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State v. Pareo

Court of Appeals of New Mexico

April 2, 2018

STATE OF NEW MEXICO, Plaintiff-Appellant,
v.
DARCIE PAREO and CALVIN PAREO, Defendants-Appellees.

          APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY Drew D. Tatum, District Judge

          Hector H. Balderas, Attorney General Maris Veidemanis, Assistant Attorney General Santa Fe, NM for Appellant.

          Sandra E. Gallagher Portales, NM for Appellees.

          OPINION

          KIEHNE, Judge.

         {¶1} In this case we are called on to decide whether Defendants had a statutory right to testify before the grand jury that indicted them, whether that right was violated, and if so, whether they had to demonstrate prejudice to have the indictments quashed. We hold that Defendants had a statutory right to testify before the grand jury, that their right to do so was violated, and that the failure to allow them to exercise that right was a structural error that required no showing of prejudice. We therefore affirm the district court's order quashing the indictments.

         BACKGROUND

         {¶2} This matter is before us on the State's consolidated appeal from the dismissal of grand jury indictments returned against Defendants Darcie Pareo and Calvin Pareo. The district court quashed the indictments against Defendants because they were not allowed to testify before the grand jury, despite their presence and desire to do so. Before the grand jury proceeding, Defendants informed the prosecutor of their desire to testify. Defendants then appeared for the grand jury investigation and again indicated that they wished to testify. The prosecutor assisting the grand jury informed it multiple times of Defendants' presence and desire to testify but did not tell the grand jury that Defendants had a right to testify. The grand jury informed the prosecutor that it did not wish to hear Defendants' testimony and was ready to begin its deliberations. Defendants were therefore never given the opportunity to testify before the grand jury. The grand jury indicted Defendants on multiple counts of fraud, conspiracy to commit fraud, forgery, racketeering, and conspiracy to commit racketeering.

         {¶3} Defendants filed a motion to quash the indictments arguing that their right to testify before the grand jury was violated. The district court quashed the indictments, finding that Defendants had a right to testify before the grand jury under NMSA 1978, Section 31-6-11(C)(3) and (4) (2003), Rule 5-302A(B) NMRA, and NMSA 1978, Section 31 -6-4(D) (2003); that they were denied their right to testify; and that because the right to testify is a "structural protection, " Defendants were not required to demonstrate prejudice. The State appeals.

         DISCUSSION

         Defendants' Statutory Right to Testify Before the Grand Jury Was Violated

         {¶4} The dismissal of an indictment is a matter of law that we review de novo. State v. Blue, 1998-NMCA-135, ¶ 5, 125 N.M. 826, 965 P.2d 945. Our holding in this case turns on whether Section 31-6-11(C)(3) and (4) provide grand jury targets a right to testify before a grand jury, and whether Jones v. Murdoch, 2009-NMSC-002, 145 N.M. 473, 200 P.3d 523 held that a grand jury may decline to hear that testimony.

         {¶5} We begin with the applicable statute. Section 31-6-11(C) includes a notice provision that requires a prosecutor to inform the target of a grand jury investigation: that he is a target; of the nature and date of the alleged crime being investigated as well as any applicable statutory citations; and of the target's right to assistance of counsel during the investigation. The statute also provides that a grand jury target must be notified of his "right to testify" before the grand jury. Section 31-6-11 (C)(3), (4). Additionally, Rule 5-302A(A)(1)(d) requires a prosecutor to notify the target of a grand jury investigation in writing that he has a right to testify. The prosecutor may decline to notify the target only if the district court determines by clear and convincing evidence that notice to the target may result in flight, obstruction of justice, or danger to another person. See § 31-6-11(C).

         {¶6} Although Section 31-6-11(C)(3) and (4) are within a notice provision, we conclude that they create a right to testify, because it would make no sense for the Legislature to require the prosecutor to notify the target of the "right to testify" if the Legislature did not also intend for such a right to exist. Id; State v. Davis, 2003-NMSC-022, ¶ 13, 134 N.M. 172, 74 P.3d 1064 (observing that appellate courts will not interpret statutes "in a manner that leads to absurd or unreasonable results")

         {¶7} The statute's history also indicates that the Legislature intended to expand a target's ability to testify before the grand jury. As enacted in 1969, and originally codified as NMSA 1953, § 41-5-11 (1969), the statute contained no provision that granted a target a right to testify. See 1969 N.M. Laws, ch. 276, §11. The 1979 and 1981 amendments to the recodified statute, §31-6-11, added language providing that "[t]he 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." 1979 N.M. Laws, ch. 337, § 8(B); 1981 N.M. Laws, ch. 238, § 1. In 2003, the Legislature added subsection ...


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