State v. Naranjo

Citation1979 NMCA 150,94 N.M. 413,611 P.2d 1107
Decision Date27 November 1979
Docket NumberNo. 3969,3969
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Emilio NARANJO, Defendant-Appellant.
CourtCourt of Appeals of New Mexico
Jeff Bingaman, Atty. Gen., Marcia E. White, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee
OPINION

SUTIN, Judge.

Defendant was charged by indictment with five counts of perjury in violation of § 30-25-1, N.M.S.A.1978. Two counts were dismissed by the court before trial and two counts were dismissed at the close of the State's case. The only count submitted to the jury was Count IV. Defendant was convicted and appeals. We reverse.

Because of the political and social problems involved in Rio Arriba County, we shall discuss and decide every important issue on this appeal. Each of the District Judges in the First Judicial District recused themselves. Toney Anaya, then Attorney General, disqualified himself and his staff from investigating and prosecuting former members of the Rio Arriba County Sheriff's Office. Defendant was a former Sheriff.

Defendant has been active in politics for 30 years. He was Undersheriff and Sheriff of Rio Arriba County, a United States Marshall, a State Senator from Rio Arriba County, Democratic County Chairman for 27 years, Rio Arriba County Manager and Law Enforcement Coordinator who reported to the County Commissioners. Defendant worked with the Highway Commission in its agreement with the County relative to fixing roads, and he organized an ambulance service. Defendant was a long-standing, powerful political figure. Nevertheless, defendant stood on an equal footing with every defendant charged with a crime, be he a democratic or republican politician, popular or unpopular, wealthy or poor, gifted or impoverished, educated or ignorant. Defendant was entitled to a fair trial, and to every protection granted to persons under the law. We follow the philosophical approach expressed in Gordon v. State, 104 So.2d 524, 529-30 (Fla.1958) It should be kept in mind that these appellants were being prosecuted on charges of perjury and subornation thereof. We are not here dealing with violations of the election laws or breaches of rules of political morals. A studious examination of this record produces the inescapable conclusion that unfortunately throughout the trial resentment against alleged political misprisions and politically offensive conduct was permitted to permeate the proceedings. While this is quite understandable in the light of the political atmosphere that prevailed at the time, nevertheless, the rights of these appellants who were on trial for two of the noxious charges in the Criminal Code cannot be measured by our concept of political morality. . . . We here deal with perjury and subornation of perjury and nothing else.

One wrongfully convicted must not be deprived of vital rights of citizenship pending an appeal. To prevent an irreparable injury is not only necessary but obligatory, because "justice delayed, is justice denied."

A. The indictment was insufficient upon which to charge perjury.

Section 30-25-1, N.M.S.A.1978 reads in pertinent part:

Perjury consists of making a false statement under oath or affirmation, material to the issue or matter involved in the course of any judicial . . . proceeding, knowing such statement to be untrue.

Count IV of the indictment charged that in the case of State v. Morales, defendant made a false statement under oath "that he saw Ruben Vigil take a paper bag from Moises Morales' truck (this is the false statement), (this statement was false) 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 you saw him find the bag?

A. He pulled it from under the seat of the driver's side of the truck.

Q. I am going to hand you what has been marked State's Exhibit No. 1 and I ask you if you recognize the bag?

A. Yes sir I do.

Q. Would you please tell the Court and Jury where you recognize that bag from?

A. That is the bag that came in the group that Deputy Vigil had from under the truck on the driver's side which is Morales' pick-up.

(The alleged false statement was true.)

Q. And then what did you do after that bag was pulled out?

A. He (Vigil) opened the bag and he put in the flashlight and the bag looked like it was marijuana appeared to be marijuana.

said defendant knowing such statement to be untrue . . . .' "

The trial court denied defendant's motion to dismiss the indictment for failure to contain the essential elements of perjury. We disagree. This was prejudicial error.

The indictment charged defendant with making a false statement in the case of State v. Morales, that defendant saw Ruben Vigil take a paper bag from Moises Morales' truck. Defendant testified that he did see Vigil take a bag from Morales' truck. The statement made was true, not false, and was not even a material issue. The material issue was whether the bag contained marijuana. To constitute perjury in a judicial proceeding, testimony must be material to the issue or matter involved. State v. Montoya, 77 N.M. 129, 419 P.2d 970 (1966).

To charge defendant with perjury, the indictment would have to read that defendant made a statement under oath that he saw Ruben Vigil take a paper bag from Moises Morales' truck which bag contained what appeared to be marijuana ; that this statement was false and that defendant knew it was false at the time he made it. This was the content of the first instruction read to the jury. The indictment did not charge defendant with making that false statement, and the indictment failed to state the offense of perjury.

Rule 8(a) of the Rules of Criminal Procedure provides that an indictment must allege such facts as are necessary to give defendant notice of the crime charged in sufficient detail to enable him to prepare his defense. State v. Foster, 87 N.M. 155, 530 P.2d 949 (Ct.App.1974). In perjury cases, we must give the language used its ordinarily accepted meaning and grammatical construction so that a person of common understanding will be able to know what is intended. The law will not compel the defendant to hazard a guess at what is meant by the language used. State v. See, 4 Wash. 344, 30 P. 327, 746 (1892).

In perjury cases, an indictment must embrace every element of the offense in the language of the statute with sufficiently definite averments to advise the accused with reasonable certainty of the crime with which he is charged, to enable him to prepare his defense, to protect him against a subsequent prosecution for the same offense. Travis v. United States, 123 F.2d 268 (10th Cir. 1941); Foster v. United States, 76 F.2d 183 (10th Cir. 1935).

The indictment in the instant case did not state an offense of perjury nor give defendant the protection to which he is entitled under the law.

B. The indictment should have been dismissed and defendant discharged.

The Attorney General appointed Joseph Caldwell, who was the District Attorney of the Eighth Judicial District, to the position of " 'Special Prosecutor' . . . as a Special Assistant Attorneys General," with the power to investigate and prosecute in his own manner, allegations of perjury by former members of the Rio Arriba County Sheriff's Office. As such "Special Prosecutor," Caldwell stipulated with defendant that Toney Anaya, the Attorney General, his office and staff were disqualified from investigating or prosecuting defendant due to conflicts of interest. The reasons were adequately stated.

The stipulation stated that the Deputy District Attorney "informed" Caldwell that he, the Deputy, felt the Office of the District Attorney was disqualified from prosecuting defendant. This information did not disqualify the District Attorney. The District Attorney of the First Judicial District did not disqualify himself. The District Attorney determines whether criminal charges shall be filed and which charges to file. State v. Session, 91 N.M. 381, 574 P.2d 600 (Ct.App.1978). Session held that the District Court lacked power to make such determinations. The Attorney General also lacked such power. The Attorney General is not authorized to act except upon the failure or refusal of the District Attorney to act in any criminal case. Section 8-5-3, N.M.S.A.1978. The District Attorney did not fail or refuse to act.

The Attorney General lacked any power to investigate and prosecute defendant for perjury either under the laws of this State or by reason of conflicts of interest. Lacking such power, the Attorney General had no authority to appoint Caldwell "Special Prosecutor" as a Special Assistant Attorneys General.

Caldwell was sworn in as an aide to the Grand Jury upon being satisfied that he was conducting this investigation and prosecution at the request of the Attorney General. This fact did not wash away the taint of the improper appointment. Caldwell was not lawfully authorized to aid in presenting the facts to the Grand Jury. Prejudice against defendant is presumed. As a result, the indictment must be dismissed and defendant discharged. State v. Hill, 88 N.M. 216, 539 P.2d 236 (Ct.App.1975).

C. The trial court lacked jurisdiction because the attorney general did not have the power to appoint a "special prosecutor" as a special assistant attorneys general.

There is nothing in our laws that make the Attorney General superior to a District Attorney. Neither of them have any common law powers. The constitution and the statutes clearly prescribe and delimit their authority. If Caldwell, acting as a Special Assistant Attorneys General, had no authority to represent the State, the trial court lacked jurisdiction to...

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5 cases
  • State v. Maves
    • United States
    • South Dakota Supreme Court
    • January 3, 1985
    ...524 (Fla.1958); State v. Olson, 242 N.W. 348 (Minn.1932); State v. Armstrong, 337 Mo. 967, 87 S.W.2d 164 (1935); State v. Naranjo, 94 N.M. 413, 611 P.2d 1107 (Ct.App.1979); Starnes v. State, 125 Tex.Cr.R. 21, 66 In so holding, we do not suggest that defendants are required to aid in the pro......
  • State v. Naranjo
    • United States
    • New Mexico Supreme Court
    • May 8, 1980
  • State v. Cheung, A-1-CA-35827
    • United States
    • Court of Appeals of New Mexico
    • March 7, 2019
    ...or circumstances." State v. Borunda, 1972-NMCA-018, ¶ 7, 83 N.M. 563, 494 P.2d 976; see State v. Naranjo, 1979-NMCA-150, ¶ 36, 94 N.M. 413, 611 P.2d 1107, aff'd in part and rev'd in part by 1980-NMSC-061, 94 N.M. 407, 611 P.2d 1101. Thus, "[the] evidence of one witness alone, not corroborat......
  • State v. Romero, A-1-CA-35901
    • United States
    • Court of Appeals of New Mexico
    • October 1, 2019
    ...and begin with the rebuttable "presumption that one will tell the truth when underoath." State v. Naranjo, 1979-NMCA-150, ¶ 43, 94 N.M. 413, 611 P.2d 1107, rev'd in part on other grounds, 1980-NMSC-061, 94 N.M. 407, 611 P.2d 1101. With respect to the element of falsity, the State is not ent......
  • Request a trial to view additional results

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