Lead Opinion
OPINION
Decisions in five cases that came to us on interlocutory appeals and prerogative writs are consolidated in this opinion. Eight defendants are charged with ten counts of first-degree murder that occurred during the New Mexico State Penitentiary riot of February 1980, in which a total of thirty-three persons were killed.
In all cases, the defendants moved to dismiss the indictments, claiming that the prosecutors knowingly withheld exculpatory evidence from the grand jury, in violation of Section 31-6-ll(B), N.M.S.A.1978 (Cum.Supp.1980). The trial courts in all cases denied defendants’ motions to dismiss.
Two interlocutory appeals were granted by the Court of Appeals, which consolidated the cases and certified them to this Court. Three other cases came to this Court on writs of prohibition and were consolidated with the two cases from the Court of Appeals. Thus we address the issues in five cases on an in-depth basis in anticipation of the same and similar issues arising in subsequent riot cases. We affirm the decisions of all the trial courts on the issues raised.
Richard Nave Chapman, Herman Richard Buzbee and Michael Dennis Cojby were indicted for the first-degree murder of Larry Wayne Smith. Jesus Jose Antunez, Paul Casaus, Lorenzo Chavez, Narciso Telles Flores and Jose Moisés Sandoval were indicted for the first-degree murder of Ramon Acuna Madrid. Herman Richard Buzbee, Richard Nave Chapman and Reggie Bell were indicted jointly, but will be tried separately, for the first-degree murder of Donald Gossens.
The issues are:
1. Whether defendants’ prior self-serving claims of innocence must be presented to the grand jury under the recent statute which requires the prosecutor to present evidence of which he is aware that directly negates guilt, or whether the evidence must also meet the other statutory test of being evidence such as would be admissible at trial.
2. Whether evidence, known to the prosecutor, which is contradictory to evidence submitted to the grand jury, qualifies as evidence that directly negates guilt and must be submitted to the grand jury.
3. Whether the refusal of the prosecutor to present to the grand jury prior statements by defendants that they are innocent, and other testimony that contradicted witnesses who testified before the grand jury, constitutes a violation of the defendants’ due process rights to a fair trial.
4. Whether evidence that the prosecutor promised each of the grand jury witnesses that he would not be placed back in the New Mexico penitentiary system, must be presented to the grand jury as evidence that directly negates guilt, because it affects the credibility of witnesses.
The allegedly exculpatory evidence in each of these cases is of three types: (1) statements of defendants in which they denied involvement in any killings and claimed they never entered Cell Block 4, the site of these homicides; (2) prior statements of grand jury witnesses and other witnesses which are inconsistent with testimony presented to the grand jury, some of which reflected on the credibility of witnesses, and (3) promises made to grand jury witnesses that, if they gave statements, they would not be returned to the penitentiary of New Mexico or any other satellite facility.
The District Attorney admits that he was aware of the withheld evidence in question and that it was not presented to the grand jury. It is the State’s position that the prosecutors had no duty to present these types of evidence.
HISTORICAL BACKGROUND
For over eight hundred years, since the Assize of Clarendon in 1166, the English institution of the grand jury has been in existence. I W. Holdsworth, History of English Law 321 — 23 (7th rev. ed. 1956). Over the centuries in Great Britain, the grand jury not only served to discover and present for trial persons suspected of criminal wrongdoing, but also served to protect the citizens against oppressive actions by the Crown.
Blackstone, in describing the function of the grand jury said: “they are only to hear evidence on behalf of the prosecution: for the finding of an indictment is only in the nature of an enquiry or accusation, which is afterwards to be tried and determined; and the grand jury are only to enquire upon their oaths, whether there be sufficient cause to call upon the party to answer it.” IV W. Blackstone, Commentaries on the Laws of England, 300 (1769). The grand jury was abolished in Great Britain in 1933.
The grand jury’s historic functions were found by our early settlers to be basic to the protection of individual liberties, and the grand jury was transplanted here as a closely-guarded institution in the basic law of our country.
There has been a continuing debate over the years, particularly in the federal system, concerning the respective relationships of the Executive and Judicial Branches to the federal grand jury. Some claim that the court has broad discretionary powers to supervise the grand jury; others assert that the grand jury is an arm of the Executive, since it is basically a law enforcement agency. The United States Supreme Court, in United States v. Calandra,
In fact, under the common law and constitutional provisions, the grand jury is considered to be an independent agency from both the Executive and the Judicial Departments, with “both court and prosecutor play[ing] supportive and complementary roles.” Chanen, supra at 1312.
In Chanen, the court held that courts should not encroach upon the manner in which the prosecutor presents the government’s case to the grand jury “unless there is a clear basis in fact and law for doing so”, because it “could readily prove subversive of the doctrine of separation of powers.” Id. at 1313. “But under the constitutional scheme, the grand jury is not and should not be captive to any of the three branches.” Id. at 1312.
The framers of the New Mexico Constitution saw fit to create the grand jury under the Bill of Rights, instead of placing it under the Executive Department or the Judiciary. N.M.Const. art. 2, § 14. Our Constitution also contains a provision that a criminal defendant may be charged by information as well as by grand jury indictment, and provides details as to the makeup of the grand jury and its procedures. Generally, the additions made were consistent with the common law practices at the time our State Constitution was written.
Except for statutory provisions, hereinafter discussed, the basic laws and decisions governing grand juries have been remarkably similar between the states and the federal system. Federal constitutional considerations make the federal decisions germane to most every case. There is a vast body of case law, some of it in hopeless conflict. We present cases representative of the general principles.
The responsibilities of the grand jury have changed very infrequently and very little over the years and continue to include both the determination of whether there is probable cause that a person committed a crime and the protection of citizens from the arbitrary and oppressive acts of their government. Calandra, supra. The grand jury “has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused . . .. ” Wood v. Georgia,
The traditional role of the grand jury is described by Mr. Justice Jackson in his dissenting opinion in Cassell v. Texas,
Its power is only to accuse, not to convict. Its indictment does not even create a presumption of guilt; all that it charges must later be proved before the trial jury, and then beyond a reasonable doubt. The grand jury need not be unanimous. It does not hear both sides but only the prosecution’s evidence, and does not face the problem of a choice between two adversaries. Its duty is to indict if the prosecution’s evidence, unexplained, uncontradicted and unsupported, would warrant a conviction. If so, its indictment merely puts the accused to trial. The difference between the function of the trial jury and the function of the grand jury is all the difference between deciding a case and merely deciding that a case should be tried.
Mr. Justice Holmes authored Holt v. United States,
The following cases represent the general rule or great weight of authority in the federal system. The government need not produce percipient witnesses to testify before the grand jury. United States v. Short,
Generally, courts have been most cautious in invalidating indictments for alleged grand jury misconduct of the prosecutor. Beatrice Foods Co. v. United States,
Even where the government knows that an indictment is based partially on perjured testimony, the court must consider whether the perjured testimony is material. United States v. Basurto,
In 1956 the United States Supreme Court handed down what has proven to be a landmark decision bearing on the issues involved here in Costello v. United States,
The Costello Court discussed Mr. Justice Holmes’ opinion in Holt, supra, in which the Court held that abuses of criminal practice would be enhanced if indictments could be upset on such a ground. The Court in Costello added:
The same thing is true where as here all the evidence before the grand jury was in the nature of “hearsay.” 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. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.
The Court stated that there were no persuasive reasons to establish a rule permitting such challenges; that such a rule would run counter to the whole history of the grand jury institution; that neither justice nor the concept of a fair trial requires such a change. The Court found that the defendants would have a right to strict observance in the trial of the case to all of the rules designed to bring about a fair verdict. “Defendants are not entitled, however, to a rule which would result in interminable delay but add nothing to the assurance of a fair trial.” Id. at 364,
Costello is the last word from the United States Supreme Court on the issues stated. There are hundreds of decisions out of lower federal courts attempting to apply Costello to varying factual patterns. Some of these and later Supreme Court cases which are claimed as relevant will be later analyzed in the context of due process issues.
So long as Costello remains a controlling opinion, a prosecutor can have no legally enforceable duty to divulge exculpatory evidence to a grand jury. A prosecutor need only convince a grand jury to indict. He need not also convince a court that a grand jury’s indictment was fair. Given the current state of the law, any contrary conclusion short of a Supreme Court decision or statutory authority is neither legally nor pragmatically binding.
Note, Grand Jury: A Prosecutor Need Not Present Exculpatory Evidence, 38 Wash. & Lee L.Rev. 110, 123 (1981).
With this historical backdrop, we examine the ways in which New Mexico’s statutory and case law diverge from the general rules as indicated by the above cases.
One very significant departure from the common law doctrine, giving prosecutors almost total discretion as to the kind of evidence that can be submitted to the grand jury, was the Act of February 7, 1854; 1853-54 N.M.Laws at p. 66; §§ 3128, 3129, N.M.S.A. 1915. It was provided that only “legal evidence”, i.e., such as given by witnesses, “produced and sworn before them [the grand jury]”; or legal documentary evidence could be submitted. § 3128. “Legal evidence” and “the best evidence in degree, to the exclusion of hearsay or secondary evidence” is admissible. § 3129. This version of the law was in effect for 115 years, until it was slightly modified by 1969 N.M.Laws, ch. 276, § 11.
The amendments of 1969 added “other physical evidence” to the two types of evidence previously approved, that is, witness testimony and documentary evidence, and expanded the definition of permissible evidence to provide that “all evidence must be such as would be legally admissible upon trial.” 1969 N.M.Laws, supra.
Amendments adopted in 1979 did not change the “legally admissible” requirement. However, in a paragraph in the same section, the Legislature added a new provision that requires the prosecutor to submit to the grand jury any evidence of which he is aware that “directly, negates the guilt” of the defendant. § 31-6-ll(B), N.M.S.A.1978 (Cum.Supp.1980). The full text reads:
31-6-11. Evidence before grand jury.
A. Evidence before the grand jury upon which it may find an indictment is the oral testimony of witnesses under oath and any documentary or other physical evidence exhibited to the jurors. All evidence must be such as would be legally admissible upon trial.
B. It is the duty of the grand jury to weigh all the evidence submitted to it, and when it has reason to believe that other competent evidence is available that may explain away or disprove a charge or accusation or that would make an indictment unjustified, then, it should order the evidence produced. The target shall be notified of his target status and be given an opportunity to testify, if he desires to do so, unless the prosecutor determines that notification may result in flight, endanger other persons, obstruct justice, or the prosecutor is unable with reasonable diligence to notify said person. The prosecuting attorney assisting the grand jury shall present evidence that directly negates the guilt of the target where he is aware of such evidence. (Emphasis added.)
Although it is not material to our decision here, the Legislature in 1981 further amended Section A, above, to eliminate the requirement that evidence be “legally admissible upon trial” and added this clause: “The sufficiency and competency of the evidence upon which an indictment is returned shall not be subject to review absent a showing of bad faith on the part of the prosecuting attorney assisting the grand jury.” Id. (Cum.Supp.1981). Thus, New Mexico has gone full circle back to the common law. This amendment places our grand jury in much the same position as those in the federal system and makes the federal case law set out in this opinion even more significant in the future.
1. DEFENDANTS’ SELF-SERVING DECLARATIONS OF INNOCENCE
The first question is whether defendants’ self-serving declarations of innocence should have been presented to the grand jury as evidence directly negating guilt; or whether the prosecutor was correct in withholding them because they were not evidence such as would be admissible at trial. Defendants claim that the statute mandates that evidence directly negating guilt must be submitted whether or not it would be admissible at trial, that the new language modifies and controls the old.
The issue calls for statutory construction to determine what the Legislature intended. We must examine these and related statutes in historical perspective and give the words their usual meaning. Arnold v. State,
Our statutes in the past have been very favorable to targets of an investigation as compared to some other jurisdictions. They have limited the kinds of evidence that may be submitted to the grand jury. The 1969 amendment added to the types of evidence that could be introduced by the prosecutor. We can presume that the Legislature knew the meaning of the words it used at that time when it said: “All evidence must be such as would be legally admissible upon trial.” The law was reasonably well settled at that time as to what evidence was admissible in a trial. The Legislature must have acted advisedly when it left that same sentence in the statute when an amendment was incorporated into the section in 1979 adding the provision that the prosecutor “shall present evidence that directly negates the guilt of the target. . . . ”
The definition of evidence before a grand jury having been established for ten years as evidence that would be admissible on trial, the addition of a requirement that evidence directly negating guilt be submitted did not vary that definition. As it bears on the issue here, we hold that the statute as a whole means the prosecutor shall present evidence, that would be admissible at trial, which directly negates the guilt of the target.
There is no question but that the defendants’ claims that they are not guilty directly negates their guilt. The next question is whether the evidence is such as would be admissible at trial. The answer is that the statements are inadmissible as hearsay, except under certain situations that are not pertinent here. See State v. Duran,
We hold that the prosecutor properly withheld the statements because they were not such evidence as would be admissible at trial. We affirm the decisions of the trial courts in this regard.
2. CONTRADICTORY EVIDENCE WITHHELD
Defendants claim that the indictments should be dismissed because the prosecutor withheld other evidence from the grand jury of which he was aware that contradicted evidence submitted to the grand jury. The essence of this claim is that the prosecutor must submit all evidence to the grand jury that tends to negate the guilt of defendants, regardless of whether it is direct or circumstantial, material or immaterial, and whether admissible or inadmissible at trial.
We summarize the withheld statements as follows:
1. A witness, who did not testify before the grand jury, did not identify a defendant in his statement as being one of those implicated.
2. A witness identified a defendant in testifying before the grand jury but had not identified the same defendant in his prior statement.
3. A witness, who did not testify before the grand jury, said in a statement that the way a murder was carried out was different than what was described by other witnesses before the grand jury.
4. A witness, who testified before the grand jury, named other persons as participants but not the defendant.
5. A witness whose grand jury testimony implicated a defendant had given a previous statement in which he was confused as to the identity of the defendant.
6. Statements that the killers were masked.
7. Statements that a defendant was present for a while at a killing, but the witness did not see the defendant participate in the killing.
8. A witness, who testified before the grand jury, but changed his mind or made a mistake as to the identity of the perpetrator in his prior statement.
Although this indirect or circumstantial evidence may be inconsistent with that presented to the grand jury, we inquire whether it directly negates guilt. Basic to the analysis of this issue is a determination of the legislative intent in specifying that evidence directly negating guilt should be furnished the grand jury. A most logical assumption is that the intent was also to proscribe the use of evidence indirectly negating guilt. When a statute uses terms of art, we interpret these terms in accordance with case law interpretation or statutory definition of those words, if any. See State v. Aragon,
Neither the statutes nor case law give us any help with a specific definition of the term “directly negating” guilt. ' However, given the history of the statutes here, where hearsay and secondary evidence were specifically not allowed for 115 years and the fact that the law was then changed to allow any evidence that would be admissible at trial, we believe the Legislature was thinking in terms of the traditional categories of evidence. The only common sense explanation for the use of the words in question is that the Legislature intended to permit the use of direct evidence negating guilt and to prohibit the use of indirect, or circumstantial, evidence negating guilt.
Direct evidence is evidence which, if believed, proves the existence of the fact without inference or presumption. People v. Thomas,
The court in State v. Lewis,
All of the withheld evidence in our case, other than the self-serving statements of defendants, is circumstantial in nature. It does not directly negate the guilt of the defendants. It must be aided by inferences or presumptions. The prosecutor had no duty under the statutes to submit this evidence to the grand jury.
Our decision on this issue differs in part with the theory expressed in dicta by the Court of Appeals in State v. Herrera,
In Gonzales the Court stated: “Exculpatory evidence is evidence reasonably tending to negate guilt.” Withholding such evidence violates defendants’ due process rights, the Court said. State v. Payne,
Prior to the enactment of the statute in question, our courts were concerned only with “exculpatory” evidence in the context of our dispute here. Until the Legislature used the term “directly” negating guilt there was no need to define terms. It is plain that there are at least two distinct types of exculpatory evidence, i. e., direct exculpatory evidence and circumstantial exculpatory evidence. Since the plain meaning of the statute is that the prosecutor is obligated to present to the grand jury only direct exculpatory evidence, we hold that it was not error for him to withhold circumstantial exculpatory evidence. That evidence was inadmissible to the same extent as secondary and hearsay evidence under the old statute. To the extent that Payne, supra; Gonzales, supra; Sanchez, supra; Lampman, supra; Harge, supra; Herrera, supra; and other cases are contrary to our opinion on this issue, they are hereby specifically overruled.
Defendants rely heavily on Johnson v. Superior Court,
In fact, for evidence to be admissible at trial on behalf of the defendant, it must all be relevant to his innocence, that is, it must reasonably tend to negate guilt. Thus, to apply the Johnson standard would be to saddle the State in many instances with the burden of presenting the defendant’s whole case to the grand jury, as well as the State’s case. This would lead to ridiculous consequences and would be a subversion of many of the traditional purposes of the grand jury system. We refuse to adopt such a drastic and unwarranted position.
Much of the withheld circumstantial evidence would have reflected on the credibility of the witnesses who testified before the grand jury. Defendants would have us dismiss the indictment because this evidence was not presented for that purpose. In the absence of flagrant prosecutorial misconduct that was responsible for the jury indicting a defendant, we decline to adopt a rule that an indictment is bad because it is based on testimony of a witness whose credibility may later be subject to question. United States v. Sullivan,
3. DUE PROCESS CONSIDERATIONS
Defendants claim that the failure of the prosecutor to present all the evidence in question to the grand jury violates their Fifth Amendment rights to a fair trial. Although our decision on the first two points effectively disposes of the issues on statutory grounds, we feel constrained to address the due process questions in order to clarify this Court’s position in that regard. We are aware of the 1981 amendment which eliminates the sentence that required all evidence to be such as would be admissible at trial. Thus, we look at the federal case law with new interest.
The United States Supreme Court has held that a primary duty of the grand jury is to protect the innocent from oppressive prosecution. Wood v. Georgia, supra. “While recognizing this function, the Supreme Court has nevertheless repeatedly shaped its holdings so as to prevent litigious interference with grand jury proceedings.” Comment, Grand Jury, 11 Rutgers-Camden L. J.' 359, 363 (1980); Calandra, supra; United States v. Dionisio,
The United States Supreme Court in Dionisio, supra at 17,
Any holding that would saddle a grand jury with minitrials and preliminary showings would assuredly impede its investigation and frustrate the public’s interest in the fair and expeditious administration of the criminal laws.
Courts do not want exclusionary rules, suppression hearings, evidentiary rules or mini-trials to disrupt or delay the grand jury’s function. Keeney and Walsh, supra.
In Lawn, supra at 349,
In United States v. Blue,
The Supreme Court refused to extend the exclusionary rule to grand jury proceedings in Calandra, supra, because of the potential injury to the historic role and functions of the grand jury, holding that such action would seriously impede the grand jury, delay and disrupt the proceedings, halt the orderly progress of investigations, necessitate extended litigation of issues only tangentially related to the primary objective, and result in protracted interruption.
Costello is still the law of the land. There is no Supreme Court ruling requiring exculpatory evidence to be presented. That Court has never ruled that withholding exculpatory evidence from a grand jury violates a target’s due process rights to a fair trial and that this requires the dismissal of an indictment. However, a few lower federal courts and state courts have done so, generally based upon flagrant prosecutorial misconduct resulting in unfairness to defendants. In the vast majority of the cases the courts have refused to question the integrity of grand jury indictments.
Numerous recent federal cases have addressed the issue of prosecutorial misconduct in failing to present various types of evidence to the grand jury and whether dismissals of the indictments were warranted. There is no requirement under the federal laws or rules that evidence negating guilt shall be submitted to a grand jury. Since New Mexico has such a requirement, these cases are examined solely in relation to due process questions arising out of a failure to present this type of evidence.
The court, in United States v. Cederquist,
Other cases are: United States v. Lasky,
The Tenth Circuit Court of Appeals has steadfastly refused to “pierce the armor” of the grand jury and has held that “indicted defendants do not have a right to challenge the fairness of a grand jury.” United States v. Thomas,
The Court in United States v. DeVincent,
Implicit in the decisions of most of the courts that have addressed the issue of the dismissal of an indictment because of prosecutorial misconduct or basic unfairness that violates due process, is the concept that substantial prejudice to the defendant must be demonstrated before the province of the independent grand jury is invaded. Russell v. United States,
The courts that have dismissed indictments have generally recognized the prosecutor’s right to use some discretion in the presentation of evidence to a grand jury but have ruled that this does not entitle him to mislead it or to engage in fundamentally unfair tactics. Ciambrone, supra; Comment, Grand Jury, supra. Examples of “fundamentally unfair tactics” are: (1) the prosecution obtaining an indictment on basis of evidence known to be perjurous; and (2) the prosecution leading a grand jury to believe it has received eye-witness rather than hearsay testimony. Id.; United States v. Basurto,
However, the court in Ciambrone, supra, took a contrary view and ruled that the failure of the attorney to reveal the possible existence of threats against the defendant’s life fell far short of'the kind of misleading conduct or deception that would warrant dismissal of the indictment.
Cases holding that the grand jury must be advised of exculpatory information are: United States v. Provenzano,
It is claimed that the majority view will result in the erosion of the power and effectiveness of the grand jury, by allowing a prosecutor to mislead it by withholding relevant evidence tending to negate the defendant’s guilt. Comment, Grand Jury, supra.
Other cases in which indictments were dismissed are United States v. Basurto, supra; United States v. Gallo,
It is significant, however, that the Second Circuit’s decision in Ciambrone is the only federal finding at the circuit level that suggests a prosecutor must divulge exculpatory information to a grand jury, and that finding was only dicta. Note, supra 38 Wash. & Lee L.Rev. 110 (1981). “Rather than give the Estepa rule constitutional standing, the second circuit justified its holding in Estepa as an extension of its supervisory power over the district courts.” Id.; Estepa, supra.
“None of the courts that have dismissed indictments address the Supreme Court’s holding in Costello that a court should not dismiss a facially valid indictment because the grand jury heard inadequate evidence.” Note, supra 38 Wash. & Lee L.Rev. 117 (1981).
A few lower federal courts have attempted to extend the Costello rule, or circumvent it, by applying the principles enunciated in Brady v. Maryland,
We decline to follow this reasoning, as it has some obvious flaws. The determination of materiality of a breach of a prosecutor’s duty to disclose favorable evidence to the defendant is different in the grand jury context than it is at trial because the standard of proof required is different. Galtieri v. Wainwright,
In Brady, a request was made for statements, but the prosecution failed to disclose to Brady before or during trial his companion’s statement in which the latter confessed to the killing for which Brady was being prosecuted. The Supreme Court held that the suppression of evidence “favorable to the defendant on request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id.,
Brady established the prosecution’s constitutional obligation to disclose evidence that would be material to the defense of the accused. The lower federal courts immediately started fashioning standards, but it was not until United States v. Agurs,
In Agurs, as in Brady, the Court was not ruling on an evidentiary question affecting a grand jury, but one involved in the trial of the case.
The Court in Agurs, established three levels of materiality for the excluded evidence at trial: (1) that which the prosecutor knew to be perjured, in which case the conviction must be set aside if there is a “reasonable likelihood that the false testimony could have effected the judgment of the jury.” Id.,
“We are dealing with the defendant’s right to a fair trial mandated by the Due Process Clause of the Fifth Amendment. ...” Id. at 107,
It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial.
Id. at 112-3,
The Tenth Circuit court in United States v. Jackson,
In United States v. Gaston,
The language used by our Court of Appeals, that withholding exculpatory evidence violates a defendant’s due process rights, in effect, establishes a per se sanction of dismissal if any exculpatory evidence is knowingly withheld. This leaves no room for considering whether the absence of the evidence affected the outcome of the grand jury proceeding or whether the defendant suffered any prejudice, both of which are required in most other jurisdictions that permit challenges to grand jury indictments.
To serve the public interest by an automatic sanction of dismissal under these circumstances is to disservice another public interest by frustrating prosecution of criminals. Birdman, supra. Such a ruling would lead in our case to windfall dismissals of the indictments against these defendants where even the slightest bit of inconsequential exculpatory evidence has been withheld. We reject this view of the law and overrule Herrera and the succeeding cases that adopt, or appear to adopt, this view.
We dispose of these issues on state statutory grounds. We do not perceive a due process question. The United States Supreme Court has not mandated that a due process violation exists under circumstances such as ours. Costello, supra. We find no compelling reason to do so.
This Court ruled in State v. Chance,
We still subscribe to the decision in Chance. We hold that opening up indictments for challenge would halt the orderly progress of investigations, would cause extended litigation on unimportant issues and would frustrate the public’s interest in the fair and expeditious administration of the criminal laws. It would be an intrusion into the separate provinces of the constitutionally independent offices of the grand jury and the prosecutor. In any event, the claimed misconduct would be cured at trial.
We have said that the grand jury should not be the tool of the prosecutor and that he must abide by the letter and the spirit of the laws, including the one precluding the use of inadmissible evidence when obtaining indictments. Maldonado, supra. That holds true here. But, we are further holding that failure to do so does not reach constitutional dimensions under the circumstances. Although the 1981 amendment does not require admissible evidence, there was no change made in Section 31-6-6, N.M.S.A. 1978, which provides for the grand jurors to take an oath that they will receive “legal evidence”, and no change made in Section 31-6-ll(B), which sets forth the grand jury’s right to order “competent” evidence produced if they have reason to believe it is available. The amendment made no real change. Part of the grand jury reforms in 1979, which were designed to prevent prevelant abuses of the grand jury system by some prosecutors, was the statutory proviso that: “The prosecuting attorney shall conduct himself in a fair and impartial manner at all times when assisting the grand jury.” The prosecutor oath as a lawyer and his duties as an officer of this Court demand no less.
We do not find a due process violation here: However* even if we did adopt the rule of some other jurisdictions that an indictment may be overturned under the due process clause for “flagrant prosecutorial misconduct”, the defendants would receive no relief. The prosecutors in our cases were simply following the directions of the Legislature by withholding the evidence in question. There was not the perjury, deceit or malicious overreaching found to be essential before most courts would permit an attack on an indictment. There is no showing that the prosecutors’ conduct infringed upon the independent judgment of the grand jurors.
Furthermore, if we applied the tough Brady-Agurs test to the evidence here, defendants would not prevail. In examining the record we find that, as to each defendant, the evidence withheld is not of sufficient materiality to suggest that it would, if introduced, have changed the vote of the grand jury on the issue of probable cause. Considering the eye-witness testimony to the murders and other information, the omitted evidence does not create a reasonable doubt of any defendant’s guilt. There is no likelihood that the introduction of the evidence would have changed the result.
The trial courts were not in error on this issue.
4. PROMISES BY THE PROSECUTOR TO WITNESSES
The prosecutor promised each penitentiary inmate who testified that he would not be returned to the New Mexico State Penitentiary or any of its satellite facilities. Defendants claim these agreements should have been presented to the grand jury because they are material to the issue of credibility of the witnesses. This issue is settled by holdings elsewhere in this opinion regarding the withholding of evidence bearing on the credibility of witnesses.
We affirm the decisions of the various trial courts as to all issues and defendants and remand the cases to the district courts for trial.
IT IS SO ORDERED.
Dissenting Opinion
dissenting.
We dissent from the holding that the prosecutor had no duty to present defendants’ exculpatory statements to the grand jury. We specially concur with the remainder of the majority’s opinion.
A grand jury determines whether there is probable cause to accuse, and also protects persons against unfounded accusations. § 31-6-10, N.M.S.A.1978 (Cum.Supp.1980). See Baird v. State,
1. The Standard For Presenting Exculpatory Evidence To A Grand Jury
The prosecutor is to present exculpatory evidence when such evidence is known to the prosecutor. § 31-6-ll(B); see State v. Herrera,
In Herrera, supra at 444,
2. What Is Exculpatory Evidence?
Section 31-6-ll(B) refers to evidence which negates guilt. Evidence which negates guilt is exculpatory evidence; that is, evidence that indicates the defendant is not guilty of the crime charged. Herrera, supra. Webster’s Third New International Dictionary 794 (1976) states that exculpate “indicates a freeing from blame, fault, or guilt.” Exculpatory evidence comprehends evidence which tends to negate guilt or, stated affirmatively, supports the innocence of the defendant. Com. v. St. Germain,-Mass.-,
Evidence is not exculpatory “merely because the defendant so labels it.” Evidence is not exculpatory even though it may be favorable to the defendant if the evidence “is merely collateral or impeaching.” To be exculpatory, that is, to negate guilt, the evidence must tend “to establish defendant’s innocence of the crimes charged.” Com. v. Lochman,
3. How Exculpatory Evidence Is To Be Determined
In determining whether evidence is exculpatory, the withheld evidence is not to be evaluated in relation to evidence that was presented to the grand jury. See Maldonado v. State,
Whether evidence is exculpatory is to be determined by objectively examining the withheld evidence and determining whether, in itself, the withheld evidence indicates that a defendant is not guilty of the crime charged. Herrera, supra; State v. Harge,
4. The Exculpatory Claims Made
The claims made by defendants divide into three parts: (A) defendants’ exculpatory statements; (B) evidence allegedly inconsistent with evidence presented to the grand jury; and (C) promises made to witnesses who testified before the grand jury.
A. Defendants’ Exculpatory Statements
Colby, in his statement, said that he never saw anyone killed during the penitentiary riot; that he never entered Cellblock 4, where Smith was killed.
Buzbee stated that he did not hit or kill anyone and that he did not go into Cellblock 4 during the riot.
Chapman stated that the extent of his activities during the riot was to help out some friends who had taken overdoses of drugs; then he overdosed himself and knew nothing until he woke up in the hospital.
Chavez stated that he remained in his unit during the riot except when he helped take some inmates outside; that he had no weapon and did not see anyone get murdered, hit or stabbed.
Bell stated that he did not get out of his cell until late in the riot and did not hurt anyone other than someone named Tapia, who had tried to hurt Bell.
The prosecutor does not contend that the statements of Colby, Buzbee, Chapman, Chavez and Bell are not exculpatory. The prosecutor contends that the requirement, stated in Herrera, supra, to present exculpatory evidence was modified by the legislative reforms enacted in 1979. This contention is not answered by the majority opinion.
As amended by 1979 N.M.Laws ch. 337, § 8, Section 31-6-ll(B) reads:
B. It is the duty of the grand jury to weigh all the evidence submitted to it, and when it has reason to believe that other competent evidence is available that may explain away or disprove a charge or accusation or that would make an indictment unjustified, then, it should order the evidence produced. The target shall be notified of his target status and be given an opportunity to testify, if he desires to do so, unless the prosecutor determines that notification may result in flight, endanger other persons, obstruct justice, or the prosecutor is unable with reasonable diligence to notify said person. The prosecuting attorney assisting the grand jury shall present evidence that directly negates the guilt of the target where he is aware of such evidence.
The second sentence of § 31-6-ll(B) permits the target, in some instances, to testify before the grand jury. The third sentence directs the prosecutor to present evidence which negates guilt. According to the prosecutor, the requirement that exculpatory evidence be presented applies only when the defendant is not able to present his testimony to the grand jury. Thus, the prosecutor would modify his duty to present exculpatory evidence as follows: 1) when given the opportunity to testify before the grand jury, defendant could present his own exculpatory statement and the prosecutor would have no obligation to do so; 2) in all other instances, it would be the prosecutor’s obligation to present exculpatory evidence. Section 31-6-ll(B) is not so worded.
The legislative direction to present exculpatory evidence does not depend on whether the target has an opportunity to testify before the grand jury; without qualification, the Legislature stated that exculpatory evidence “shall” be presented. This mandatory statutory direction, see § 12-2-2(1), N.M.S.A.1978, is not ambiguous and is to be given effect as written. Methola v. County of Eddy,
The prosecutor’s contention that he has no duty to present a defendant’s exculpatory statement when a target is given the opportunity to testify before the grand jury, would also introduce a procedural complication to the Legislature’s unambiguous direction. The complication would be whether the target was given the opportunity to testify, and the answer would require several factual determinations. See Rogers v. State,
The prosecutor never argued in the district court that defendants’ statements were inadmissible evidence. The argument was not raised in the State’s briefs in the interlocutory appeals. In reaching and deciding this question, the majority of the Court has broken the long-established appellate rule that arguments not raised before the district court will not be considered on appeal. State v. Parrillo,
Section 31-6-ll(A), N.M.S.A.1978 (Cum. Supp.1980), requires that evidence “such as would be legally admissible upon trial” be presented to the grand jury and that evidence “that directly negates the guilt of the target” be presented to the grand jury pursuant to § 31-6-ll(B). The results reached when evidence which is exculpatory, as in this case, is also inadmissible, depend upon a review of the pertinent statutes, prior case law and sound public policy. We disagree with the majority’s rigid construction of the statute, making it the rule that only admissible evidence be presented to the grand jury. We disagree because of (1) this Court’s recent decision in Maldonado, supra, (2) the overriding public policy evident in the grand jury statutes that the grand jury have the benefit of evidence which gives it a full understanding of the facts of the case, and (3) established public policy favoring judicial economy and simplification of judicial procedures.
(1) In Maldonado, the defendant claimed that his indictment should have been dismissed because the prosecutors presented inadmissible evidence to the grand jury. Defendant relied specifically on Section 31-6-11(A). This Court, in a unanimous opinion, accepted the fact that inadmissible evidence was presented, but, nonetheless refused to reverse. Maldonado followed State v. Chance,
We are not unmindful of legislative intent. Maldonado reduced the requirement that only admissible evidence be presented to the grand jury to an unenforced directive. The Legislature apparently agreed with Maldonado’s approach to the problem of inadmissible evidence before the grand jury. Since Maldonado, the Legislature amended Subsection (A) of § 31-6-11 (1981 N.M. Laws ch. 238, § 1), excluding the requirement that only evidence admissible at trial be presented to a grand jury. While the amended statute is not applicable to this case, the amendment shows a legislative intent that rules of evidence not be used to prevent a fully-enlightened grand jury-
(2) The function of the grand jury is to determine whether there is probable cause to accuse.
If the prosecutor is not obligated to present evidence tending to negate guilt, the grand jury hears only what the prosecutor wants it to hear, with the result that the grand jury becomes a tool of the prosecutor and is no longer independently making the probable cause determination required by the statute. Section 31-6-10, N.M.S.A.1978. A knowing withholding of evidence tending to negate guilt is fundamentally unfair and violates due process. State v. McGill, [89 N.M. 631 ,556 P.2d 39 (Ct.App.1976)] supra.
Herrera, supra,
(3) Prior to this decision by the majority, judges faced with a motion to dismiss an indictment because of the exclusion of exculpatory evidence had two relatively simple questions to answer: (a) does the evidence negate guilt on the part of the accused, and (b) was it withheld from the grand jury? The majority opinion adds a third and far more complicated issue. The district court must determine if the withheld exculpatory evidence was admissible.
The admissibility or inadmissibility of evidence is rarely apparent by reference to the item of evidence alone. A determination of admissibility often requires that extensive foundational requirements be met. This problem becomes clear when one considers a situation where a third person makes an out-of-court statement which negates guilt on the part of the accused. The statement may be admissible evidence if the foundational requirements of any one of the hearsay exceptions is met. But how can a determination of the admissibility of the evidence be made at the grand jury stage of the proceedings?
We would hold that defendants’ exculpatory statements given to investigators were wrongfully excluded from the grand jury. We would reverse the district court’s order which refused to dismiss the indictments against defendants Chapman, Buzbee, Colby, Chavez and Bell.
B. Withheld Evidence Inconsistent With Evidence Presented To The Grand Jury
All of the defendants claim that the withheld statements are inconsistent with the evidence presented to the grand jury.
The fact that withheld evidence is inconsistent with evidence presented to the grand jury raises no issue unless the withheld evidence is exculpatory. “Inconsistent” evidence does not equate to “exculpatory” evidence. For example: In statement A (withheld), the witness stated that he knew nothing about the crime being investigated. In statement B (presented to the grand jury), the witness stated that Jones committed the crime. Statements A and B are inconsistent, but neither are exculpatory of Jones. State v. Lampman,
The withheld statements relied on by defendants are not exculpatory because the statements, in themselves, do not negate the defendants’ guilt of the crimes charged. This includes the statements examined by Judge Donnelly in camera. As an example, Melvin Kenneth Thomas signed a statement naming three participants in the killing of Madrid — Pete Esquibel, Jesus Antunuz and Moisés Sandoval. Thomas stated he could only identify the three named, although others had participated. The questioner, in summarizing the statement, substituted the name of Casaus for Esquibel, and Thomas said: “Right. Paul Casaus shot him.” Until the name of Casaus was substituted, Thomas’ statement did not contain anything indicating Casaus was not involved in the killing of Madrid. After the name substitution, the statement became inculpatory as to Casaus.
The argument for considering Thomas’ statement as exculpating Casaus is that Thomas named both Esquibel and Casaus as shooting the victim, and Thomas saw only one shooting. That Esquibel may have done the shooting witnessed by Thomas does not indicate that Casaus did not also shoot Madrid. Thomas’ statement, although inconsistent, was not exculpatory.
The majority opinion goes to unwarranted extremes in ruling that the prosecutors had no duty to present the grand jury with evidence which is merely inconsistent with the grand jury testimony. We reach the same conclusion by relying on the plain meaning of § 31-6-ll(B). We look at the words as written. Methola, supra; State v. Ellenberger,
C. Promises By The Prosecutor
Each penitentiary inmate who testified before the grand jury was promised that he would not be returned to the penitentiary or any satellite facility. These promises by the prosecutor were not disclosed to the grand jury.
These promises are not exculpatory evidence, as we have defined exculpatory evidence in this dissenting opinion. The promises might bear on the credibility of witnesses at trial, but the promises do not tend to negate the guilt of any defendant.
The defendants’ position goes beyond an exculpatory evidence contention. They urge that all promises must be disclosed. Regardless, these promises to grand jury witnesses have been disclosed and defendants may make appropriate use of the promises at trial. This disclosure is not pertinent to the issue of withholding exculpatory evidence.
The indictments of Colby, Buzbee, Chapman, Chavez and Bell should be dismissed because of the prosecutors’ failure to disclose their exculpatory statements to the grand jury. The refusals to dismiss the indictments of Casaus, Flores and Sandoval should be affirmed.