{ "id": 1584618, "name": "STATE of New Mexico, Petitioner, v. Gene CRUZ, Respondent", "name_abbreviation": "State v. Cruz", "decision_date": "1983-05-13", "docket_number": "No. 14741", "first_page": "690", "last_page": "694", "citations": [ { "type": "official", "cite": "99 N.M. 690" }, { "type": "parallel", "cite": "662 P.2d 1357" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "92 N.M. 776", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557041 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/92/0776-01" ] }, { "cite": "88 N.M. 216", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2838221 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0216-01" ] }, { "cite": "96 N.M. 692", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577305, 1577403 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "701" }, { "page": "1253" } ], "opinion_index": 0, "case_paths": [ "/nm/96/0692-01", "/nm/96/0692-02" ] }, { "cite": "95 N.M. 279", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575508 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/95/0279-01" ] }, { "cite": "94 N.M. 218", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573238 ], "weight": 5, "pin_cites": [ { "page": "221" }, { "page": "533" }, { "page": "221" }, { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/nm/94/0218-01" ] }, { "cite": "671 F.2d 75", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 670968 ], "pin_cites": [ { "page": "77-78" } ], "opinion_index": 1, "case_paths": [ "/f2d/671/0075-01" ] }, { "cite": "61 L.Ed.2d 310", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1979, "opinion_index": 1 }, { "cite": "99 S.Ct. 2882", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1979, "opinion_index": 1 }, { "cite": "442 U.S. 941", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1532192, 1532128, 1532032, 1531939, 1532167, 1531817, 1531951, 1531919, 1531924, 1532061, 1531965, 1531966 ], "year": 1979, "opinion_index": 1, "case_paths": [ "/us/442/0941-03", "/us/442/0941-06", "/us/442/0941-05", "/us/442/0941-01", "/us/442/0941-09", "/us/442/0941-10", "/us/442/0941-12", "/us/442/0941-02", "/us/442/0941-08", "/us/442/0941-07", "/us/442/0941-04", "/us/442/0941-11" ] }, { "cite": "594 F.2d 345", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 512679 ], "opinion_index": 1, "case_paths": [ "/f2d/594/0345-01" ] }, { "cite": "443 U.S. 545", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6184063 ], "weight": 5, "year": 1979, "pin_cites": [ { "page": "551" }, { "page": "2998" } ], "opinion_index": 1, "case_paths": [ "/us/443/0545-01" ] }, { "cite": "94 L.Ed. 839", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1950, "opinion_index": 1 }, { "cite": "339 U.S. 282", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 362513 ], "weight": 2, "year": 1950, "pin_cites": [ { "page": "302" }, { "page": "639" } ], "opinion_index": 1, "case_paths": [ "/us/339/0282-01" ] }, { "cite": "60 Or.App. 723", "category": "reporters:state", "reporter": "Or. App.", "case_ids": [ 2335517 ], "weight": 2, "year": 1982, "opinion_index": 1, "case_paths": [ "/or-app/60/0723-01" ] }, { "cite": "237 Or. 479", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 4840676 ], "weight": 2, "year": 1964, "opinion_index": 1, "case_paths": [ "/or/237/0479-01" ] }, { "cite": "90 N.M. 498", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2875037 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "500" }, { "page": "1017" } ], "opinion_index": 2, "case_paths": [ "/nm/90/0498-01" ] }, { "cite": "632 P.2d 1181", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1981, "opinion_index": 2 }, { "cite": "96 N.M. 543", "category": "reporters:state", "reporter": "N.M.", "year": 1981, "opinion_index": 2 }, { "cite": "96 N.M. 513", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577341 ], "weight": 2, "opinion_index": 2, "case_paths": [ "/nm/96/0513-01" ] }, { "cite": "88 N.M. 216", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2838221 ], "weight": 2, "opinion_index": 2, "case_paths": [ "/nm/88/0216-01" ] }, { "cite": "94 N.M. 218", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573238 ], "weight": 4, "opinion_index": 2, "case_paths": [ "/nm/94/0218-01" ] } ], "analysis": { "cardinality": 740, "char_count": 14735, "ocr_confidence": 0.81, "pagerank": { "raw": 2.3187549243726404e-07, "percentile": 0.7897475876006671 }, "sha256": "3f7e88cc51ba1c1937afc47e43fc68f1c6352afff41b3314cb18df5827abfd2e", "simhash": "1:bcc428d8f5833479", "word_count": 2416 }, "last_updated": "2023-07-14T20:36:40.875408+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "PAYNE, C.J., and FEDERICI, J., concur.", "RIORDAN, Justice, specially concurs.", "SOSA, Senior Justice, respectfully dissents." ], "parties": [ "STATE of New Mexico, Petitioner, v. Gene CRUZ, Respondent." ], "opinions": [ { "text": "OPINION\nSTOWERS, Justice.\nThis case arises from a grand jury indictment that preceded Gene Cruz\u2019s (Respondent) subsequent conviction of two counts of battery on a peace officer. Respondent argued that a defect in the grand jury proceedings required reversal of his conviction and sentence. The Court of Appeals agreed, reversed the trial court\u2019s denial of Respondent\u2019s motion to dismiss, reversed Respondent\u2019s convictions, and dismissed the indictment without prejudice. This Court granted certiorari, and we reverse the decision of the Court of Appeals.\nWe discuss one issue: whether the target of a grand jury investigation can frustrate the orderly presentation of the State\u2019s case by refusing to testify when a reasonable request has been made and a reasonable opportunity afforded to do so, and. then claim he was deprived of the opportunity to testify before the grand jury.\nThe relevant facts of this case are as follows. Respondent was arrested on charges of aggravated battery upon two police officers contrary to Section 30-22-25, N.M.S.A.1978. On October 26, 1981, Respondent received a letter notifying him that he was the target of a grand jury investigation and that he had a right to appear and testify before the grand jury. See \u00a7 31-6-ll(B), N.M.S.A.1978 (Cum. Supp.1982). On October 30, 1981, Respondent appeared at the courthouse in which the grand jury was convened. Respondent was not accompanied by an attorney when he appeared at the courthouse, and his testimony was inconsistent as to whether he was represented by counsel at the time of the grand jury presentment. According to the trial judge\u2019s oral findings of fact, however, Respondent \u201cdid in fact get advice from his attorney as to whether or not to appear before the grand jury * * The prosecutor presenting the case to the grand jury asked Respondent several times whether he wished to testify. Respondent repeatedly replied that he was unsure. He stated that he wanted to testify after another witness, Leland Cruz. The prosecutor replied that it was his prerogative to determine the order of witnesses, and that if Respondent did not take immediate advantage of his opportunity to testify, he would not be allowed to testify at all. Respondent persisted in stating that he wanted to testify after Leland Cruz. Becoming impatient, the prosecutor said that Respondent had ten seconds in which to decide whether to testify or Respondent would be foreclosed from testifying. The prosecutor then \u201ccounted down\u201d ten seconds on his watch and turned his attention to the next witness. Some time later, Respondent informed the prosecutor that he wished to testify, but the prosecutor replied that he had lost his opportunity to do so. Respondent was not allowed to testify-\nRespondent filed a motion to dismiss his subsequent indictment on the grounds that he had been deprived of \u201ca meaningful opportunity to testify\u201d before the grand jury in violation of Section 31-6-ll(B) and that \u201c[bjecause Respondent was not afforded said opportunity, he was denied the opportunity * * * to inform the prosecuting attorney of evidence directly negating the guilt of Respondent in violation of N.M.S.A. \u00a7\u00a7 31-6-4(C) and 31-6-ll(B) * * The trial court denied the motion to dismiss, finding that (1) Respondent was afforded ample opportunity to make up his mind about testifying; (2) the prosecutor \u201chas to have the ability to be able to keep order in the grand jury room;\u201d and (3) \u201cto a large extent, this effort on the part of Gene Cruz was an effort to gull the District Attorney, and to gull the grand jury, and to try to create an error which did not exist * *\nFollowing a trial on the merits, Respondent was convicted on two counts of aggravated battery on a police officer and found not guilty upon a third count. The Court of Appeals reversed the trial court\u2019s denial of the motion to dismiss, reversed Respondent\u2019s convictions, and dismissed the indictment without prejudice.\nThis case turns on interpretation of Section 31-6-ll(B). That section provides that \u201c[t]he target [of a grand jury invest\u00edgation] shall be notified of his target status and be given an opportunity to testify, if he desires to do so * * Id. (emphasis added). In addition to being given the opportunity to testify, a target must also be notified \u201cin sufficient time to exercise his right to testify.\u201d Rogers v. State, 94 N.M. 218, 221, 608 P.2d 530, 533 (Ct.App.1980). In Rogers, the Court of Appeals held that the thirty-six hours provided by statute for witnesses subpoenaed to testify before grand jurors was sufficient time. Rogers v. State, supra at 221, 608 P.2d at 533; see \u00a7 31-6-12(A), N.M.S.A.1978 (Cum.Supp. 1982). The Respondent in the present case had four days notice, which was certainly sufficient time to exercise his right to testify. Rogers v. State, supra.\nThe next question is whether the prosecutor\u2019s conduct obstructed Respondent\u2019s opportunity to testify. Although the Court of Appeals held that the State had not met its burden of establishing that Respondent in fact had an opportunity to testify, the record discloses that Respondent was asked several times whether he wished to testify, but he refused to make a decision. While it is true that the prosecutor may not \u201cjuggle witnesses in order to keep out relevant testimony,\u201d State v. Lampman, 95 N.M. 279, 620 P.2d 1304 (Ct.App.1980), overruled on other grounds, Buzbee v. Donnelly, 96 N.M. 692, 701, 634 P.2d 1244, 1253 (1981), this does not suggest that the prosecutor may not exercise any control at all over the order of witnesses. In dealing with the grand jury, the prosecutor\u2019s duty is to protect both the public\u2019s interest and the rights of the accused. State v. Hill, 88 N.M. 216, 539 P.2d 236 (Ct.App.1975). As Section 31-6-7, N.M.S.A.1978 (Cum.Supp. 1982) provides, \u201cThe prosecuting attorney shall conduct himself in a fair and impartial manner at all times when assisting the grand jury.\u201d When no impermissible motive appears, we do not find the scheduling of witnesses to be inconsistent with this statutory duty. The record in this case discloses no ill motive on the part of the prosecutor. Moreover, there was nothing unreasonable in the prosecutor\u2019s assertion of the right to maintain order in the grand jury proceedings. See State v. Saiz, 92 N.M. 776, 595 P.2d 414 (Ct.App.1979). Therefore, because Respondent was both notified of his target status and given an opportunity to testify, we find that the statutory requirements were met.\nThe judgment of the Court of Appeals is reversed, and Respondent\u2019s convictions are affirmed.\nIT IS SO ORDERED.\nPAYNE, C.J., and FEDERICI, J., concur.\nRIORDAN, Justice, specially concurs.\nSOSA, Senior Justice, respectfully dissents.", "type": "majority", "author": "STOWERS, Justice." }, { "text": "RIORDAN, Justice,\nconcurring.\nAlthough I concur in the result reached by the majority, I do so on a different ground.\nI would hold that Respondent has waived any claimed error which occurred in the grand jury proceeding.\nIn determining Respondent\u2019s recourse, we should first look at New Mexico\u2019s Criminal Procedure Rule 7, N.M.S.A.1978 (Repl. Pamp.1980). Rule 7(a) states in part:\n[An] indictment * * * shall not be deemed invalid, nor shall the trial, judgment or other proceedings thereon be * * in any manner affected, because of any defect, error * * * or repugnancy therein which does not prejudice the substantial rights of the defendant upon the merits * * *. [Emphasis added.]\nTherefore, we should determine whether Respondent\u2019s substantial rights upon the merits are affected if he is not allowed to testify in front of the grand jury. \u201cSubstantial rights\u201d are not enumerated by the rule. However, I would adopt the definition of \u201cfundamental rights\u201d as the standard under this rule. \u201cFundamental rights\u201d are those rights equivalent to life, liberty or property. M. Forkosch, Constitutional Law \u00a7 390, at 407 (2d ed. 1969).\nI do not believe that the statutory right of a target witness under the New Mexico statutory grand jury law rises to substan tial right upon the merits. Therefore, relief from this statutory right, should have been raised by Respondent at pre-trial by an interlocutory appeal or extraordinary writ in order for it to be properly reviewed.\nHere we have a unanimous finding by a jury of twelve citizens of guilt beyond a reasonable doubt, N.M.R.Crim.P. 44, N.M.S. A.1978 (Repl.Pamp.1980), whereas the grand jury determination that Respondent wants re-litigated, only requires a finding of probable cause by eight of twelve jurors. \u00a7 31-6-10, N.M.S.A.1978 (Cum.Supp.1982).\nOnce an accused is found guilty, there is no need to question an indictment. State v. Guse, 237 Or. 479, 392 P.2d 257 (1964); State v. Gortmaker, 60 Or.App. 723, 655 P.2d 575 (1982). I would follow the view that the State of Oregon has adopted in the above cases, by following the reasoning of Justice Jackson\u2019s dissenting opinion in Cassell v. Texas, 339 U.S. 282, 302, 70 S.Ct. 629, 639, 94 L.Ed. 839 (1950).\nThe grand jury is a very different institution. The States are not required to use it at all. (Citations omitted.) 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\u2019s evidence, and does not face the problem of a choice between two adversaries. Its duty is to indict if the prosecution\u2019s evidence, unexplained, uncontradicted and unsupplemented, 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 c\u00e1se and merely deciding that a case should be tried.\nIt hardly lies in the mouth of a defendant whom a fairly chosen trial jury has found guilty beyond a reasonable doubt, to say that his indictment is attributable to prejudice * * *. Under such circumstances, it is frivolous to contend that any grand jury, however constituted, could have done its duty in any way other than to indict.\nThe United States Supreme Court has not yet adopted Justice Jackson\u2019s view as stated in Cassell v. Texas. Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979). However, both Cassell v. Texas and Rose v. Mitchell, dealt with the racially discriminatory fashion in the selection of a grand jury. The Supreme Court held that:\n[Wjhere sufficient proof of discrimination in violation of the Fourteenth Amendment has been made out and not rebutted, this Court uniformly has required that the conviction be set aside and the indictment returned by the unconstitutionally constituted grand jury be quashed. (Citation omitted.) (Footnote omitted.)\nRose v. Mitchell, supra, at 551, 99 S.Ct. at 2998.\nHowever, when a grand jury violation has been asserted because of prosecutorial misconduct after a trial has found the accused guilty, a dismissal of an indictment has been considered an extraordinary remedy. United States v. Broward, 594 F.2d 345 (2d. Cir.), cert. denied, 442 U.S. 941, 99 S.Ct. 2882, 61 L.Ed.2d 310 (1979). United States v. Thibadeau, 671 F.2d 75, 77-78 (2d Cir.1982), states:\nTo dismiss an indictment because of misconduct means that even though a jury unanimously found the defendant guilty beyond a reasonable doubt \u2014 or as here, even though the defendant admitted his guilt \u2014 we should nevertheless void his conviction because the prosecution had made a misstep in obtaining a grand jury determination of probable cause. Justification for such action must be found not in any need for securing justice in the particular case, where the verdict supersedes the indictment, but rather in a desire to maintain proper prosecutorial standards generally. Hence, the sanction is reserved for \u2018very limited and extreme circumstances.\u2019 (Citation omitted.)\nIn conclusion, I would adopt for New Mexico, as did the Oregon Supreme Court, the reasoning of Justice Jackson in Cassell v. Texas, and hold that once there has been a valid conviction, a defendant cannot question a grand jury proceeding.", "type": "concurrence", "author": "RIORDAN, Justice," }, { "text": "SOSA, Senior Justice,\ndissenting.\nI respectfully dissent. I agree with Judge Donnelly\u2019s opinion in the Court of Appeals that the appellant had a right to testify before the grand jury, that the state has not established a waiver of that right, and that the authority to deny a target witness\u2019s request to testify before a grand jury that is in session does not, in this instance, rest with the prosecutor.\nThe requirement of NMSA 1978, Section 31 \u2014 6\u201411(B) (Cum.Supp.1982), that a target witness shall be given an opportunity to testify before the grand jury if he so desires is mandatory except in certain specified circumstances that are concededly not present here. Rogers v. State, 94 N.M. 218, 608 P.2d 530 (Ct.App.1980). This statutory right has been jealously guarded by our courts. In New Mexico a witness who testifies before a grand jury and subsequently becomes the focus of an investigation is entitled to testify again because he would otherwise be deprived of his right to testify in his capacity as a target witness. State v. Gonzales, 96 N.M. 513, 632 P.2d 748 (Ct.App.), cert. denied, 96 N.M. 543, 632 P.2d 1181 (1981).\nThe district attorney is required to exercise reasonable diligence in complying with the statute. Rogers, 94 N.M. 218, 608 P.2d 530. Furthermore, the prosecutor has an obligation to protect the rights of the accused as well as the public interest, State v. Hill, 88 N.M. 216, 539 P.2d 236 (Ct.App.1975), and is required to conduct himself in a fair and impartial manner. NMSA 1978, \u00a7 31-6-7 (Cum.Supp.1982). I do not believe that the prosecutor\u2019s behavior in allowing the witness only ten seconds in which to decide whether to testify or not and in refusing the witness\u2019s request to testify a few moments later, after only one other witness had appeared before the grand jury, was reasonable, fair, or necessary for the protection of the public interest.\n\u201cThe grand jury is not, and should not be, the tool of the prosecuting attorney to manipulate at will.\u201d Davis v. Traub, 90 N.M. 498, 500, 565 P.2d 1015, 1017 (1977). For this Court to accede to such conduct on the part of a prosecutor is to authorize and, indeed, to invite the district attorney to use the grand jury as a tool of the prosecution.\nFor the above reasons, I respectfully dissent.", "type": "dissent", "author": "SOSA, Senior Justice," } ], "attorneys": [ "Paul Bardacke, Atty. Gen., William Lazar, Asst. Atty. Gen., Santa Fe, for petitioner.", "Michael Dickman, Appellate Defender, Lynne Corr, Asst. Appellate Defender, Santa Fe, for respondent." ], "corrections": "", "head_matter": "662 P.2d 1357\nSTATE of New Mexico, Petitioner, v. Gene CRUZ, Respondent.\nNo. 14741.\nSupreme Court of New Mexico.\nMay 13, 1983.\nPaul Bardacke, Atty. Gen., William Lazar, Asst. Atty. Gen., Santa Fe, for petitioner.\nMichael Dickman, Appellate Defender, Lynne Corr, Asst. Appellate Defender, Santa Fe, for respondent." }, "file_name": "0690-01", "first_page_order": 722, "last_page_order": 726 }