OPPOSITION TO DEFENDANT�S MOTION TO DISMISS THE INDICTMENT by jt99YU80

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									                IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
                     THIRD JUDICIAL DISTRICT AT ANCHORAGE


STATE OF ALASKA,                  )
                                  )
       Plaintiff,                 )                            CASE NO. 3AN-06-10140CR
                                  )
   vs.                            )
                                  )
MECHELE LINEHAN,                  )
                                  )
                                  )
       Defendant.                 )
__________________________________)


        OPPOSITION TO THE MOTION TO DISMISS THE INDICTMENT

I certify that this document and its attachments do not contain (1) the name of a victim of a sexual offense listed
in AS 12.61.140 or (2) a residence or business address or telephone number of a victim of or witness to any
offense unless it is an address used to identify the place of the crime or it is an address or telephone number in a
transcript of a court proceeding and disclosure of the information was ordered by the court.



I.       Introduction
                  COMES NOW, the State of Alaska, by and through Assistant Attorney
General Paul J. Miovas, Jr., and hereby files this, the state’s opposition to the
defendant’s August 9, 2011 Motion to Dismiss the Grand Jury Indictment.
II.      Statement of Facts and Procedural Background
                  The defendant was convicted of first-degree murder in 2007, but her
conviction was reversed by the Court of Appeals in Linehan v. State, 224 P.3d 126
(Alaska App. 2010). The case was then remanded for a new trial. The state does not
contest the “pertinent facts” as outlined by the defendant in her present motion. It is the
state’s understanding that the defense has provided a copy of the complete grand jury
transcript for review in conjunction with the current motion. For brevity and because
this court is already quite familiar with the facts of this case, the state will rely upon the
contents of the grand jury transcript.
                  The grand jury presentation took place over the course of one week,
September 25-28, 2006, and more than twenty witnesses provided testimony regarding
the 1996 murder of Kent Leppink. The chief issue presented is whether the indictment
should be dismissed because one witness, Betsy Leppink, affirmed the prosecutor’s very
brief question regarding the contents of a letter written by the victim shortly before his
death implicating the defendant. No other evidence was presented regarding the letter,
and the actual contents of the letter were not introduced as evidence before the grand
jury. The grand jury did not hear any evidence regarding the “split personality”
portions of the victim’s letter.
III.     Legal Authority and Argument
                  Pursuant to Alaska Rule of Criminal Procedure 6(q), when considering
whether the state has met its burden, “the grand jury shall find an indictment when all of
the evidence taken together, if unexplained or uncontradicted, would warrant the
conviction of the defendant.” When a defendant challenges an indictment based on a
sufficiency of the evidence standard, reviewing courts should “draw every reasonable
inference from the evidence in favor of upholding the indictment.” State v. Ison, 744
P.2d 416, 418 (Alaska App. 1987). Additionally, if evidence admitted to the grand jury
is later determined to be inadmissible, the court must follow a two pronged analysis.
                As [the Court of Appeals] explained in Stern v. State, [the
                court] must determine (1) whether the remaining evidence is
                sufficient to support the indictment and, if so, (2) whether “the
                probative force of [the] admissible evidence was so weak and
                the unfair prejudice engendered by the improper evidence was
                so strong that it appears likely that the improper evidence was
                the decisive factor in the grand jury's decision to indict.”

Shorty v. State, 214 P.3d 374, 384 (Alaska App. 2009) quoting Stern v. State, 827 P.2d
442, 445-46 (Alaska App. 1992). See also Oxereok v. State, 611 P.2d 913 (Alaska



Motion                                                                              Page 2 of 16
State v. Mechele Linehan, 3AN-06-10140.
1980)(holing that the trial court must subtract the inadmissible evidence from the grand
jury presentation and determine whether the inadmissible evidence appreciably affected
the outcome of the grand jury’s deliberation).
                  A.       The Evidence was properly admitted at the Grand Jury
                  In Linehan v. State, 224 P.3d 126 (Alaska App. 2010), the Court of
Appeals overturned the defendant’s murder conviction because the state was
erroneously permitted to introduce the victim’s so-called “letter from the grave.” There,
the court analyzed the legal basis for the admission of the letter – ARE 803(3), the “state
of mind” exception to the hearsay rule – and found that the victim’s state of mind was
not relevant to any genuinely disputed issue; therefore, the letter was not admissible.
See Wyatt v. State, 981 P.2d 109, 113 (Alaska 1999). As stated by the Court of
Appeals:
                Normally, this means that the State must show that the fact that
                the victim held this belief (whether the belief was well-founded
                or not) is directly relevant to prove or explain the victim's
                actions (or failure to take action). In addition, the State must
                show that there is a genuine dispute between the parties
                concerning the aspect of the victim's conduct to which this
                belief pertains. Linehan at 131.

See also Linton v. State, 880 P.2d 123 (Alaska App. 1994). Thus, the Wyatt / Linton
rule requires a two pronged approach: 1) the state of mind evidence must be relevant to
explain the victim’s action or inaction, and 2) the relevant evidence must be genuinely
disputed at trial.
                  The state concedes that testimony regarding this same letter was briefly
referenced to the grand jury when seeking the indictment. However, before
substantively addressing the basis of admissibility of this letter before the grand jury, it
is important to distinguish what was admitted to the grand jury versus what was
admitted at trial – the difference is critical. At trial, the entire contents of the note were
admitted into evidence. At the grand jury presentation, the only evidence admitted



Motion                                                                             Page 3 of 16
State v. Mechele Linehan, 3AN-06-10140.
regarding the letter was a reference by Betsy Leppink in the form of an affirmation to
the state’s question that “what [the victim] indicated to you is that he believed if he were
found dead that – that he believed that – that Mr. Carlin, Mechele Hughes and Mr. Hilke
might be involved, is that correct?” GJ at 150. This is the only evidence admitted to
the grand jury regarding the letter, but there were multiple limiting instructions given by
Mr. Gullufsen that reference the letter. Thus, the issue is more complicated than simply
analyzing the indictment in light of the Linehan opinion because the evidence admitted
to the grand jury was vastly more limited than the evidence admitted at trial.
                  In Linehan, the Court of Appeals noted that there were two assertions that
needed to be addressed regarding the letter: 1) that if Kent Leppink was murdered,
Linehan, Carlin and/or Hilke were the ones responsible for his death, and 2) that
Linehan had a “split personality.” The former assertion was never presented to the
grand jury, so only the latter is relevant for the purposes of the current motion to
dismiss. Likewise, the Linehan court parsed these two assertions out and addressed
them separately. For the purposes of the state’s opposition, I will focus only on the
relevant portion of the Linehan decision – the portion addressing the admissibility of the
assertion in the letter that if Kent Leppink was killed, the defendant, along with Scott
Hilke and John Carlin, would be responsible. The “split personality” evidence and the
reference to the film The Last Seduction was not presented to the grand jury at all, so
those portions of the Linehan decision are wholly inapposite.
                           1.       The first prong of the Wyatt / Linton test was satisfied
                  On this point, at trial, the state articulated the relevance of the assertion as
demonstrating how infatuated Kent Leppink was with the defendant, so much so that he
persisted in pursuing his relationship with her despite fearing for his life, placing him in
a vulnerable position. See Linehan at 133. The defense argued that this was not a valid
basis for admission because the defense was not contesting Mr. Leppink’s obsession
with Linehan and would essentially stipulate that “at the time [Leppink] went to Hope,



Motion                                                                               Page 4 of 16
State v. Mechele Linehan, 3AN-06-10140.
he was in love with [Linehan], confused, [and] wanted her back.” Id. The Court of
Appeals conceded that the evidence contained in the note was relevant to the
defendant’s state of mind, but it found that it should not have been admitted under the
Wyatt / Linton analysis because the victim’s state of mind was not being contested.
Indeed, the court stated,
                The fact that Leppink was infatuated or even obsessed with
                Linehan was obviously relevant to explain why he would go to
                Hope looking for her, and why he might risk taking Carlin
                along with him on his second trip to Hope. Linehan at 135,
                emphasis added.

Thus, even though the letter satisfied the first prong of the Wyatt / Linton analysis, it
failed the requirement of the second prong and should have been exclude due to this
deficiency.
                  Determining whether the indictment should be dismissed in this context
requires a more complex analysis than simple rote application of the Linehan decision.
A grand jury presentation is not an adversarial proceeding; therefore, there is not an
opportunity to vett certain issues. Clearly, the state must comply with Alaska Rule of
Criminal Procedure 6(r)(1) which holds that evidence “admissible at trial shall be
admissible before the grand jury, [and] . . . hearsay evidence shall not be presented to
the grand jury absent compelling justification for its introduction.” Additionally, if the
state does introduce hearsay testimony, it must articulate the theory of admissibility on
the record.      However, because there is no judge presiding over a grand jury
presentation, these discretionary decisions must be made by the state. Therefore, there
are situations where evidence properly admitted to the grand jury may later be
determined to be inadmissible at trial after further litigation in the adversarial process.
See Coleman v. State, 553 P.2d 40, 48 (Alaska 1976); State v. Parks, 437 P.2d 642, 644-
45 (Alaska 1968).




Motion                                                                          Page 5 of 16
State v. Mechele Linehan, 3AN-06-10140.
                           2.       Although relevant, the evidence was not in dispute at
                                    trial, but was at issue before the grand jury

                  When the Linehan decision is applied to the grand jury presentation, it is
clear that this dynamic was involved. Despite the “obvious relevance” of the
defendant’s state of mind, the court noted that “there was no dispute that Leppink . . .
was lured to Hope.” Therefore, even though the letter was relevant because it was
evidence of the victim’s state of mind, the issue it addressed was not in dispute.
Clearly, the fact that the defense was not contesting the relevant state of mind of the
victim was established on the record at trial. Equally clear is that the state would not
have known that the defense did not intend to dispute this issue when it presented the
case to the grand jury in 2006. The Linehan court goes to painstaking lengths to point
out that the numerous issues that made the letter “obviously relevant” were conceded by
the defense at trial. Linehan 135-36.
                  Moreover, the Linehan court operates from the premise that there was no
dispute at Linehan’s trial that John Carlin actually murdered Kent Leppink, and that the
“only disputed issue was whether Linehan was Carlin’s accomplice in the murder.” Id.
This assertion made by the Court of Appeals must surely be based on the fact that Carlin
had already faced trial and had been convicted on that theory – an event that clearly had
not occurred at the indictment phase. This pivotal so-called undisputed fact was very
much in dispute when the state presented the case to the grand jury. Indeed, the
defendant personally claimed that the victim must have committed suicide in her May
10, 1996 interview, claiming “I think he probably paid somebody to kill himself,” and
then she goes on to explain in detail why she believes this was a suicide and not a
murder. This is a theory that has been advanced even recently in the media coverage of
this case despite the Court of Appeals characterization to the contrary and Carlin’s
conviction as the supposed principle.




Motion                                                                           Page 6 of 16
State v. Mechele Linehan, 3AN-06-10140.
                  What Rule 6(r)(1) requires is “if hearsay evidence is presented to the
grand jury, the reasons for its use shall be stated on the record.” As the defendant points
out in her motion, the prosecutor instructed the grand jury twice that the letter was not
to be used as substantive evidence of the fact that Hughes, Carlin and Hilke were likely
responsible for Leppink’s death; rather, it was to be used to “explain his state of mind.”
This was the same legal theory advanced at trial that satisfied the first prong of the
Wyatt / Linton analysis, albeit articulated in a slightly different manner. Prior to the
grand jury’s deliberations, the prosecutor again cautioned the grand jury that the
reference by Ms. Leppink to the letter should be considered for “whatever value,
whatever - - whatever they tell you about his state of mind, what his plans were . . . but
you should not be considering them for the truth of any factual statements.”
Notwithstanding the Wyatt / Linton deficiency under the second prong due to the
concessions made prior to trial, this was an accurate legal instruction.
                  In short, although the Linehan decision is clearly instructive in this
situation, it must be viewed in light of the precise issue being addressed – the
introduction of the entire contents of the letter after the defense had conceded any
disputed issue to which the evidence was relevant. That procedural posture is quite
distinct from the single affirmation made by Ms. Leppink at the grand jury “that Mr.
Carlin, Mechele Hughes and Mr. Hilke might be involved” in Kent Leppink’s death. In
fact the Linehan court even indirectly comments on this specific difference:
                Moreover, the State's evidence was not limited to witnesses'
                characterizations of the letter. During the prosecutor's direct
                examination of Leppink's mother, Betsy Leppink, the
                prosecutor and Mrs. Leppink read the text of the letter aloud to
                the jury. Linehan at 142.

Thus, because the “obviously relevant” issues were still very much in dispute at the
grand jury stage, and because the state only made a single very truncated reference to




Motion                                                                             Page 7 of 16
State v. Mechele Linehan, 3AN-06-10140.
the contents of the letter, accompanied by the proper legal instruction, the evidence was
properly admitted to the grand jury and the indictment should be upheld.
                  B.       Even if evidence was inadmissible, the Stern test is satisfied
                  Even if the court finds that it was error to solicit before the grand jury Ms.
Leppink’s sole reference to the letter received from her son, it does not end the
necessary inquiry. As the Court of Appeals succinctly stated in State v. Green, 810 P.2d
1023, 1027 (Alaska App. 1991),
                [T]he use of . . . inadmissible evidence before the grand jury
                would justify dismissal of [the] indictment only if the remaining,
                properly presented evidence was insufficient to support the
                return of an indictment or if the inadmissible evidence
                appreciably affected the outcome of the grand jury's
                deliberations.

Id., citing Oxereok v. State, 611 P,.2d 913, 916 (Alaska 1980); Melter v. State, 581 P.2d
669, 674 (Alaska 1978); Panther v. State, 780 P.2d 386, 393 (Alaska App. 1989). The
same court fleshed out the dual pronged procedure more fully a year later in Stern,
supra. After applying the two pronged standard to the evidence presented to the grand
jury in this matter, the court should find that sufficient evidence was presented to the
grand jury to sustain the indictment when the reference to the letter is excised and that
the single reference to the letter did not appreciably affect the outcome of the grand
jury’s deliberation. Thus, the court should deny the defendant’s motion.
                           1.       After excising the reference to the letter, sufficient
                                    evidence to support the indictment still existed

                  The transcript for this grand jury presentation encompasses approximately
460 pages of testimony. The grand jury heard from more than 20 witnesses over the
course of four days. In her motion, the defendant attempts to whittle the evidence down
to a handful of direct references to her and then marginalize their implications. The law
in Alaska is clear, a criminal case may be based wholly on circumstantial evidence and




Motion                                                                              Page 8 of 16
State v. Mechele Linehan, 3AN-06-10140.
the law places no value on direct evidence over circumstantial evidence. Des Jardins v.
State, 551 P.2d 181 (Alaska 1976); Ashley v. State, 6 P.3d 738 (Alaska App. 2000).
Moreover, pursuant to AS 11.16.110, a person is legally accountable for the conduct of
another person if they “solicit the other person to commit the offense” or “aid or abet
the other person in planning or committing the offense.” When a person is charged as a
principle in an indictment, they are also put on notice that they may be convicted based
on an accomplice theory, and the charging document need not include specific language
regarding accomplice liability. Baker v. State, 905 P.2d 479, 488 (Alaska App. 1995).
                  Accomplice liability holds that one party to criminal activity may be held
criminally liable for the actions of others in the commission of a crime if that party aids,
abets, assists, encourages or participates in the criminal activity or does some act to
make the criminal enterprise easier to accomplish. Hansel v. State, 604 P.2d 222, 233
(Alaska 1979); Hansen v. State, 845 P.2d 449 (Alaska App. 1993). “It is sufficient for
accomplice liability that the individual commit some act, not necessarily criminal and
not necessarily an act which is a part of the actus reus of the substantive crime, which
aids and abets the commission of the offense.” Id. Moreover, the party being held
liable under accomplice liability need not be present at the scene of the criminal
activity; merely providing tools or items to be used in the criminal enterprise may be
sufficient. Id., see also Carmen v. State, 602 P.2d 1255 (Alaska 1979) (holding that
furnishing the primary actors with ski masks was sufficient to convict for robbery under
an accomplice liability theory).          Finally, “‘aid and abet’ means to help assist, or
facilitate the commission of a crime, promote the accomplishment thereof, help in
advancing or bringing it about, or encourage, counsel, or incite as to its commission.”
Id. at 1261 quoting Thomas v. State, 391 P.2d 18 (Alaska 1964).
                  Applying these principles to the current case, there was sufficient
evidence presented to the grand jury to sustain the indictment for murder against
Linehan even when the reference to the letter is excised. Surely, the first prong of the



Motion                                                                           Page 9 of 16
State v. Mechele Linehan, 3AN-06-10140.
Stern analysis is satisfied. The facts surrounding the implications of the so-called
“Hope note” alone would be sufficient to sustain the indictment against the defendant as
an accomplice. The uncontroverted evidence is that the defendant and John Carlin
specifically wrote this note to fool the victim into believing the defendant was in a cabin
in Hope, AK and not with Scott Hilke in California. This was specifically created with
the intent to lure the victim to Hope to search for the defendant, and to that end, it was
exceedingly successful at least on one occasion and possibly even twice.
                  In her motion, the defendant argues that the first six witnesses are
irrelevant for the court’s consideration because they only testified about the crime scene
evidence and offered nothing directly regarding the defendant. However, this is a
myopic and erroneous analysis. As noted above, by her own admission, the defendant
was directly involved in the creation of the Hope note. It is extremely relevant that the
defendant was found dead on the side of a remote road close to Hope in light of this
fact. This is precisely the sort of circumstantial evidence that the grand jury needed to
consider to place the victim’s death into the proper context. As is often the case in
circumstantial homicide prosecutions, the defendant attempts to parse everything out
into isolated facts and then perform an extremely myopic analysis to explain away the
isolated facts. This approach directly contravenes the mandate of the law. As noted
above, pursuant to Alaska Rule of Criminal Procedure 6(q), when considering whether
the state has met its burden, “the grand jury shall find an indictment when all of the
evidence taken together, if unexplained or uncontradicted, would warrant the
conviction of the defendant.”
                  The state will not go through the entire grand jury and argue the obvious
implications of the evidence – this court is very familiar with the evidence in this case
and can review the transcript for what was presented to the grand jury. The state
concedes that this case is based almost entirely on circumstantial evidence, but the law
in Alaska places circumstantial and direct evidence on equal footing for good reason.



Motion                                                                            Page 10 of 16
State v. Mechele Linehan, 3AN-06-10140.
The defendant had motive to kill the victim – at the time of the murder, she believed she
was the beneficiary of a one million dollar insurance policy. Motive may be considered
as circumstantial evidence of guilt. State v. McDonald, 872 P.2d 627 (Alaska App.
1994); Hilbish v. State, 891 P.2d 841 (Alaska App. 1995). She was directly associated
with the firearm that was likely used as the murder weapon. She actively took part in
constructing the ruse that lured the victim out of the city and to a remote area where he
was later found murdered. She obstructed and hindered the investigation by actively
lying to the police on numerous occasions and altering physical evidence. The grand
jury heard all of this evidence over the course of the four day presentation and clearly
had sufficient evidence to indict the defendant even without considering the letter
written by Kent Leppink.
                           2.       Evidence regarding the letter did not appreciably affect
                                    the grand jury deliberations.

                  Since there was surely sufficient evidence to support the indictment when
the letter is excised from consideration, the final analysis under Stern is to determine
“the probative force of [the] admissible evidence was so weak and the unfair prejudice
engendered by the improper evidence was so strong that it appears likely that the
improper evidence was the decisive factor in the grand jury's decision to indict.” This
analysis is what is commonly referred to as the “appreciably affect” prong of the test.
Undoubtedly, the Linehan court opined that the introduction of the letter at trial “likely .
. . did appreciably affect the verdict in this case.” However, as noted above, the
evidence regarding the letter presented to the petit jury at trial was far more expansive
in nature than the evidence submitted to the grand jury. At trial, multiple witnesses
referred to the letter and the entirety of its contents was read to the jury, including the
“split personality” portions that were objectionable. The grand jury had a single
reference made by one witness affirming a brief question by the prosecutor.




Motion                                                                           Page 11 of 16
State v. Mechele Linehan, 3AN-06-10140.
                  This analysis is somewhat linked to the analysis under the first prong of
the test because you must consider the strength of the other evidence. In the context of
a grand jury indictment, the court must “draw every reasonable inference from the
evidence in favor of upholding the indictment.” Ison at 418. The “appreciably affect”
test was stated this way in Stern: the trial court must determine “whether there was a
reasonable probability that the grand jury's decision would have been different if it had
not heard the improper evidence.” Id. at 446. The intersection of these two legal
principles is much different than the standard applied by the Linehan court to the
criminal conviction after trial. Here, the reasonable inferences drawn from the evidence
clearly demonstrate the defendant’s complicity in the murder of Kent Leppink. The trial
court is given great deference in making this determination and its decision “must be
affirmed unless it constitute[s] an abuse of discretion.” Stern at 447, citing Stevens v.
State, 748 P.2d 771, 774 (Alaska App. 1988).
                  In fact, of all the cases cited by the defendant on page 16 of her brief
applying the “appreciably affected” standard to grand jury proceedings, only State v.
Green, 810 P.2d 1023 (Alaska App. 1991) found dismissal of the indictment
appropriate. There, the state had repeatedly tread upon the defendant’s right to remain
silent by asking several witnesses about the defendant’s lack of explanation regarding
death of the defendant’s infant daughter. To further complicate matters, even the state’s
expert medical examiner concluded that the infant’s cause of death was inconclusive.
Thus, there was not even clear evidence that the child had been murdered, so the
evidence was very weak as to whether a crime had even been committed. Here, the
opposite is true. It is very clear from the evidence that Kent Leppink was murdered and
a heinous crime has been committed. The only remaining question is who is
responsible for this murder. As outlined above, there was ample evidence provided to
the grand jury to support the defendant’s joint involvement.




Motion                                                                             Page 12 of 16
State v. Mechele Linehan, 3AN-06-10140.
                  Even the Linehan court makes this point abundantly clear by finding that
there was no dispute that John Carlin had murdered Kent Leppink and the only true
dispute was whether the defendant acted as his accomplice. Id. at 135. This case is
easily distinguished from Green, and Green is the only cited case where dismissal of the
indictment was found to be the appropriate remedy. Although it is true that the
“appreciably affected” standard applied by the Linehan court to the defendant’s
conviction is the same general standard applied to the grand jury proceeding, the
underlying proceeding to which it is applied is quite different. The burden of proof at
trial is much higher than the burden set by Rule 6(q). Moreover, although the deference
the trial court has to apply to the grand jury proceeding in favor of upholding the
indictment under Ison is similar to the deference that an appellate court must apply to
upholding the jury’s verdict, the burden on the trier of fact to which the deference is
given is much different.
                  In Sheldon v. State, 796 P.2d 831 (Alaska App. 1990), the Court of
Appeals exhaustively examined the burden established by Rule 6(q). There, the court
held that in enacting Rule 6(q), the Alaska Supreme Court was adopting the principles
from Adam v. State, 598 P.2d 503, 508 (Alaska 1979), where
                the supreme court referred to the burden as one of establishing
                a “prima facie case,” but it does not appear that the supreme
                court meant more than a probability of guilt in using this
                phrase. Id. at 837.

The court went on to note that the burden on the state under Rule 6(q) also encompassed
the traditional concept of establishing probable cause. Id. Finally, they concluded that
                it is clear that the grand jury proceeding is not intended to be a
                mini trial in which the state would present all of the evidence
                necessary to establish guilt beyond a reasonable doubt. The
                supreme court has referred to the prosecutor's burden as
                introducing sufficient evidence to establish a probability of
                guilt. Id., emphasis added.




Motion                                                                               Page 13 of 16
State v. Mechele Linehan, 3AN-06-10140.
This is the applicable burden to which the court must apply the “appreciably affect”
standard, not the “beyond a reasonable doubt” standard applicable to a petit jury’s
verdict that the Linehan court was applying.


                  C.       The Grand Jury is presumed to follow the law and instructions
                           in disregarding inappropriate character evidence

                  The defendant also alleges that there was other inadmissible evidence
introduced to the grand jury that warrants dismissal. Beginning on page 22 of her
motion, she outlines five separate incidents where witnesses made unsolicited
statements to the grand jury. Of the five statements referenced, only the comment made
by Ms. Leppink regarding the defendant other alleged illegal activity is a clear violation
of ARE 404(b). The comments made by Scott Hilke and John Carlin IV are arguably
not even improper statements. Even if the court agrees that each of the statements were
inadmissible as argued by the defense, the grand jury was clearly instructed to disregard
each of the comments except for the comment by Mr. Carlin where Mr. Gullufsen
instructed the grand jury that it was not appropriate for Mr. Carlin to speculate about the
defendant’s conduct. GJ at 347. “Jurors are presumed to understand and follow the
jury instructions.” Whiteaker v. State, 808 P.2d 270 (Alaska App. 1991). Here, the
grand jury was instructed to disregard each of the above-listed comments, and the court
should presume that the grand jurors understood and followed the instruction.
                  Finally, even if the court agrees that each of these statements were
improperly made before the grand jury and the state’s admonitions were not sufficient
to cure the error, the court must still apply the Stern test. Aside from the direct
implication of the statement made by Ms. Leppink, the comments are all vague and
brief references to the defendant that require speculation to determine their exact
meaning. As outlined in the sections above, there was surely sufficient evidence
presented to support the indictment when these comments are excised. Even the



Motion                                                                           Page 14 of 16
State v. Mechele Linehan, 3AN-06-10140.
cumulative effect of these statements, when combined with the reference to the victim’s
letter, cannot be said to have “appreciably affected” the grand jury’s decision. The
comments here are not even remotely similar to the inflammatory and knowingly false
comments made by the prosecutor in the case cited by the defense. See State v. Jones,
566 P.2d 867 (Oregon 1977)(holding that it was reversible error to expressly comment
in front of the jury that the defendant had committed many other sexual assaults during
a rape trial where the prosecutor knew such allegations did not exist). The defendant’s
argument on this point is without merit.
IV.      Conclusion
                    For all of the afore-mentioned reasons, the defendant has failed to
establish that the grand jury presentation was “appreciably affected” by the admission of
inappropriate evidence. Even assuming the court finds that certain comments were
improperly submitted to the grand jury, a review of the record reveals that there was
more than sufficient evidence presented to the grand jury to sustain the indictment when
the improper evidence is excised. Therefore, the state respectfully requests that the
defendant’s motion to dismiss the indictment be denied.
                    Respectfully submitted this August 19, 2011 at Anchorage, Alaska.

                                                       JOHN J. BURNS
                                                       ATTORNEY GENERAL


                                           By:         ____________________________________
                                                       Paul J. Miovas, Jr.
                                                       Assistant Attorney General
                                                       Alaska Bar No. 0808051

      This is to certify that a copy of the foregoing is being:
                  Mailed           Faxed         Hand Delivered
      To the following Attorneys/Parties of Record:



                                        _____________
      Signature                          Date




Motion                                                                                  Page 15 of 16
State v. Mechele Linehan, 3AN-06-10140.
                   IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
                        THIRD JUDICIAL DISTRICT AT ANCHORAGE


STATE OF ALASKA,                  )
                                  )
       Plaintiff,                 )
                                  )
   vs.                            )
                                  )
MECHELE LINEHAN,                  )
                                  )
                                  )
       Defendant.                 )
__________________________________)
CASE NO. 3AN-06-10140CR

                                                                ORDER
 I certify this document and its attachments do not contain the (1) name of a victim of a sexual offense listed in AS 12.61.140 or (2)
 residence or business address or telephone number of a victim of or witness to any offense unless it is an address identifying the place of a
 crime or an address or telephone number in a transcript of a court proceeding and disclosure of the information was ordered by the court.


          This matter having come before this court, and the court having considered the
State’s Opposition To The Motion To Dismiss The Indictment and the defendant’s
response thereto,


          IT IS HEREBY ORDERED that the Defendant’s Motion is DENIED.


          ENTERED at Anchorage, Alaska this ______ day of _______________, 2011.


                                                                       ___________________________________
                                                                       SUPERIOR JUDGE VOLLAND




Motion                                                                                                                      Page 16 of 16
State v. Mechele Linehan, 3AN-06-10140.

								
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