{
  "id": 1568823,
  "name": "STATE of New Mexico, Plaintiff-Appellant, v. Joann Bertha HERRERA, Defendant-Appellee",
  "name_abbreviation": "State v. Herrera",
  "decision_date": "1979-08-21",
  "docket_number": "No. 3962",
  "first_page": "442",
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  "last_updated": "2023-07-14T15:53:36.909287+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "HENDLEY and HERNANDEZ, JJ., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellant, v. Joann Bertha HERRERA, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Chief Judge.\nThe trial court dismissed the indictment on the basis that the prosecutor who presented the matter to the grand jury had withheld exculpatory evidence. The State appeals; we affirm the dismissal.\nDefendant, the mother of the deceased child, was charged with permitting child abuse which resulted in the death of the child. Baker, the mother\u2019s live-in boyfriend, was charged with committing the child abuse which resulted in the death. This appeal involves only the charge against defendant.\nDefendant moved to dismiss the indictment; the motion alleged that the prosecutor withheld exculpatory evidence from the grand jury. This motion was granted, without prejudice to the matter being again presented to the grand jury.\nIt is not disputed that evidence was knowingly withheld. That evidence, in the possession of the prosecutor at the time the matter was presented to the grand jury, consisted of (a) statements that defendant was not present when the fatal injuries occurred; (b) evidence, from the treating physician, that prior broken bones were not the result of child abuse; and (c) statements that defendant was not present when two prior acts of abuse were committed by Baker.\nWas this evidence exculpatory? Items (a) and (c) were clearly exculpatory; accordingly, we do not consider item (b). When the trial court asked the prosecutor the meaning of exculpatory eyidence, the reply was: \u201cThat it would indicate that she is not guilty of the crime.\u201d We agree with this reply. The California Court of Appeal, in Johnson v. Superior Ct. of Cal., Cty. of Joaquin, Dept. 6, 38 Cal.App.3d 977, 113 Cal.Rptr. 740 (1974), refers to evidence \u201cwhich tends to negate guilt.\u201d The California Supreme Court, in the same case, 15 Cal.3d 248, 124 Cal.Rptr. 32, 34, 539 P.2d 792, 794 (1975) refers to \u201cevidence reasonably tending to negate guilt * *\nIn State v. McGill, 89 N.M. 631, 556 P.2d 39 (Ct.App.1976) we assumed that a defendant could be denied due process by a prosecutor withholding exculpatory evidence from a grand jury. We now expressly so hold when exculpatory evidence is knowingly withheld. The basis for the assumption in McGill, supra, was that the grand jury has a duty to protect a citizen against unfounded accusations and only specified persons are authorized to present matters to the grand jury. 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, supra.\nThe State contends that the evidence it withheld was not exculpatory because it conflicted with evidence that was inculpatory. The fact that the evidence in the State\u2019s possession is conflicting does not change the fact that a portion of that evidence tended to negate guilt and was therefore exculpatory. The State\u2019s argument is based on a misreading of State v. McGill, supra. In that case the conflicting evidence was presented to the grand jury, and not withheld as was the exculpatory evidence in this case.\nOur holding, that due process requires the presentation of evidence to the grand jury which tends to negate guilt, is consistent with the ABA Standards Relating to the Administration of Criminal Justice. Standard 3.6(b) of \u201cThe Prosecution Function\u201d states: \u201cThe prosecutor should disclose to the grand jury any evidence which he knows will tend to negate guilt.\u201d Why? The Commentary states: \u201cThe obligation to present evidence which tends to negate the guilt of the accused flows from the basic duty of the prosecutor to seek a just result.\u201d Compare State v. Reese, 91 N.M. 76, 570 P.2d 614 (Ct.App.1977). In so holding, we have not considered the amendment to \u00a7 31-6-ll(B), N.M.S.A.1978 enacted by Laws 1979, ch. 337, \u00a7 8, because the amendment is not applicable to defendant\u2019s case.\nThe State contends the trial court erred in reviewing evidence presented to the grand jury to determine if it was exculpatory. Defendant presented evidence at the hearing which had not been presented to the grand jury. During the hearing, a tape of the grand jury proceedings was admitted into evidence, in support of the claim that exculpatory evidence had been withheld. The trial court commented that in light of the grand jury evidence, which was marginally inculpatory, the withheld exculpatory evidence highlighted the due process violation. The trial court did not err in considering the tape of the grand jury proceedings on the question of whether exculpatory evidence had been withheld.\nThe State also contends that if the prosecutor reasonably believes the evidence is not exculpatory he has no obligation to present such evidence to the grand jury. Our first answer to this contention is that if the prosecutor believed that items (a) and (c) were not exculpatory, that belief was not reasonable. Our second answer is that the due process requirement of presenting evidence tending to negate guilt is not to be determined on the basis of the prosecutor\u2019s subjective belief; rather, the claim is to be determined by objectively analyzing the withheld evidence to determine whether, in fact, it tended to negate guilt.\nThe order dismissing the indictment is affirmed.\nIT IS SO ORDERED.\nHENDLEY and HERNANDEZ, JJ., concur.",
        "type": "majority",
        "author": "WOOD, Chief Judge."
      }
    ],
    "attorneys": [
      "Jeff Bingaman, Atty. Gen., Eric Scott Jeffries, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant.",
      "Roderick A. Dorr, Terrazas & Dorr, Santa Fe, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "601 P.2d 75\nSTATE of New Mexico, Plaintiff-Appellant, v. Joann Bertha HERRERA, Defendant-Appellee.\nNo. 3962.\nCourt of Appeals of New Mexico.\nAug. 21, 1979.\nJeff Bingaman, Atty. Gen., Eric Scott Jeffries, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant.\nRoderick A. Dorr, Terrazas & Dorr, Santa Fe, for defendant-appellee."
  },
  "file_name": "0442-01",
  "first_page_order": 488,
  "last_page_order": 491
}