State v. Naranjo
| Citation | 94 N.M. 407,611 P.2d 1101,1980 NMSC 61 |
| Decision Date | 08 May 1980 |
| Docket Number | No. 12847,12847 |
| Parties | STATE of New Mexico, Petitioner, v. Emilio NARANJO, Respondent. |
| Court | Supreme Court of New Mexico |
Defendant Emilio Naranjo was charged with perjury in violation of Section 30-25-1, N.M.S.A.1978. Defendant was convicted and appealed to the Court of Appeals. The Court of Appeals reversed. This Court granted certiorari and now affirms in part and reverses in part.
Four points were raised on appeal to the Court of Appeals and in the petition for writ of certiorari filed with this Court:
(1) Did the trial court lack jurisdiction because the attorney general did not have the right or power to appoint a special assistant?
(2) Is the indictment sufficient upon which to charge perjury?
(3) Was the admission of the Morales judgment of acquittal into evidence reversible error?
(4) Was the evidence introduced by the prosecution sufficient to support a verdict of guilty?
Point 1. We hold that the trial court had jurisdiction because the attorney general had the right and power to appoint a special assistant.
The facts relevant to Point 1 are: Moises Morales was arrested and charged with possession of marijuana. State v. Morales, Rio Arriba County No. 4510 (). He was tried and acquitted of this charge. The defendant in this case was Sheriff of Rio Arriba County during the prosecution of State v. Morales, and testified for the State. Subsequent to the acquittal of Morales, complaints were made to Toney Anaya, then Attorney General of the State of New Mexico, that defendant had committed perjury in the testimony he gave during the Morales trial.
The district attorney for the First Judicial District and the attorney general recused their offices from investigating or prosecuting defendant for the alleged acts of perjury because of conflicts of interest within their offices. This fact was stipulated to by the parties. The attorney general appointed Joseph Caldwell, then district attorney for the Eighth Judicial District, as a special attorney general to investigate and prosecute, if necessary, the perjury complaints.
After investigation, Caldwell determined that the evidence should be presented to the Grand Jury. Judge Donnelly administered the Oath of Secrecy to Caldwell. The Grand Jury was convened and qualified, and Caldwell presented evidence before it. An indictment charging defendant with perjury was filed and he was arraigned.
Defendant filed motions to dismiss the indictment because of claimed conflicts of interest and improprieties in the appointment of a special prosecutor by the attorney general. The trial court denied the motions and entered specific findings of fact and conclusions of law. The trial judge found that the district attorney for the First Judicial District and the attorney general disqualified their offices from investigating and prosecuting this case or assisting therein because assistants had participated in the prosecution and defense of Moises Morales' case, in which the alleged perjured statements had been made by defendant. The court concluded that the attorney general had the power and authority to appoint a special prosecutor, that the appointment of Caldwell as special prosecutor was valid, that Caldwell acted within the scope of his authority, and that the indictment was valid.
The Court of Appeals stated in its opinion that the district attorney for the First Judicial District had not literally and statutorily disqualified himself and that therefore the attorney general lacked the right and power to proceed with the prosecution. That is a much too restricted and technical interpretation of the stipulation entered into between the special prosecutor and defendant's attorney, and of Sections 8-5-2(B) and 8-5-3, N.M.S.A.1978, and Section 8-5-5, N.M.S.A.1978 (Cum.Supp.1979).
The Court of Appeals concentrated on Paragraph 18 of the stipulation, which stated that the deputy district attorney had informed the special prosecutor that he felt that the district attorney's office was disqualified from prosecuting defendant. The Court of Appeals opinion overlooks a portion, at least, of the other eighteen paragraphs of that stipulation, particularly Paragraphs 2, 17 and 19. Those paragraphs of the stipulation leave no doubt that the members of the district attorney's office and staff were involved in the prosecution of Cause No. 4510 and that attorneys for the prosecution and the defendant and defendant himself, would appear as witnesses in the present case. Having been involved in those previous prosecutions, they were disqualified from acting in the present case.
Sections 8-5-2(B), 8-5-3 and 8-5-5 provide:
8-5-2. Duties of attorney general.
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;
8-5-3. (Action in civil and criminal cases.)
That upon the failure or refusal of any district attorney to act in any criminal or civil case or matter in which the county, state or any department thereof is a party or has an interest, the attorney general be, and he is hereby authorized to act on behalf of said county, state or any department thereof, if after a thorough investigation, such action is ascertained to be advisable by the attorney general. Provided, that the attorney general shall, upon direction of the governor, investigate any matter or matters in any county of the state in which the county, state or any department may be interested. After such investigation, the attorney general be, and he is hereby authorized to take such action as, in his opinion, conditions warrant. The cost of such investigation shall be paid out of the general fund of the county wherein such investigation shall have been made, and the costs of any prosecution arising out of such investigation shall be paid as are the costs in cases prosecuted by district attorneys.
8-5-5. Assistant attorneys general; other employees; appointment.
A. The attorney general may appoint a deputy attorney general, and as many other assistant attorneys general together with stenographic, clerical and other necessary employees on a full- or part-time basis, at salaries to be fixed by him within budget allowances and appropriation limits, as the business of the department shall require, and who shall hold office during the pleasure of the attorney general. The deputy attorney general and the assistant attorneys general shall, subject to the direction of the attorney general, have the same power and authority as the attorney general.
(Emphasis added.)
The three quoted statutes must be construed together in order to ascertain the true meaning of the statutes and the intent of the Legislature. Section 8-5-2(B) grants the attorney general concurrent power with the district attorneys to prosecute criminal offenses. This statute is tempered by the provisions of Section 8-5-3, which provide that the attorney general may act if the district attorney fails or refuses to act. We note in particular that this statute reads: "failure or refusal." We define the word "failure" to carry a broader meaning than "refusal." Section 8-5-5 grants to the attorney general the authority to appoint assistant attorneys general "as the business of the department shall require."
We interpret the statutes quoted above to mean that if a district attorney does not perform properly and adequately his legal duties of investigation and prosecution of civil and criminal cases, and particularly as in this case, where the district attorney's office and the attorney general's office recused their respective offices from participation because of a possible conflict, then the attorney general not only has the power, but it is his duty, where conditions warrant, to perform these functions and to appoint assistant attorneys general as special prosecutors for the appropriate purposes.
The language of this Court in State v. Reese, 78 N.M. 241, 430 P.2d 399 (1967) is particularly applicable here in reviewing the parallel statutory provisions defining the powers of the district attorney and the attorney general.
The language, in our view, permits the attorney general to bring an action on behalf of the state if no other provision has been made for it to be brought, or to step into litigation brought by another where the interests of the state are not being adequately represented or protected.
Id. at 245, 430 P.2d at 403 (emphasis added).
Point 2. We hold that the indictment was not sufficient upon its face to charge the crime of perjury.
The following facts are relevant to Point 2: Defendant was convicted of Count IV of the indictment. Count IV charges defendant with:
PERJURY, in that on or about the 4th day of December, 1976, the Defendant, EMILIO NARANJO, did make a false statement under oath or affirmation, material to the issue or matter involved in the course of a judicial proceeding to wit: Before a Judge and Jury in the case of State of New Mexico vs. Moises Morales, the Defendant did testify that he saw Ruben Vigil take a paper bag from Moises Morales' truck, in that he gave specific answers to the following questions:
Q. Did you see him find anything inside the truck?
A. Yes as I was holding the flashlight he was putting his hand under the driver's side of the truck and he took out what appeared to me a grocery bag.
Q. You testified Sheriff before I left the court room that...
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