State v. Edmonson

743 P.2d 459, 113 Idaho 230

• Court: Idaho Supreme Court
• Decided: May 29, 1987
• Docket: 16332
• Status: Published

Opinions

DONALDSON, Justice.

Eric Roy Edmonson was indicted by a grand jury in Latah County on the following charges: racketeering; grand theft; conspiracy to engage in racketeering; conspiracy to engage in grand theft; and the falsification of corporate books and records. Edmonson filed a barrage of motions raising a number of constitutional and procedural arguments alleging error in the grand jury indictment and requesting the indictment be set aside. After a hearing, the district court issued an opinion denying the motions. Permission to appeal by certification was granted.

On appeal Edmonson raises five specific arguments, as to why dismissal of the indictment is required. They are:

1. The prosecutor’s use of the grand jury to indict was not based on any systematic set of criteria and therefore violates the Equal Protection Clause of the Idaho Constitution.

2. The prosecutor’s use of hearsay evidence is contrary to I.C. § 19-1105 and I.C.R. 6(f).

3. The prosecutor’s comments on the evidence infringed on the grand jury’s ability to exercise its independent judgment and therefore violates the due process clause of the Idaho Constitution.

4. Contrary to statute, unauthorized personnel were present during the grand jury sessions.

5. I.C. § 18-1905 (the falsification of corporate book statute) is unconstitutional on its face.

We reject all of Edmonson’s contentions and affirm the trial court’s findings. We will discuss each argument separately and any additional facts as necessary.

I

Equal Protection

Edmonson contends that the use of a grand jury in this case deprived him of the equal protection of the laws in violation of art. 1, § 2 of the Idaho Constitution. Essentially, relying on several Oregon Supreme Court cases, he argues that the system used in Idaho allowing the prosecutor unfettered discretion to initiate criminal proceedings by indictment or information without regard to any systematic or coherent policy violates a defendant’s right to equal protection. Here, two other co-defendants were charged by information rather than by indictment. Since the prosecutor did not have any systematic coherent policy to decide when to proceed by indictment or information, but rather arbitrarily made that decision, Edmonson contends that he was denied the same rights as his co-defendants, namely the right to a preliminary hearing.

Art. 1, § 8 of the Id. Const, provides:

“§ 8. Prosecutions only by indictment or information. — No person shall be held to answer for any felony or criminal offense of any grade, unless on presentment or indictment of a grand jury or on information of the public prosecutor, after a commitment by a magistrate, except in cases of impeachment, in cases cognizable by probate courts or by justices of the peace, and in cases arising in the militia when in actual service in time of war or public danger; provided, that a grand jury may be summoned upon the order of the district court in the manner provided by law, and provided further, that after a charge has been ignored by a grand jury, no person shall be held to answer, or for trial therefor, upon information of the public prosecutor.”

Thus, the prosecutor can use either a grand jury proceeding or a preliminary hearing before an impartial magistrate to initiate criminal proceedings. However, the rights afforded the accused in these proceedings are different. A proceeding initiated by information entitles the accused the right to a preliminary hearing before an impartial magistrate to determine whether a crime has been committed and whether there is probable cause to believe that the accused committed it. Id. Const., art. 1, § 8; I.C. § 19-804; I.C.R. 5.1(b); State v. O’Mealey, 95 Idaho 202, 506 P.2d 99 (1973). The accused has the right to assistance of counsel, (I.C. § 19-801); the right to produce evidence, (I.C. § 19-809), State v. Haggard, 94 Idaho 249, 486 P.2d 260 (1971); and the right to cross-examine adverse witnesses, (I.C. § 19-808). These procedures allow an accused to contest the prosecutor’s evidence and the right to a finding of probable cause by an impartial and detached judicial officer.

In contrast, an indictment by a grand jury does not afford the accused a right to a preliminary hearing. State v. Taylor, 59 Idaho 724, 87 P.2d 454 (1939). Only the prosecutor and witnesses under examination may be present during the grand jury proceeding. I.C.R. 6(d). Further, the grand jury is not bound to hear evidence presented by the defendant; however, it is required to weigh all evidence submitted to it, and can require additional evidence when necessary. I.C.R. 6(g).

Edmonson relies on a series of Oregon cases starting with State v. Clark, 291 Or. 231, 630 P.2d 810 (1981), cert. denied, 454 U.S. 1084, 102 S.Ct. 640, 70 L.Ed.2d 619 (1981), continuing with State v. Edmonson, 291 Or. 251, 630 P.2d 822 (1981), and State v. Freeland, 295 Or. 367, 667 P.2d 509 (1983), to support his argument that a prosecutor must afford all similarly situated defendants equal treatment of the laws. In Clark and Edmonson, the defendants were charged by indictment and not afforded a preliminary hearing. They did not request a preliminary hearing, but on appeal argued that a denial of a preliminary hearing violated their rights to equal protection of the laws because other potential defendants charged with the same crime could be charged by an information and allowed a preliminary hearing. The Oregon Supreme Court rejected this contention, noting that its constitution provides for alternative charging methods (information with a preliminary hearing or indictment without one) which are capable of valid administration. However, the court held that a choice between indictment and information must “rest on meaningful criteria that indeed make the privileges of a preliminary hearing equally available to all persons similarly situated____” Edmonson, supra, 630 P.2d at 823. In other words, the equal protection clause of the Oregon constitution prevents the prosecutor from arbitrarily chosing to proceed by indictment or information, but instead, requires the choice be made on a coherent, systematic basis. The court upheld the indictments because both Clark and Edmonson failed to show that other defendants in the same situation would be afforded a preliminary hearing.

In Freeland, the defendant was indicted by a grand jury and then requested a preliminary hearing. After it was denied, he filed a motion asking for a hearing in which to show that the denial of the preliminary hearing did not meet the Clark and Edmonson standards. At the hearing, the district attorney stated that the decision to proceed by indictment or information was left up to the individual trial deputy. The trial court then held that such an ad hoc procedure did not meet the constitutional requirements as set forth in Clark and Edmonson. The Oregon Supreme Court affirmed. The court framed the test as “whether a prosecutor’s use of the two charging procedures adheres to sufficiently consistent standards to represent a coherent, systematic policy, even when not promulgated in the form of rules or guidelines.” Freeland, supra 667 P.2d at 515.

In summary, the Oregon Constitution, like the Idaho Constitution, provides for alternative charging procedures, either by indictment or by information. If an information is used, the defendant has a right to a preliminary hearing. Like the Idaho Constitution, the Oregon Constitution does not, on its face, place any limitation on the prosecutor’s choice to proceed by either alternative. In Oregon, however, the state Supreme Court has ruled that the state’s equal protection clause does require the prosecutor to treat similarly situated defendants equally. This is best accomplished by a pre-established, “coherent, systematic policy” under which the prosecutor will be limited in the choice to proceed by indictment or information.

Edmonson urges us to adopt the reasoning of the Oregon Supreme Court. We refuse to do so.

We note that Edmonson did not request a preliminary hearing. He simply argued that the prosecutor must have a systematic set of criteria to base a decision on in order to proceed by indictment or information. As noted above, however, one substantive difference in the indictment and information procedures is the right to a preliminary hearing when an information is used. Edmonson’s failure to request a preliminary hearing is dispositive of this case. However, based on the important constitutional issues at stake, we will address the arguments raised by Edmonson.

It is a well settled rule that an equal protection analysis comes into play when a statute — a legislative enactment— creates two classes of individuals who are treated differently. See Stucki v. Loveland, 94 Idaho 621, 495 P.2d 571 (1972). In this case, we have two constitutional provisions that need to be construed together, Art. 1, § 8 allows for alternative charging procedures which are of equal dignity. In re Winn, 28 Idaho 461, 154 P. 497 (1916). Art. 1, § 2 guarantees equal rights, privileges and immunities to all persons within the state. Fisher v. Masters, 59 Idaho 366, 83 P.2d 212 (1938). The appellant argues that art. 1, § 2 is a limitation of art. 1, § 8. We disagree. When construing separate constitutional provisions, the general principles of statutory construction apply. Lewis v. Woodall, 72 Idaho 16, 236 P.2d 91 (1951). Statutes must be construed, if at all possible, consistently and harmoniously. State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1327, 79 L.Ed.2d 722 (1984). Either of the two alternative charging procedures can be used, but will be subject to an equal protection analysis.

Edmonson will have us require that a prosecutor establish charging criteria to insure that similarly situated defendants are treated equally. He argues, that in this case, because he was charged by indictment whereas several other co-defendants were charged by information, he was arbitrarily and systematically excluded from the right to a preliminary hearing.

First we note that the United States Supreme Court has held that a state’s refusal to afford a criminal defendant a preliminary hearing does not violate the fourteenth amendment through the fifth amendment. Lem Woon v. Oregon, 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed.2d 1340 (1913). In a slightly different context (whether a person arrested and held for trial is entitled to a judicial determination of probable cause for detention), the Supreme Court also has held the fourth amendment did not apply. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). As the Court stated in Gerstein:

“The use of an informal procedure is justified not only by the lesser consequences of a probable cause determination but also by the nature of the determination itself. It does not require the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands, and credibility determinations are seldom crucial in deciding whether the evidence supports a reasonable belief in guilt. See F. Miller, Prosecution: The Decision to Charge a Suspect with a Crime 64-109 (1969). This is not to say that the confrontation and cross-examination might not enhance the reliability of probable cause determinations in some cases. In most cases, however, their value would be too slight to justify holding, as a matter of constitutional principle, that these formalities and safeguards designed for trial must also be employed in making the Fourth Amendment determination of probable cause.” Id. at 121-122, 95 S.Ct. at 867 (footnotes omitted).

Even an informal procedure in which an accused is not given the right to contest the state’s evidence, or even put on his own evidence is not per se constitutionally infirm. See Lem Woon, supra; Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962). The primary purpose of a grand jury proceeding is to also determine probable cause. State v. Beck, 56 Wash.2d 474, 349 P.2d 387 (1960), aff'd. Beck v. Washington, supra.

We are fully cognizant that Edmonson urges us to require prosecutors to adopt policies guaranteeing equal protection for all similarly situated criminal defendants. In essence, cloaked under an equal protection challenge, we are asked to place a limit on prosecutorial discretion. This, the Oregon Supreme Court has done, but in this context we cannot do.

The grand jury is an accusing body and not a trial court. Its functions are investigative and charging. The purpose of both 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.

Professors LaFave and Israel have discussed prosecutorial discretion and noted many valid reasons why a prosecutor may choose to proceed by either alternative:

“As a general rule, prosecutors in information jurisdictions make infrequent use of their authority to avoid preliminary examinations by utilizing the indictment alternative. The tradition in most information jurisdictions is to prosecute by information in all but a very small group of cases that require the grand jury’s investigative authority. Prosecutors in several information states do make more frequent use of the grand jury, but even in those jurisdictions most prosecutors use the information in over 90% of their felony cases. In most information states, when a prosecutor uses the indictment process his basic objective is not to avoid the preliminary hearing, but to utilize some other feature of the indictment process. The mooting of the preliminary hearing is simply an incidental byproduct of an unrelated objective that required pre-arrest indictment.

“But prosecutors in other information jurisdictions have been known to use the indictment alternative in certain cases mainly because they want to avoid the preliminary hearing. Grounds typically advanced for avoiding the hearing in those cases, notwithstanding the prosecutor’s usual preference for prosecution by information, include: (1) the desire to save time where the preliminary hearing would be protracted due to the number of exhibits or witnesses or the number of separate hearings that would have to be held for separate defendants (the grand jury could save time in such situations due to the absence of cross-examination, less stringent application of evidentiary rules, and its capacity to consider a series of related cases in a single presentation); (2) the desire to preclude the defense discovery inherent in a preliminary hearing, particularly where a key witness is an informer whose identity should be shielded until trial; and (3) the desire to limit the number of times that a particular complainant (e.g., a victim of a sex offense) will be required to give testimony in public.” 2 LaFave and Israel, Criminal Procedures § 14.2 (1984).

There are a number of other factors which may influence the prosecutor’s choice of indictment or information. Uncertainty of the law, credibility of witnesses, the winds of public opinion, the nature of the offense, publicity surrounding the crime and the resources of investigation are just some of these factors. We accept the above reasoning as persuasive and hold that a prosecutor may proceed by either alternative — indictment or information.

However, this holding is not as broad as it seems. Edmonson contends that, as to him, the law was applied unequally. For Edmonson to prevail on this point, he must show a deliberate and intentional plan of discrimination against him, based on some unjustifiable or arbitrary classification. State v. Bowman, 104 Idaho 39, 655 P.2d 933 (1982). Selective discrimination is difficult to prove.

“Selective enforcement, without more, does not comprise a constitutional violation under either the Idaho or United States Constitutions. [Citations omitted.] The United States Supreme Court and Idaho Supreme Court are in perfect accord in their requirement that, in order to establish an instance of discriminatory application of the law such that equal protection standards have been violated, there must first be shown a deliberate plan of discrimination based on some unjustifiable classification such as race, sex, religion, etc.” Henson v. Department of Law Enforcement, 107 Idaho 19, 23, 684 P.2d 996, 1000 (1984).

Edmonson has not shown, nor even contended discriminatory intent by the prosecutor in respect to the charging selection. The prosecutor did choose to allow similarly situated defendants a preliminary hearing, but without more evidence of a deliberate and intentional plan to discriminate, we cannot conclude that the equal protection clause was violated.

In a similar context, a prosecutor has some discretion in deciding when to charge an accused. As LaFave and Israel points out, “[t]he notion that the prosecuting attorney is vested with a broad range of discretion in deciding when to prosecute and when not to is firmly entrenched in American law.” 2 LaFave and Israel, Criminal Procedures § 13.2 (1984). The prosecutor’s exercise of discretion as to whom and when to prosecute does not constitute unlawful discrimination. State v. Bowman, supra; State v. Horn, 101 Idaho 192, 610 P.2d 551 (1980). There is a distinction between the permissible “conscious exercise of some selectivity in enforcement” and an impermissible selection “deliberately based upon an unjustifiable standard such as race, religion or other arbitrary classification.” Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962). We do not see any constitutional distinction between deciding whom to charge and how to charge. The immense number and variety of factual situations involved preclude a constitutional requirement forcing the prosecutor to adopt policies that predetermine the use of an indictment or an information.

II

Presentment of Hearsay Evidence to the Grand Jury

Edmonson, relying on I.C. § 19-1105 and I.C.R. 6(f), argues that the indictment should be dismissed because hearsay evidence was presented to the grand jury. I.C. § 19-1105 provides in part:

“The grand jury can receive none but legal evidence, and the best evidence in degree, to the exclusion of hearsay or secondary evidence, ...”

Similarly, I.C.R.6(f) places like restrictions upon the nature and quality of evidence the grand jury can receive. The trial court found that hearsay evidence had been presented to the grand jury but that “exclusive of the hearsay there was adequate evidence to support the grand jury’s determination that there was probable cause to believe an offense had been committed and the accused committed it.” Edmonson does not challenge this finding. Thus, the issue that we face today is whether the grand jury’s receipt of hearsay evidence demands a dismissal of an indictment even where the probable cause finding is based on otherwise legally sufficient evidence.¹

Several states have rules similar to Idaho, thereby excluding hearsay evidence before a grand jury. See for example, Giacomazzi v. State, 633 P.2d 218 (Alaska 1981); State v. Miyazaki, 64 Hawaii 611, 645 P.2d 1340 (1982); State v. Terrell, 283 N.W.2d 529 (Minn.1979); People v. Backus, 23 Cal.3d 360, 152 Cal.Rptr. 710, 590 P.2d 837 (1979); and Franklin v. State, 89 Nev. 382, 513 P.2d 1252 (1973). However, the presentation of hearsay evidence is not necessarily a fatal error. The indictment will be sustained if, after excluding the inadmissible evidence, there remains sufficient admissible evidence to indict. Giacomazzi, supra; Miyazaki, supra; Terrell, supra; Franklin, supra. See also, People v. Meegan, 60 A.D.2d 961, 401 N.Y.S.2d 602 (1978), People v. Skelton, 109 Cal.App.3d 691, 167 Cal.Rptr. 636 (1980), cert. denied, Curtin v. U.S., 450 U.S. 917, 101 S.Ct. 1361, 67 L.Ed.2d 343 (1981); and State v. Waste Management of Wisconsin, Inc., 81 Wis.2d 555, 261 N.W.2d 147 (1978), cert. denied, 439 U.S. 865, 99 S.Ct. 189, 58 L.Ed.2d 175 (1978).

The rationale used by these courts is readily apparent. The purpose of a 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. Therefore, we reject Edmonson’s argument and hold that where legally sufficient evidence will sustain an indictment, improperly admitted hearsay evidence will not overturn the indictment.

Ill

Outrageous Conduct of the Prosecutor

■ Edmonson argues that the prosecutor’s conduct before the grand jury was so “outrageous” that dismissal of the indictment is required. Apparently, Edmonson takes exception to the prosecutor’s comments regarding the credibility of witnesses and the weight and sufficiency of the evidence. Further, he alleges that the prosecutor argued the case fervently before the grand jury-

The trial court acknowledged that the prosecutor commented on the sufficiency of the evidence and on the credibility of the witnesses, but “the prosecutor’s conduct did not infringe on the grand jury’s decision-making function.” Thus, we must decide whether the prosecutor’s misconduct crossed the line from acceptable to unacceptable. Generally, prosecutorial misconduct will require dismissal only when it reaches the level of a constitutional due process violation. Maldonado v. State, 93 N.M. 670, 604 P.2d 363 (1979); State v. Hall, 235 N.W.2d 702 (Iowa 1975), appeal after remand, 249 N.W.2d 843 (Iowa 1977), cert. denied, 434 U.S. 822, 98 S.Ct. 66, 54 L.Ed.2d 79 (1977). In order to be entitled to dismissal of an indictment on due process grounds, the defendant must affirmatively show prejudice caused by the misconduct. State v. Kruse, 100 Idaho 877, 606 P.2d 981 (1980); Hall, supra. We note that dismissal is a drastic remedy and should be exercised only in extreme and outrageous situations, and therefore, the defendant has a heavy burden.

In the sense of a grand jury proceeding, “prejudicial effect” means the defendant would not have been indicted but for the misconduct. Hall, supra; People v. Jackson, 64 Ill.App.3d 307, 21 Ill.Dec. 238, 381 N.E.2d 316 (1978). To determine whether misconduct gives rise to a dismissal, a reviewing court will have to balance the gravity and the seriousness of this misconduct with the sufficiency of the evidence supporting the probable cause finding. At one extreme, the misconduct can be so outrageous that regardless of the extent of probable cause evidence, dismissal will be required. At the other extreme, the misconduct may be so slight, that it becomes unnecessary to question the independent judgment of the grand jury. In the middle of these extremes, the court must examine the totality of the circumstances to determine whether the indictment should be dismissed. As stated above, the burden rests with the criminal defendant to make an initial showing that the misconduct rises to the level of prejudice. Absent the showing of prejudice, a reviewing court will not second guess the grand jury. However, once the defendant does affirmatively prove prejudice, the court must dismiss.

A review of the alleged misconduct leads us to conclude that the prosecutor’s actions and comments, though inappropriate is so insignificant that we do not need to inquire into the strength of the probable cause evidence. Edmonson argues that the prosecutor’s statements regarding the evidence are misconduct. Some of these statements are:

“So, you’re going to treat or you're going to view a person who is in a position of responsibility, a supervisor, a director, a department head, significantly different (than an hourly employee).”

“What he’s doing, he is stealing the money himself ... Once again, this is a situation where he stole from a corporation in the State of Idaho and caused an effect in the State of Idaho.”

“Not a lot of events happened prior to mid-January of 1983, and a lot of these events, while in and of themselves are not illegal, they are, when taken as a whole, significant. Particularly in light of your instructions on conspiracy. Okay? No we have to start with the point of departure that there was a desire on the part of Mr. Blackmon and a desire on the part of Mr. Edmonson as early as July of 1982, to seat a progressive board of directors. You have to start with that article of faith in order for this to work, I think.”

“So, Mr. Edmonsoh is at least down in Oklahoma City with some money in his pocket buying some money orders and then either sending or bringing those money orders back to Moscow for submission for memberships.”

“You have Mr. Scott’s transcript. Judge for yourself his credibility and his veracity as far as that event is concerned.” “If in fact Eric was putting the touch on all of the department heads to generate money to satisfy what I’m going to call his scheme, then why didn’t he bring in Mister Milk toast.”

“He conspired with Eric to commit racketeering and that’s exactly what they did with that club. They went around the country committing crimes in a variety of states, spreading their activity throughout each voting region with the exception of territory two and they took control of that club. And they did it ... they did it by using the funds of the club itself.”

We do not disagree with Edmonson that some of these statements are impermissible. The American Bar Association standards provide that the prosecutor, in his appearances before the grand jury, “should not make statements or efforts to influence grand jury action in a manner which would be impermissible at trial before a petit jury.” 1 A.B.A. Standards for Criminal Justice, § 3-3.5 (Second Ed.1980). However, simply because some of these comments are impermissible, does not automatically require dismissal. Keeping in mind the standard of prejudicial effect, we note that impermissible statements can only rise to this level when they are designed to appeal to juror prejudice or prod a reluctant jury into voting for indictment. See State v. Bojorquez, 111 Ariz. 549, 535 P.2d 6 (1975); State v. Good, 10 Ariz. 556, 460 P.2d 662 (1969). Grand jurors realize that the case is being presented precisely because the prosecutor believes the grand jury should indict. They realize that the prosecutor will make statements on the evidence.

The comments alleged to be prejudicial were directed to the grand jury over a period of several days. In our perception, the prosecutor, by the use of these statements, was attempting to explain the law to the jurors. The prosecutor is expected to act as the grand jury’s legal advisor, and as such, may appropriately explain the law and express an opinion on the legal significance of the evidence but should give due deference to [the grand jury’s] status as an independent legal body.” People v. Meyers, 617 P.2d 808, 812 (Colo.1980), quoting ABA Standards Relating to the Prosecution Function § 3-3.5(a) (1979). While we deem the prosecutor’s intent laudable, he overstepped the bounds of permissible conduct. However, we cannot conclude that these statements acted to prejudice the grand jury in any way or infringed upon their independent thought process.

Further, without even considering the evidence used to find probable cause, we note that the prosecutor directed the grand jury that it should not indict unless all the elements of an alleged crime are proven beyond a reasonable doubt. This is a much higher standard than is required by Idaho law. On balance, we conclude that no prejudicial conduct occurred.

IV

Unauthorized Persons

I.C. § 19-1111 and I.C.R.6(d) provide that no person other than the grand jurors may be present during deliberations and voting, while only the jurors, prosecutor, witnesses under examination, and an interpreter, if necessary, may be present during any other portion of the proceedings. These sections break down the grand jury proceedings into two parts, deliberative sessions— sessions where the grand jurors are expressing opinions or voting — and nondeliberative sessions — sessions where the evidence is being presented.

Edmonson seeks dismissal of the indictments because admittedly, during some nondeliberative sessions two individuals not authorized by the statute and rule were present — a deputy clerk of the district court and an attorney with the Idaho Department of Law Enforcement. Edmonson argues that I.C. § 19-1111 and I.C.R.6(d) were violated, and therefore, the indictment must be dismissed.

The purpose of I.C. § 19-1111 and I.C.R.6(d) is quite clear. It is designed to guard the secrecy of the grand jury proceedings and assure that the jurors are free from undue influence and intimidation thereby allowing them to make an independent determination of probable cause. Accordingly, the presence of any unauthorized person which impedes these important functions will require dismissal. However, if an unauthorized person is present, but the grand jury proceedings are free from undue influence, an indictment must be sustained.

Recently the United States Supreme Court case addressed a violation of F.R.C. P.6(d) (the federal counterpart to I.C.R.6(d)) and held that any violation of the rule which is harmless will not require dismissal of the indictment. In United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986), two government witnesses were simultaneously present and testified before the grand jury. This error was not discovered until the actual trial proceedings at which the defendants were convicted. After conviction, the defendants argued that the indictment should be set aside because of the error in the original grand jury proceeding. The United States Supreme Court disagreed, holding that any error from the violation of Rule 6(d) was corrected in the subsequent jury conviction. The Court held that the jury’s verdict of guilt beyond a reasonable doubt demonstrated that there was probable cause to charge the defendants with the offenses for which they were convicted. The Court stated:

“We hold only that however diligent the defendants may have been in seeking to discover the basis for the claim violation of rule 6(d), the petit jury’s verdict rendered harmless any conceivable error in the charging decision that might have flowed from the violation. In such a case, the societal costs at retrial after a jury verdict of guilty are far too substantial to justify setting aside the verdict simply because of an error in the earlier grand jury proceedings.” Id., 475 U.S. at 72-73, 106 S.Ct. at 943.

Thus, under the federal rule, the presence of an unauthorized person will not render an indictment invalid, if there is sufficient evidence to support a probable cause finding by the grand jury acting independently and free from undue influence. In Idaho, the rule is similar. The presence of unauthorized personnel does not constitute grounds for attacking the validity of an indictment, absent a showing of prejudice. State v. Barber, 13 Idaho 65, 88 P. 418 (1907); Gasper v. District Court, 74 Idaho 388, 264 P.2d 679 (1953). We must inquire whether these two individuals were unauthorized, and if so, whether their presence amounted to prejudice Edmonson.

Edmonson contends that the presence in and of itself of both the deputy clerk and the attorney constitutes grounds for dismissing the indictments. He argues that their presence removes from the grand jury the ability to operate in the neutral and detached atmosphere that is required; the subtle influence of the presence of court and state personnel would necessarily affect the ability of the grand jury to calmly and dispassionately consider the case. Here, the deputy clerk was needed to operate the electronic recording equipment, to mark and keep track of exhibits and to perform other administrative and clerical functions. Edmonson has not alleged with any specificity how the court clerk prejudiced the independence and secrecy of the grand jury proceedings. Nor, can we foresee any situation in which the presence of a person marking exhibits would be grounds for overturning a probable cause finding made by the grand jury. Thus, we conclude that the deputy clerk’s mere presence will not necessitate dismissal.²

The attorney with the Department of Law Enforcement was present to assist the Latah County prosecutor in the proceedings before the grand jury. The state, contends, relying on State v. Taylor, 59 Idaho 724, 87 P.2d 454 (1939) that his presence was justified. In Taylor, the indicted defendant challenged the presence of a deputy attorney general during the course of grand jury proceedings. The Court first examined several statutes which authorized the attorney general to exercise supervisory powers over prosecuting attorneys. Relying on these statutes, the Court held that the attorney general’s presence before a grand jury would not invalidate an indictment. Id., supra at 731-32, 87 P.2d 454. The attorney general is an extension of the prosecutor, and in effect, an authorized person within the meaning of I.C. § 19-1111 and I.C.R.6(d). Therefore, the presence of the state attorney general will not require a dismissal of the indictment.

V

Constitutionality of I.C. § 18-1905

Edmonson was indicted on the crime of falsification of corporate books in violation of I.C. § 18-1905. The punishment provision of this statute provides:

“is punishable by imprisonment in the state prison not less than three (3) nor more than ten (10) years, or by imprisonment in a county jail not exceeding one (1) year or a fine not exceeding $500, or by both such fine and imprisonment.”

I.C. § 18-111 distinguishes a felony from a misdemeanor.

“A felony is a crime which is punishable with death or by imprisonment in the state prison____ Every other crime [except infractions] is a misdemeanor. When a crime punishable by imprisonment in the state prison is also punishable by a fine or imprisonment in a county jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the state prison.”

Edmonson contends that I.C. § 18-1905 violates the fourteenth amendment to the United States Constitution for two reasons. First, the statute does not delineate between the type of conduct punishable as a felony or a misdemeanor. Second, the statute gives the prosecutor unfettered discretion to charge either a misdemeanor or a felony. In support of his contentions, he relies on two Oregon Supreme Court cases. In State v. Pirkey, 203 Or. 697, 281 P.2d 698 (1955), the court struck down as violative of the fourteenth amendment an Oregon statute which gave the grand jury or the magistrate unlimited discretion to charge either a felony or a misdemeanor for certain bad check violations. In State v. Cory, 204 Or. 235, 282 P.2d 1054 (1955), the same court held unconstitutional an Oregon statute which granted to the district attorney unfettered discretion to determine whether or not to file an habitual offender charge against one who had theretofore been convicted of a felony not involving personal violence, whereas under another subsection of the same statute, he was required to file habitual offender information against a defendant previously convicted in cases of crimes involving violence. Edmonson’s argument is misplaced.

I.C. § 18-1905, unlike the statutes declared unconstitutional in Pirkey and Cory does not grant the prosecuting attorney or a grand jury unbriddled discretion to charge Edmonson either with a felony or with a misdemeanor. In both Pirkey and Cory, the applicable statute clearly endowed the grand jury, magistrate or the district attorney with such charging discretion. I.C. § 18-1905 is silent on the issue of whether this provision is a charging decision or a sentencing decision. However, I.C. § 18-1905 must be read in conjunction with I.C. § 18-107 which empowers a court to determine punishment:

“Whenever, in this code, the punishment for a crime is left undetermined between certain limits, the punishment to be inflicted in a particular case, must be determined by the court authorized to pass sentence within such limits as may be prescribed by this code.”

The legislature in enacting I.C. § 18-1905 gave the sentencing court a sentencing range. A sentencing court has discretion to impose any sentence within the statutory maximum and minimum so long as it is reasonable. State v. Snapp, 110 Idaho 269, 715 P.2d 939 (1986); State v. Nice, 103 Idaho 89, 645 P.2d 323 (1982).

Edmonson’s attack on I.C. § 18-1905 is without merit because it allows for sentencing discretion and not charging discretion. We do not imply that should the facts indicate a statute allows for a charging discretion, we would follow the reasoning of the Oregon Supreme Court.³ That question, should it arise, is better left for a later day.

VI

Conclusion

We have considered all of Edmonson’s challenges, both constitutional and statutory, to the grand jury indictment. While errors occurred in the proceedings, none rise to a level which would require dismissal. Therefore, we affirm the district court and remand back for trial.

Costs to respondent.

No attorney fees on appeal.

SHEPARD, C.J., and BAKES, J., concur.

1 . We note that the United States Constitution, through the fifth amendment, does not require a dismissal of an indictment based exclusively on hearsay evidence. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). The Court in Costello was concerned about judicial expediency:

"If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury.” Id., 350 U.S. at 363, 76 S.Ct. at 408.

In Idaho, anytime hearsay evidence is used before a grand jury, the mini-trial concern of Costello becomes a reality. Despite the rule we announce today, prosecutors should endeavor to preclude any hearsay evidence from grand jury proceedings.

2 . As here, most grand jury proceedings need to be recorded to preserve a record for a reviewing court to pass upon any alleged defects in the proceedings (for example hearsay evidence). A deputy court clerk or court reporter operating recording equipment is essential to satisfy this function. Obviously, in such cases, a deputy court clerk or a court reporter must be considered an authorized person.

3 . Pirkey, supra, and Cory, supra, were both overruled in City of Klamath Falls v. Winters, 289 Or. 757, 619 P.2d 217 (1980).