Buzbee v. Donnelly , 96 N.M. 692 ( 1981 )

SOSA, Senior Justice, and WOOD, Senior Judge,

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, 90 N.M. 667, 568 P.2d 193 (1977). In performing these functions, a grand jury hears evidence presented by the prosecutor. The Legislature has directed the prosecutor to conduct himself or herself fairly and impartially, § 31-6-7, N.M.S.A.1978 (Cum.Supp.1980), and to present evidence which negates the guilt of the target when the prosecutor is aware of that evidence, § 31-6 — 11(B), N.M.S.A.1978 (Cum.Supp.1980). Consistent with these legislative requirements, a grand jury “is not, and should not be, the tool of the prosecuting authority to manipulate at will.” Davis v. Traub, 90 N.M. 498, 500, 565 P.2d 1015, 1017 (1977). These appeals present the question of whether the prosecutor withheld exculpatory evidence from the grand jury. We discuss: (1) the standard for presentation of exculpatory evidence; (2) what is exculpatory evidence; (3) how exculpatory evidence is determined; and (4) the exculpatory evidence claims made.

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, 93 N.M. 442, 601 P.2d 75 (N.M. App.1979). Recently, in State v. Payne, 96 N.M. 347, 630 P.2d 299 (N.M.App.1981), the Court of Appeals suggested that “known” might include “should have known.” This suggestion is not involved in these appeals; it is undisputed that the withheld evidence, allegedly exculpatory, was known to the prosecutor.

In Herrera, supra at 444, 601 P.2d at 77, the Court of Appeals held that “[a] knowing withholding of evidence tending to negate guilt is fundamentally unfair and violates due process.” Section 31-6-ll(B) requires the presentation of evidence that “directly negates” guilt. In light of our definition of exculpatory evidence, and how that evidence is to be determined, it is unnecessary to determine, in these cases, whether there is any material difference in the two requirements. If the withheld evidence did not “tend” to negate guilt, it did not “directly” negate guilt. We use the “tend to” phrase hereinafter, but this use is not to be taken as adoption of that phrase as the standard.

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.-, 408 N.E.2d 1358, 1363 n.6 (1980).

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, 265 Pa.Super. 429, 402 A.2d 513, 518 (1979).

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, 93 N.M. 670, 604 P.2d 363 (1979). The allegedly exculpatory evidence is to be evaluated without reference to any other evidence. See Payne, supra. Whether withheld evidence is exculpatory is not to be determined on the basis of the prosecutor’s subjective belief, Herrera, supra, or on the basis of the prosecutor’s belief that the withheld evidence is false. State v. Sanchez, 95 N.M. 27, 618 P.2d 371 (N.M.App. 1980).

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, 94 N.M. 11, 606 P.2d 1105 (N.M.App.1979). The withheld evidence in Herrera, that defendant was not present at the time of the child abuse or at the time of prior acts of child abuse, indicated that defendant was not guilty of aiding or abetting the child abuse and, thus, it was exculpatory. The withheld evidence in State v. Gonzales, 95 N.M. 636, 624 P.2d 1033 (N.M.App.1981), that the victim’s vehicle forced defendant’s pickup off the street, did not indicate whether the defendant did or did not shoot the victim in self-defense and, thus, was not exculpatory.

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, 95 N.M. 329, 622 P.2d 234 (1980).

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, 94 N.M. 218, 608 P.2d 530 (Ct.App.1980), concerning the opportunity to testify. If the defendant did not in fact testify, an evidentiary determination would be required as to whether a defendant had been given the opportunity to testify; this determination would have to be made in order to decide whether the prosecutor had the duty to present a defendant’s exculpatory statement. A prosecutor cannot interject this procedural complication to avoid his noncompliance with the legislative requirement of § 31-6-ll(B). Prosecutors must abide by the letter and spirit of the law. Maldonado, supra.

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, 94 N.M. 98, 607 P.2d 636 (Ct.App.1979).

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, 29 N.M. 34, 221 P. 183 (1923). Section 31-6-ll(A) has been given no effect when called upon to protect a defendant’s rights before the grand jury. The majority, in its opinion, utilizes this same provision to justify the prosecutor’s failure to present clearly exculpatory evidence to the grand jury which is allegedly inadmissible. Basic fairness requires that provisions of our grand jury statutes be applied evenhandedly. See § 31-6-7, N.M. S.A.1978 (Cum.Supp.1980).

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, 93 N.M. at 444, 601 P.2d at 77. See the dissent of Justice Botts in Chance, supra. An example of the grand jury becoming a tool of the prosecutor appears in Sanchez, supra. An opinion of this Court which allows prosecutors to shield from the grand jury evidence which, if believed, leads to the conclusion that defendant is not guilty of the crimes charged is contrary to clear legislative intent.

(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, 95 N.M. 279, 620 P.2d 1304 (N.M.App.1980), is not to the contrary. The withheld statement in Lampman, attributed to the police officer investigating the accident, was that the victim’s car came over into defendant’s lane and hit defendant. Although the attributed statement was inconsistent with the police officer’s testimony, reversal occurred because it was exculpatory and had been knowingly withheld.

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, 96 N.M. 287, 629 P.2d 1216 (1981); and Bd. of Cty. Com’rs, Etc. v. City of Las Vegas, 95 N.M. 387, 622 P.2d 695 (1980). Nothing in the language of the statute supports the conclusion that the Legislature intended that the prosecutor present only direct evidence which directly negates guilt. Circumstantial evidence, if believed, may lead to inferences which also directly negate guilt. See Herrera, supra, for an example of circumstantial evidence which directly negated guilt, and Gonzales, supra, and Payne, supra, for examples of cases where circumstantial evidence did not negate guilt.

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.