Objection to Motion to Dismiss Indictment

Electronically Filed
8/16/2023 3:48 PM

Second Judicial District, Latah County Julie Fry, Clerk of the Court
By: Tamzen Reeves, Deputy Clerk
LATAH COUNTY PROSECUTOR'S OFFICE

WILLIAM W. THOMPSON, JR., ISB 2613

PROSECUTING ATTORNEY

JEFF NYE, ISB 9238

SPECIAL ASSISTANT ATTORNEY GENERAL

Latah County Courthouse P.O. Box 8068 Moscow, ID 83843
Phone: (208) 883-2246 paservice@latah.id.us
IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT OF THE
STATE OF IDAHO, IN AND FOR THE COUNTY OF LATAH

STATE OF IDAHO, Case No. CR29-22-2805 Plaintiff,
V. OBJECTION TO DEFENDANT'S

MOTION TO DISMISS

BRYAN C. KOHBERGER INDICTMENT ON GROUNDS OF

Defendant. ERROR IN GRAND JURY
INSTRUCTIONS

The State submits this objection to address Defendant's assertion that the standard of proof in a grand jury proceeding is beyond a reasonable doubt. Far from novel, Defendant's argument has made numerous appearances throughout the state in recent years.

Even those pushing this jarring theory are forced to concede “ the whole of modern jurisprudence on this issue is against it. ” (Mot. at 6.) And, to the State's knowledge, every court in the state that has addressed this argument has soundly rejected it. (See, e.g., Opinion, State v. Williams, Case No. CR28-22-18387 (March 28, 2023) (Duggan, J.) attached as Exhibit A; Memorandum Decision, State v. Peone, Case No. CR28-22-8343 (Dec. 22, 2022)
OBJECTION TO DEFENDANT'S MOTION TO DISMISS INDICTMENT ON GROUNDS OF ERROR IN
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(Meyer, J.) attached as Exhibit B; Memorandum Decision, State v. Rodriguez, Case No.

CR14-20-22902 (May 21, 2021) (Petty, J.) attached as Exhibit C.) For the reasons explained below, the law requires this Court to join that growing list of jurists.¹ A. The Idaho Supreme Court has held probable cause is the correct standard of proof for a grand jury.

Defendant's argument that the beyond a reasonable doubt standard applies to grand jury proceedings is in direct conflict with Idaho Supreme Court precedent. Defendant seems to acknowledge as much but asks this Court “ to recognize ” what he claims is “ the long string of error that lead [sic] us here. ” (Mot. at 21.) Defendant's request ignores one of the most basic tenants of our legal system: the Idaho Supreme Court “ has been and remains the final arbiter of Idaho rules of law. ” State v. Guzman, 122 Idaho 981, 986-87, 842 P.2d 660, 665- 66 (1991). The Idaho Supreme Court has declared that “ [t] he primary purpose of a grand jury proceeding is to... determine probable cause. ” State v. Edmonson, 113 Idaho 230, 234, 743 P.2d 459, 463 (1987). This Court is duty-bound to apply that controlling precedent and reject Defendant's argument to the contrary.

Defendant claims that the court's numerous probable cause statements in Edmonson were " dicta. " (Mot. at 12-13.) Nonsense. A statement from the Idaho Supreme Court is only dicta " [i] f the statement is not necessary to decide the issue presented. ” State v. Hawkins, 155 Idaho 69, 74, 305 P.3d 513, 518 (2013); see Seminole Tribe v. Florida, 517 U.S. 44, 67 (1996) (“ When an opinion issues for the Court, it is not only the result but also those portions 1 The State incorporates as part of its objection the reasoning in the decisions attached as Exhibits A, B, and C.

OBJECTION TO DEFENDANT'S MOTION TO DISMISS INDICTMENT ON GROUNDS OF ERROR IN
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of the opinion necessary to that result by which we are bound. "). The statements in Edmonson that probable cause is the standard of proof for grand jury proceedings were necessary to at least two of the court's holdings.

First, the court held a prosecutor's decision to use a grand jury rather than a preliminary hearing does not violate equal protection. Central to the court's rationale was the determination that a grand jury proceeding and a preliminary hearing serve the same purpose and have the same standard of proof:
The purpose of a grand jury proceeding and a preliminary hearing is to determine probable cause. Any advantage that a preliminary hearing affords a defendant is purely incidental to that purpose. The independent grand jury's function would be duplicated by requiring a subsequent preliminary hearing.

113 Idaho at 234, 743 P.2d at 463.

Defendant suggests this holding is dicta because the court “ note [d] ” that “ Edmonson did not request a preliminary hearing. " Id. at 233, 743 P.2d at 462. Despite acknowledging it could have disposed of the case on that basis, the court “ address [ed] the arguments raised by Edmonson ” because of “ the important constitutional issues at stake. ” Id. The court thus saw the equal protection claim as properly before it and resolved the issue by addressing the merits of Edmonson's claim. See id. at 235, 743 P.2d at 464 (“ We accept the above reasoning as persuasive and hold that a prosecutor may proceed by either alternative — indictment or information. " (emphasis added)). Moreover, Idaho's appellate courts have repeatedly applied Edmonson's equal protection holding as binding precedent, which means this Court must do the same. See State v. Odiaga, 125 Idaho 384, 389, 871 P.2d 801, 806 (1994) (“ In [Edmonson], this Court specifically held that the prosecutor can use either a grand jury
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proceeding or a preliminary hearing before an impartial magistrate to initiate criminal proceedings. "); State v. Nelson, 131 Idaho 210, 213, 953 P.2d 650, 654 (Ct. App. 1998) (finding “ the reasoning presented in Edmonson to be dispositive ” on the issue of whether defendant had a right to a preliminary hearing); State v. Martinez, 128 Idaho 104, 111, 910 P.2d 776, 783 (Ct. App. 1995) (“ Moreover, as held in Edmonson, a defendant indicted by a grand jury is not entitled to a preliminary hearing. ”); State v. Vaughn, 124 Idaho 576, 584, 861 P.2d 1241, 1249 (Ct. App. 1993) (“ [O] ur Supreme Court has held that, where a defendant has been indicted by a grand jury, the defendant is not afforded a right to a preliminary hearing. " (citing Edmonson, 113 Idaho at 232-33, 743 P.2d 461-62)).

Second, the Edmonson court decided, as a matter of first impression, that an indictment will be sustained by a reviewing court when improper evidence is excluded and probable cause remains:
The purpose of the grand jury proceeding is to determine whether sufficient probable cause exists to bind the defendant over for trial. The determination of guilt or innocence is saved for a later day. As long as the grand jury has received legally sufficient evidence which in and of itself supports a finding of probable cause it is not for an appellate court to set aside the indictment.

Id. at 236-37, 743 P.2d at 465-66 (emphasis added). This process of review would make no sense were the correct standard of proof for a grand jury anything other than probable cause.

In any event, post-Edmondson, the Idaho Supreme Court has consistently applied the probable cause standard to evidence presented to the grand jury. See State v. Martinez, 125 Idaho 445, 448-49, 872 P.2d 708, 711-12 (1994) (citing Idaho Code § 19-1107 and then holding there was “ sufficient independent evidence to support a finding of probable cause and therefore this Court will not set aside the indictment ”); State v. Jones, 125 Idaho 477,
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483-84, 873 P.2d 122, 128-29 (1994) (“ Because there is independent legal evidence to support a finding of probable cause and because the totality of the circumstances at the grand jury proceeding do not demonstrate prejudice, there is no basis for dismissal of the indictment. "). The Idaho Court of Appeals has done the same, see, e.g., State v. Marsalis, 151 Idaho 872, 877-78, 264 P.3d 979, 984-85 (Ct. App. 2011), and “ all tribunals inferior to the Court of Appeals are obligated to abide by decisions issued by the Court of Appeals, ” see Guzman, 122 Idaho at 986, 842 P.2d at 665. In short, it is black letter law in Idaho that the standard of proof for indictment by a grand jury is probable cause.

B. Section 19-1107 sets the standard of proof for grand juries at probable cause.

Even if this Court were writing on a clean legal slate, the statute relied on by Defendant sets the standard of proof for a grand jury at probable cause. Statutory interpretation begins “ with the statute's plain language. " State v. Wilson, 165 Idaho 64, 67, 438 P.3d 302, 305 (2019). “ The statute is considered as a whole, and words are given ‘ their plain, usual, and ordinary meanings. ” Id. (quoting State v. Owens, 158 Idaho 1, 3, 343 P.3d 30, 32 (2015)). The Idaho Supreme Court has also “ adopted the rule that ‘ [w] hen a statue and rule can be reasonably interpreted so that there is no conflict between them, they should be so interpreted rather than interpreted in a way that results in conflict. ” State v. Weigle, 165 Idaho 482, 486 n.4, 447 P.3d 930, 934 n.4 (2019) (quoting State v. Johnson, 145 Idaho 970, 974, 188 P.3d 912, 916 (2008)).

Idaho Code § 19-1107 and Idaho Criminal Rule 6.5 (a) share the same title and address the same issue: “ Sufficiency of Evidence to Warrant Indictment. ” The rule explicitly sets the standard of proof at probable cause. See I.C.R. 6.5 (a). The statute can and therefore
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must be read to do the same. See State v. Garner, 161 Idaho 708, 711, 390 P.3d 434, 437 (2017) (“ Statutes and rules that can be read together without conflicts must be read in that way. ").

The plain language of the statute states: “ The grand jury ought to find an indictment when all the evidence before them, taken together, if unexplained or uncontradicted, would, in their judgment, warrant a conviction by a trial jury. ” I.C. § 19-1107. The Idaho Supreme Court has already rejected Defendant's claim that that language requires the grand jury to find the suspect guilty beyond a reasonable doubt. See Gasper v. Seventh Jud. Dist., 74 Idaho 388, 395, 264 P.2d 679, 683 (1953) (observing that an instruction setting the standard of proof for the grand jury as beyond a reasonable doubt “ calls for greater degree of proof to justify an indictment than [I.C. § 19-1107] requires "). To the extent § 19-1107 sets a standard of proof, the phrases “ in their judgment ” and “ warrant a conviction by a trial jury " indicate the standard of proof is much different than Defendant opines.

Section 19-1107 emphasizes that whether sufficient evidence has been presented for an indictment is left to the judgment of the grand jury. The phrase “ in their judgment " must be given more effect than just dictating who makes the decision, which is already clear from other language in the statute. See I.C. § 19-1107 (“ The grand jury ought to find an indictment ... "); see also State v. Nordquist, 309 N.W.2d 109, 117 (N.D. 1981) (emphasizing the language of a nearly identical North Dakota statute “ reflects the Legislature's intent to allow the grand jury to determine whether or not the evidence put before it... could withstand the test of a trial "). The practice of leaving the sufficiency of evidence question solely to the judgment of the grand jury is consistent with the historical practice of courts refusing to
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inquire into the sufficiency of the evidence presented to a grand jury absent an allegation that no evidence was presented. See, e.g., Greenberg v. Sup. Ct. of S.F., 121 P.2d 713, 715 (Cal. 1942) (discussing the " settled ” law “ in most jurisdictions ” that “ [i] f there is some evidence to support the indictment the courts will not inquire into its sufficiency, but the lack of any evidence conclusively establishes that the grand jury has exceeded its authority in returning an indictment ” (emphases added)).

Moreover, " [b] y including the phrase ' warrant a conviction by a trial jury, ' the Legislature did not intend to equate a grand jury proceeding with a trial. ” Cummiskey v. Sup.

Ct., 839 P.2d 1059, 1066 (Cal. 1992). As defined at the time the statute was adopted, the word “ warrant ” meant “ [t] o authorize; to give authority or power to do or forbear anything, by which the person authorized is secured or saved harmless from any loss or damage by the act. " Goodrich, Chauncey A., “ An American Dictionary of the English Language, ” G. and C. Merriam, Springfield Mass., (1862), p. 1249. It has a consistent definition today: “ 1. a) authorization or sanction, as by a superior or the law, b) justification or reasonable grounds for some act, course, statement, or belief.... ” Webster's New World Dictionary, 2d College Ed., 1980.

These phrases, taken together, indicate that the legislature never intended that the grand jury would determine whether the suspect is guilty of the alleged crime beyond a reasonable doubt. Rather, the legislature left to the grand jury to determine “ in their judgment ” whether reasonable grounds exist for a future trial jury to convict the suspect. I.C.

§ 19-1107 (emphasis added). Consistent with the statutory language, Rule 6.5 (a) directs grand jurors how they should exercise their legislatively empowered judgment. The grand
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jury must determine whether “ an offense has been committed ” and whether “ there is probable cause to believe that the accused committed it. ” I.C.R. 6.5 (a). Because the statue and the rule can be read together to set the standard of proof for grand juries at probable cause, they “ must be read in that way. ” Garner, 161 Idaho at 711, 390 P.3d at 437.

Defendant argues the precursor to I.C. § 19-1107 came from a California statute and must be interpreted consistent with the meaning California's statute had at the time, and— according to Defendant — the California Supreme Court read its statute to impose a beyond a reasonable doubt standard to grand jury proceedings. (Mot. at 4-7 (quoting People v.

Tinder, 19 Cal. 539, 542 (1862)). But that would be news to the California Supreme Court, who has rejected the very interpretation of Tinder Defendant relies on here. See Cummiskey 839 P.2d at 1066. As the California Supreme Court explained, “ the Tinder court's reference to probable cause was a comment on the quality of evidence required to return an indictment, not on the standard of proof for grand jury proceedings. ” Id. (emphasis in original). Unlike Tinder, Cummiskey addressed the standard of proof for grand jury proceedings in California and held California's version of I.C. § 19-1107 requires a finding of probable cause. Id.

Moreover, the assertion that Idaho incorporated sub silentio a beyond a reasonable doubt standard for grand juries when the Idaho Constitution was adopted would be a surprise to Idaho's founding fathers. During the debate on Article I, Section 8, William H. Clagett, the President of the Idaho Constitutional Convention, advocated for keeping the grand jury system and stated the standard of proof for grand juries in Idaho is probable cause: “ [T] hat is all the grand jury is entitled to do, to say that there is probable cause to believe the man is guilty. " Proceedings and Debates of the Constitutional Convention of Idaho 1889, p.266
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(I.W. Hart ed. 1912). No one present at the debate offered a different opinion — a strange reaction from a group allegedly in the midst of setting the standard of proof for grand juries at beyond a reasonable doubt. See State v. Clarke, 165 Idaho 393, 397, 446 P.3d 451, 455 (2019) (explaining the “ best resource ” for determining the intent of the framers “ is the compilation of the Proceedings and Debates of the Constitutional Convention of Idaho 1889 ” and stating statutes in existence at the time of the adoption of Idaho's Constitution and the common law need only be examined “ [i] n the absence of the words of the framers ”).

C. Even if Idaho Code § 19-1107 and Rule 6.5 (a) conflict, the rule controls and the result is the same.

Even if I.C. § 19-1107 and Rule 6.5 (a) conflict, the rule controls and the standard for grand juries is probable cause. The Idaho Supreme Court “ has the inherent power to make rules governing the procedure in all Idaho's courts. ” Talbot v. Ames Constr., 127 Idaho 648, 651, 904 P.2d 560, 563 (1995). When a rule and statute conflict, the question then becomes whether the subject of the law is substantive or procedural. “ Substantive law prescribes norms for societal conduct and punishments for violations thereof. It thus creates, defines, and regulates primary rights. In contrast, practice and procedure pertain to essentially mechanical operations of the courts by which substantive law, rights, and remedies are effectuated. " State v. Abdullah, 158 Idaho 386, 483, 348 P.3d 1, 98 (2015).

As a general matter, “ questions about standards of proof have long been recognized as procedural, not substantive, across a broad range of legal fields. " United States v.

Montalvo, 331 F.3d 1052, 1061 (9th Cir. 2003) (Kazinski, J., concurring); see, e.g., Carroll v. MBNA America Bank, 148 Idaho 261, 267, 220 P.3d 1080, 1086 (2009) (explaining
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“ procedural matters include... sufficiency of evidence ”). Specific to the criminal context, a procedural rule is one that “ merely raises the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise. ” Schriro v.

Summerlin, 542 U.S. 348, 353 (2004). A rule is substantive only “ if it alters the range of conduct or the class of persons that the law punishes. ” Id. The standard of proof for a grand jury proceeding falls on the procedural side of the line because it does not dictate the range of conduct the law punishes but only affects the likelihood that such conduct will result in indictment.2 Defendant suggests that I.C. § 19-1107 is somehow insulated from the procedural versus substantive test because it was in effect when Idaho adopted a constitution. (Mot. at 15.) Not so. The Idaho Supreme Court will ignore as a “ nullity ” a statute purporting to govern procedure regardless of whether it was “ codified long before Idaho's Constitution was created " or during the most recent legislative session. Weigle, 165 Idaho at 486-87, 447 P.3d at 934-35.

Thus, in the State's view, I.C. § 19-1107 and Idaho Criminal Rule 6.5 (a) can be read without conflict and set probable cause as the standard of proof for grand juries. But even if a conflict exists, the rule controls and the standard of proof for grand juries in Idaho is still probable cause.

2 Defendant's reliance on Garrett v. Moore-McCormack Co., 317 U.S. 239 (1942) and similar cases is misplaced. (Mot. at 14-15.) The cases Defendant cites addressed the burden of proof, not the standard of proof. Moreover, as Defendant acknowledges, the Idaho Supreme Court has decided the issue differently, see Carroll, 148 Idaho at 267, 220 P.3d at 1086, and the question of whether the standard of proof for state grand juries in Idaho is procedural or substantive is a question of state law.

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D. Defendant asserts a theory the law does not allow and seeks a remedy this Court cannot grant.

Defendant's motion should be denied as it rests entirely on an erroneous legal theory, but it has other problems as well. As Defendant acknowledges, the statutes governing grand jury proceedings do not allow for a challenge to the instructions given to the jury. (Mot. at 17.) The