State v. Hall

¶1concurring.

¶2T1 The guarantees of our Bill of Rights regulating the composition of grand and petit juries are essentially directed to the deliberative character and function of those bodies in the exercise of their fact-finding powers. Thus, we have held that a body composed of thirteen qualified jurors which deliberates and returns a verdict in a criminal trial is not a "jury" guaranteed by Article II, § 19. Brigman v. State, 1960 OK CR 18, 14, 350 P.2d 821, 322-328. Neither is a body of eleven qualified jurors empowered to deliberate and render judgment, unless the defendant waives the constitutionally required composition. Swift v. State, 1973 OK CR 240, ¶3, 510 P.2d 286, 287.1 The same has *407been said of laws regulating the composition of grand juries. Unmited States v. Haskell, 169 F. 449 (E.D.Okla.1909)(finding indict, ment by 21-person grand jury when territorial statutes required grand jury of 16 was ex post facto ), citing Harding v. State, 22 Ark. 210, 1860 WL 805 (Ark.1860) (under law requiring grand jury of 16 persons, indictment returned by jury of 17 persons must be quashed); see also State v. Hawkins, 10 Ark. 71, 1849 WL 561 (Ark.1849), discussed infra.

¶3{2 The suggestion that the twelve-person grand jury of our Constitution has three "built-in alternates" is untenable, and this is shown by the earliest authorities. In Commonwealth v. Cherry, 2 Va.Cas. 20, 4 Va. 20, 1815 WL 882 (Va.1815), the General Court of Virginia considered whether a plea in abatement was allowed against an indictment returned by a grand jury, one of whose number was an alien and thus disqualified by law. Consulting the common law authorities in the venerated treatises of Matthew Hale and William Hawkins,2 the Court concluded that the English-born juror "Edward Slater, in the record of the said proceedings mentioned, was not a good and lawful Grand Juror, and that the said Presentment is not a good one." Id.,4 Va. 20, 1815 WL 382 at * 3. Allowing the defendant's plea to quash the indictment for this reason was "the long established practice of the country, approved by the experience of several ages, and supported by the concurrent opinions of those two great Commentators on Criminal Law." Id.3

¶4T3 Article II, Section 18 of the Bill of Rights mandates the grand jury "shall be composed" of twelve persons, at least nine of whom must concur to return a true bill of indictment. From its undoubted origins in English common law, this language refutes the premise of built-in alternates, because a body "composed of" eleven, ten, or nine grand jurors is not a "grand jury" that may deliberate and return an indictment in accord with the Oklahoma Constitution. Eleven qualified grand jurors is a gathering, not a "grand jury." Harding, supra,22 Ark. 210, 1860 WL 805 at *2, citing Hawkins, 10 Ark. 71, 1849 WL 561.4

¶514 In State v. Hawkins, id., a defendant moved to quash an indictment and showed that two of the sixteen regular grand jurors were disqualified from service. The State answered that the fourteen remaining jurors were qualified, any twelve of whom could have returned an indictment, and that all fourteen of the qualified jurors concurred in the indictment. The Supreme Court of Arkansas held that where the law required sixteen qualified men to constitute a grand jury, though "an indietment may be found by the concurrence of not less than twelve yet the pamel must consist of sixteen lawful men." 10 Ark. 71, 1849 WL 561, at *1 (emphasis added).

¶615 This right to a deliberative body composed of twelve qualified persons-probi et *408legales homines in the words of Lord Chief Justice Hale-engaged in the fact-finding role, is the quintessence of the grand and petit "jury" guaranteed by the common law and Article II, Sections 18 and 19 of the Oklahoma Constitution. Our predecessors said as much in Viers v. State, 1913 OK CR 250, 10 Okl.Cr. 28, 36-37, 134 P. 80, 84:

The grand jury must be selected, drawn, and impaneled as provided by law. The grand jury does not by our law consist of 12 men congregated by the mere order of the court. It consists of 12 men selected, drawn, and impaneled according to the requirements of the law, and if the law is not followed, it is an incompetent grand jury. (emphasis added).

¶7Nothing could be further from the recently improvised notion of built-in alternates. Indeed, Scribner v. State, 1913 OK CR 131, 9 Okl.Cr. 465, 503, 132 P. 933, 947, shows that the common law meaning of Section 18 was well understood by our predecessors: to il-Tustrate proper pleading, Seribner alluded to a defendant's claim that he was "indicted by a grand jury composed of either more or less than 12 men, or that nine members of the grand jury had not concurred" as the kind of constitutional violation that could be properly presented in a motion to set aside the indictment. See also Parrish v. Lilly, 1993 OK 80, ¶15, 883 P.2d 158, 162 (even where nine jurors may render judgment, the parties' right to jury trial is the right to a "decision, whether for them or against them, based on the honest deliberations of twelve qualified individuals ")(emphasis added).

¶8T6 We see a District Court acting in full accord with this twelve-person principle in Grand Jury of Seminole County v. Dye, 1977 OK 173, 571 P.2d 1200. Dye is the case that most likely generated the amendments to Title 38, Section 21, under consideration in this appeal. The District Court impaneled a Seminole County grand jury on April 12, 1976. The following day, after the grand jury began its sessions, the District Court learned that one of the grand jurors was disqualified by virtue of a felony conviction. Eight surplus grand jurors had already been released. Id., at TY 19-20, 571 P.2d at 1204. The District Court drew an additional thirty names from the jury wheel, selected and qualified a replacement juror, and impaneled this reconstituted jury. After hearing evi-denee, the grand jury on May 7, 1976, issued accusations for removal of three Seminole County Commissioners and the County Assessor. Id., at 117-10, 571 P.2d at 1208.

¶9T7 In June, 1976, another Judge of the District Court quashed the accusations for removal issued by this grand jury, finding the jury selection process violated then-current versions of 38 0.8.Supp.1975, § 21, and 22 0.8.1971, § 829. The State appealed. On appeal, the Supreme Court found the impaneling of the grand jury in substantial compliance with the statutes in effect at the time and reversed the order quashing the accusations for removal. Dye, at 129, 571 P.2d at 1207. That same year, the Legislature added three sentences to 38 0.8. § 21, providing for impaneling three alternate grand jurors and regulating their membership on the grand jury. The cumbersome procedures followed by the District Court in Dye certainly ensured a twelve-person grand jury, but probably also illustrated to the Legislature the need for a streamlined way to retain qualified alternates and protect the grand jury from an unexpected incapacity or disqualification of one of its members.5

¶108 The Constitution clearly fixes the composition of those deliberative bodies that will exercise fact-finding powers in grand jury inquests and eriminal trials. However, I find no limitation on the number of persons who may be qualified as alternate grand or petit jurors in anticipation of exercising these powers if a regular juror is unable to do so. This question has long been a subject of legislation, and in the absence of statutory direction, the common6 22 0.$S.2001, § 9; *409Smith v. Territory, 1904 OK 110, ¶¶ 0-3, 14 Okla. 518, 79 P. 214 (territorial courts possessed jurisdiction to impanel grand jury according to common law when no method provided by statute). Early cases reveal that Congress adopted the eriminal procedure statutes of Arkansas as the law of Indian Territory, and these statutes provided for summoning regular and alternate grand jurors in the territorial Courts. Gardner v. United States, 1904 IT 10, ¶2, 82 SW. 704; Reynolds v. United States, 1907 TT 8, ¶ 3, 103 S.W. 762; Mansf. Dig., § 8982. These procedures were almost certainly familiar to some of the twenty seven territorial lawyers who served as delegates to the Constitutional Convention in 1906-7. A.M. Gibson, Oklahoma: A History of Five Centuries 196-197 (Univ. of Oklahoma Press, 1981).7

¶11I 9 Considering the language of Article II, Section 18 against this backdrop of its common law heritage, I am convinced the Framers of Section 18 would find an indictment presented by a supposed "grand jury" of nine or ten far more repugnant to their Constitution than an act of the Legislature providing for three qualified alternate grand jurors. The theory of built-in alternates, which purportedly arises from the "self-executing" nature of Section 18, is an innovation unsupported by history or text. Ironically, the loose reading of Section 18 that would quash these indictments endangers constitutional liberty by rendering Section 18 powerless against truly flagrant legislative and judicial encroachments on the grand jury. After all, says this novel theory, only nine voting grand jurors are constitutionally required; three of the twelve are constitutionally expendable at any time. These "surplus" grand jurors could be dispensed with just as easily by an ill-advised statute or an intemperate judge as by illness or disqualification, and this Court would have no constitutional grounds to hold otherwise.

¶12{10 The alternate grand jurors provided by 838 0.S.8upp.2004, § 21, are fully compatible with Article II, Section 18 of the Oklahoma Constitution. The statute provides that alternates "shall attend all functions of the grand jury during its term and shall be subject to all laws governing grand jurors. Provided that, no alternate juror shall participate in any deliberations of the grand jury until appointed to fill a vacancy" (emphasis added). Title 22, Section 340(C) further provides that "no person, except the members of the grand jury, shall be permitted to be present during the expression of juror opinions or the giving of votes upon any matter before the grand jury." The District Court instructs the grand jurors that "no alternate grand juror shall participate in any deliberations of the grand jury until appointed" by the Court OUJI-CR(@d) 12-2. These statutes and corresponding jury instructions ensure the grand jury is a deliberative body of twelve qualified persons, no more and no less. Alternate grand jurors are sworn officers of the court under a duty to be fair and impartial, and it has not been shown here that alternate grand jurors violated their oaths or instructions.

¶13{11 Unless public resources are to be wasted and investigations thwarted by the disqualification or incapacity of a regular grand juror, providing for qualified alternates makes the same good sense with grand jurors as it does with petit jurors. There is no need to harmonize a thirty-year-old statute, enacted for this legitimate purpose, with the language of Article II, Section 18. There was never any conflict between them. For more than a century, Section 18 has guaranteed that no person shall be indicted in Oklahoma except by a grand jury "composed of" *410twelve persons. The Legislature has provided in every case for a number of qualified alternate grand jurors sufficient to meet our Constitution's unyielding command. I concur in the judgment of the Court. I am authorized to state that Judge Arlene Johnson joins in this concurrence.

¶22dissenting.

¶231 1 I dissent to the majority's resolution of Proposition I. A magistrate and trial judge found that the statutory provisions allowing for alternate jurors in multicounty grand juries cannot be harmonized with the Oklahoma Constitution. After reviewing the plain language of the constitution, I agree. I would find that portion of 38 0.$.Supp.2004, § 21, which authorizes three additional alternate grand jurors, unconstitutional and uphold the decision below.

¶24'I 2 At the outset, I want to compliment my colleague, Judge Lewis, on his concurring opinion. I believe it is excellently researched and written. I absolutely agree with his explanation of why any grand jury in Oklahoma must be composed of twelve qualified jurors. My own analysis depends entirely on this argument. As I explain below, I cannot agree with his conclusion that the Oklahoma grand jury, as provided for by the constitution, does not effectively provide alternates. Because I believe that alternates are built into the constitutional language, I conclude that the statute providing separately for grand jury alternates is not constitutional.

¶25(3 Article 2, § 18 of the Oklahoma Constitution states, "A grand jury shall be composed of twelve (12) persons, any nine (9) of whom concurring may find an indictment or true bill." 1 This plain language means that a grand jury must consist of twelve qualified people, but only nine are required to return an indictment or true bill. As a practical matter, this creates a system of alternate jurors within the constitutional language authorizing a grand jury. If only nine jurors are necessary to return a true bill, then the remaining three constitutionally-mandated jurors are, in effect, alternates. For this reason, I disagree with the majority's conclusion that § 18 does not address issues relating to alternate grand jurors. As I read the constitutional provision, it includes provision for up to three alternate grand jurors within the mandated twelve jurors.2

¶26T4 As the majority states, the constitution's grand jury provisions found in § 18 are3 The constitution provides for some supplemental statutory framework to allow a grand jury to convene and function. However, the Legislature only has authority to pass enabling legislation where the constitution itself is silent on an issue. We have upheld legislation which puts in place a functional framework by addressing issues not included in the constitutional provision.4 This framework includes the role of the district attorney or Attorney General, the presence of a court reporter, the obtaining, use and disclosure of transcripts, and questions of who may be present in the grand jury *411room during grand jury sessions.5 We have also upheld legislation creating a framework for multicounty grand juries.6 However, we have held that these statutory provisions must be truly supplemental, and cannot either add to or subtract from the plain language of the constitution.7

¶2715 The majority sets forth the correct tests for interpretation of constitutional and statutory measures. We must attempt to harmonize the statute with the constitution,8 construing the statutory provision liberally and upholding it unless it is inconsistent with the constitutional language.9 Applying the appropriate legal tests, I reach the opposite conclusion from the majority. I agree with the majority that the principle of allowing alternate jurors is sensible at both the grand jury and petit jury level. I believe the constitution itself recognizes this principle. I join the lower courts in this case in concluding that the plain language of § 18, which specifies the number of grand jurors and effectively authorizes alternate grand jurors, cannot be harmonized with the statutory language authorizing additional alternate grand jurors beyond the number twelve mandated by the constitution. The statutory language covers an issue already contained in the constitutional provision. It is contradictory, in that it allows for three grand jurors to be seated over the twelve provided for in the constitution; it is superfluous, because the constitutional language provides for alternate jurors. I believe the moving parties met their burden to show the statutory provision cannot be harmonized with the constitutional language, and I would uphold the lower courts' decision.

¶2816 I believe the magistrate was right. Therefore, I must address the issue of her jurisdiction over the question raised in the State's second proposition of error. A magistrate's normal duties include presiding over and conducting preliminary examinations, and determining whether a crime has been committed and if there is probable cause to bind the defendant over for trial.10 This necessarily includes the authority to rule on motions which may provide a defense to the criminal charge.11 A magistrate may rule on a motion to suppress evidence before the preliminary hearing is held or the defendant is bound over.12 In fact, a party must raise an objection to illegally obtained evidence at the earliest possible time.13 This is exactly what the defendants here did.

¶291 7 The defendants filed a Motion to Quash Indictment and to Suppress Any Evidence Obtained by the Multi-County Grand Jury. The motion claimed the inclusion of alternates in the grand jury process rendered that process faulty and the Indictments from that proceeding invalid. The defendants complained that the evidence on which the indictments relied was illegally obtained through a faulty grand jury process. They asked that the State be barred from using this evidence in support of any indictments or criminal prosecution. This is an excellent example of a motion to suppress illegally obtained evidence, and the magistrate was required to rule on it.14

¶30*4121 8 I believe the magistrate correctly ruled on the issue of the evidence obtained by the grand jury. I also agree with Judge Black's subsequent ruling that the State may use any evidence obtained independently from and prior to the grand jury proceedings. If the State wishes to proceed against these defendants, it may proceed with the preliminary hearing as ordered by Judge Black. I would affirm the rulings below, and deny this appeal.