State v. Belanger

Decision Date12 May 2009
Docket NumberNo. 30,654.,30,654.
Citation210 P.3d 783,2009 NMSC 025
PartiesSTATE of New Mexico, Plaintiff-Respondent, v. Isaac BELANGER, Defendant-Petitioner.
CourtNew Mexico Supreme Court

Hugh W. Dangler, Chief Public Defender, Nancy M. Hewitt, Appellate Defender, Santa Fe, NM, for Petitioner.

Gary K. King, Attorney General, Martha Anne Kelly, Assistant Attorney General, Santa Fe, NM, for Respondent.


BOSSON, Justice.

{1} More than twenty-five years ago, this Court's Rules of Criminal Procedure Committee ("the Committee") opined that use-and-derivative-use immunity for witnesses ("use immunity") should be available at the request of either the prosecution or the accused. Although that view had some limited support in federal case law, ultimately it did not prevail in our state jurisprudence. Since then, this Court has embraced the view that use immunity is available only at the behest of the prosecution.

{2} As will be discussed at length in this opinion, the case before us makes clear that there are times, however limited, when a trial court must exercise its own review and decide whether to grant use immunity to a defense witness, even without the concurrence of the prosecution. The legitimate needs of the prosecution can and must be balanced against the potential for erosion of important constitutional rights of the accused. In coming to this conclusion, we rely on New Mexico law, not federal precedents, and we reluctantly overrule some of our precedent to the extent those cases fail to recognize the critical distinction between our state's jurisprudence and the federal rules. We depart from our precedents cautiously, and only after concluding that our earlier opinions were either poorly reasoned, based on an unwarranted reliance on federal law, or both. Based on this departure from precedent, we reverse the Court of Appeals and remand to the district court for further proceedings consistent with this opinion.


{3} A Bernalillo County grand jury indicted Isaac Belanger ("Defendant") on August 31, 2004, on one count of criminal sexual penetration of a minor ("CSPM"), two counts of attempted CSPM, three counts of battery, one count of kidnapping, and two counts of bribery of a witness. Defendant's niece, S.S., accused him of pinning her against a bathroom wall, forcing her to kiss him, putting his hand down her pants and penetrating her vagina with his finger. She was 12-years old at the time, and Defendant was 28. The incident allegedly took place at the house of Defendant's father (the girl's grandfather), after an argument about who was going to use the phone. Defendant has denied any wrongdoing. Defendant asserts, and the State does not dispute, that there are no other known witnesses to the alleged incident, and no physical evidence implicating Defendant. Thus, the credibility of S.S., as the sole eye-witness, would appear to be pivotal at trial.

{4} In pre-trial proceedings, Defendant attempted to interview another juvenile, D.P against whom S.S. had leveled similar sexually related charges. The incident between S.S. and D.P. occurred just weeks before the incident involving Defendant. Defendant claims that prosecutors dropped the charges against D.P. after it became clear that S.S. had fabricated her claims against D.P. Thus, Defendant may try to use D.P. to attack S.S.'s credibility at trial. In response, the State denies that S.S. fabricated her claims against D.P., although the State acknowledges that the charges against D.P. were dismissed, and the State has no intention of bringing new charges against him.

{5} In response to Defendant's demands for an interview, D.P., acting on the advice of counsel, invoked his Fifth Amendment privilege against self-incrimination and refused to talk with Defendant. Defendant attempted to overcome D.P.'s Fifth Amendment assertion by asking the prosecutor to apply to the court for use immunity so that D.P. could testify without fear of being prosecuted based on what he said at trial or during the interview. The State refused to request immunity for D.P.

{6} Defendant applied to the district court for relief. Based on then-existing law, the district court properly concluded that it had no power to grant immunity unless the prosecution applied for it. See Rule 5-116 NMRA (limiting immunity to application of the prosecutor). Nonetheless, after the prosecution made clear it would not apply for immunity, the district court advised the State that the court would dismiss the charges if the prosecution did not apply for immunity within one week. Before the deadline passed, the State again informed the court that it would not apply for immunity.

{7} The State appears to have concluded that D.P. had no valid Fifth Amendment right because the charges against him had been dismissed and the likelihood of further charges being lodged were "so remote as to be inconsequential." Because D.P. was "no longer exposed to any jeopardy from the events that formed the basis of the previous prosecution," the State regarded immunity as inappropriate. The district court disagreed, concluding that D.P.'s Fifth Amendment privilege conflicted irrevocably with Defendant's Sixth and Fourteenth Amendment rights to confrontation and due process of law. Because the State would not request immunity for D.P., the court dismissed the criminal case against Defendant. The State appealed and the Court of Appeals reversed in a published opinion, State v. Belanger, 2007-NMCA-143, 142 N.M. 751, 170 P.3d 530. The Court determined that the trial court's dismissal conflicted with State v. Sanchez, 98 N.M. 428, 432-33, 649 P.2d 496, 500-01 (Ct.App.1982), and concluded that, except in cases of prosecutorial misconduct, courts have "no power to ... fashion witness use immunity under the guise of due process." Belanger, 2007-NMCA-143, ¶ 6, 142 N.M. 751, 170 P.3d 530 (internal quotation marks and citation omitted). Defendant petitioned for review, and we granted certiorari. 2007-NMCERT-010, 143 N.M. 74, 172 P.3d 1286. We reverse.


{8} This appeal implicates important constitutional rights, including the Fifth Amendment right against self-incrimination, the Sixth Amendment rights to confront witnesses and to receive compulsory process, and the Fourteenth Amendment right to due process of law, including the right to a fair trial, and therefore our review is de novo. See State v. Brown, 2006-NMSC-023, ¶ 8, 139 N.M. 466, 134 P.3d 753 (applying de novo standard where "important constitutional rights" are implicated (citing State v. Attaway, 117 N.M. 141, 145, 870 P.2d 103, 107 (1994) (applying de novo standard to "threshold constitutional issues"))).

Witness Immunity

{9} Defendant asserts that D.P.'s testimony is essential to his defense. He argues that without a grant of use immunity to D.P., Defendant's ability to confront his accuser and to obtain compulsory process, protected by the Sixth Amendment to the United States Constitution as well as Article II, Section 14 of the New Mexico Constitution, is compromised. Without these rights, Defendant asserts, his broader right to a fair trial, guaranteed by the Fourteenth Amendment to the United States Constitution and by Article II, Section 18 of the New Mexico Constitution, is imperiled. Use immunity would solve this problem, according to Defendant, because it would require D.P. to testify, thus meeting Defendant's need, while protecting D.P.'s Fifth Amendment rights because nothing said by D.P. could later be used against him. See Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) (holding that "immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege").

{10} The State, for its part, asserts that it had no obligation to apply for immunity for D.P. and that it was not obliged to justify or explain its reason. In essence, the State takes the position that the case must proceed to trial without D.P.'s testimony, regardless of what D.P. may or may not have to say about S.S. and her credibility.

Use Immunity versus Transactional Immunity

{11} We first discuss the important difference between use immunity and transactional immunity—a distinction that is critical to understanding the basis for our opinion, as well as the shortcomings we perceive in some of our earlier opinions. Transactional immunity involves a promise by prosecutors that a witness will not be prosecuted for crimes related to the events about which the witness testifies. See Piccirillo v. New York, 400 U.S. 548, 569, 91 S.Ct. 520, 27 L.Ed.2d 596 (1971) (Brennan, J., dissenting). In contrast, under a grant of use immunity, the prosecution promises only to refrain from using the testimony in any future prosecution, as well as any evidence derived from the protected testimony. Kastigar, 406 U.S. at 453, 92 S.Ct. 1653. Under use immunity, the prosecution may still proceed with charges against the witness so long as it does not use or rely on the witness's testimony or its fruits. Transactional immunity, on the other hand, affords the witness a much broader immunity related to the entire transaction and not just the witness's testimony.

{12} Transactional immunity is broader than the Fifth Amendment privilege. Id. Use immunity, by contrast, is coextensive with the Fifth Amendment privilege. Id. With use immunity, both the prosecution and the witness are left in essentially the same position as if the witness had retained his Fifth Amendment privilege and never testified. The witness is not exposed to criminal liability for testimony given, and the prosecution loses little with respect to its ability to prosecute. All the State surrenders is the ability to use testimony which it otherwise never would have had. See Sanchez, 98 N.M. at 433-34, 649 P.2d at 501-02 (citing K...

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