State v. Grose, C7-85-2363
| Decision Date | 13 May 1986 |
| Docket Number | No. C7-85-2363,C7-85-2363 |
| Citation | 387 N.W.2d 182 |
| Parties | STATE of Minnesota, Appellant, v. Clinton GROSE, Respondent. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
Trial court did not err in dismissing indictments against a defendant based on numerous violations of defendant's rights and violations of criminal procedure.
Hubert H. Humphrey, III, Atty. Gen., St. Paul, R. Kathleen Morris, 1 Scott Co. Atty., Shakopee, for appellant.
Ronald I. Meshbesher, Jack S. Nordby, John P. Sheehy, Meshbesher, Singer & Spence, Ltd., Minneapolis, for respondent.
Heard, considered and decided by POPOVICH, C.J., and FORSBERG and LESLIE, JJ.
This is a pre-trial appeal by the State from a trial court order dismissing two grand jury indictments against respondent Clinton Grose for aiding and abetting perjury. Finding no error, we affirm.
In 1971 Michael Patrick broke his neck in a high school football game while tackling a runner, leaving him a quadriplegic. Several years later in 1976 he retained attorney Clinton Grose to pursue a products liability action arising out of his injuries. Suit was brought in Scott County District Court against the helmet and face mask manufacturers, among others. Michael Patrick's case went to trial in 1982 and the trial lasted ten weeks. The jury found Patrick suffered $2 million in damages but that the defendants were not liable.
The Patrick family sought an attorney to sue Grose for malpractice. In February 1985 they met with attorneys at the law firm of Moss & Barnett who discussed a possible malpractice claim based on the premise that Grose had suborned perjury at the 1982 trial by urging the Patricks to exaggerate the predicament of Michael Patrick and the amount of care he required. The lawyers at Moss & Barnett contacted the Scott County Attorney's office about obtaining immunity for the Patricks. The Patricks received a letter promising immunity from the Scott County Attorney's office and they went to the Shakopee Police Department where they were interviewed. An investigation was begun and on May 30, 1985 a Scott County District Judge gave Michael and Colleen Patrick (his mother) immunity. 2
The same day a grand jury was convened in Scott County to investigate the matter. It is clear from the transcript that much of the proceedings were hurried because the three year statute of limitations was about to expire on some of the perjury allegations. See Minn.Stat. Sec. 628.26(e) (1984). On June 3, 1985 the grand jury returned with an indictment based on allegations that respondent aided and abetted Colleen Patrick in committing perjury; the next day an indictment that respondent aided and abetted Michael Patrick in committing perjury was returned. See Minn.Stat. Sec. 609.48, subd. 1(1); 609.05 (1984).
Respondent moved to dismiss the indictments on September 12, 1985. After written briefs were submitted, on December 12, 1985, the trial court dismissed the indictments because of numerous violations, including: (1) the prosecutor's repeated improper comments about respondent's fifth amendment rights; (2) the prosecutor's repeated improper comments about respondent's right to waive the statute of limitations; (3) the prosecutor's improper comments on the possible punishment and the prosecutor's improper comment that other parties indicted by the same grand jury had pleaded guilty; (4) improper instructions that a perjury indictment could be based on actions "throughout the entire trial," which would include actions beyond the statute of limitations; (5) repeated failure to inform the grand jury that there must be evidence of knowing and intentional aiding and abetting of perjury; (6) an affirmative misstatement in response to a grand juror's question that respondent did not have to be shown to have believed the testimony was false; (7) failure to explain the essential elements of scienter and intent; (8) failure of the indictment to specify with particularity which statements of Michael Patrick were allegedly false; (9) a similar failure of particularized information in the Colleen Patrick indictment; (10) the failure to show that at least twelve grand jurors concurred in the indictment; (11) violation of the First Judicial District's rule that all grand jury proceedings must be recorded; (12) failure to disclose conflicting testimony and exculpatory evidence to the grand jury; (13) use by the grand jury of allegations other than those in the indictments upon which they based probable cause; (14) a "substantial" modification of crucial allegations of the indictments without consent, approval or vote of the grand jury; (15) the overpowering of the will of the grand jury by the prosecutor; (16) an improper testimonial communication by the prosecutor to the grand jury; (17) misstatement by the prosecutor of the evidence before the grand jury; (18) the prosecutor's improper presence in the grand jury room as an unauthorized person during deliberations and voting; and (19) that the errors individually and cumulatively were prejudicial.
The State appealed this order.
1. Should the appeal be dismissed because the State's brief was untimely or for other procedural violations?
2. Did the trial court clearly err in dismissing the indictments?
Respondent moved to dismiss the State's appeal on several grounds. We reserved a ruling on the motion and now address respondent's contentions.
1. Respondent initially contends that the State's brief was untimely requiring dismissal of the appeal under State v. Keith, 325 N.W.2d 641 (Minn.1982). The State's brief was due within 15 days of delivery of the transcripts. Minn.R.Crim.P. 28.04, subd. 2(3). The brief was filed on January 24, 1986. The records show that the State had ordered a transcript of the September 12, 1985 hearing to dismiss the indictments and that it had received a transcript of this hearing around the end of September. If this were the only transcript, it would appear appellant's brief was indeed untimely. However, the State had ordered all transcripts the day it filed its notice of appeal, including a June 18, 1985 transcript which dealt with discovery matters. This transcript was completed and sent to the county attorney on January 9, 1986; hence appellant's brief was timely filed.
2. Respondent contends the transcript certificate was not filed within 10 days of when the transcripts were ordered. This is not a jurisdictional defect to the appeal. Boom v. Boom, 361 N.W.2d 34, 36 (Minn.1985), cited in State v. Herem, 365 N.W.2d 771 (Minn.1985).
3. Respondent raises several other rule violations, such as:
a. Statement of the case was not filed with the notice of appeal.
b. Appellant's brief lacks a statement of the facts.
c. Appellant's brief lacks a summary of evidence supporting the court's order.
d. Appellant's notice of appeal and brief is captioned "State of Minnesota vs. Clint Grose" rather than "State of Minnesota vs. Clinton Grose."
e. Appellant's brief does not contain the appellate court case number one-half inch from the top center of the cover page.
f. Appellant's index is not separately numbered.
g. Appellant's index lacks a reference to the conclusion or the contents of the appendix.
h. Appellant's brief does not contain the telephone numbers of the attorneys.
While we are especially troubled by the State's failure to include a statement of the facts in its brief, we are not persuaded that these procedural errors are grounds for dismissal of the appeal.
It is important that grand juries be unbiased because the grand jury serves as a protector of citizens against arbitrary and oppressive government acts and unfounded prosecutions. United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 617, 38 L.Ed.2d 561 (1974); Branzburg v. Hayes, 408 U.S. 665, 686-87, 92 S.Ct. 2646, 2659, 33 L.Ed.2d 626 (1972); State v. Iosue, 220 Minn. 283, 292-93, 19 N.W.2d 735, 739-40 (1945). In Iosue, the supreme court quoted the following language from Hale v. Henkel, 201 U.S. 43, 59, 26 S.Ct. 370, 372, 50 L.Ed. 652 (1906):
[T]he most valuable function of the grand jury was not only to examine into the commission of crimes, but to stand between the prosecutor and the accused, and to determine whether the charge was founded upon credible testimony or was dictated by malice or personal ill will.
As an officer of the court, the prosecutor is sworn to ensure that justice is done. United States v. Hogan, 712 F.2d 757, 760 (2d Cir.1983). The prosecutor is the person who draws up the indictment, calls and examines the witnesses, advises the grand jury about the law, and is in constant attendance during its proceedings. In the grand jury system the prosecutor must act in good faith to see that justice is done.
The trial court made detailed and extensive findings which enumerated several violations of the Minnesota Rules of Criminal Procedure and defendant's constitutional rights. In a carefully prepared and well-reasoned memorandum, the court stated in part:
The combination of repeated violations of defendant's constitutional rights during the course of the grand jury proceedings, together with the cumulative effect of a great number of procedural rule violations require dismissal under the rationale set forth in Rule 1.02 of the Minn.R.Crim.P. There, it is stated as follows:
These rules are intended to provide for the just, speedy determination of criminal proceedings. They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.
This Court is also mindful of the holding in State v. Florence 239 N.W.2d 892 (Minn.1972). To allow these indictments to stand when the allegations may not be supported by probable cause due to the errors and irregularities of the proceedings would result in requiring a...
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...State v. Grose to support his argument that the grand jury did not separately deliberate and vote 876 N.W.2d 323on the formal indictment. 387 N.W.2d 182 (Minn.App.1986). In Grose , the court of appeals found that the jurors did not concur in the indictment because, instead of submitting a f......
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...is so strong that, if such evidence were withheld, the integrity of the grand jury would be impaired. Cf. State v. Grose, 387 N.W.2d 182, 189 (Minn.Ct.App.1986) ("The grand jury should have been properly instructed as to the statute of limitations defense"); State v. Hogan, 336 N.J.Super. 3......
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Commonwealth v. Walczak, SJC-11155
...circumstances is so strong that, if such evidence were withheld, the integrity of the grand jury would be impaired. Cf. State v. Grose, 387 N.W.2d 182, 189 (Minn.Ct.App.1986) ("The grand jury should have been properly instructed as to the statute of limitations defense"); State v. Hogan, 33......
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Commonwealth v. Walczak, SJC-11155
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