                                      No. 13476

         I N THE SUPREME COURT O THE STATE O MONTANA
                                F           F

                                         1976



THE STATE O MONTANA,
           F

                              P l a i n t i f f and Appellant,

         -vs   -
JACK Me SCANLON,

                             Defendant and Respondent.



Appeal from:        D i s t r i c t Court o f t h e F i r s t J u d i c i a l D i s t r i c t ,
                    Honorable Gordon R. Bennett, Judge p r e s i d i n g .

Counsel of Record:

     For Appellant :

               Hon. Robert L. Woodahl, Attorney General, Helena,
                Montana
               Thomas Budewitz argued, A s s i s t a n t Attorney General,
                Helena, Montana
               A l b e r t Melloling argued, S p e c i a l A s s i s t a n t Attorney
                General, Helena, Montana

     For Respondent :

               Donald G a r r i t y argued, Helena, Montana



                                                   Submitted:         October 21, 1976

                                                    Decided :     m- $a 197~
                                                                   c              %




Filed:   E c % 0 1976
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

       The state appeals from dismissal of eighteen counts of

perjury returned by the grand jury against Jack M. Scanlon, defendant.

The grand jury in Lewis and Clark County initiated an investiga-

tion into defendant's Workers' Compensation related activities.

The foreman of the grand jury stated:

       "* * * Pursuant to this inquiry, the Grand Jury will
       examine the activities of Jack Scanlon in his repre-
       sentation of claimants before the Industrial Accident
       Board and the Workmen's Compensation Division during
       the period between mid-1969 and mid-1973 and thereafter.

      "This inquiry will include a review of each step of
      Mr. Scanlon's professional representation, commencing
      with initiation of the attorney-client relationship
      and continuing through the conclusion of such representa-
      tion, including any related third-party litigation in-
      volving subrogation rights."
             part of this investigation a number   defendant's

clients were called and testified to the manner the attorney-

client relationship was initiated. After this testimony, the

grand jury requested the attorney general to file a complaint

with the Commission on Practice charging defendant did solicit

without legal cause or permission, the individuals who testified.

       Defendant was called to testify before the grand jury and

refused to answer questions posed to him asserting his right

against self-incrimination. Thereafter, in an effort to find

where defendant received the information, defendant was granted
immunity against prosecution except prosecution for contempt and
perjury.   He testified for two days before the grand jury,denying
he solicited these persons and offered explanation for the manner
in which they became his clients. Following defendant's testimony

there was further inquiry and some clients were recalled.   Some

people, whom defendant said referred these clients to him, were
called to testify.    The grand jury returned anindictment charging

eighteen counts of perjury.
      Defendant filed a motion to dismiss these charges, which

was granted. The state appeals.

      We summarize the issues presented to be:

       1. Whether the evidentiary standard required for proof

of perjury was met?

       2. Whether the allegedly perjured testimony was material?
       3. Whether off-the-record statements made to the grand

jury were grounds for dismissal?

      4. Whether there was sufficient prosecutorial misconduct
to warrant dismissal of the indictment?

       5. Whether the admonition of secrecy delivered to the
grand jury witnesses was grounds for dismissal?

      First, we consider the strict evidentiary standard required

for the proof of perjury.     Three Montana statutes are applicable:

       Section 94-7-202(7),    R.C.M. 1947, provides:

      "No person shall be convicted of an offense under
      this section where proof of falsity rests solely upon
      the testimony of a single person other than the de-
      fendant .I
               '

       Section 93-401-1, R.C.M. 1947, provides:

      "The direct evidence of one witness who is entitled
      to full credit is sufficient for proof of any fact,
      except perjury and treason."

       Section 93-1401-2, R.C.M. 1947, provides:
      "Perjury and treason must be proved by testimony of
      more than one witness; treason by the testimony of two
      witnesses to the same overt act; and perjury by the
      testimony of two witnesses, or one witness and - .
                                                     corrobora-
                                                              -
      tinp; circumstances." (Emphasis added.)

      The basis for unusually stringent evidence requirements is

set out in an article in 19 UCLA Law Review 638, 642,643 entitled
"Perjury and Related Offenses Under t h e Proposed C a l i f o r n i a

Criminal Code."            That same a r t i c l e p o i n t s o u t a t p . 645, t h a t

T e n t a t i v e D r a f t No. 6 of t h e Model Penal Code on t h i s p o i n t reads:

           "Corroboration. Proof of g u i l t beyond a reasonable
           doubt s h a l l s u f f i c e f o r conviction under t h i s s e c t i o n
           a s i n o t h e r criminal c a s e s , without s p e c i a l requirement
           of two witnesses o r corroborating circumstances.

           " [-- l t e r n a t e , r e j e c t e d by t h e c o u n c i l : N person s h a l l
               A         - --                                                o
           be convicted of an offense under t h i s Section where
           proof of f a l s i t y r e s t s s o l e l y upon c o n t r a d i c t i o n by
           testimony of a person o t h e r than t h e defendant.]"

The o f f i c i a l d r a f t of t h e Model Penal Code, which served a s t h e


b a s i s f o r s e c t i o n 94-7-202(7), R.C .M.           1947, used the a l t e r n a t e


provision.         I n Montana Criminal Code, 1973, Annotated, Prof.


William F. Crowley            -   E d i t o r , a t page 293 t h e annotator p o i n t s o u t :

           "The common law r u l e t h a t falsehood be e s t a b l i s h e d
           by two witnesses i s adopted i n p a r t by subsection ( 7 ) .
           A t t h e common'law t h i s r u l e was adopted t o d e a l with
           t h e problem of an oath a g a i n s t an oath. The modern
           r a t i o n a l e i s a policy determination based on a balancing
           of t h e need f o r p r o t e c t i o n of witness and t h e need t o
           maintain t h e sanctions f o r f a l s e testimony. I n adopting
           t h e requirement of more than one witness Montana has
           followed t h e majority of s t a t e s i n a f f o r d i n g a d d i t i o n a l
           p r o t e c t i o n t o t h e witness a t t h e p o s s i b l e c o s t of being
           unable t o convict an apparent p e r j u r e r .                ** *I1



A s noted above, t h e standard of proof required i n Montana under

t h e new code s e c t i o n 94-7-202(7),             R.C.M.      1947, r e q u i r e s t h a t t h e

proof of t h e f a l s i t y of a statement must be more than t h e contra-

d i c t i o n testimony of a person o t h e r than t h e defendant.                        The l e g i s -

l a t u r e r e c e n t l y made t h i s policy determination and d e s p i t e t h e

c o n t r a r y r u l e urged by t h e s t a t e , t h i s i s t h e r u l e i n Montana.

           The exact requirements of t h i s e v i d e n t i a r y r u l e i n p e r j u r y

cases a r e apparent from an examination of t h e C a l i f o r n i a c a s e s i n t e r -

p r e t i n g t h e s e c t i o n of t h e C a l i f o r n i a C i v i l Code, i d e n t i c a l t o
Montana's section 93-1401-2, R.C.M. 1947.    In an article entitled

"Proof of Perjury: The Two Witness Requirement", 35 Southern

California Law Review 86,97, it is stated:
        II
         In summary, the California attitude is, and remains,
        that direct testimony of at least one witness must
        always be introduced to prove the falsity of the
        statement set forth in the indictment; circumstantial
        evidence alone will not support a perjury conviction."

        In People v. Roubus, 53 Cal.Rptr. 281, 417 P.2d 865, 866,

867, the California Supreme Court, sitting In Bank, outlined this

evidentiary requirement:

        "Perjury must be proved by the testimony of two witnesses,
        or of one witness and corroborating circumstances.  ***
        This statutory provision has been interpreted as pre-
        scribing not only the amount but also the kind of evidence
        necessary to support a perjury conviction. * * * Direct,
        as distinguished from circumstantial, evidence of the
        falsity of the defendant's testimony by at least one witness
        is generally required. * * * This does not mean that there
        must be a denial in the very words of the defendant's
                  * *
        testimony * but that there muet be testimony by at
        least one witness furnishing direct evidence of facts
        contrary to, or absolutely incompatible or physically in-
        consistent with, that sworn to by the accused * * *,
        Evidence that establishes facts from which the falsity
        of an alleged perjured statement may or may not be inferred
        is insufficient under the direct evidence rule. * **
        "The rule requiring proof of falsity by direct evidence has
                             *
        been criticized. * * However, this requirement was early
        established in this state by decisions construing our
        statutory provision. It is noteworthy that a majority of
        jurisdictions which apply the rule that falsity must be
        proved by the testimony of two witnesses, or of one witness
        and corroborating circumstances, hold that circumstantial
        evidence alone is generally insufficient to establish
        falsity.''
        An early Montana case indica tEs this is the law in Montana
as well, In State v. Gibbs, 10 Mont. 213, 219, 25 P. 289, it is
said:
        "'It is not necessary that there should be two living
        witnesses in contradiction of the statement of the de-
        fendant to justify a confiction of perjury. It is suffi-
        cient if, in addition to one directly opposing witness,
        corroborating circumstances sufficient to turn the scale
        and overcome the oath of the defendant and the legal
        presumption of his innocence are proved. 1 1 1
The Court i n Gibbs approved t h i s i n s t r u c t i o n a s t o proof of p e r j u r y :

         If'*   **    t h a t such a c t of perjury has been e s t a b l i s h e d
         t o your s a t i s f a c t i o n beyond a reasonable doubt by more
         than one witness, o r t h a t t h e testimony of such witness
         has been corroborated upon t h a t p o i n t by o t h e r f a c t s and
         circumstances proved on t h e t r i a l . I n o t h e r words, t h e
         d i r e c t evidence of one witness alone i s not s u f f i c i e n t
         t o convict of t h e crime of p e r j u r y , u n l e s s corroborated
         by o t h e r f a c t s and circumstances proved on t h e t r i a l . t 11

I n Gibbs t h e Court was construing t h e then equivalent code s e c t i o n

t o s e c t i o n 93-401-1,   R.C.M.   1947.     Section 93-1401-2 had not been

enacted a t t h a t time.       I n S t a t e v. Jackson, 88 Mont. 420, 293 P.

309, t h e Court c i t e d Gibbs a s a u t h o r i t y of t h e requirement t h a t

p e r j u r y must be proved by t h e testimony of two w i t n e s s e s , o r one

witness and corroborating circumstances i n d i c a t i n g t h a t t h i s was

t h e law even p r i o r t o t h e passage of s e c t i o n 93-1401-2,         R.C.M.     1947.

         A s u b s i d i a r y question t o be determined         regards t h e n a t u r e

of t h e corroborating circumstances t h a t must be proved.                     The r u l e

i n * C a l i f o r n i a , t h a t t h e s t a t e argues we should adopt, i s s t a t e d

i n People v. Casanova, 54 Cal.App. 439, 202 P. 45,47:

         'I*    * *The s t a t u t e respecting t h e quantum of evidence
         necessary i n p e r j u r y cases w i l l be s a t i s f i e d , i f t h e r e
         be t h e testimony of one witness t o f a c t s t h a t a r e
         a b s o l u t e l y incompatible with t h e innocence of t h e
         accused, corroborated by circumstances which, of them-
         s e l v e s and independently of such d i r e c t l y inculpatory
         evidence, tend, with a reasonable degree of c e r t i t u d e ,
         t o show t h a t t h e accused i s g u i l t y a s charged."

See a l s o : People v. Pustau, 39 C.A.2d 407, 103 P.2d 224,228.

                      t h e Court s a i d t h a t "corroborating circumstances

s u f f i c i e n t t o t u r n t h e s c a l e and overcome t h e oath of t h e defendant

and t h e l e g a l presumption of h i s innocence" a r e a l l t h a t i s required.

I n People v. Todd, 9 C.A.2d 237, 49 P.2d 611, 614, i t i s pointed

out :
           "It i s a l s o w e l l s e t t l e d t h a t motive and design t o commit
           a crime, i f . p r o v e d , may be considered a q u i l t y circumstance
           ***        and consequently maylserve l e g a l l y a s c o r r o b o r a t i v e
           evidence; and i n t h i s behalf i t has been repeatedly h e l d
           t h a t where, a s h e r e , i t i s claimed t h a t s e v e r a l o f f e n s e s have
           been cormitted a s p a r t of one scheme o r plan, a l l of t h e
           same g e n e r a l c h a r a c t e r , tending t o t h e same common end,
           evidence thereof may be received t o show t h e process o r
           motive and design t o commit t h e p a r t i c u l a r offense w i t h
           which t h e accused i s charged, and a s tending t o show
           l o g i c a l l y t h a t t h e p a r t i c u l a r offense f o r which he i s being
           t r i e d was p a r t of such common scheme."

           The second i s s u e involves t h e requirement t h a t t h e a l l e g e d

p e r j u r e d statement be m a t e r i a l .          The Montana s t a t u t e , s e c t i o n 94-7-

202(3), R.C.M.           1947, provides:

           " F a l s i f i c a t i o n i s m a t e r i a l , r e g a r d l e s s of t h e a d m i s s i b i l i t y
           of t h e statement under r u l e s of evidence, i f i t could have
           a f f e c t e d t h e course o r outcome of t h e proceeding. I t i s no
           defense t h a t t h e d e c l a r a n t mistakenly belidved t h e f a l s i f i -
           c a t i o n to--be immaterial. Whether a f a l s i f i c a t i o n i s
           m a t e r i a l i n a given f a c t u a l s i t u a t i o n i s a question of law."

The Commission Comment p o i n t s out:

           "The proposed d e f i n i t i o n of ' m a t e r i a l i t y ' i n subsection
           ( 3 ) does n o t d i f f e r s u b s t a n t i a l l y from t h a t given by p r i o r
           law. "

           I n S t a t e v. H a l l , 88 Mont. 297, 304, 292 P. 734, t h e Court

said :

           "* *    *Also i t may be conceded t h a t t h e g e n e r a l r u l e i s
           t h a t anything so connected with t h e matter a t i s s u e
           a s t o have a l e g i t i m a t e tendency t o prove o r disprove
           some m a t e r i a l i s s u e by giving weight o r p r o b a b i l i t y t o ,
           o r d e t r a c t i n g from, t h e testimony of a w i t n e s s , i s m a t e r i a l
           ***      and t h a t , i f evidence i s c i r c u m s t a n t i a l l y m a t e r i a l ,
           i t i s s u f f i c i e n t t o s u s t a i n a p e r j u r y charge."

The t e s t f o r m a t e r i a l i t y a s s e t out by t h e s t a t u t e i s n o t p a r t i c u l a r l y

d i f f i c u l t t o meet, i t r e q u i r e s only t h a t i n t h e a c t u a l f a c t u a l

s i t u a t i o n involved would i t be reasonable t o f i n d t h a t t h e defendant's

statement, i f believed, could have a l t e r e d t h e course of t h e i n -

vestigation.

          While it i s t r u e t h a t a f a l s e answer t o a t r i v i a l o r

i r r e l e v a n t question does n o t i n and of i t s e l f hamper t h e £unctioning
of t h e s t a t e , t h e c o u r t , whose i n t e g r i t y depends on t h e t r u t h ,

has a s p e c i a l i n t e r e s t i n seeing those who do n o t t e l l t h e t r u t h ,

whether t o a r e l e v a n t o r i r r e l e v a n t m a t t e r , do not go unpunished.

See s e c t i o n 94-7-203,          R.C.M.   1947, which provides f o r t h e punish-

ment of a f a l s e statement i n an o f f i c i a l proceeding whether t h a t

statement was m a t e r i a l o r n o t , and makes such f a l s e statement a

misdemeanor.

           W n o t e h e r e t h a t n e a r l y a l l c a s e s c i t e d by both p a r t i e s
            e

involve a p o s t - t r i a l , n o t post-indictment determination of t h e s e

required elements.               W a r e considering h e r e p e r j u r y counts before
                                  e

a grand jury and n o t a f t e r a t r i a l .          The grand j u r y s t a t u t e , s e c t i o n
   /' (3
95-1&9-(c) ,        R.C.M.      1947, provides:

           "The grand j u r y s h a l l f i n d an indictment when a l l
           t h e evidence before i t , taken t o g e t h e r , i f unexplained
           o r uncontradicted, w o a , i n i t s judgment, warrant a
           conviction by a t r i a l jury          ."
           The d i s t r i c t c o u r t dismissed each of t h e eighteen counts

based on t h e absence of one of t h e s e elements---lack of d i r e c t

evidence a s t o t h e f a l s i t y of t h e statement, l a c k of corroboration

o r l a c k of m a t e r i a l i t y .   Several of t h e counts a g a i n s t defendant

a r o s e out of t r a n s a c t i o n s wherein defendant t e s t i f i e d t h e c l i e n t s

were r e f e r r e d t o him by an uncle and a u n t , M r . and Mrs. Richard

Mullins o r by a M r . and Mrs. Herman Meyers, long time family f r i e n d s .

A t t h e time defendant t e s t i f i e d a l l of t h e s e people were deceased.

The c l i e n t s who appeared before t h e grand j u r y denied ever knowing

ank of t h e named people, however, t h e s e deaths prevented t h e s t a t e

from g e t t i n g t h e necessary d i r e c t evidence required t o prove p e r j u r y .

The d i s t r i c t c o u r t dismissed these counts f o r l a c k of d i r e c t evidence

a s t o t h e f a l s i t y and t h e s e d i s m i s s a l s were proper.

           W have c a r e f u l l y reviewed a l l o t h e r counts, and hold t h a t
            e

with t h e exception of counts 9 and 10, they should have been dismissed.
    The d i s m i s s a l of those counts comes from t h e f a c t they were n o t

    supported by d i r e c t evidence of t h e f a l s i t y of t h e defendant's

    statements o r due t o & l a c k               of s u f f i c i e n t proof t o o f f s e t defendant's

    f a i l u r e t o remember c e r t a i n f a c t s .

               A summary of count 9 . charges t h a t Jack M. Scanlon, f a l s e l y

    t e s t i f i e d t h a t Grace A . Rieker f i r s t contacted him on t h e telephone,

    when i n t r u t h and f a c t he knew t h a t he had i n s t i g a t e d t h e telephone

    conversation with claimant f o r t h e purpose of i n i t i a t i n g a c l i e n t -

    a t t o r n e y r e l a t i o n s h i p ; and t h a t he s o t e s t i f i e d t o deceive and

    f r u s t r a t e t h e grand j u r y i n i t s i n v e s t i g a t i o n c o n t r a r y t o s e c t i o n

    94-7-202, R.C.M.            1947.

               A summary of count 10                 charges t h a t defendant f a l s e l y

    t e s t i f i e d t h a t p r i o r t o t h e telephone c a l l from claimant he had
L


    never heard of t h e claimant nor t h e f a c t t h a t she was i n j u r e d ,
               /




    while i n t r u t h and f a c t he knew t h e claimant and t h a t she had

    been i n j u r e d p r i o r t o ever t a l k i n g t o h e r , and he s o t e s t i f i e d

    f o r t h e purpose of deceiving and f r u s t r a t i n g t h e grand j u r y

    c o n t r a r y t o s e c t i o n 94-7-202, R.C.M.          1947.

               When asked how he came t o r e p r e s e n t Mrs. Grace Rieker

    and h e r claims before t h e I n d u s t r i a l Accident Board, defendant

    i n answer t o questions t e s t i f i e d :

               "Q. How d i d she come t o know you?                       A.     I don' t know
               you w i . 1 1 have t o a s k h e r t h a t .

               "Q.  The f i r s t c o n t a c t with Grace Rieker was by h e r t e l e -
               phoning you? A. A s I r e c a l l , yes.

               "Q.    Let m give you your f i l e s , i n c a s e you need them
                                e
               t o r e f r e s h your memory. Did she c a l l you i n your o f f i c e
               i n Helena? A . A s I r e c a l l , yes.

               "Q.   What d i d she say t o you? A .                    She asked m about,  e
               a s I r e c a l l , r e p r e s e n t i n g h e r i n h e r i n d u s t r i a l accident
               claim.
          "Q.   Now which c l a i m was t h i s ? A . As I r e c a l l , t h e r e
          were two claims. One was f o r a neck i n j u r y , and she c a l l e d
          me r e l a t i v e t o t h a t ?



          "Q.  A l l r i g h t . I n response t o h e r phone c a l l , what d i d
          you do? A . I met w i t h h e r .

          "Q.    Where?       A.    I n Boulder.



          "Q,   And who was p r e s e n t ?         A . I t h i n k h e r husband was, b u t I
          am n o t s u r e .



          Q . Now, t h i s was t h e very f i r s t c o n t a c t t h a t you e v e r
          had w i t h h e r , was when she phoned you? A . A s b e s t I can
          r e c a l l , yes.

          "Q.  And p r i o r t o h e r phoning you, you had never heard of
          Grace Rieker o r h e r i n j u r y o r anything e l s e ? A . No.



          "Q.       But, you a r e c o n f i d e n t t h a t you d i d n o t s o l i c i t t h e
          a t t o r n e y - c l i e n t r e l a t i o n s h i p y o u r s e l f ? A. Yes, I am
          confident I d i d n ' t s o l i c i t the attorney-client relationship
          myself . I 1

          M r . F u l l e r t e s t i f i e d a s t o h i s r e c o l l e c t i o n of t h e Rieker

c a s e i n d i c a t i n g he and defendant were h i g h school f r i e n d s and

they had k e p t t h a t r e l a t i o n s h i p going over t h e y e a r s .        He s a i d

t h a t a f t e r he had t a l k e d w i t h i n v e s t i g a t o r s o f t h e Workmen's

Compensation i n v e s t i g a t i o n team, and j u s t b e f o r e he t e s t i f i e d

b e f o r e t h e grand j u r y , he c a l l e d Scanlon about t h e Rieker c a s e

because i t was one they had asked q u e s t i o n s about.                     He t e s t i f i e d :

          "Q. Well, d i d you c h ~ c k i t h him t o make s u r e t h a t h i s
                                               w
          r e c o l l e c t i o n of t h e Grace Rieker i n c i d e n t was t h e same
          a s yours? J u s t t o make s u r e t h a t i n your own mind t h a t
          your memory--- A . Xes I d i d .

          "Q.        So you went through w i t h him how he developed h i s
          r e l a t i o n s h i p w i t h Grace Rieker i n s o f a r a s you were
          concerned? A . The only t h i n g I asked him was r e l a t e d
          t o i f he r e c a l l e d t h a t t h e r e were two c a l l s made by me,
          i f I ever t o l d him t h a t , o r i f he had made a phone c a l l
          from m home.y
          "Q.    What d i d he say?         A.    He s a i d no.



          "Q.      I n o t h e r words, according t o what Scanlon t o l d
          you on t h e phone on March 26th, Grace Rieker made t h e
          f i r s t c o n t a c t with Scanlon? A . Yes.

          "Q.       And i t was e i t h e r t h a t she phoned him, asking f o r
                                                 ---
          a s s i s t a n c e of an a t t o r n e y   r i g h t ? A. Right.

          "Q.     --   o r t h a t she came t o h i s o f f i c e ?    A . Right.

          "Q.       But did he t e l l you t h a t i n no way t h a t he con-
          t a c t e d Grace Rieker, telephoned h e r , o r through, t a l k e d
          t o h e r ? A . Right . I 1

F u l l e r a l s o t e s t i f i e d he d i d not remember e i t h e r giving t h e

Riekers t h e phone number of Scanlon; o r giving Scanlon t h e

Riekers ' number.

          Mrs. Rieker t e s t i f i e d before t h e grand jury t h a t she was

a s e c r e t a r y - r e c e p t i o n i s t a t t h e Boulder Riyer School and on

December 22, 1967, she had slipped down t h e school s t e p s and

received an i n j u r y t h a t i n c a p a c i t a t e d h e r f o r a period of time.

For t h a t period she received no compensation o t h e r than from

h e r s i c k leave.     She returned t o work and s e v e r a l years l a t e r

on June 18, 1970, she was i n j u r e d and from t h i s i n j u r y she

received compensation on an o f f and on b a s i s .                  She t e s t i f i e d t h a t

during h e r recovery a M r . Ron F u l l e r of Boulder asked h e r i f she

was i n t e r e s t e d i n a lawyer t o help h e r g e t h e r i n d u s t r i a l a c c i -

dents payments.          He t o l d h e r . h e had a f r i e n d t h a t was a lawyer and

would she l i k e him t o come t o t a l k t o . h e r .

          Her testimony on t h e F u l l e r c a l l s was:

          "Q.      A s a r e s u l t of t h i s d i f f i c u l t y , d i d someone make a
          c o n t a c t with you? Did some a t t o r n e y make a c o n t a c t with
          you, e i t h e r personally o r through someone e l s e ? A . Yes.

          "Q. And what was t h e name of t h a t a t t o r n e y ?           A.     M r . Jack
          Scanlon.
"Q.  P r i o r t o t h i s contact being made t o you, had you
ever personally known Scanlon? A . No.



"Q.  H w d i d t h i s i n i t i a l contact regarding Scanlon take
      o
place. A . A gentleman by t h e name of Ron F u l l e r - - -



"Q.     So F u l l e r volunteered over t h e phone t h a t he had
a f r i e n d who was a lawyer and might be a b l e t o h e l p you?
A. Yes.



Q . N w d i d you have a d d i t i o n a l problems with t h e I n d u s t r i a l
      o
Accident Board?    A. Y e s .

"Q.  Did you, a s a r e s u l t of those a d d i t i o n a l problems
say, hey, I remember t h a t fellow Scanlon and go and c a l l
Scanlon? A . No.
II
 Q.    Were you contacted a second time?               A.    Yes.

"Q.    And who d i d t h i s ?   A.   M r . F u l l e r again.

"Q.      A l l right.   And was t h i s without a request on your
p a r t ? A . Yes.



"Q.  Was t h e r e anybody e l s e t h e r e with F u l l e r a t t h a t
time? A. Yes.

"Q.    W o was t h a t ?
        h                  A.    M r . Scanlon.

"Q.    And how do you know t h a t ? A. Because M r . F u l l e r
asked m i f I would l i k e t o t a l k t o him on t h e phone and
           e
I s a i d , w e l l , I supposed I could t a l k w i t h him about my
problem, so I d i d t a l k t o him on t h e phone.



Q .  Iday, so what d i d Scanlon say when he g o t on t h e phone?
A. Told m he would l i k e t o handle m c a s e , he had heard
            e                                     y
about i t , was i n t e r e s t e d i n i t and thought he could h e l p me.



Q .    Did he eventually come over t o your your house?                     A.   Yes.



"Q.      And when he t a l k e d with you, d i d he seem t o know t h e
d e t a i l s of your c u r r e n t a c c i d e n t ? A . Yes.
             "Q.       H w d i d he l e a r n about t h e 1967 a c c i d e n t ? A. He
                        o
             asked m a t t h a t p o i n t i f I had ever had a previous
                          e
             i n j u r y , and I s a i d yes."

             A 1 Rieker, husband of Grace, t e s t i f i e d corroborating

h e r testimony t h a t a f t e r h e r 1971 i n j u r y she was contacted by

Ron F u l l e r about whether she needed a lawyer and they t o l d him
IIno1'
         .   About t h e second c o n t a c t by F u l l e r he t e s t i f i e d :

             "Q.   '* * *Now, a t a l a t e r time do you r e c a l l being home
             when t h e telephone rang? A. Yes.

             "Q.    Did you answer o r did your w i f e ?              A.     M wife answered
                                                                               y
             it.

             "Q.   ***    Now, a f t e r she f i n i s h e d t a l k i n g on t h e phone
             d i d she t e l l you who had c a l l e d ? A. Yes, she d i d .

             "Q.  And who d i d she say? A. She s a i d Ron had c a l l e d and
             he had put Jack Scanlon on and she t a l k e d t o Jack Scanlon.

             Q .    While you were i n t h e house?              A.    Yes.



             "Q.  A l l r i g h t . Did Scanlon e v e n t u a l l y come over t o your
             home? A , Yes, he d i d .

             "Q.  Now, when Scanlon came t o your home, d i d he t e l l you
             what t h e reason was t h a t he t a l k e d t o your w i f e over t h e
             phone? A . y e s , he d i d . He s a i d he had been i n c o n t a c t
             with Ron F u l l e r and they had t a l k e d over our c a s e and
             thought we needed a lawyer, o r t h a t he might h e l p .

             "Q.   That he, Scanlon might help?                A.     Yes.

             "Q.  Okay. So t h a t Scanlon t o l d you he had found out
             about your w i f e ' s claim before t a l k i n g t o your w i f e ,
             from F u l l e r himself. A . Right.

             "Q.  And t h a t was t h e reason t h a t he had t a l k e d t o your
             wife on t h e phone? A. That i s c o r r e c t .

             "Q.  And then l a t e r on, a t a l a t e r t i m e , he came t o your
             house and he confirmed t h a t t o you. A . Yes. 1I

             A s t o t h e s e counts t h e r e a r e c l e a r l y c o n t r a d i c t o r y statements

t o defendant's testimony t h a t p r i o r t o a c t u a l l y speaking t o Grace

Rieker, he was both unaware of t h e claimant o r h e r i n j u r i e s .                      The

necessary corroboration i s provided by t h e testimony of A 1 Rieker,

whose testimony was t h a t defendant came t o t h e Rieker home and
    t o l d them t h a t before t a l k i n g t o Grace Rieker he had been i n

    c o n t a c t with Ron F u l l e r and had t a l k e d over t h e Grace Rieker

    injuries.        Such testimony i s adequate t o corroborate t h a t he

    knew of h e r i n j u r y from F u l l e r , p r i o r t o coming t o t h e Rieker

    home.

               The remaining t h r e e i s s u e s do n o t go t o t h e a c t u a l m e r i t s

    of t h e charges i n d i v i d u a l l y b u t they a l l e g e d general procedural

    and p r o s e c u t o r i a l improprieties a s t h e b a s i s f o r t h e d i s m i s s a l

    of a l l charges a g a i n s t defendant.               These a t t a c k s must be viewed

    a g a i n s t t h e function of t h e grand jury.                I n United S t a t e s v.
I



    Calandra, 414 U.S. 338, 343, 94 S.Ct.                        613, 38 L ed 2d 561, 569,

    t h e United S t a t e s Supreme Court pointed o u t :

               "A grand j u r y proceeding i s not an adversary hearing
               i n which t h e g u i l t o r innocence of t h e accused i s
               adjudicated. Rather, i t i s an ex p a r t e i n v e s t i g a t i o n
               t o determine whether a crime has been committed and
               whether criminal proceedings should be i n s t i t u t e d a g a i n s t
               any person.''

               These a l l e g e d improper procedures do n o t reach t h e m e r i t s

    of t h e i n d i v i d u a l charges b u t r a t h e r a t t a c k t h e matter i n which

    t h e otherwise v a l i d c r i m i n a l charges a r e determined and i n s t i t u t e d

    and a r e a weak b a s i s f o r asking f o r d i s m i s s a l of t h e charges.

               The f i r s t of t h e s e i s t h e request t h a t t h e c r i m i n a l charges

    be dismissed f o r off-the-record statements made by t h e s p e c i a l

    a s s i s t a n t a t t o r n e y s general p r i o r t o t h e r e t u r n i n g of t h e i n d i c t -

    ment.      There was no record of what was s a i d because t h e s t a t u t e ,

    s e c t i o n 95-1406(e)(l), R.C.M.             1947, r e q u i r e s only t h a t t h e t e s t i -

    mony of witnesses be recorded.                     This s e s s i o n , c h a r a c t e r i z e d by

    t h e d i s t r i c t c o u r t a s a "prep session", could not have r e s u l t e d

    i n t h e grand jury r e t u r n i n g improper o r unsupported indictments.

    The s t a t e urged t h e d i s t r i c t c o u r t t o l i m i t i t s examination t o
t h e probable cause and t h e e v i d e n t i a r y support f o r each count.

The d i s t r i c t c o u r t s a i d i t "would p r e f e r t o do so and leave t h e

matter up t o t h e committee on p r a c t i c e b u t we can n o t overlook

t h e d e v a s t a t i n g e f f e c t of t h e grand j u r y indictment of t h e person

charged .'I

           While t h i s Court does not overlook t h e e f f e c t of t h e

indictment, i t cannot uphold t h e d i s m i s s a l of otherwise v a l i d

c r i m i n a l counts because of p o s s i b l e improper statements made

t o t h e grand jury p r i o r t o t h e indictment.              The m e r i t s of i n v a l i d

counts may be challanged i n d i v i d u a l l y and t h e defendant's r i g h t s

thus protected         .
           The same        may be s a i d of t h e a l l e g a t i o n t h a t t h e r e was

s u f f i c i e n t p r o s e c u t o r i a l misconduct t o warrant d i s m i s s a l of t h e

indictment.          Nothing i n t h e record h e r e approaches t h i s l e v e l .

           The admonition of secrecy t h a t was given t o witnesses

before t h e grand           jury was n o t proper because i t d i d not follow

t h e procedure o u t l i n e d i n s e c t i o n 95-1409, R.C.M.          1947.      However,

t h e requirement was l i f t e d a f t e r indictment so t h a t defendant's

a b i l i t y t o prepare h i s defense has n o t been impaired.                   The d i s t r i c t

c o u r t d i d n o t expressly base d i s m i s s a l of t h e charges on t h i s

error, i t said:

           "While t h i s apparent u t t e r d i s r e g a r d f o r t h e o r d e r s
           of t h i s c o u r t and t h e requirements of t h e law may n o t
           have demonstrably prejudiced t h e defendant, i t i s
           n e v e r t h e l e s s suspect a s an unauthorized i n t i m i d a t i o n
           of witnesses by t h e S t a t e , which could, i f l e f t standing
           o r f u r t h e r ignored redound t o t h e p r e j u d i c e of t h e
           defendant. This should not be condoned o r disregarded
           i n considering whether t h e indictment should be dismissed.''

           Under t h e circumstances d i s c l o s e d h e r e ; t h e e r r o r i s n o t

that fatal.

           The two remaining v a l i d charges a r e remanded t o t h e d i s t r i c t

c o u r t f o r t r i a l on t h e m e r i t s .
.................................

.................................
  Justices.




        i t t i n g i n p l a c e of M r .
        Wesley C a s t l e s .
M r . J u s t i c e Gene B. Daly d i s s e n t i n g :


           I dissent:

          There w i l l be a change i n t h e makeup of t h i s Court

on January 3 , 1977.           Therefore t h e Court a s p r e s e n t l y c o n s t i t u t e d

must complete i t s work assignments no l a t e r than                     Thursday,

December 30, 1976 a t 5:00 p.m.

          The majority opinion i n t h i s case was d e l i v e r e d t o my

chambers f o r study and comment FJednesday, December 29, 1976.

I was n o t , previous t o r e c e i p t of t h i s opinion, accorded an

opportunity t o j o i n w i t h t h e Court i n conference regarding t h e i r

views o r t o express mine.               I have been p r e s e n t a t Court a t a l l

times during which t h e majority view could have been reached and

reduced t o w r i t i n g .

          Obviously t h e time required t o research and properly prepare

a responsible l e g a l d i s s e n t t o t h e m a j o r i t y ' s p o s i t i o n i s no

longer a v a i l a b l e .

          Therefore, I would advise t h a t I have strong views                           that

d i f f e r from t h e majority p o s i t i o n and wish t o reserve t h e r i g h t

t o prepare and f i l e them a t a l a t e r d a t e .


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                                                                                           .

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                                                         Justice.
