State v. Inthavong

• Decision Date: 27 March 1987
• Docket Number: No. C0-86-1730,C0-86-1730
• Citation: 402 N.W.2d 799
• Parties: STATE of Minnesota, Respondent, v. Chanh INTHAVONG, Appellant.
• Court: Minnesota Supreme Court

Page 799

402 N.W.2d 799

STATE of Minnesota, Respondent, v. Chanh INTHAVONG, Appellant.

No. C0-86-1730.

Supreme Court of Minnesota.

March 27, 1987.

Syllabus by the Court

Defendant's indictment must be dismissed for fundamental error in the impaneling judge's instruction to the grand jury on probable cause.

William Kennedy, Hennepin County Public Defender, Ann Remington, James Krieger, Minneapolis, for appellant.

Thomas L. Johnson, Michael Richardson, Minneapolis, for respondent.

Heard, considered, and decided by the court en banc.

SIMONETT, Justice.

Defendant appeals the trial court's denial of a motion to dismiss his indictment. Because of fundamental error in the court's charge to the grand jury, we reverse and order the indictment dismissed.

On July 7, 1986, a Hennepin County grand jury was impaneled to sit for 4 months. Judge Lindsay G. Arthur presided at the impaneling. Pursuant to Minn.Stat. Sec. 628.56 (1986) and Minn.R.Crim.P. 18.03, subd. 3, the judge instructed the grand jury on its duties, choosing to do so orally in his own language rather than read from a juror's handbook containing a proper written charge. The next day, July 8, the state presented its case against appellant-defendant Chanh Inthavong, and, 7 days later, the jury returned an indictment against Inthavong for two counts of second-degree murder.

Defendant Inthavong moved to dismiss the indictment on several grounds, including the claim that the impaneling judge's charge to the grand jury contained prejudicial error. While a number of errors were cited, ¹ defendant's claim of prejudice centered on the judge's probable cause instruction given near the close of the charge:

You are required to indict if you find there is probable cause to believe that a crime has been committed and probable cause to believe that this defendant had something to do with it. * * * If you find that a crime was probably committed and this defendant probably had something to do with it then you can indict. If you find that it is not probable that a crime was committed then you cannot indict. If you find that a crime was committed but this defendant probably didn't have anything to do with it then you should not indict.

At the hearing on defendant's motion to dismiss, the state conceded the probable cause instruction misstated the law; however, County Attorney Thomas Johnson and Assistant County Attorney William Edwards both testified they specifically recalled instructing the grand jury on July 7 following the judge's remarks, and that each of them gave the jurors a correct explanation of probable cause. ² They did not, however, indicate to the jurors that their explanation corrected the judge's prior misstatement. Also, it was shown that on July 7 each juror was given the juror's handbook entitled "Charge to the Hennepin County Grand Jury," which contained a correct statement of the law on probable cause. During his charge, the impaneling judge mentioned the handbook and told the jurors, "But I hope that you will take this red pamphlet and scan through it."

The motion to dismiss was heard before Judge Patrick W. Fitzgerald. He concluded that the additional explanations given by the two county prosecutors had rectified the impaneling judge's erroneous instruction on probable cause, and, based on the totality of the circumstances, that the grand jury had the correct legal information to perform its duties. Recognizing, however, this was an important and doubtful issue, the court stayed further proceedings and certified the issues for appellate review pursuant to Minn.R.Crim.P. 28.03. The court of appeals, in turn, transferred the appeal to us. As posed by the trial court, the question is: "Can accurate instructions given to the grand jury by the County Attorney rectify or correct erroneous instructions given to the grand jury by the Court?" ³

1. A grand jury proceeding is not a trial on the merits. The jurors do not determine guilt or innocence but rather determine if there is probable cause to believe that the accused has committed a crime. To insist on the many procedural safeguards and evidentiary rules required at a trial "would contort the grand jury procedure into a preliminary trial on the merits." United States v. Shober, 489 F.Supp. 393, 409 (E.D.Pa.1979). Consequently, there is no need for the kind of detailed jury instructions given a petit jury. As the United States Supreme Court has stated, "an indictment returned by a legally constituted and unbiased grand jury, * * * if valid on its face, is enough to call for trial of the charge on its merits." Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956). The general rule that emerges is that a presumption of regularity attaches to the indictment, and it is a rare case where an indictment will be invalidated.

In this state, for example, the judge "need not charge [the grand jury] respecting the violation of any particular statute unless expressly made its duty by the provisions of such statute." Minn.Stat. Sec. 628.56 (1986). Federal indictments, for example, have been upheld despite the absence of accurate instructions, or of any instructions, regarding the specific law applicable in a particular case. See United States v. Buchanan, 787 F.2d 477, 487 (10th Cir.1986); United States v. Kenny, 645 F.2d 1323, 1347 (9th Cir.1981). Further, erroneous instructions given a grand jury, whether by the court or the prosecutor, will not invalidate an indictment absent a showing of prejudice. See, e.g., State v. Hocker, 113 Ariz. 450, 454-55, 556 P.2d 784, 788-89 (1976); State v. Stepney, 181 Conn. 268, 435 A.2d 701, 709 (1980); Gasper v. District Court, 74 Idaho 388, 396, 264 P.2d 679, 683 (1953); State v. Lawler, 221 Wis. 423, 427, 267 N.W. 65, 68-69 (1936). Contrast Abruska v. State, 705 P.2d 1261, 1272 (Alaska App.1985) (prosecutor's inaccurate instructions not shown to be prejudicial) with a recent decision of our own court of appeals, State v. Grose, 387 N.W.2d 182 (Minn.App.1986) (prosecutor's misleading and incomplete instructions so pervasive as to be prejudicial). In other words, prejudice ordinarily will be found only on those rare occasions where the grand jury instructions are so egregiously misleading or deficient that the fundamental integrity of the indictment process itself is compromised. See People v. Calbud, Inc., 49 N.Y.2d 389, 395-96, 426 N.Y.S.2d 238, 240-41, 402 N.E.2d 1140, 1143-44 (1980).

2. With this background, we apply the test set out in Minn.R.Crim.P. 17.06, subd. 2(2), to the facts of this case. The rule says an indictment may be challenged if it "(a) * * * does not substantially comply with the requirements prescribed by law to the prejudice of the substantial rights of the defendant."

Here the judge erroneously told the grand jury that it was required to indict if it found probable cause. But more serious, the grand jury was instructed that it could indict for a crime if the accused "had something to do with it." This catch-all phrase, casting such a wide net, deprives the accused the protection of the requirement of a threshold probability of culpability before a criminal prosecution may be instituted. Significantly, in charging a grand jury, the court is specifically required to read to the jurors the probable cause requirements set out in Minn.R.Crim.P. 18.06, subd. 2. See Minn.Stat. Sec. 628.56 (1986). Clearly, then, we have an erroneous instruction involving the "substantial rights" of a defendant.

3. The state contends, however, that the error was rectified and no prejudice to defendant's rights resulted. The burden of showing prejudice is on the defendant and the court will consider all the relevant facts and...