*1
IT IS FURTHER ORDERED that
STATE of New Plaintiff-Appellee, CHAPMAN, al., Richard Nave et Flores, al., Narciso Telles et Defendants-Appellants. Nos. 13789. Supreme of New Mexico. In the Matter of Harold M. Sept. 1981. MORGAN, Esquire. Rehearing Denied Oct. 1981.
No. 13231.
Supreme Court of New Mexico.
Sept.
Disciplinary Proceeding.
IT BEEN MADE HAVING TO APPEAR
TO THE COURT affidavit of Glen L.
Houston, Law, Attorney respon- that the
dent, MORGAN, HAROLD M. has served
the time prescribed practice heretofore
under probationary supervi- conditions 13, 1980,
sion by August our Order of fully 625 P.2d and has com-
plied probation; with the conditions of his
NOW IT IS ORDERED HAROLD MORGAN,
M. Esquire, hereby he probation from
released and the conditions respect
thereof with prac- to his license to
tice law in the courts of this state.
694 *2 certified them to Court. the cases and Gen., Bal- Bingaman, Atty. Charles
Jeff this Court on Fe, came to Prosecutor, Three other cases donado, Sp. Santa Deputy and were consolidated prohibition writs plaintiff-appellee. Ap- from the Court with the two cases Defender, Martha Bigelow, Public John in five the issues Thus we address peals. Defender, Mark Daly, Appellate A. Asst. anticipation in-depth basis cases on an Director, Donatelli, Penitentiary Defense arising in subse- issues and similar the same Winterbottom, De- Asst. Public Richard A. *3 the decisions cases. We affirm quent riot fender, Fe, Chapman petitioners for Santa issues raised. courts on the all the trial Flores. & Richard Chapman, Herman Nave Richard MacAllister, Fe, appel- for Bruce J. Santa Cojby were in- Dennis and Michael Buzbee lant Sandoval. Larry first-degree murder of dicted for Walker, ap- Albuquerque, for William G. Antunez, Paul Jesus Jose Wayne Smith. pellant Chavez. Chavez, Casaus, Narciso Telles Lorenzo Driscoll, appel- for Albuquerque, Charles in- were Jose Moisés Sandoval Flores and lants & Casaus Sandoval. of Ra- first-degree murder for the dicted Buz- Herman Richard mon Acuna Madrid. Walker, peti- for Albuquerque, L. John Reggie bee, Chapman Richard Nave Buzbee. tioner jointly, but will be tried were indicted Bell Fe, Isaacs, Pines, Garvin A. Ellen Santa first-degree murder of for the separately, Okl., Colby. City, appellant for Oklahoma Donald Gossens. Garcia, Jr., Albuquerque, pe- for Narciso The issues are: titioner Bell. prior self-serv- Whether defendants’ 1. Prosecutor, Baker, Sp. Richard Chief C. presented of innocence must ing claims Prosecutor, Baldonado, Deputy Sp. Charles jury the recent statute grand under to the Prosecutor, Lauer, Sp. Theodore E. Asst. present requires which Fe, Judges. respondent District Santa directly he is aware that of which evidence Gen., Atty. Jean Bingaman, Jeff Carol must the evidence negates guilt, or whether Gen., Brooks, Attys. Asst. Vigil, Topp Heidi being statutory test of the other also meet Fe, curiae. Santa for amicus would be admissible evidence such as trial. OPINION evidence, pros- known to the Whether 2. EASLEY, Chief Justice. ecutor, contradictory to evidence which is jury, qualifies as grand to the that came to us on submitted Decisions in five cases directly negates guilt and that interlocutory appeals prerogative writs jury. grand to the opinion. Eight de- must be submitted are consolidated in this counts of charged fendants are with ten Whether the refusal during that occurred first-degree murder jury prior state- grand Penitentiary riot of the New Mexico State they are inno- by defendants ments thirty- a total of February in which cent, testimony contradicted and other persons three were killed. grand who testified before witnesses of the defend- a violation cases, moved to constitutes In all the defendants jury, a fair trial. process rights to indictments, claiming ants’ due dismiss the exculpato- knowingly withheld prosecutors that the 4. Whether evidence jury, in viola- ry grand from the jury witnesses grand promised each 31-6-ll(B), tion of N.M.S.A.1978 Section placed back in the would not be that he in all (Cum.Supp.1980). The trial courts must be penitentiary system, New Mexico motions to dismiss. cases denied defendants’ grand jury as evidence presented to the it af- directly negates guilt, because granted appeals were interlocutory Two credibility witnesses. fects Appeals, which consolidated allegedly exculpatory continuing evidence in There has been a over debate each of types: sys these cases is of three the years, particularly in the federal tem, they relationships statements of defendants in which concerning respective de- nied involvement any killings Judicial Branches to Executive and they jury. claimed never entered claim that grand Cell Block federal Some homicides; (2) powers site of prior discretionary these the court statements has broad supervise jury; others assert that witnesses and other witnesses Executive, jury are inconsistent is an arm of testimony with agen basically since it a law enforcement some of which Court, Supreme witnesses, cy. reflected on the The United States credibility of Calandra, (3) promises United 414 U.S. made to jury witnesses that, (1974), pointed out they gave statements, if they pre-constitutional not be returned to the penitentiary of New institution, given constitutional stature Mexico other satellite facility. relegated by the Fifth Amendment but not The District Attorney admits that he was *4 position any the Constitution to a within aware of the withheld question evidence in government. the three branches of the and presented that it was not grand to the grand jury “The federal is a constitutional jury. It is the position State’s ” right fixture in its own . . . . Nixon v. prosecutors present had no these Sirica, (D.C.Cir. 487 F.2d 712 n. 54 types of evidence. 1973); Chanen, United 549 F.2d HISTORICAL BACKGROUND (9th Cir.), (1977). For eight years, over hundred since the Assize of English Clarendon in fact, In under the common law and con- grand institution of the jury has been in provisions, grand jury stitutional is con- Holdsworth, existence. I W. History of independent agency sidered to be an from English Law 1956). 321—23 rev. ed. Depart- both the Executive and the Judicial Britain, Over the centuries in Great the ments, with “both court and grand jury not only served to discover and play[ing] supportive complementary and present persons for trial suspected of crimi- Chanen, supra roles.” at 1312. wrongdoing, nal protect but also served to Chanen, the court held that courts against oppressive citizens actions upon should not encroach the manner in the Crown. prosecutor presents govern- which the Blackstone, describing the function of grand jury ment’s “unless there case to jury “they only said: are to hear doing is a clear basis in fact and law for evidence on prosecution: behalf of the for so”, prove readily because it “could subver- the finding of an only indictment separation pow- sive of the doctrine of accusation, enquiry nature of an which is ers.” at “But Id. 1313. under constitu- determined; afterwards to be tried and and scheme, grand jury tional is not and grand jury enquire upon are captive should not be of the three oaths, their whether there be sufficient branches.” Id. upon cause party to call to answer it.” The framers of New Mexico Constitu- Blackstone, IV W. Commentaries on the grand jury tion saw fit to create the under England, Laws of The Rights, the Bill placing instead of jury was abolished in Great Britain in 1933. Department under the or the Ju- Executive
The
jury’s
historic
diciary.
functions were
N.M.Const. art.
14. Our Con-
§
found
early
our
settlers
provision
to be basic to
stitution
that a
also contains
protection
liberties,
charged by
individual
and
in-
defendant
criminal
grand jury
transplanted
by grand jury
here as a
formation as well as
indict-
closely-guarded
ment,
institution in
provides
the basic law
as to the make-
details
country.
of our
procedures.
up of the
and its
so,
warrant a
were consist-
conviction.
If
its indict-
made
Generally, the additions
at the
practices
merely puts
ment
the accused to trial.
ent
law
with the common
was written.
The difference
between the function
time our State Constitution
jury
the trial
and the function
herein-
Except
statutory provisions,
grand jury is all the
between
difference
discussed,
and decisions
after
laws
the basic
deciding
deciding
merely
a case and
governing
remarka-
grand juries have been
a case should be tried.
bly
fed-
similar
and the
between the states
eral
Mr. Justice Holmes authored Holt
system.
consid-
Federal constitutional
States,
ger-
erations make
United
218 U.S.
31 S.Ct.
the federal decisions
(1910),
charged
every
L.Ed. 1021
in which it was
mane to most
case. There is a vast
law,
be-
the indictment should be dismissed
body
hopeless
of case
some
of it
had been
incompetent
representative
conflict. We
cause
cases
to the
general principles.
relief, saying: “The abuses of
denied
responsibilities
in-
practice would be enhanced if
criminal
changed very infrequently
have
very
ground.”
upset
on such
dictments could
years
little over the
and continue to include
at 4. The United States
Id. at
both the
determination
whether there is
also refused to invali-
Supreme Court has
probable
person
cause that a
committed a
date an indictment from
protection
crime and the
of citizens from
obtained
considered evidence that had been
arbitrary
oppressive
acts of their
Amendment,
Ca-
violation of the Fourth
Calandra,
government.
supra.
landra, supra,
in which evidence had
regarded
primary
“has been
as a
secur-
been
Fifth
obtained in violation of the
ity
against
hasty,
innocent
malicious
*5
Amendment;
States,
and Lawn v. United
oppressive persecution;
it serves the
339,
311,
355
78
volved here in Costello United
from the United
is the last word
Costello
(1956).
With this historical we examine charge or accusation or that would make ways statutory in which New Mexico’s unjustified, then, an indictment it should diverge general and case law from the rules produced. target as indicated the above order the evidence cases. target shall be notified of his status and departure very significant One from the given an opportunity testify, if he doctrine, giving law prosecutors common so, desires do unless the almost total discretion as to the kind of determines that notification result in evidence that can be submitted to the flight, endanger persons, other obstruct 1854; jury, February was the Act of justice, or the is unable with 66; 3128, 3129, p. 1853-54 N.M.Laws at §§ diligence notify person. reasonable said provided 1915. It was N.M.S.A. prosecuting attorney assisting evidence”, i.e., “legal given by such as wit- shall evidence that nesses, “produced and sworn before them directly negates target grand jury]”; legal documentary [the where he is aware of such evidence. evidence could be submitted. 3128. “Le- § (Emphasis added.) gal evidence” and “the best evidence in degree, hearsay exclusion of or sec- Although it is not material to our decision ondary evidence” is admissible. 3129. § here, in 1981 further This version of the law was in effect for 115 A, above, amended Section to eliminate the years, until it slightly modified 1969 requirement “legally evidence be ad- N.M.Laws, ch. § upon missible trial” and added this clause: sufficiency competency “The of the evi- amendments of added “other physical types upon evidence” to the two evi- dence which an indictment is returned is, previously approved, subject witness shall not be to review absent a evidence, testimony documentary showing part of bad faith on the expanded permissible prosecuting attorney definition of evi- assisting provide Thus, dence to that “all evidence must be jury.” (Cum.Supp.1981). Id. New legally upon such as would be admissible gone Mexico has full circle back to the *7 N.M.Laws, supra. trial.” 1969 places common law. This amendment our position in much the same as adopted Amendments in 1979 did not system those in the federal and makes the change “legally the require- admissible” opinion case law set out in this even federal However, paragraph ment. in a significant more in the future. section, Legislature same added a new provision requires prosecutor that 1. DEFENDANTS’ SELF-SERVING grand jury any submit to the evidence of DECLARATIONS OF INNOCENCE “directly, negates which he is aware that guilt” 31-6-ll(B), of the defendant. § question The first is whether defendants’ (Cum.Supp.1980). The full N.M.S.A.1978 self-serving declarations innocence text reads: should have been grand jury. jury directly negating guilt;
31-6-11. Evidence before as evidence or
699
prosecutor
whether the
was correct in with-
that
the statements
are inadmissible as
holding
hearsay, except
certain
they
them because
were not
under
situations
evi-
pertinent
are not
here.
such
that
See State v.
as would be admissible at trial.
Duran,
35,
(N.M.App.),
91
P.2d 36
N.M.
570
claim
statute
Defendants
that the
mandates
denied,
3,
(1977),
91 N.M.
cert.
negating guilt
directly
that evidence
must
denied,
1615,
98
cert.
435
56
submitted
not it
whether or
would be
Hunt,
(1978);
L.Ed.2d 65
83 N.M.
State
trial,
language
admissible at
that
the new
denied,
(Ct.App.),
497 P.2d
cert.
83
modifies and controls the old.
(1972);
N.M.
P.2d
State
statutory
The issue calls for
construction
Snow,
1177 (Ct.App.),
84 N.M.
503 P.2d
Legislature
to determine what the
intend-
503 P.2d
84 N.M.
ed. We must
these and
examine
related
Russell,
(1972);
37 N.M.
State v.
perspective
give
statutes
historical
Davis,
(1933);
30 N.M.
P.2d
meaning.
words their
usual
Arnold v.
(1925);
Klasner,
defendants’
cated.
directly negates
guilt.
ques
their
The next
is whether
is such
2. A
a defendant
in
tion
the evidence
as
witness identified
testifying
but had
admissible at trial.
answer is
before the
identified the same defendant
in
the fact that
changed
his
the law was then
prior statement.
allow
evidence that would be admissi-
trial,
ble at
Legislature
we believe the
witness,
3. A
testify
who did not
before
thinking in terms
catego-
of the traditional
grand jury,
in
said
a statement
that the
ries of evidence. The
common sense
way a murder was carried out was different
explanation for the use of the words in
than what
by
was described
other witnesses
question
is that the
intended to
before
grand jury.
permit the use of
negating
direct evidence
witness,
4. A
who testified before the
guilt
indirect,
prohibit
and to
the use of
or
grand jury,
persons
named other
partici-
as
circumstantial,
negating guilt.
evidence
pants but not the defendant.
which,
Direct
5. A
evidence is evidence
if
witness whose
testimo-
ny
believed,
implicated
proves
a defendant
the existence of the fact
given
pre-
had
vious statement
in
without
presumption. People
which he was
inference or
confused
Thomas,
as to
identity
1014,
of the
v.
Cal.App.3d
defendant.
151 Cal.
Rptr.
(Ct.App.1979);
Thomp
v.
State
6. Statements
the killers were
son,
(Tenn.1975);
701
right
tending
to order
produced
the
that “evidence
it
holds
view
explain
has reason to believe will
negate” guilt, “exculpatory”
away
evidence and
the
charge. The
all
Court
Johnson ruled
directly negating guilt
have the
that an
11,
subject
indictment was
to dismissal
Harge,
v.
94 N.M.
meaning.
same
State
prosecutor
the
knowledge
had
such
evi-
(N.M.App.1979).
606 P.2d
The terms
1105
dence,
it,
produce
but did not
even though
synonymously
also
have
been used
neither the
defendant nor the
Sanchez,
95
Appeals
Court
in State v.
requested that
presented.
reject
it be
We
27,
(N.M.App.1980);
371
N.M.
618 P.2d
reasoning
would force a
Lampman,
v.
P.2d
95 N.M.
620
to engage
game
guessing
a
toas
what
Gonzales,
(N.M.App.1980);
1304
State v.
95
bits
pieces
might
and
of evidence
tend to be
(N.M.App.1981).
N.M.
address
(Citing Holt, supra.)
clarify
position
that re
this Court’s
in
gard. We are aware of the 1981 amend
Blue,
In
384 U.S.
United States
ment which eliminates the sentence that
(1966),
S.Ct.
the Su-
required all evidence to be such as would be
that,
government
preme
if the
Court held
Thus,
trial.
we
admissible at
look at the
acquired
in
incriminating evidence
violation
with
federal case law
new interest.
presented
and
Fifth Amendment
Supreme
The United States
has
Court
grand jury,
evidence to
defend-
held
primary
that a
quash
ant was
entitled to
the indict-
is to protect the innocent
oppressive
from
ment,
would, most,
but
be entitled to
prosecution.
v. Georgia, supra.
Wood
suppress
trial.
the evidence at
function,
recognizing this
“While
the Su-
Supreme
Court refused
extend the
preme
repeatedly
Court has nevertheless
grand jury proceedings
exclusionary rule to
shaped
holdings
prevent
its
so as to
litigious
Calandra,
potential
supra,
in
because of the
jury
grand
proceedings.”
interference with
injury to
and
the historic role
functions of
Comment,
Jury, 11 Rutgers-Camden
Grand
grand
holding
such
jury,
action
Calandra,
(1980);
L. J.'
supra;
seriously impede
would
de-
Dionisio,
United States v.
lay
proceedings,
disrupt
halt the
764, 773,
(1973);
35 L.Ed.2d
Costel-
investigations,
orderly progress of
necessi-
lo,
Walsh,
Keeney
supra;
American
litigation
tate
of issues
tan-
extended
Jury
Bar
Principles,
Association’s Grand
primary objective,
gentially related to the
However,
Idaho L.Rev. 545
one case
interruption.
protracted
and result in
particular, Brady Maryland,
373 U.S.
(1963),
L.Ed.2d 215
the law of the land.
Costello is still
which
not mention
grand
does
evidence in a
ruling
Supreme
requiring
There
no
Court
jury context,
having profound
a
influence
presented.
exculpatory evidence to be
That
on some lower federal courts. After exam-
withholding
ex-
Court has never ruled
ining
per-
further the rationale
we
grand
culpatory
from a
vio-
supports
Supreme
ceive
present
Court’s
rights
process
to a fair
target’s
lates
due
rulings, we will
discuss
theories devel-
requires the dismissal of
trial and that this
oped
Brady.
from
However, a few
fed-
lower
indictment.
so,
have
courts
done
eral courts and state
Supreme
United States
prosecutorial
upon flagrant
generally based
Dionisio,
supra at
stated:
S.Ct. at
resulting in unfairness to de-
misconduct
Any holding
that would
saddle
majority of
cases
the vast
fendants.
jury with minitrials and preliminary
question the
refused to
the courts have
assuredly
showings
impede
its in-
integrity
jury indictments.
frustrate
in-
vestigation
public’s
expeditious
terest in the fair and
adminis-
cases have ad-
recent federal
Numerous
laws.
tration of the criminal
miscon-
prosecutorial
dressed the issue
present
types
various
rules,
failing
duct
exclusionary
Courts do not want
jury and
suppression
whether
hearings,
or
evidence to the
evidentiary rules
were warrant-
disrupt
delay
the indictments
mini-trials to
dismissals of
jury’s
Walsh,
Keeney
supra.
requirement
under the
function.
ed. There is no
negating
perhaps
knowing perjury, relating
federal laws or rules that evidence
matter,
shall be submitted to a
a material
has been
requirement,
Mexico
such
Since New
has
jury).
the grand
solely in
these cases are examined
relation
of Appeals
The Tenth Circuit Court
has
questions arising
process
to due
out of a
steadfastly
“pierce
refused to
the armor” of
type
failure
evidence.
*11
and has held that “indicted
court,
Cederquist,
in United
v.
States
right
not
a
challenge
defendants do
have
(9th
641
1981), recognized
F.2d 1347
Cir.
grand jury.”
fairness
a
United
that an indictment
be dismissed for
Thomas,
(10th
States v.
632 F.2d
846
prosecutorial
upon
misconduct based
1980).
heavily
Cir.
The court relied
on Cos-
Fifth Amendment’s Due Process Clause or
refusing
an
tello in
to dismiss
indictment
upon
pow-
the court’s
supervisory
inherent
by grand jurors
handed down
who were
ers but stated that
constitutionally-
exposed
concerning
to news stories
local
independence
grand juries
based
traffic,
allegedly
heroin
which
biased the
prosecutors necessarily
a
limits
court’s re-
Hubbard,
members.
v.
603
United States
view of the grand jury proceedings. Evi-
(submission
(10th
1979)
F.2d 137
Cir.
circumstantially
was withheld which
hearsay
conjecture
grand jury
negated criminal
intent. The court held
indictment);
does not warrant dismissal
that dismissal
required only
flagrant
is
in
Addington,
United States v.
(C.D.Cal.1975),
(9th
United
Brumley, 466
v.
1972); United States
Cir.
Chance,
v.
This
ruled
Court
1972), cert.
(10th
F.2d 911
Cir.
an indict
We not find a due viola tion here: if IT adopt even we did IS SO ORDERED. However* jurisdictions the rule of some other that an RIORDAN, JJ., and FEDERICI concur. indictment be overturned under the process due “flagrant prosecuto clause for SOSA, Justice, WOOD, Senior Senior misconduct”, rial the defendants would re Judge, Appeals, respectfully Court of dis- ceive no relief. prosecutors in our senting. simply following cases were the directions SOSA, Justice, WOOD, Senior Senior of the Legislature by withholding the evi Judge, dissenting. dence in question. per There was not the We holding dissent from the jury, deceit or overreaching malicious found present had no defend- essential before most courts would ants’ statements permit an attack on indictment. There jury. We specially concur with the remain- showing is no prosecutors’ that the conduct opinion. der of the majority’s infringed upon the independent judgment grand jurors. A determines whether there is accuse, probable cause to and also protects Furthermore, we applied if persons against unfounded accusations. tough Brady-Agurs test to the evidence 31-6-10, (Cum.Supp.1980). N.M.S.A.1978 § here, prevail. defendants would not In ex State, Baird v. See 568 P.2d amining that, the record we find as to each functions, In performing these defendant, the evidence withheld is not of presented by hears evidence sufficient materiality suggest direct- prosecutor. The has would, introduced, if changed have the vote ed the to conduct himself or of the grand jury on probable the issue of 31-6-7, fairly impartially, herself § cause. Considering eye-witness testi (Cum.Supp.1980), N.M.S.A.1978 mony information, to the murders and other negates evidence which the omitted evidence does not create a target prosecutor is when the aware *15 any reasonable doubt guilt. of defendant’s evidence, 11(B), that N.M.S.A.1978 § 31-6— There is no likelihood that the introduction with these (Cum.Supp.1980). Consistent of the changed evidence would have the requirements, jury “is legislative result. not, be, of the the tool should not The trial courts were not in error on this authority manipulate at prosecuting to issue. 500, Traub, 498, 565 v. 90 N.M. will.” Davis appeals 1015, (1977). These 1017 P.2d 4. PROMISES BY THE PROSECUTOR prose- present question of whether the the TO WITNESSES evidence from exculpatory cutor withheld (1) stan- prosecutor promised peni jury. The discuss: the each the We evi- exculpatory of tentiary presentation inmate who he testified that dard evidence; dence; (2) exculpatory not be returned to the Mexico is New State what determined; is (3) exculpatory evidence Penitentiary or of any its satellite facilities. how claims (4) exculpatory evidence agreements Defendants claim these should the presented have been to be- made.
708 is, negate exculpatory, guilt, that to Presenting Exculpa- For
1.
Standard
Jury
tend “to establish defend-
tory
To A Grand
must
Evidence
evidence
charged.”
crimes
ant’s innocence of the
exculpatory
present
is to
Lochman,
Pa.Super.
402
265
Com. v.
known to
evidence is
when such
evidence
(1979).
518
A.2d
31-6-ll(B);
v.
see State
prosecutor. §
(N.M.
Evidence is not be- into three defendants’ statements; (B) in- ry allegedly cause so it.” the defendant labels Evidence evidence to the exculpatory though may is even be consistent with evidence (C) promises wit- grand jury; to the if the made to favorable defendant evidence grand jury. merely impeaching.” “is collateral or To be who before the nesses testified directly negates Exculpatory target A. Defendants’ the Statements he where is aware of such evidence. statement, Colby, in his said that he nev- anyone during penitentia- er saw killed the 31-6-ll(B) second per- The sentence of § riot; ry he that never entered target, instances, Cellblock mits the in testify some to was Smith killed. before the The third sentence the prosecutor present directs to evidence Buzbee stated that he did not hit kill or negates guilt. According pros- to the anyone go he did not into Cellblock ecutor, requirement the 4 during riot. the presented applies be evidence when the Chapman stated that his the extent of present defendant is not to able his testimo- during activities the help riot was to out Thus, ny to the jury. prosecutor the some friends who had taken overdoses modify duty present exculpato- his to would drugs; then he overdosed himself and knew 1) ry given evidence as follows: when the nothing he up until woke in the hospital. opportunity testify to before the Chavez stated that he in his remained present jury, defendant could own ex- his unit during except helped the riot when he culpatory prosecutor statement and the outside; take some inmates that he no had so; 2) obligation would have no to do all weapon anyone did not get see mur- instances, other be prosecutor’s it would the dered, hit or stabbed. obligation present exculpatory to evidence. 31-6-ll(B) Bell Section is not so get that he worded. stated did not out of his cell until late the riot and did not hurt legislative The present direction to excul- anyone Tapia, than other someone named patory evidence not depend does on wheth- who had to tried hurt Bell. target er opportunity testify has an to grand jury; qualifica- prosecutor
The before does without not contend that tion, Buzbee, exculpato- stated Colby, statements Chapman, ry presented. be Chavez evidence “shall” This exculpatory. and Bell are not The mandatory direction, prosecutor statutory 12-2- see requirement, § contends that N.M.S.A.1978, Herrera, 2(1), present ambiguous stated in is not and is supra, to excul- patory to by legis- given evidence was be effect as written. Methola v. modified lative County Eddy, reforms enacted in 1979. 95 N.M. This con- tention is majority not answered
opinion. he prosecutor’s contention that has
As amended present exculpato- N.M.Laws ch. no to duty a defendant’s 31-6-ll(B) Section § reads: ry target given statement when is opportunity testify to
B.
before
duty
It is the
to
weigh
it,
jury,
procedural
would also introduce a
all the evidence submitted to
complication
Legislature’s unambigu-
and when it has
reason
believe that
complication
other
ous
competent
direction. The
would be
available
may explain
given
opportu-
away
disprove
target
a whether the
charge or
nity
testify,
accusation or that would make
answer
re-
an
unjustified, then,
quire
indictment
it should
several factual determinations. See
order the
produced.
target Rogers
State,
P.2d
shall be
target
notified of his
(Ct.App.1980), concerning
status and
opportunity
given
an
opportunity
testify,
testify.
if he
If the defendant did not in fact
so,
desires
do
prosecutor
testify,
evidentiary
unless
determination would
determines
notification
required
result
as to
whether
defendant had
flight, endanger other persons,
testify;
obstruct
given
opportunity
been
justice,
or the
with
unable
determination would have to be made in
diligence
notify
reasonable
person.
said
decide
order to
whether
had
prosecuting
attorney assisting
present
exculpa-
a defendant’s
shall
tory
evidence that
A
inter-
statement.
cannot
*17
rights
jury.
grand
defendant’s
before the
complication to avoid
ject
procedural
this
majority,
opinion,
in its
utilizes this
legislative
with the
re- The
noncompliance
his
prosecutor’s
provision
justify
same
31-6-ll(B).
Prosecutors
quirement of §
exculpatory evi-
clearly
failure to
spirit
the letter and
of the
must abide
grand jury
allegedly
to the
which is
Maldonado, supra.
law.
requires
Basic fairness
inadmissible.
argued
never
in the dis-
jury
provisions
grand
of our
statutes be
that defendants’
statements
trict
court
31-6-7,
applied evenhandedly.
N.M.
See §
argument
were inadmissible evidence. The
(Cum.Supp.1980).
S.A.1978
was not raised in the State’s briefs
legislative in-
We are not unmindful of
interlocutory appeals.
reaching
In
and de-
requirement
tent. Maldonado reduced the
ciding
question,
majority
of the
this
only
presented
admissible
ap-
long-established
has broken the
jury
di-
grand
to the
to an unenforced
pellate
arguments
rule that
not raised be-
Legislature apparently agreed
rective. The
will
fore the district court
not be considered
problem
approach
with Maldonado’s
to the
Parrillo,
appeal.
on
94 N.M.
State
grand
of inadmissible evidence before the
(Ct.App.1979).
Maldonado,
jury.
Since
31-6-ll(A),
(Cum.
Section
N.M.S.A.1978
(A)
(1981
amended
31-6-11
Subsection
§
Supp.1980), requires that evidence “such as
1), excluding
N.M. Laws ch.
the re-
§
legally
upon
would be
admissible
trial” be
quirement
only evidence
at
admissible
presented
evi-
grand jury
to the
and that
grand jury. While
presented
trial be
to a
directly negates
dence “that
applicable
the amended statute is not
target”
grand jury pur-
presented
to the
case,
legisla-
this
the amendment shows
31-6-ll(B).
results reached
suant to
§
tive intent
rules of evidence not be
exculpatory, as in
when evidence which is
grand
prevent
fully-enlightened
used to
case,
inadmissible, depend upon a
this
is also
jury-
statutes, prior case
pertinent
review of the
jury
(2)
grand
The function of the
is to
disagree
public policy.
law and sound
We
probable
whether there is
cause
determine
majority’s rigid
with the
construction
to accuse.
statute,
only
making it the
admis-
rule
obligated to
If
is not
sible evidence be
tending
negate guilt,
present evidence
(1)
jury.
disagree
We
because of
prose-
hears
what the
Maldonado, supra,
Court’s recent decision in
hear,
it
with the result
cutor wants
(2)
overriding
public policy evident
a tool of
that the
becomes
that the
statutes
longer independently
prosecutor and is no
gives
have the
benefit
evidence which
determination
making
probable
cause
a full understanding of the facts of the
31-6-10,
required by the statute. Section
case,
public policy
established
favor-
knowing withholding
A
N.M.S.A.1978.
ing judicial economy
simplification
tending
negate guilt
judicial procedures.
due
fundamentally unfair and violates
(1) Maldonado,
McGill,
claimed
process.
the defendant
[89
(Ct.App.1976)] supra.
dis-
P.2d 39
that his indictment should have been
prosecutors presented
missed because the
Herrera,
601 P.2d at
supra, 93 N.M.
jury.
inadmissible evidence to the
of Justice Botts in
the dissent
See
specifically
Defendant relied
on
31-
Section
Chance, supra.
example
An
6-11(A).
Court,
opin-
This
a unanimous
jury becoming a tool of the
ap-
ion, accepted the fact that inadmissible evi-
Sanchez, supra.
opinion
An
of this
pears in
but,
presented,
re-
dence was
nonetheless
prosecutors to shield
Court which allows
fused to
followed
which,
reverse. Maldonado
grand jury evidence
if be-
from the
Chance,
lieved,
State v.
directly negate guilt. supra, See Supreme Court of New Mexico. example for an of circumstantial evidence Sept. Gonzales, directly negated guilt, supra, Payne, supra, examples
cases where circumstantial evidence did not
negate guilt. By
C. Promises The Prosecutor
Each penitentiary inmate who testified
before the promised that he
would not be returned to the penitentiary any facility. satellite promises by These were not disclosed to the promises
These exculpatory are not evi-
dence, as we have defined exculpatory evi-
dence in this dissenting opinion. prom- might
ises bear on credibility of wit- trial,
nesses at promises but the do not tend negate defendant. position goes defendants’ beyond an evidence contention. They
urge that promises all must be disclosed.
Regardless, promises these
witnesses have been disclosed and defend-
ants make appropriate use of the
promises at trial. This disclosure is not
pertinent to the issue of withholding excul-
patory evidence.
The indictments Colby, Buzbee, Chap-
man, Chavez and Bell should be dismissed
because of prosecutors’ failure to dis-
close their exculpatory statements
grand jury. The refusals to dismiss the Casaus,
indictments of Flores and Sandoval
should be affirmed.