Kenai judge dismisses fatal vehicle accident case

Judge: Grand jury received incorrect instructions

On Jan. 17, Kenai Superior Court Judge Anna Moran dismissed a more than 2-year-old case involving two counts of criminally negligent homicide.

Anchorage resident Clifford J. Henderson was charged following a Nov. 6, 2010 head-on collision on the Kenai Spur Highway. His semi-truck without a trailer collided with a Honda CRV. The occupants of the SUV, Paul and Pamela Trissell, did not survive the collision.

Henderson was traveling north when he crossed the centerline and crashed into the SUV near Mile 18 of the highway. The Trissells had pulled out of a church parking lot and driven about 200 to 300 feet when the crash occurred, Alaska State Troopers reported.

The state did not formally charge Henderson until Aug. 7, 2012, when a Kenai grand jury returned an indictment with the two criminally negligent homicide counts.

During the interim, Chris Farmier, an Alaska Department of Transportation employee, inspected the damaged semi-truck. He testified that an inspection of the vehicle revealed no mechanical problems. He also said the driver of a semi-truck without a trailer, or bobtail trailer, needs to be extra cautious while driving due to the lack of weight, which can affect braking response.

An accident reconstruction was conducted by Wilton Adjustment Services Inc. The investigator concluded that Henderson’s speed was slightly faster than the curve on which the accident occurred would allow. But Henderson’s manner of driving “did not create a substantial and unjustifiable risk of causing death.”

Trooper Sgt. Eugene Fowler testified that he believed road conditions, the lack of a trailer on the semi-truck and Henderson’s driving speed played a role in the accident.

Attorney’s representing Henderson then moved to dismiss the charges with three arguments: the state provided insufficient evidence to support criminal negligence, the state presented a witness who tainted the grand jury’s deliberations and the state’s grand jury instructions were inconsistent with the language of the Alaska Constitution.

Moran denied dismissal of the case based on the insufficient evidence and irrelevant witness arguments. She did, however, agree with the defense’s argument of incorrect jury instruction, according to a Dec. 31, 2012 affidavit.

Henderson’s defense said the grand jury was incorrectly instructed about the discretion to return or decline to return an indictment when it used the word “shall” as opposed to “may.”

The Grand Jury Clause of the Alaska Constitution states, “The grand jury shall consist of at least twelve citizens, a majority of whom concurring may return an indictment.” The Fifth Amendment and federal grand jury instructions do not include that permissive language, Moran noted in the affidavit; they state, “The grand jury shall find an indictment when all evidence is taken together…”

The state contended the framers of the state constitution neither understood the permissive nature of the word “may,” nor consciously chose to use the word when drafting the Grand Jury Clause, according to the affidavit.

Moran concluded the framers understood the difference between the two words, and she references specific dates on which the delegates discussed the differences.

The state further argued that even if its grand jury instruction was incorrect, any error was harmless because the judge who gave the same instructions during an orientation provided a “correct statement of the law.” The orientation occurred a month prior to the presentation of evidence; Moran said she would not expect the jury to remember the month-old instruction as opposed to the more recent and incorrect instruction, according to the affidavit.

Another grand jury would have to be presented with the same evidence in order for the state to go forward with a trial. But the state reported they will not re-indict Henderson and agreed the case should be dismissed, according to court records.

Jerzy Shedlock can be reached at jerzy.shedlock@peninsulaclarion.com.

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