Opinion
Court of Appeals No. A-10918 Court of Appeals No. A-10923 Court of Appeals No. A-10924 Trial Court No. 3AN-09-5898 Cr Trial Court No. 3AN-10-2480 Cr Trial Court No. 3AN-10-2481 Cr No. 5864
07-25-2012
STATE OF ALASKA, Petitioner & Appellant, v. LANOLAN ANDERSON, JACK LEE ESPINOZA, and ATH SOM CHHAY, Respondent / Appellees.
Appearances: James J. Fayette, Assistant District Attorney, Anchorage, and John J. Burns, Attorney General, Juneau, for the Petitioner & Appellant. Brooke V. Berens, Assistant Public Advocate, Appeals & Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Respondent Anderson. J. Adam Bartlett, Anchorage, for the Appellee Espinoza. Andrew Steiner, Bend, Oregon, for the Appellee Chhay.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
Petition for Review (State v. Anderson) and Appeals (State v. Espinoza and State v. Chhay) from the Superior Court, Third Judicial District, Anchorage, Jack W. Smith, Judge.
Appearances: James J. Fayette, Assistant District Attorney, Anchorage, and John J. Burns, Attorney General, Juneau, for the Petitioner & Appellant. Brooke V. Berens, Assistant Public Advocate, Appeals & Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Respondent Anderson. J. Adam Bartlett, Anchorage, for the Appellee Espinoza. Andrew Steiner, Bend, Oregon, for the Appellee Chhay.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MANNHEIMER, Judge.
The State asks us to review the superior court's dismissal of an indictment involving three co-defendants. The superior court dismissed this indictment because the prosecutor who presented the case to the grand jury did not begin the proceedings by informing the grand jurors of the nature of the charges the State was seeking. Rather, it was not until the beginning of the third witness's testimony that the prosecutor apprised the grand jurors of the contemplated charges.
The superior court concluded that the prosecutor's delay in explaining the contemplated charges materially hampered the grand jurors' ability to evaluate the testimony of the witnesses, and materially compromised the grand jurors' ability to independently question the witnesses.
We have reviewed the record of the grand jury proceedings, and we disagree with the superior court's analysis. Although it may be preferable for a prosecutor to explain the proposed charges to the grand jury before the grand jury begins to hear testimony, we conclude that the delayed explanation in this case did not materially hamper or compromise the grand jury's consideration of the charges.
Accordingly, we reverse the superior court's decision.
Underlying facts: the challenged grand jury proceeding
On March 8, 2010, an Anchorage grand jury heard evidence against three co-defendants: Lanolan Anderson, Jack Lee Espinoza, and Ath Som Chhay. The State was seeking charges of first-degree robbery, conspiracy to commit robbery, and first-degree assault against all three men.
However, the prosecutor did not inform the grand jurors of these contemplated charges at the beginning of the proceeding (which, apparently, is the normal grand jury practice). Instead, the prosecutor informed the grand jurors that he would proceed right to the testimony because time was a consideration. The basis of the prosecutor's comment became clear when the first witness, Miranda Bazaldua, told the grand jurors that she was expecting a baby "[at] any moment", and that she had already experienced contractions earlier that day.
Bazaldua testified that, in April or May of 2009, Jack Espinoza asked to borrow her car so that he could "run up the street to pick up some money." Bazaldua let Espinoza take the car, but she told him to "come right back". Espinoza did not come back — so Bazaldua reported the car stolen. Bazaldua told the grand jurors that "the next thing [she] knew, ... detectives [were] knocking at [her] door and asking [her] questions ... because [her vehicle] had been involved in ... some kind of robbery".
At the end of Bazaldua's testimony, one of the grand jurors asked her to clarify the date of this incident. There were no other questions, and Bazaldua left the stand.
The second witness was Souchoy Saephanh, a police informant. (Saephanh testified that he was cooperating with the police in hopes of more lenient treatment in a drug case.)
Saephanh described a meeting he had with Anderson and Chhay in April of 2009, at a barbecue. According to Saephanh, Anderson and Chhay were living together at the time. In Saephanh's presence, Chhay described a plan he had formulated to commit a robbery. Saephanh testified that Chhay "drew ... [a picture] like a blueprint of a house, ... a trailer down [on the] south side somewhere, telling me [that it was] Samoan people's house, and they [had] a lot of 'ice' [i.e., methamphetamine] and cash there."
After Chhay described this plan, Saephanh told him that he did not want to be involved. Saephanh told the grand jurors that, about a week and a half later, he heard that the robbery had taken place, and that Anderson had been shot. The grand jurors had no questions for Saephanh.
The third witness was Anchorage Police Detective Darin Creary. Creary told the grand jurors that on May 4, 2009, the police received multiple 911 calls reporting that shots had been fired at the Dimond Estates Trailer Park, and that several people had been wounded. But before Detective Creary could begin describing the police investigation of these 911 calls, he was interrupted by a grand juror. The grand juror addressed the prosecutor:
Grand Juror: I don't know about the rest of the jurors, but I guess, for me, it'd be helpful to know what the potential charges are here. I mean, ... we've listened to a couple witnesses, [and] you ask [us] whether we have questions, [and] I really don't know if I have a question. I didn't [have questions] at the time, [but] ...In response, the prosecutor summarized the contemplated charges:
Prosecutor: Oh, are you talking about the ...
Grand jurors: The [proposed] indictment.
Prosecutor: I'll be asking you to deliberate on charges of robbery, conspiracy to commit robbery, [and] assault in the first degree. [And] the robbery count will have two separate theories. There's two alternate ways in this particular case that I'm going to ask you to indict [on] robbery [charges], two specific theories. And ... I'll explain those [separate theories] when it comes time for me to read the statutes.
The conspiracy [charge] alleges an agreement between the three persons whose names ... you just heard us mention
[i.e., Anderson, Espinoza, and Chhay], and [it alleges] a number of overt acts that go along with that conspiracy.
The assault charges are [based on] gunshot injur[ies] to a victim named Lofia Satini and [a victim named] Amy
Itta.
. . .
It's going to be five [counts]: two theories of robbery in the first degree, a count of conspiracy to commit robbery in the first degree, and then two counts of first-degree assault. ... In each of these [five] counts, I'll be asking you to return an indictment against each of the three defendants.
Following this explanation of the contemplated charges, Detective Creary continued his testimony.
Creary told the grand jurors that, soon after the incident at the trailer park, one of the defendants — Anderson — arrived at Providence Hospital seeking treatment for a gunshot wound. The two shooting victims, Lofia Satini and Amy Itta, arrived at the hospital at about the same time.
Initially, in response to questions by the police, Anderson said that he had been shot in a trailer park. But then he proceeded to give other, inconsistent stories about how he had sustained the gunshot wound.
The police went to the residence of the woman who drove Anderson to the hospital. At that residence, they found Bazaldua's vehicle — i.e., the car that Bazaldua had loaned to Espinoza, and that Espinoza had failed to bring back. The car had blood on the headrest; this blood was later identified as coming from Satini, one of the shooting victims.
When the police searched a burn barrel on the woman's property, they found a black "hoodie" (i.e., a hooded sweatshirt). Anderson's DNA was found on the inside of this hoodie. The hoodie had blood on the outside, and this blood was identified as Satini's.
The State Crime Lab also concluded that a shoe impression left on the trailer door — an impression that was left when someone kicked the door in — was consistent with the footwear that Anderson was wearing when he arrived at the hospital.
Creary testified that the police searched Chhay's residence and found some of Anderson's possessions in a box — including a social security card, bank cards, and ammunition that was consistent with the ammunition recovered from the crime scene. The police discovered that Anderson and Chhay worked together at a restaurant. The police also discovered that Espinoza had filed a request to be a third-party custodian in an unrelated criminal case, and that, in this request, he stated that he intended to apply for a job at this restaurant.
The grand jurors questioned Creary about Anderson's possessions that were found in Chhay's house. They also asked Creary whether the police had tried to corroborate Anderson's story about how he was shot.
The final grand jury witness was Lofia Satini, one of the shooting victims. Satini told the grand jurors that he had been inside his brother's trailer with his then-girlfriend Amy Itta, as well as his brother and his brother's five children (all of whom were sleeping), when the trailer door flew open and three or four men with hoodies and masks "barg[ed] in", demanding money. Satini could not identify the men, or even their racial characteristics, because their faces were covered, but he said that all of the men carried handguns.
As Satini struggled with one of the intruders, the others jumped on top of him and began beating him. During this struggle, a gun discharged; Satini did not realize until later that he had been shot in the chest. Satini managed to get the gun away from his attacker, and the intruders then ran for the door. Satini fired three shots at them as they fled, but he did not know if he hit anyone.
Satini testified that his girlfriend, Itta, was also shot during the struggle, and that his brother received a laceration to his head. The grand jurors were shown photographs of these injuries.
Several grand jurors questioned Satini about the details of the struggle and his recollection as to whether the intruders were armed.
Following Satini's testimony, the prosecutor asked the grand jurors to return an indictment charging each of the three defendants with two counts of first-degree robbery (one act of robbery, but under two separate legal theories), one count of conspiracy to commit first-degree robbery, and two counts of first-degree assault (one for each of the two gunshot victims).
The prosecutor acknowledged that the evidence did not establish which of the robbers (or which two of the robbers) had shot the victims, but he argued that all three robbers were jointly responsible for the victims' injuries if they aided or abetted each other in the commission of the armed robbery.
One of the grand jurors asked the prosecutor to clarify the evidence implicating Espinoza in these crimes. In response, the prosecutor pointed to Bazaldua's testimony that Espinoza borrowed her car and that he failed to return the car, as well as Creary's testimony that the car was later discovered parked on the property of the woman who brought Anderson to the hospital, and that the car had Satini's blood on the headrest. The prosecutor also informed the grand jurors that if they concluded that Espinoza conspired with the other two men to commit robbery, then he was criminally liable for all acts performed in furtherance of that conspiracy, regardless of whether he or another conspirator personally performed those acts.
Later, during the grand jury's deliberations, the grand jurors summoned the prosecutor to the grand jury room and asked him to clarify the conduct that the State needed to prove under the State's two separate theories of robbery, and also to clarify the distinction between "physical injury" and "serious physical injury". During this discussion, one grand juror made the following comment:
Grand Juror: I was going to make a statement [that] it's a disadvantage to us when we don't get the charging documents and [a proposed] indictment prior [to the beginning of the testimony], and it's after the fact.The grand jury made no requests to recall witnesses or to have the clerk replay the testimony they had already heard.
Prosecutor: You bet.
Grand Juror: Because we don't have an opportunity to ask the questions that we would have [asked] if we had known what the [proposed charges] were.
Prosecutor: And my ... response to that is, ... if the grand jury as a panel now wants to summon someone ... back before them, [then] again, you have that right. And if ten or more of you share that opinion, we make it happen.
At the conclusion of their deliberations, the grand jury returned true bills against each of the three defendants on the five charges proposed by the State. The grand jury also added a charge of assault against each of the three defendants, based on the head wound suffered by Satini's brother.
Underlying facts: the attack on the indictment, and the superior court's ruling
After the three co-defendants were indicted, Espinoza asked the superior court to dismiss the indictment because the prosecutor had not fully instructed the jury on the applicable law prior to, or even during, the presentation of evidence. Espinoza argued that he was denied due process because the grand jurors "did not know what legal framework they were working within", and were therefore "unable to make a reliable determination of Mr. Espinoza's [probable] guilt." Espinoza also argued that there was insufficient evidence to support the indictment against him.
Superior Court Judge Jack W. Smith granted the motion to dismiss, but on different grounds from the ones raised in Espinoza's motion. Judge Smith focused on the fact that the prosecutor did not inform the grand jurors of the proposed charges until after Bazaldua and Saephanh completed their testimony:
The Court: [T]he grand jury had no idea what any of the charges against the defendants were at the beginning of the proceeding. Moreover, the fact that one of the grand jurors actually interrupted the [prosecutor], to ask what the charges were, supports the conclusion that the [grand] jurors were hindered by this lack of information [in] evaluating the testimony and [in] asking clarifying questions of the witnesses or the [prosecutor].
Additionally, [given] the complexity of the charges in this case, the failure to read the indictment at the beginning of the proceeding ... was prejudicial. The grand jurors were asked to deliberate on five different counts ... involving three different co-defendants. The State also presented two separate theories on the robbery counts. Without being informed of the charges at the beginning of the proceeding, the grand jury had no idea what significance it was supposed
to attribute to the testimony of the State's first two witnesses. It had no idea what crime and/or crimes were supported by Ms. Bazaldua['s] and Mr. Saephanh's testimony — and, without this information, the grand jury could not determine what questions, if any, they [should ask] about this testimony.
Espinoza's co-defendants, Anderson and Chhay, moved to join his motion to dismiss the indictment, and Judge Smith dismissed the indictments against Anderson and Chhay as well.
The State then sought our review of Judge Smith's decision with respect to all three defendants.
Why we conclude that the superior court should not have dismissed the indictments
Under Alaska law, the grand jury functions "as both a shield and sword of justice." In its capacity as a "sword" of justice, the grand jury investigates crimes and decides whether to return indictments — i.e., decides whether to initiate formal felony prosecutions. But in its capacity as a "shield" of justice, the grand jury plays a protective role, independently screening the State's proposed indictments to control abuses by the government and to protect the interests of those citizens whom the government would accuse.
Cameron v. State, 171 P.3d 1154, 1156 (Alaska 2007).
Ibid.
Ibid. (citing Coleman v. State, 553 P.2d 40, 47 (Alaska 1976)).
In performing these two functions, the grand jury has the right to question the witnesses presented by the State, as well as the right to subpoena additional witnesses. And the prosecutor presenting the case to the grand jury has a duty not to obstruct or otherwise improperly interfere with the grand jury's examination of witnesses.
See Alaska Criminal Rule 6(q); Cameron, 171 P.3d at 1157 ("The grand jury itself may question witnesses and may request that additional witnesses be brought before it.")
The American Bar Association Standards relating to the Prosecution Function — standards that our supreme court has previously relied on when characterizing the prosecutor's role in the grand jury process — declare that
Coleman v. State, 553 P.2d 40, 48 (Alaska 1976).
[a prosecutor] presenting a case to a grand jury ... should not intentionally interfere with the independence of the grand jury, preempt a function of the grand jury, or abuse the processes of the grand jury.ABA Standards for Criminal Justice: the Prosecution Function and Defense Function (3rd ed. 1993), § 3-3.6(f). As our supreme court declared in Coleman v. State, "[the prosecutor] is required to act as the grand jury's legal advisor, to aid but not interfere in its determination of the probability of guilt."
Coleman, 553 P.2d. at 47.
In the present case, there is no suggestion that the prosecutor purposefully impeded the grand jury's questioning of witnesses or otherwise attempted to obstruct the grand jury's investigation of the case. Rather, the superior court found that the grand jury's ability to question the State's witnesses was hampered because of a procedural eccentricity: the prosecutor did not apprise the grand jurors of the charges contained in the State's proposed indictment at the beginning of the proceeding, before the prosecutor began to present the State's witnesses.
The record suggests that the prosecutor acted in good faith — that his decision to delay the reading of the proposed indictment, and to move immediately to the presentation of testimony, was made out of concern for Ms. Bazaldua and her unborn child. Moreover, as the State points out in its brief, no statute or court rule requires the prosecutor to begin each grand jury proceeding with an explanation of the charges that the State will be seeking.
Nevertheless, we agree with the implicit premise of the superior court's decision in this case: There may be times when, despite the prosecutor's good faith, the procedure employed at a grand jury hearing materially impedes the grand jury's ability to independently screen the State's allegations. The question, then, is whether the present case is an example of this kind of flaw.
In answering this question, we must bear in mind that a procedural irregularity at grand jury normally will not require dismissal of an indictment unless the defendant can show that the irregularity affirmatively prejudiced the grand jury's deliberations.
State v. Aloysius, 975 P.2d 1096, 1097 (Alaska App. 1999); Soper v. State, 731 P.2d 587, 591-92 (Alaska App. 1987); Chief v. State, 718 P.2d 475, 477 (Alaska App. 1986); Hohman v. State, 669 P.2d 1316, 1319 (Alaska App. 1983). Compare Stern v. State, 827 P.2d 442, 445-46 (Alaska App. 1992) (setting out the test for assessing whether the presentation of inadmissible evidence to the grand jury requires invalidation of the indictment).
We also note that even when a prosecutor affirmatively tries to dissuade the grand jury from interrupting the proceedings to call for more evidence or additional witnesses, this will not necessarily infringe the grand jury's authority.
For example, in Coleman v. State, 553 P.2d 40 (Alaska 1976), the grand jury was deliberating on charges of rape and sodomy. The grand jury foreman asked the prosecutor if the victim had undergone a physical examination and, if so, whether the grand jury could learn the results of the examination. In response, the prosecutor said: "I don't think calling a doctor is needed. I think you've heard enough to have this person tried." Another grand juror protested, "I don't think we're going to get a proper vote if we don't hear from a doctor[.]" The prosecutor responded: "You've got to remember [that] you're not trying [this defendant], ... [a]nd we can't go calling experts in every case." However, the prosecutor later added, "You certainly have a right to call any witnesses you want."
Coleman, 553 P.2d at 48.
Ibid.
Ibid.
Ibid.
Our supreme court concluded that the prosecutor had not improperly impeded the grand jury's consideration of the case, either in his responses to the grand jurors or in failing to subpoena the doctor. The supreme court noted that not all of the grand jurors felt it was necessary to hear from the doctor. The supreme court further noted that the prosecutor specifically instructed the grand jurors that they had the right to call any witnesses they wished. The supreme court concluded that the prosecutor's responses to the grand jury, "while not in the most prudent prosecutorial tradition, ... cannot be said to have improperly influenced the grand jury."
Id. at 50
Ibid.
Ibid.
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Returning to the facts of the present case, it is true that the prosecutor did not inform the grand jurors of the charges that the State was seeking until after the third witness — Detective Creary — took the stand. However, Detective Creary had just begun his testimony at that point, so the real issue is whether the grand jury's ignorance of the proposed charges adversely affected their ability to evaluate the testimony of the State's first two witnesses, Ms. Baldazua and Mr. Saephanh.
As we explained earlier, the superior court concluded that, without foreknowledge of the State's proposed charges, the grand jury could not meaningfully evaluate the testimony of Baldazua and Saephanh. The court found that "the complexity of the charges in this case" prevented the grand jury from understanding "what significance it was supposed to attribute to the testimony of [these] first two witnesses", and from discerning "what ... crimes were supported by Ms. Bazaldua['s] and Mr. Saephanh's testimony". Because of this, the superior court concluded that "the grand jury could not determine what questions, if any, they [should ask] about this testimony."
The grand jury record does not support the superior court's conclusions. The testimony of these two witnesses was short and uncomplicated, and the charges to which this testimony related were relatively straightforward.
Baldazua testified that Jack Espinoza borrowed her car and then failed to return it, so she reported the car stolen. Soon after, police detectives came to her house and questioned her about the vehicle because, according to the detectives, it had been involved in "some kind of robbery".
Saephanh testified that he was present when Anderson and Chhay discussed plans to commit a robbery — the robbery of a trailer in south Anchorage. According to Saephanh, Chhay asked him if he was interested in helping them commit this crime, but Saephanh replied that he did not want to be involved. Saephanh added that, about ten days later, he heard that the robbery had indeed taken place, and that Anderson had been shot.
After hearing the testimony of these two witnesses, the grand jurors would doubtlessly have surmised that the proposed indictment involved a robbery. The grand jurors might not have anticipated that the proposed indictment also contained a charge of conspiracy to commit robbery — but once the grand jurors were apprised of this conspiracy charge, the relevance of Saephanh's testimony to the conspiracy charge was self-evident.
The testimony of Baldazua and Saephanh would not have alerted the grand jurors that the State would be requesting two counts of first-degree assault — but this is because Baldazua's and Saephanh's testimony had no direct relevance to the first-degree assault charges. Rather, the assault charges were based on the fact that two occupants of the trailer were shot during the robbery. These assault charges were supported by the testimony of the State's next two witnesses: Detective Creary and Mr. Satini (who was one of the victims shot during the robbery).
As the superior court noted, this case was made more complex by the fact that the State was seeking charges against three different individuals. Saephanh's testimony clearly identified Chhay as a planner of the robbery, and (according to Saephanh's testimony) Anderson was present when Chhay discussed the planned robbery with Saephanh and tried to enlist Saephanh's help in the crime. But the State faced a more difficult task in linking Espinoza to the robbery.
Conceivably, the prosecutor's failure to immediately inform the grand jurors of the proposed charges might have hampered the grand jury's ability to perceive this evidentiary problem and to question Baldazua more closely about her interactions with Espinoza. But the record shows that the grand jurors understood this evidentiary problem.
Following the completion of the testimony, one of the grand jurors specifically asked the prosecutor to clarify what evidence implicated Espinoza in these crimes. In response, the prosecutor pointed to Bazaldua's testimony that Espinoza borrowed her car and then failed to return it, as well as Creary's testimony that the car was later discovered parked on the property of the woman who brought Anderson to the hospital, and that the car had Satini's blood on the headrest. The prosecutor also informed the grand jurors that if they concluded that Espinoza conspired with the other two men to commit robbery, then he was criminally liable for all acts performed in furtherance of that conspiracy, regardless of whether he or another conspirator actually performed those acts.
It is true that at least one grand juror expressed frustration over the fact that the prosecutor had not immediately informed the grand jury of the charges contained in the State's proposed indictment. But none of the grand jurors indicated that they were confused about the evidence they had heard, nor did any grand juror suggest that further evidence was needed on particular aspects of the case.
In sum, the record in this case gives us no reason to believe that the grand jurors lacked the ability to meaningfully evaluate the significance of the testimony given by Baldazua and Saephanh, or that the grand jurors were unable to meaningfully question these two witnesses — either at the time the witnesses gave their testimony or later, when the grand jurors were deciding whether to exercise their authority to re-summon the witnesses for further questioning.
The issue of whether the prosecutor misinstructed the grand jurors when he told them that a vote of ten grand jurors was needed to re-summon a witness
The defendants raise one additional argument: they contend that the prosecutor improperly discouraged the grand jury from exercising its authority to re-summon witnesses when the prosecutor told the grand jury that this would require a vote of ten or more grand jurors.
There is no Alaska court rule or court decision that resolves the question of how many grand jurors must agree to summon (or re-summon) a witness. The defendants do not identify any particular number of grand jurors as being the proper number to re-summon a witness. They simply argue that ten is too high.
Seventeen grand jurors were considering the defendants' case, so one might reasonably argue that a simple majority of this body — i.e., nine grand jurors — would have been sufficient to re-summon a witness. However, the prosecutor's statement that the concurrence of ten grand jurors was needed finds at least arguable support in Alaska Criminal Rule 6(n)(1).
Criminal Rule 6(n)(1) declares that "[a]n indictment may be found only upon the concurrence of a majority of the total number of jurors comprising the grand jury when the grand jury is sworn and charged with instructions." In Sanford v. State, 24 P.3d 1263, 1265 (Alaska App. 2001), this Court held that Rule 6(n)(1) requires "a majority of the grand jurors originally sworn and charged with instructions", rather than "a majority of the grand jurors who actually deliberated on the [particular] case".
Normally in Alaska, grand juries are sworn and instructed in panels of eighteen, the maximum number allowed by Criminal Rule 6(d). If the original grand jury panel numbers eighteen, then, under Criminal Rule 6(n)(1), a vote of ten would be required to return an indictment, even when fewer than eighteen grand jurors actually deliberate on the individual case.
The prosecutor in the present case may have been thinking of this rule when he told the grand jurors that the decision to re-summon a witness would require a concurrence of ten grand jurors. However, we acknowledge that there is nothing facially improper or unreasonable in requiring the agreement of different numbers of grand jurors for different purposes — for example, a simple majority of the grand jurors present to make procedural decisions (such as whether to re-summon a witness), and the greater number specified in Rule 6(n)(1) to return an indictment.
(Indeed, the law might allow certain decisions to be made with the concurrence of less than a majority of the grand jurors. We note that Criminal Rule 6(o)(1) expressly declares that a concurrence of only five grand jurors is required to initiate a request to the superior court for additional instruction regarding the legal significance of particular facts.)
But we need not decide whether the decision to re-summon witnesses Bazaldua or Saephanh required the vote of ten grand jurors (i.e., a majority of the eighteen grand jurors originally sworn and instructed), or required the vote of nine grand jurors (i.e., a majority of the seventeen grand jurors actually deliberating on this case), or required the vote of some lesser number of grand jurors. This issue is moot. There is nothing in the record to suggest that the prosecutor's instruction on this issue — his assertion that the concurrence of ten grand jurors was needed — actually discouraged any grand juror from asking to have Bazaldua or Saephanh re-summoned.
There are two places in the record where a grand juror complained that the prosecutor had been tardy in disclosing the State's proposed charges. But even though these two grand jurors criticized the prosecutor, no grand juror ever expressed a desire to re-summon a witness, nor did any grand juror point to a specific factual issue that they wished to have clarified with additional questions or additional testimony.
Conclusion
The decision of the superior court is REVERSED, and the charges against the defendants are reinstated.