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Miller v. State

Supreme Court of Alaska

December 15, 1969

Terry Glenn MILLER, Appellant,
v.
STATE of Alaska, Appellee.

Page 422

Denis R. Lazarus, Anchorage, for appellant.

Douglas B. Baily, Dist. Atty., Keith E. Brown, Asst. Dist. Atty., Anchorage, for appellee.

Before DIMOND, RABINOWITZ, BONEY, and CONNOR, JJ.

OPINION

CONNOR, Justice.

Appellant was convicted by a jury verdict of the crime of stabbing at another with intent to wound, in violation of AS 11.15.150. The one at whom the stabbing

Page 423

was directed was Trooper Russell Anderson of the Alaska State Police, who was attempting to effect an arrest of appellant at the time of the attempted stabbling.

The incident out of which the indictment resulted took place in the parking lot of a bowling alley in Soldotna, Alaska, shortly before midnight on March 18, 1967.

At about 11:30 that evening Trooper Anderson and a friend, Ed Meryer, left Anderson's home in Soldotna to remove a dead moose from the Sterling Highway. On the way, they happened to notice a car parked in the lot of a bowling alley which had closed for the night. Adnerson decided to check it out; and as he drew near in his patrol car, the other car made a U-turn and proceeded to the back of the bowling alley building. Anderson activated the red light on his patrol car and the other car stooped.

Anderson then walked to the driver's side of the car and found Darlene Heatherton behind the wheel and the car's owner, Terry Glenn Miller, next to her. The trooper testified that he knew both of them, and that he knew they were both minors. When he asked Miss Heatherton for her driver's license, he noticed what appeared to be a case of Lucky Lager beer on the floor behind the driver's seat. Anderson told Heatherton and Miller to get out of the car and informed them that they were under arrest for being minors in possession of an alcoholic beverage. He then took possession of the case of beer, and he noticed at that time that several of the bottles of beer were empty.

Miss Heatherton got into the patrol vehicle, but appellant became argumentative. After a scuffle, appellant returned to his car. Anderson removed appellant forcibly from his car and managed to jostle him to the patrol car where he was planning to handcuff appellant. They slipped to the ground and appellant came up wielding a bayonet. Trooper Anderson testified that Miller slashed at him with the bayonet and that his clip-on necktie might have been knocked loose by the bayonet.

Because he was now wary of appellant and the bayonet, Trooper Anderson stepped backward, unsnapped his revolver and ordered appellant to drop his weapon. Thus the investigation of an automobile parked after hours near a bowling alley had mushroomed into a serious event.

While Trooper Anderson and appellant were standing off from each other, Anderson repeatedly told appellant to drop the weapon and appellant told Anderson to leave him alone. Miss Heatherton then went to appellant to try to convince him to submit to the officer. According to the testimony of Anderson, Miller was so upset that he threatened Miss Heatherton. Finally, the impasse ended when Miller and Miss Heatherton got into Miller's car, and a few moments later the bayonet was dropped out of the car window. About this time Trooper Provine of the Alaska State Police arrived in another patrol car. Anderson and Provine then were able to remove appellant from the car, advise him that he was under arrest for attempting to stab Anderson, and turn him over to custody of Corporal English, who had just come upon the scene.

Appellant specified a number of errors in the prosecution and trial of his case. Although twelve errors are specified, these are not correlated with the body of the argument in appellant's brief. Accordingly, we must deal with the claims of error as we are best able to discern them.

I

Appellant's first contentions can be grouped under the proposition that the indictment was defective because of irregularities in the constitution and administration of the grand jury. Appellant moved to dismiss the indictment on the grounds that the grand jury was extended beyond the five-month limitation prescribed by Rule 6 of the Rules of Criminal Rpocedure, that the foreman of the grand jury and one other grand juror were not qualified to sit as grand jurors because they had served beyond the five-month limitation,

Page 424

that the witness before the grand jury that indicted appellant was never properly sworn because the foreman was not qualified to administer the oath to the witness, and that the endorsement of the indictment was defective because the foreman was not qualified to act.

The record is clear that the grand jury foreman served in the months of August and September of 1966, that he was excused from service in October, but again served in January and March of 1967. His actual service did not exceed four separate months. He acted as foreman in January and March of 1967. It is also plain that 15 members of the grand jury voted for the indictment against appellant. Under Criminal Rule 6(c)(2) the disqualification of one or two grand jurors would not invalidate the indictment. Crawford v. State, 408 P.2d 1002, 1011 (Alaska 1965).

We see no harm inflicted on appellant because the grand jury foreman served for a few months, was temporarily excused, and then resumed service a few months later. We find this to be in substantial compliance with the pertinent rule. [1]

A case similar to this one is People v. Whalen, 26 Misc.2d 714, 208 N.Y.S.2d 130 (1960). In that case an indictment returned by a grand jury containing two unqualified members was held to be valid. The court noted that a grand jury can act through a de facto foreman without violating any constitutional rights of the accused.

The role of the foreman was described by the court in People v. Whalen, supra, in the following terms:

'The foreman of the grand jury is appointed by the judge of the court which impaneled the grand jury. He occupies roughly the same position as the foreman of a petit jury. He has no greater or lesser powers than any other grand juror. Each paneled grand juror is a distinct legal entity and the identity of the foreman is merged along with the other jurors.

'The foreman is, in the absence of the courts, the presiding officer of the inquiry; he is merely the instrumentality through which the proceedings and actions of the grand jury are reported to the court, and the most important of his duties is to report all indictments which are returned by the grand jury and to endorse on such bills, as foreman, whether or not they are true bills.' 208 N.Y.S.2d, at 132.

Thus, even if the foreman was somehow not qualified, it would require a greater showing of prejudice to appellant before we would be willing to invalidate the indictment on the ground that the foreman was disqualified and that he had no power to administer oaths or sign indictments.

II

Appellant contests the validity of his arrest, made without a warrant, on the misdemeanor charge of being a minor in possession of an alcoholic beverage.

His claims of error are based upon the rejection by the trial court of appellant's exhibit B, offered to show that the misdemeanor charge against him had been dismissed, the denial of a motion for mistrial based upon the judge's statement in the presence of the jury that the only issue about the legality of the arrest was whether the officer had probable cause to believe that appellant had committed a misdemeanor in his presence, and that the court erred in instructing the jury on the legality of the arrest. Additionally, appellant claims that there was no probable cause to justify the arrest itself.

Page 425

The relevant arrest statute, AS 12.25.030(1), authorizes a private citizen or a police officer, without a warrant, to make an arrest for a crime 'committed or attempted in his presence.' An arrest for a misdemeanor made by an officer without a warrant is valid if the offense is committed in his presence. Rubey v. City of Fairbanks, 456 P.2d 470, 474 (Alaska 1969); Herrin v. State, 449 P.2d 674, 677 (Alaska 1969); Drahosh v. State, 442 P.2d 44, 46 (Alaska 1968).

Appellant contends that 'an officer who arrests without a warrant on a misdemeanor charge acts at his peril, since the arrest will be unlawful if the offense was actually not committed, even though the officer acted on reasonable grounds and in good faith.' Under appellant's theory, Anderson's arrest of appellant on the misdemeanor charge without a warrant was lawful only if the prosecution proved that the offense was actually committed in Anderson's presence. We disagree.

In Rubey v. City of Fairbanks, supra, we held that an arrest for a misdemeanor committed in the presence of an officer was valid where what the officer observed was sufficiently indicative that an offense was in the course of commission as to lead to the logical conclusion that it was in progress. Support for that ruling was found in United States v. Viale, 312 F.2d 595 (2d Cir. 1963), in which the United Stated Court of Appeals applied the New York statute. The New York statute is similar to our own. In Viale, the court said:

'It is now clear under New York law that one person may without a warrant justifiably arrest another who commits a misdemeanor in his 'presence' only which the arrestor actually observed acts which were 'in themselves sufficiently indicative of a crime being in the course of commission * * *' (T) he arrestor must have perceived 'indications of the commission of the offense sufficient to induce reasonable belief of the fact. '' (Citations and footnote omitted.) 312 F.2d, at 600.

In Coverstone v. Davies, 38 Cal.2d 315, 239 P.2d 876 (1952), the California Supreme Court construed the applicable statute, which was also somilar to AS 12.25.030(1), as allowing an officer to make a warrantless arrest for a misdemeanor where the officer had probable cause to believe the arrestee was committing the offense in his presence. The court held that the arrest is proper when circumstances exist that would cause a reasonable person to believe that a crime had been committed in his presence. The court explained the policy reasons underlying its interpretation:

'When an arrst for a misdemeanor is made upon the complaint of one other than the arresting officer, it is proper to require the securing of a warrant to justify the arrest. * * * However, to make the same requirement, when the officer sees that in all probability a public offense is being committed in his presence, would be to hamper law enforcement officers in their everyday enforcement of the law. Peace officers would be reluctant to make arrests for fear that they would be held liable for having made an honest and reasonable mistake. It is thus manifest that the day to day problems of law enforcement require that peace officers be allowed to act without fear of being held liable upon the facts as they ...


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