State v. Vigil

• Court: New Mexico Supreme Court
• Writing for the Court: OMAN; McMANUS
• Citation: State v. Vigil, 516 P.2d 1118, 85 N.M. 735, 1973 NMSC 123 (N.M. 1973)
• Decision Date: 14 December 1973
• Docket Number: No. 9864,9864
• Parties: STATE of New Mexico, Petitioner, v. Leo VIGIL, Respondent.

Page 1118

516 P.2d 1118

85 N.M. 735

STATE of New Mexico, Petitioner, v. Leo VIGIL, Respondent.

No. 9864.

Supreme Court of New Mexico.

Dec. 14, 1973.

[85 NM 735] David L. Norvell, Atty. Gen., Randolph B. Felker, Asst. Atty. Gen., Santa Fe., for petitioner.

William C. Erwin, Raton For respondent.

OPINION

OMAN, Justice.

This cause is before us on a writ of certiorari directed to the New Mexico Court of Appeals. The writ was issued solely for the purpose of clarifying our opinion in State v. Felter, 85 N.M. 619, 515 P.2d 138 (1973).

Our opinion in the Felter case has apparently been construed by some as requiring a showing by a defendant in a criminal case of a particularized need for the grand jury testimony of a witness who has actually appeared and testified for the State at the criminal trial. This is not what was said or meant by us in the Felter case. However, we apparently created some confusion by the language we used in that portion of our opinion in which we expressed our disagreement with the opinion of the Court of Appeals in State v. Sparks, 85 N.M. 429, 512 P.2d 1265 (Ct.App.1973), insofar as it was stated therein that Mascarenas v. State, 80 N.M. 537, 458 P.2d 789 (1969), modifies State v. Tackett, 78 N.M. 450, 432 P.2d 415, 20 A.L.R.3d 1 (1967), cert. denied, 390 U.S. 1026, 88 S.Ct. 1414, 20 L.Ed.2d 283 (1968).

In an earlier case we held:

'* * * (O)nce the witness has testified publicly at the criminal trial, any privilege that he had with respect to his testimony on the same subject before the grand jury is lost. * * *' State v. Morgan, 67 N.M. 287, 290, 354 P.2d 1002, 1004 (1960).

'* * *. The state has no interest in denying the accused access to all evidence that can throw light on issues in the case, and, in particular, the state should have no interest in convicting on the testimony of witnesses who have not been as rigorously cross-examined and as thoroughly impeached as the evidence permits.' State v. Morgan, supra, at 67 N.M. 292, 354 P.2d 1006; see also State v. Sparks, supra.

There can be no valid reason for requiring the defendant to show a particularized need for the grand jury testimony of a witness who has already appeared and testified publicly in the criminal trial. In this regard we quote and reaffirm the following from our opinion in State v. Felter, supra, at 85 N.M. 620, 515 P.2d 139:

'* * *. We agree with the decision of the Court of Appeals under the particular facts of that case, (State v. Sparks, supra), and agree with the statement in its opinion that 'once the witness has testified at the criminal trial about that which he testified before the grand jury, the accused is entitled to an order permitting examination of that portion of the witness' grand jury testimony relating to the crime for which defendant is charged.'

'Attention is particularly called to the fact that the accused's examination of the grand jury testimony of the...