that the hearsay statement "did not appreciably affect the outcome of the grand jury's deliberations." See Metler v. State, 581 P.2d 669, 674 (Alaska 1978) (footnote omitted). Under these circumstances, "the use of hearsay evidence in violation of Criminal Rule 6(r) will not vitiate the indictment." State v. Taylor, 566 P.2d 1016, 1019 (Alaska 1977) (footnote omitted).

III. PROSECUTOR'S FAILURE TO INSTRUCT THE GRAND JURY

Oxereok next contends that the indictment should have been dismissed due to the prosecutor's failure to fully instruct the grand jury on the elements of first degree murder, arguing that he failed to define the terms contained in the indictment and the statute under which Oxereok was charged, and that without such instructions those terms could have had no meaning to the members of the grand jury. He further contends that the grand jury should have been instructed that they could indict for a lesser included offense, such as second degree murder or manslaughter, rather than murder in the first degree, because there was evidence that the defendant was intoxicated, from which it might be inferred that he suffered from diminished capacity to commit all of the elements of first degree murder, as well as evidence that he may have acted in the heat of passion.

We think the terms contained in the indictment were sufficiently clear to be understood by the grand jury and that, in light of the evidence, the prosecutor was not required to instruct as to possible lesser included offenses.

The issue to be decided by the grand jury was whether there was "probability of guilt" of the offense charged. Coleman v. State, 553 P.2d 40, 48 (Alaska 1976). Certainly, as recognized by the American Bar Association, "(t)he prosecutor should not bring or seek charges greater in number or degree than he can reasonably support with evidence at trial." ABA Standards Relating to the Prosecution Function and the Defense Function § 3.9(e) (The Prosecution Function) (Approved Draft 1971). But, as recognized by the commentary to that section, the prosecutor must be left with considerable discretion at the charging stage:

From the prosecutor's point of view, the charging decision is one which must be made at an early stage when all the evidence is not necessarily before him in the form it will take at trial. He must make a preliminary evaluation in order to proceed, knowing that at several later stages he may dismiss some charges or may be compelled to elect. He should not be forced to make these crucial decisions in the pre-indictment stage; hence he may charge in accordance with what he then believes he can establish as a prima facie case. . . . The boundary line which separates so-called "overcharging" from the sound exercise of prosecutorial discretion is too vague and subjective to make this a matter for more definitive treatment than is stated in section 3.9(e). Obviously, a prosecutor must have a broad discretion at the charging stage; the trial court has ultimate power to deal with abuse of the prosecutor's discretion.

Id. at 98.

The evidence presented to the grand jury revealed that after a fight with one Wally Merrill, in which Merrill struck Oxereok, Oxereok announced in...