{ "id": 12166818, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. CHAD DEIGNAN, Defendant-Appellant", "name_abbreviation": "State v. Deignan", "decision_date": "2016-05-11", "docket_number": "Docket No. 34,110", "first_page": "198", "last_page": "202", "citations": [ { "type": "official", "cite": "2016-NMCA-065" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2000-NMSC-007", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106498 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/128/0686-01" ] }, { "cite": "1999-NMCA-142", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 106585 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0546-01" ] }, { "cite": "2009-NMSC-002", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243280 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 2" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0473-01" ] }, { "cite": "96 N.M. 692", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577305, 1577403 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/96/0692-01", "/nm/96/0692-02" ] }, { "cite": "1981-NMSC-097", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 46" } ], "opinion_index": 0 }, { "cite": "95 N.M. 27", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575578 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/95/0027-01" ] }, { "cite": "1980-NMCA-137", "category": "reporters:neutral", "reporter": "NMCA", "weight": 2, "pin_cites": [ { "page": "\u00b6 9" }, { "page": "\u00b6\u00b6 8-9" } ], "opinion_index": 0 }, { "cite": "362 P.3d 155", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2015-NMCA-115", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 12166412 ], "pin_cites": [ { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm-app/9/0061-01" ] }, { "cite": "2006-NMCA-105", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3670618 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 7, 8" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0281-01" ] }, { "cite": "328 P.3d 1176", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2014-NMSC-018", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4239536 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 30" }, { "page": "\u00b6 12" }, { "page": "\u00b630" }, { "page": "\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm-app/6/0266-01" ] } ], "analysis": { "cardinality": 702, "char_count": 15325, "ocr_confidence": 0.785, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.24680705322974428 }, "sha256": "fc9e24bab86771c34491b3e17e06f52666dfe2977ddcebb7281067acb8be631a", "simhash": "1:9f05603451cae598", "word_count": 2397 }, "last_updated": "2023-07-14T21:58:07.326433+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Briana H. Zamora, District Judge", "J. MILES HANISEE, Judge", "JAMES J. WECHSLER, Judge", "TIMOTHY L. GARCIA, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. CHAD DEIGNAN, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nHANISEE, Judge.\n{1} A grand jury heard testimony from a Bernalillo County Sheriffs Office detective that Defendant had touched seven-year-old A.G.\u2019s genital area over her clothing, grabbed A.G. by the hips to prevent her from leaving, and asked A.G. to touch his penis. The prosecutor submitted to the grand jury a proposed indictment charging Defendant with (1) second-degree criminal sexual contact of a minor (CSCM) in violation ofNMSA 1978, Section 30-9-13(A) (2004); (2) third-degree CSCM in violation ofSection 30-9-13(C); (3) attempted second-degree CSCM (child under thirteen) in violation ofNMSA 1978, Section 30-28-1 (1963) and Section 30-9-13(A); (4) kidnapping in violation of NMSA 1978, Section 30-4-1 (2004); (5) intentional child abuse or in the alternative negligent child abuse, in violation ofNMSA 1978, Section 30-6-l(D) (2009); (6) tampering with evidence, in violation ofNMSA 1978, Section 30-22-5 (2003); and (7) bribery of a witness, in violation of NMSA 1978, Section 30-24-3(A)(3) (1997).\n{2} Before the grand jury began to deliberate on the indictment, the prosecuting attorney asked the detective witness a series of leading questions that summarized relevant aspects of the detective\u2019s testimony and tied this testimony to the charges in the indictment. For example, the prosecuting attorney asked the detective, \u201cSo the [cjharges for the [sjexual [cjontact, for touching [A.G.] over the clothes and also touching her inner thigh on the skin, is the [criminal [sjexual [cjontact that they talked about? That she talked about?\u201d To which the detective responded, \u201cThat [A.G.] talked about[,] yes.\u201d Similarly, with respect to the attempted second-degree CSCM charge, the prosecutor asked the detective if \u201cthe attempted Criminal Sexual Contact, would be that [Defendant] asked [A.G.] to touch his penis?\u201d The detective answered, \u201cCorrect.\u201d\n{3} The prosecutor asked additional leading questions that followed the same template \u2014 tying an alleged fact from the detective\u2019s testimony to an element of an offense charged in a proposed indictment \u2014 for the remaining charges. At the conclusion of these leading questions, a juror asked the detective to describe the physical layout of the alleged crime scene, apparently wondering why there had been no other eyewitnesses to the encounter. After the detective\u2019s testimony, the grand jury returned true bills on all counts of the proposed indictment.\n{4} Defendant filed a motion to dismiss, arguing that the prosecuting attorney\u2019s leading questions led the grand jury to indict him based on insufficient evidence and that the prosecutor had failed to properly instruct the grand jury with the elements of the crimes charged in the indictment. Citing NMSA 1978, Section 31-6-11(A) (2003), which provides that \u201c[t]he sufficiency 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[,]\u201d the district court rejected this argument and denied the motion. The district court wrote that it \u201cwould have preferred that the prosecutor not use leading questions to elicit testimony from its sole witness . .. [but] Defendant failed to meet [his] burden in showing the prosecutor acted in bad faith.\u201d\n{5} Defendant filed a motion to reconsider, arguing that the district court\u2019s decision was erroneous in light of our Supreme Court\u2019s recent decision in Herrera v. Sanchez, which held that a prosecutor may not \u201cpresent[] the equivalent of a closing argument regarding how the grand jurors should interpret the instructions as they relate to [the target of its investigation].\u201d 2014-NMSC-018, \u00b6 30, 328 P.3d 1176. The district court denied Defendant\u2019s motion to reconsider, reasoning that the prosecutor\u2019s leading questions \u201csummarized what was already testified to by [the d]etective[.]\u201d The district court certified its ruling for interlocutory review under NMSA 1978, Section 39-3-3(A)(3) (1972). We granted Defendant\u2019s request for leave to file an interlocutory appeal and now affirm in part, reverse in part, and remand for further proceedings.\n{6} As noted by the district court in its denial of Defendant\u2019s motion to dismiss, Section 31-6-11(A) prohibits district court review of the sufficiency of the evidence in support of an indictment \u201cabsent a showing of bad faith on the part of the prosecuting attorney assisting the grand jury.\u201d Defendant contends that the district court erred in finding that the prosecutor\u2019s leading questions did not amount to bad faith because no reasonable prosecutor would have asked leading questions that suggested the existence of probable cause when the evidence did not support such a finding. But a fair reading of Section 31-6-11 (A) is that not every indictment based on insufficient evidence is the result of prosecutorial bad faith; the purpose of the statute is to restrict sufficiency of the evidence review (and the delay that such a review entails) to circumstances where an indictment results from intentional misconduct on the part of the prosecutor, not simply negligence or even recklessness. See State v. Romero, 2006-NMCA-105, \u00b6\u00b6 7, 8, 140 N.M. 281, 142 P.3d 362 (discussing the \u201cbad faith\u201d element in Section 31-6-ll(A) as a \u201cstatutory condition precedent to judicial review\u201d of the sufficiency of the evidence supporting an indictment). We think the best way to give effect to this purpose is by giving the phrase \u201cbad faith\u201d its ordinary meaning: \u201c[djishonesty of belief, purpose, or motivef.j\u201d Black\u2019s Law Dictionary 166 (10th ed. 2014). Reading the phrase \u201cbad faith\u201d in Section 31-6-11(A) to imply an objective assessment of a prosecutor\u2019s conduct would render the statute\u2019s distinction between indictments based on insufficient evidence and prosecutorial bad faith superfluous because no reasonable prosecutor would seek an indictment based on insufficient evidence. See State ex rel. Children, Youth & Families Dep\u2019t v. Christina L., 2015-NMCA-115, \u00b6 15, 362 P.3d 155 (\u201c[W]e consider the language of the statute as a whole and construe it so that no wprd and no part of the statute is rendered surplusage or superfluous.\u201d (internal quotation marks and citation omitted)).\n{7} Defendant argues that even if the indictment is not subject to judicial review for sufficiency under Section 31-6-11(A), his motion to dismiss is also cognizable as a \u201cstructural challenge[] involving the manner in which the grand jury process has been conducted[,]\u201d over which our Supreme Court has permitted judicial review without a showing of prosecutorial bad faith. Herrera, 2014-NMSC-018, \u00b6 12. Defendant argues that this case is analogous to State v. Sanchez, 1980-NMCA-137, \u00b6 9, 95 N.M. 27, 618 P.2d 371, overruled on other grounds by Buzbee v. Donnelly, 1981-NMSC-097, \u00b6 46, 96 N.M. 692, 634 P.2d 1244, where this Court disapproved of the prosecuting attorney\u2019s presentation of witness testimony at the grand jury proceeding through leading questions.\n{8} To the extent that the leading question issue addressed in Sanchez was not dicta, the factual circumstances in the present case are distinguishable. 1980-NMCA-137, \u00b6\u00b6 8-9. In Sanchez, all witnesses who testified before the grand jury had their testimony presented through leading questions \u2014 the grand jury\u2019s determination of probable cause was based entirely on the witnesses\u2019 \u201cyes\u201d or \u201cno\u201d answers to those questions. Id. \u00b6 9. Here, the district court found that the detective \u201ctestified in response to open ended questions about what happened on the date in question. [The djetective provided a lengthy narrative of the alleged incident. The majority of the leading questions summarized what was already testified to by [the djetective.\u201d This finding is supported by substantial evidence, and we do not think the use of leading questions in this manner, especially in light of Section 31-6-ll(A)\u2019s express provision exempting grand jury proceedings from the rules of evidence, is the kind of structural error that \u201cstrikes at the' very heart of the grand jury\u2019s assessment of probable cause to indict.\u201d Jones v. Murdoch, 2009-NMSC-002, \u00b6 2, 145 N.M. 473, 200 P.3d 523.\n{9} Defendant\u2019s third argument is that the prosecutor\u2019s leading questions \u201ccompromisfed] the grand jury\u2019s independent . . . determination of probable cause[,]\u201d and therefore amounted to \u201cstructural error\u201d that requires dismissal of the indictment without a showing of prejudice under Herrera. See Herrera, 2014-NMSC-018, \u00b630. In Herrera, the prosecuting attorney ordered the target not to answer a \u201cdirect, relevant question from a grand juror,\u201d id. \u00b6 24, and also told the grand jury that the target\u2019s testimony should not be considered because it was an impermissible attempt to make the grand jury consider the consequences of its decision to indict, which is prohibited under the grand jury instructions. Id. \u00b6 30. Our Supreme Court held that the prosecutor\u2019s conduct violated the prosecutor\u2019s duty of fairness and impartiality under NMSA 1978, Section 31-6-7(D) (2003) and \u201cinterfered with the grand jury\u2019s statutory duty to make an independent inquiry into the evidence supporting a determination of probable cause.\u201d Herrera, \u00b6\u00b6 24, 28, 30.\n{10} Here, the prosecuting attorney did not compromise the grand jury\u2019s independent evaluation of the testimony and application of the instructions it had been given. Instead, the prosecuting attorney simply restated certain aspects of the detective\u2019s testimony and suggested that this testimony established elements of the offenses charged in the indictment. We think this conduct falls within the scope of the prosecuting attorney\u2019s duty to \u201cattend the grand jury, examine witnesses and prepare indictments, reports and other undertakings of the grand jury.\u201d Section 31-6-7(A). To hold otherwise would give rise to absurd results. Under Defendant\u2019s view of Herrera, simply drafting an indictment and handing it to the foreman would compromise the grand jury\u2019s independence because such could be argued to suggest that the grand jury should charge the crimes listed in the indictment. We decline to read Herrera so expansively.\n{11} Instead, we understand Herrera to require an assessment of the prosecutor\u2019s actions, viewed under the totality of the circumstances, in order to determine whether they prevented the jury from \u201cmak[ing] an independent inquiry into the evidence supporting a determination of probable cause.\u201d 2014-NMSC-018, \u00b6 24. In this case, the district court was correct in its assessment that the prosecuting attorney\u2019s leading questions did not work such a compromise on the grand jury\u2019s independent judgment because the questions simply summarized the detective\u2019s lengthy narrative testimony. It is telling that after the prosecutor\u2019s leading questions, a member of the grand jury probed the detective\u2019s testimony, asking that he explain the layout of the crime scene to better understand why there were no other witnesses to the alleged crime. Viewed in context, we do not think the prosecutor\u2019s leading questions compromised the grandjury\u2019s ability to make an independent assessment of probable cause.\n{12} Defendant finally argues that the prosecutor failed to properly instruct the grand jury with the counts charging defendant with CSCM in the third degree, attempted CSCM in the second degree, and bribery of a witness. See State v. Ulibarri, 1999-NMCA-142, \u00b6 9, 128 N.M. 546, 994 P.2d 1164, aff\u2019d, 2000-NMSC-007, 128 N.M. 686, 997 P.2d 818. In Ulibarri, we held that the prosecuting attorney must \u201cspecifically direct[] the grand jurors, on the record, to the portions of the grand jury manual where the appropriate elements of the offense or offenses under consideration may be found.\u201d Id. \u00b6 20. We explained that this procedure was necessary in order to enable the grand jury to find \u201cwhere it can read the elements of each crime charged and how to get additional help if needed\u201d and allow defendants \u201cto verify that the jury was at least referred to the correct set of elements before it was asked to deliberate.\u201d Id.\n{13} The State argues that the prosecutor complied with his obligation under Ulibarri by referring the grand jury to the pages of the grand jury manual containing instructions for the crimes charged in the indictment. If this was all the prosecutor had done, Defendant would have no argument to make. Id. But the prosecutor went beyond his obligation under Ulibarri and incorrectly read the elements of three crimes set out in the indictment prepared for the grand jury. For the third-degree CSCM count, the prosecutor referred the grand jury to the page in the manual describing the elements of that charge, but incorrectly told the grand jury that it had the same elements as the second-degree CSCM charge. See UJI 14-925 NMRA (uniform jury instruction setting out the elements of second- and third-degree CSCM). As to the attempted second- degree CSCM count, the prosecutor did not tell the grand jury what underlying felony Defendant was being charged with attempting. See UJI 14-2801 NMRA Use Note (requiring a separate instruction for each predicate felony charged in the attempt count). Finally, regarding the bribery of a witness count, the prosecuting attorney failed to instruct the grand jury as to the felony that the witness knew about when Defendant intimidated her. See UJI 14-2403 NMRA (requiring a reference to the felony that the witness had knowledge concerning in a bribery of a witness instruction). We agree with Defendant that the prosecutor\u2019s erroneous instructions to the grand jury on these counts constitute structural error and require their dismissal without prejudice.\n{14} The district court\u2019s denial of Defendant\u2019s motion to dismiss the counts in the indictment charging Defendant with second-degree CSCM, kidnapping, and intentional or in the alternative negligent child abuse is affirmed. We reverse its denial of the motion to dismiss the counts charging Defendant with attempted second-degree CSCM, third-degree CSCM, and bribery of a witness. The case is remanded to the district court with instructions to dismiss those three counts without prejudice.\n{15} IT IS SO ORDERED.\nJ. MILES HANISEE, Judge\nWE CONCUR:\nJAMES J. WECHSLER, Judge\nTIMOTHY L. GARCIA, Judge\nThis testimony was based on accounts given to police by A.G. and her friend who witnessed the alleged assault.\nThe district court dismissed the tampering with evidence count without prejudice, agreeing with Defendant that the prosecutor had failed to properly instruct the grand jury with the elements of that crime. The State does not appeal that ruling.\nDefendant concedes that the prosecutor correctly read the elements of the counts of the indictment charging Defendant with second-degree CSCM, kidnapping, and intentional or in the alternative negligent child abuse.", "type": "majority", "author": "HANISEE, Judge." } ], "attorneys": [ "Hector H. Balderas, Attorney General Santa Fe, NM M. Victoria Wilson, Assistant Attorney General Albuquerque, NM for Appellee", "Bennett J. Baur, Acting Chief Pub lie Defender Matthew J. O\u2019Gorman, Assistant Appellate Defender Santa Fe, NM for Appellant" ], "corrections": "", "head_matter": "IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2016-NMCA-065\nFiling Date: May 11, 2016\nDocket No. 34,110\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. CHAD DEIGNAN, Defendant-Appellant.\nBriana H. Zamora, District Judge\nHector H. Balderas, Attorney General Santa Fe, NM M. Victoria Wilson, Assistant Attorney General Albuquerque, NM for Appellee\nBennett J. Baur, Acting Chief Pub lie Defender Matthew J. O\u2019Gorman, Assistant Appellate Defender Santa Fe, NM for Appellant" }, "file_name": "0198-01", "first_page_order": 214, "last_page_order": 218 }