State v. Armijo

• Decision Date: 20 October 1994
• Docket Number: No. 15172,15172
• Citation: 1994 NMCA 136,118 N.M. 802,887 P.2d 1269
• Parties: , 96 Ed. Law Rep. 1171 STATE of New Mexico, Plaintiff-Appellant, v. Tony ARMIJO, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 1269

887 P.2d 1269

118 N.M. 802, 96 Ed. Law Rep. 1171

STATE of New Mexico, Plaintiff-Appellant, v. Tony ARMIJO, Defendant-Appellee.

No. 15172.

Court of Appeals of New Mexico.

Oct. 20, 1994.

Certiorari Denied Dec. 7, 1994.

[118 N.M. 804] Tom Udall, Atty. Gen., Richard J. Klein, Asst. Atty. Gen., Daniel J. Pearlman, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant.

Anthony James Ayala, Anthony James Ayala, P.A., Albuquerque, for defendant-appellee.

OPINION

HARTZ, Judge.

On September 29, 1992, the Santa Fe County Grand Jury indicted Tony Armijo (Defendant) on eight counts relating to his conduct while executive director of the New Mexico Public School Insurance Authority (the Insurance Authority) and the New Mexico Retiree Health Care Authority (the Retiree Authority). Also indicted on one count of fraud and one count of bribing Defendant were Glen Slaughter & Associates (Slaughter), which had contracts with both the Insurance Authority and the Retiree Authority, and Allen Pufahl, a Slaughter employee. The district court ordered that Defendant be tried separately from Slaughter and Pufahl, who were tried first. A jury in April 1993 convicted Slaughter on both counts and acquitted Pufahl.

On August 20, 1993, Defendant filed a motion to dismiss the indictment and disqualify the attorney general's office, claiming that (1) perjured testimony was used to obtain the indictment, (2) exculpatory evidence was not presented to the grand jury, and (3) the prosecutors engaged in outrageous misconduct. After conducting an evidentiary hearing on September 15, 20, 22, and 28, 1993, the district court on October 15 entered an order quashing the indictment and disqualifying the office of the New Mexico Attorney General from prosecuting "the current cause of action."

The State appeals from both the quashing of the indictment and the disqualification. We reverse.

I. PROCEDURAL OBJECTIONS TO THE APPEAL

Before turning to the merits, we address Defendant's procedural objections to the State's appeal. Defendant has moved to dismiss the appeal because the orders challenged by the State are not final, appealable orders. He also contends that the State is precluded from challenging the sufficiency of the evidence to support the district court's ruling because the State failed to request findings of fact and conclusions of law.

We first address this Court's appellate jurisdiction. NMSA 1978, Section 39-3-3(B) (Repl.Pamp.1991), states:

B. ... In any criminal proceeding in district court an appeal may be taken by the state to the supreme court or court of appeals, as appellate jurisdiction may be vested by law in these courts:

(1) within thirty days from a decision, judgment or order dismissing a complaint, indictment or information as to any one or more counts;

(2) within ten days from a decision or order of a district court suppressing or excluding evidence or requiring the return of seized property, if the district attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.

On its face this statutory provision authorizes the State's appeal from the district court's dismissal of the indictment against Defendant. Defendant argues, however, that the dismissal is not appealable because it was without prejudice (the order authorized the Santa Fe County District Attorney to pursue the matter with a grand jury) and therefore was not a final order. He relies on civil cases which have held that, at least in some circumstances, a dismissal without prejudice is not a final, appealable order. See, e.g., Montoya v. Anaconda Mining Co., 97 N.M. 1, 3-4, 635 P.2d 1323, 1325-26 (Ct.App.1981).

Defendant errs in assuming that Section 39-3-3 incorporates the finality requirements imposed for appeals in civil cases. The section contemplates appeals from orders that would be considered interlocutory in the civil context. For example, Section 39-3-3(B)(1) specifically approves an appeal from the dismissal of one count in a multi-count indictment. In civil cases, in contrast, the dismissal of one out of several claims against a single party is ordinarily not a final judgment. See SCRA 1986, 1-054(C)(1) (Repl.1992). Perhaps even more telling is that Section 39-3-3(B)(2) permits the State to appeal orders suppressing evidence, which would virtually always be non-final orders in the civil context. We conclude that the legislature intended to permit the State to appeal any order dismissing one or more counts of a complaint, indictment, or information, regardless of whether the dismissal is with prejudice.

Somewhat more complex is the appealability of the portion of the order disqualifying the attorney general. Section 39-3-3(B) does not apply. Nevertheless, we have recognized the State's constitutional right to appeal even in circumstances not encompassed by Section 39-3-3(B). State v. Santillanes, 96 N.M. 482, 484-86, 632 P.2d 359, 361-63 (Ct.App.1980), rev'd on other grounds, 96 N.M. 477, 632 P.2d 354 (1981), held that the State could appeal a district court order forbidding any sentence enhancement after the defendant had been sentenced on the charges in the indictment. The Court wrote:

We think the instant matter is governed wholly by the constitutional amendment of 1965 granting an "absolute right to one appeal" to any aggrieved party. Article VI, Sec. 2, N.M. Const. The State is without question a party to every criminal proceeding in the district courts; a claim of disposition contrary to law is a valid and legal grievance which indisputably makes the State "an aggrieved party." In our view, Sec. 39-3-3 merely recognizes the State's constitutional right to appeal, and identifies circumstances permitting ordinary and interlocutory appeals, and affirms the constitutional prohibition against appeals that would violate double jeopardy principles. The legislature, by statute, may not diminish a right expressly provided by the constitution; "no branch of government may add to, nor detract from" the constitution's clear mandate. State v. Mechem, 63 N.M. 250, 316 P.2d 1069 (1957).

Id. at 486, 632 P.2d at 363. Santillanes was approved by our state Supreme Court in State v. Aguilar, 95 N.M. 578, 624 P.2d 520 (1981), which permitted an appeal from a district court ruling holding unconstitutional a mandatory imprisonment provision of a firearm enhancement statute. The Court cautioned, however, that "the State does not have an absolute right to appeal in every situation in which it may feel 'aggrieved' by a trial court's ruling." Id. at 579, 624 P.2d at 521. It permitted appeal in that case because of the "State's strong interest in the enforcement of its statutes." Id.

Pursuant to Santillanes and Aguilar we hold that the State may appeal the district court's disqualification of the attorney general. The attorney general holds high office granted by the authority of the voters of New Mexico. NMSA 1978, Section 8-5-2 (Repl.Pamp.1994), states:

Except as otherwise provided by law, the attorney general shall:

....

B. prosecute and defend in any other court or tribunal all actions and proceedings, civil or criminal, in which the state may be a party or interested when, in his judgment, the interest of the state requires such action or when requested to do so by the governor[.]

It is a matter of grave importance when a district court disqualifies the attorney general from performing a duty required by law. The State's interest in this appeal is of comparable strength to that in Aguilar.

Defendant counters, however, that appeal of the disqualification is foreclosed by our decision in State v. Pacheco, 115 N.M. 325, 850 P.2d 1028 (Ct.App.1993), which held that an order disqualifying counsel for a criminal defendant is not a final, appealable order. We relied on an identical ruling by the United States Supreme Court in Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984). Pacheco and Flanagan, however, are distinguishable on two grounds.

First, because the State cannot appeal an adverse verdict at trial (an acquittal), an order that would not be final if issued against a defendant may as a practical matter be final with respect to the State. If a trial judge erroneously disqualifies defense counsel and the defendant is subsequently convicted, the defendant may successfully appeal the conviction on the ground of denial of the right to counsel. In contrast, if the trial court erroneously disqualifies the prosecutor, and the defendant is then acquitted, the State has no recourse because an appeal would violate the defendant's protection against double jeopardy. See generally County of Los Alamos v. Tapia, 109 N.M. 736, 739, 790 P.2d 1017, 1020 (1990) (acquittal mandates dismissal of appeal by state). Similarly, if the substitute prosecutor does not pursue the charges against the defendant, we are aware of no recourse available to the State. Cf. McKenzie v. Fifth Judicial Dist. Court, 107 N.M. 778, 765 P.2d 194 (Ct.App.) (grand jury report taking no action is not a final, appealable order), cert. denied, 107 N.M. 785, 765 P.2d 758 (1988). For this reason the United States Court of Appeals for the Seventh Circuit distinguished Flanagan and permitted the United States to appeal the disqualification of the Attorney General of the United States from participation in a particular grand jury investigation, holding that the disqualification was appealable under the collateral order doctrine. In re Grand Jury Subpoena, 873 F.2d 170, 172-73 (7th Cir.1989); see Commonwealth v. Carsia, 341 Pa.Super. 232, 491 A.2d 237, 240 (1985) (disqualification of attorney general from prosecution was final, appealable order, even though county district attorney had filed information charging the same offenses based on the same incident), aff'd, 512 Pa. 509, 517 A.2d 956 (1986); see also Digital Equip. Corp. v. Desktop Direct, ---...