State v. Ulibarri

• Decision Date: 20 October 1999
• Docket Number: No. 451., No. 126, No. 19
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. Michael Zane ULIBARRI, and Julianne Popplewell, Defendants-Appellees. State of New Mexico, Plaintiff-Appellee, v. Carlos Ray Montoya, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

994 P.2d 1164

128 N.M. 546

STATE of New Mexico, Plaintiff-Appellant, v. Michael Zane ULIBARRI, and Julianne Popplewell, Defendants-Appellees.

State of New Mexico, Plaintiff-Appellee, v. Carlos Ray Montoya, Defendant-Appellant.

Nos. 19,126, 19,451.

Court of Appeals of New Mexico.

October 20, 1999.

Certiorari Granted December 2, 1999.

Patricia A. Madrid, Attorney General, James O. Bell, Assistant Attorney General, Santa Fe, for State of New Mexico.

Michael E. Vigil, Marchiondo, Vigil & Associates, P.C., Albuquerque, for Appellees Ulibarri and Popplewell and for Appellant Montoya.

Certiorari Granted, No. 26,027, December 2, 1999.

OPINION

BUSTAMANTE, Judge.

{1} These consolidated cases present the same issue: Whether a prosecutor is required to instruct the grand jury on the record of the essential elements of offenses it is to consider. We determine that instruction on the record is necessary, and for the reasons discussed herein we affirm the order of dismissal in State v. Ulibarri & Popplewell, No. 19,126, and reverse the order in State v. Montoya, No. 19,451.

FACTS AND PROCEEDINGS

State v. Ulibarri and Popplewell

{2} On June 18, 1997, the district attorney for the Second Judicial District presented the State's case against Michael Zane Ulibarri (Ulibarri) and Julianne Popplewell (Popplewell) in the same proceeding. Ulibarri was charged with (1) trafficking cocaine, (2) conspiracy to traffic cocaine, (3) possession of marijuana, and (4) possession of drug paraphernalia. Popplewell was charged with the same four crimes, and was in addition charged with tampering with evidence. Ulibarri's grand jury indictment is reproduced as Appendix A to this opinion; Popplewell's indictment is reproduced as Appendix B. A transcript of the grand jury proceeding reveals that the district attorney presenting the case did not provide the grand jury a detailed listing of the elements of each crime. Instead, the district attorney seems to have read only the "Crimes Charged" portion of the indictment documents before presenting the testimony of one of the investigating officers. Although it is not clear from the transcript, the grand jury was apparently then released to deliberate, eventually returning "true bills" on both Defendants.

{3} Defendants Ulibarri and Popplewell filed a motion to dismiss the indictment on a number of grounds, including the failure of the district attorney to instruct the grand jury on the essential elements of the offenses with which they were to consider charging Defendants. In its response to the motion to dismiss, the State agreed that no elements instructions were read on the record to the grand jury "because it does not by procedure occur." The State argued that verbal reading of elements was not required by UJI 14-8001 NMRA 1999, and that the grand jury had available to it sufficient "advisory materials" to meet the UJI requirement of advising. These advisory materials included the proposed indictments (Appendices A and B), "a manual which contains the elements of commonly charged crimes," the orientation instructions given each grand juror, and access to the judge assigned to the grand jury. In addition, the State provided an affidavit by the prosecuting attorney. The affidavit asserted that the case against Ulibarri and Popplewell was presented "in a manner consistent with established practice and procedure in the Second Judicial District for making presentations to the Grand Jury." The affidavit also described the procedure and materials outlined above.

{4} The district court held argument on Defendants' motion on August 21, 1997, and then took the matter under advisement. The court issued a decision letter on September 23, 1997, granting the motion to dismiss on the grounds that the procedure followed by the district attorney did not comply with NMSA 1978, § 31-6-8 (1983). The State filed a motion for reconsideration, and the district court held a hearing on that motion on December 9, 1997. At the hearing, the State offered the testimony of the district attorney who had handled the grand jury presentation. The district attorney testified that the manual had come into use in approximately 1992, in part as a result of some controversy concerning "what the [S]tate told the grand jury in terms of orientation and advising them on different legal issues." The manual and two "organizational" videos were developed to serve as aids to the grand jury at its inception and throughout its service. The manual was to "advise the grand jury as to the law of the crimes charged, so they had that in the grand jury room." The manual was given to the grand jury when it convened, and was available to grand jurors each day they deliberated. The plan was to give the grand jury a copy of the proposed indictment and let the jurors use the manual during deliberations. The district attorney would be available to answer questions but would not otherwise give the grand jury specific advice. The district attorney testified that it was his practice to go through a few cases in detail, including a "step-by-step" walk through of charges as a way to show the jurors how to use the manual. After this initial orientation, he would normally only give the name of the crime to be charged. The district attorney further testified that he had never had a juror complain about the procedure or profess any difficulty with it.

{5} Following the hearing on the State's motion for reconsideration, the district court entered its order dismissing the indictments. The district court found that the procedure followed by the district attorney did not comply with Section 31-6-8 and with NMSA 1978, § 31-6-10 (1979).

State v. Montoya

{6} The grand jury indicted Defendant Carlos Ray Montoya (Montoya) on September 3, 1997, on ten counts, including first and second degree murder, aggravated battery, and shooting at or from a motor vehicle or at a dwelling. A copy of the indictment is attached to this opinion as Appendix C. Montoya was represented by the same counsel as Defendants Ulibarri and Popplewell. Defendant Montoya moved to dismiss the indictment on December 1, 1997, on the same basic grounds; that is, that the procedures the district attorney followed in presenting the case to the grand jury did not comply with the mandatory requirements of Sections 31-6-8 and 31-6-10. The motion was argued to a different division of the district court for the Second Judicial District, however, and the argument in Defendant Montoya's case took a slightly different turn. Here, the district attorney agreed that the elements of the ten crimes charged were not read verbatim on the record to the grand jury. Instead, as in the Ulibarri/Popplewell case, the grand jury was given the proposed indictment, presented with testimony, and then allowed to deliberate with the aid of the manual described above. In essence, the district attorney conceded that he had not strictly complied with Section 31-6-8 when presenting the case to the grand jury. The district attorney argued instead that Defendant Montoya was required to prove actual prejudice to obtain any relief. As a result of the way the argument unfolded, a transcript of the grand jury proceeding was not submitted as an exhibit below, and it is thus not available to us.

{7} Following argument, the district court entered an order denying the motion to dismiss. The court found that the State's failure to "verbally instruct the grand jury on the essential elements of the offenses to be considered by the grand jury" was contrary to Section 31-6-10 and UJI 14-8001. The district court also found that the lack of a verbatim record reflecting that the grand jury was instructed on the elements of the offenses was contrary to Section 31-6-8 and UJI 14-8001. However, the district court held that "defendants must show actual prejudice regarding the [S]tate's violations of Sections 31-6-8, 31-6-10, and UJI 14-8001." The district court apparently determined that Defendant Montoya had not demonstrated actual prejudice.

DISCUSSION

{8} Resolution of the issue before us involves an analysis of the provisions of Sections 31-6-8,31-6-10, UJI 14-8001 and Rule 5-506 NMRA 1999. Section 31-6-8 provides in pertinent part: "All proceedings in the grand jury room, with the exception of the deliberations of the grand jury, shall be reported verbatim," and the notes are to be deposited with the clerk of the district court and presumably made available to the parties if an indictment is returned. See also Second Judicial District Local Rules, LR2-401(A) NMRA 1999 ("Only parties, through counsel or pro se, shall have access to grand jury tapes without an order of the Court."). Section 31-6-10 provides in pertinent part:

Before the grand jury may vote an indictment charging an offense against the laws of the state, it must be satisfied from the lawful evidence before it that an offense against the laws has been committed and that there is probable cause to accuse by indictment the person named, of the commission of the offense so that he may be brought to trial therefor.

UJI 14-8001 provides in pertinent part: "The district attorney will advise you of the essential elements of any offense which is to be considered. You must carefully consider these elements prior to returning an indictment." UJI 14-8001 goes on to inform the grand jury that the New Mexico statutes and "[a] copy of this [UJI 14-8001] and other instructions will be placed in your hands for your further guidance and information." Finally, Rule 5-506(B) provides in applicable part: "A sound recording shall be made of the testimony of all witnesses and any explanation of instructions of the prosecutor and any comments made by the prosecutor ... in the presence of the grand jury. No record shall be made of the deliberations of the grand jury."

{9} The State agrees, of course, that it has an obligation to advise the grand jury of the elements of offenses it presents to...