 1       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 Opinion Number: _______________

 3 Filing Date: May 11, 2016

 4 NO. 34,110

 5 STATE OF NEW MEXICO,

 6         Plaintiff-Appellee,

 7 v.

 8 CHAD DEIGNAN,

 9         Defendant-Appellant.

10 INTERLOCUTORY APPEAL FROM THE DISTRICT COURT OF
11 BERNALILLO COUNTY
12 Briana H. Zamora, District Judge

13   Hector H. Balderas, Attorney General
14   Santa Fe, NM
15   M. Victoria Wilson, Assistant Attorney General
16   Albuquerque, NM

17 for Appellee

18 Bennett J. Baur, Acting Chief Public Defender
19 Matthew J. O’Gorman, Assistant Appellate Defender
20 Santa Fe, NM

21 for Appellant
 1                                       OPINION

 2 HANISEE, Judge.

 3   {1}   A grand jury heard testimony from a Bernalillo County Sheriff’s Office

 4 detective that Defendant had touched seven-year-old A.G.’s genital area over her

 5 clothing, grabbed A.G. by the hips to prevent her from leaving, and asked A.G. to

 6 touch his penis.1 The prosecutor submitted to the grand jury a proposed indictment

 7 charging Defendant with (1) second-degree criminal sexual contact of a minor

 8 (CSCM) in violation of NMSA 1978, Section 30-9-13(A) (2004); (2) third-degree

 9 CSCM in violation of Section 30-9-13(C); (3) attempted second-degree CSCM (child

10 under thirteen) in violation of NMSA 1978, Section 30-28-1 (1963) and Section 30-9-

11 13(A); (4) kidnapping in violation of NMSA 1978, Section 30-4-1 (2004); (5)

12 intentional child abuse or in the alternative negligent child abuse, in violation of

13 NMSA 1978, Section 30-6-1(D) (2009); (6) tampering with evidence, in violation of

14 NMSA 1978, Section 30-22-5 (2003); and (7) bribery of a witness, in violation of

15 NMSA 1978, Section 30-24-3(A)(3) (1997).

16   {2}   Before the grand jury began to deliberate on the indictment, the prosecuting

17 attorney asked the detective witness a series of leading questions that summarized

18 relevant aspects of the detective’s testimony and tied this testimony to the charges in



        1
19        This testimony was based on accounts given to police by A.G. and her friend
20 who witnessed the alleged assault.
 1 the indictment. For example, the prosecuting attorney asked the detective, “So the

 2 [c]harges for the [s]exual [c]ontact, for touching [A.G.] over the clothes and also

 3 touching her inner thigh on the skin, is the [c]riminal [s]exual [c]ontact that they

 4 talked about? That she talked about?” To which the detective responded, “That [A.G.]

 5 talked about[,] yes.” Similarly, with respect to the attempted second-degree CSCM

 6 charge, the prosecutor asked the detective if “the attempted Criminal Sexual Contact,

 7 would be that [Defendant] asked [A.G.] to touch his penis?” The detective answered,

 8 “Correct.”

 9   {3}   The prosecutor asked additional leading questions that followed the same

10 template—tying an alleged fact from the detective’s testimony to an element of an

11 offense charged in a proposed indictment—for the remaining charges. At the

12 conclusion of these leading questions, a juror asked the detective to describe the

13 physical layout of the alleged crime scene, apparently wondering why there had been

14 no other eyewitnesses to the encounter. After the detective’s testimony, the grand jury

15 returned true bills on all counts of the proposed indictment.

16   {4}   Defendant filed a motion to dismiss, arguing that the prosecuting attorney’s

17 leading questions led the grand jury to indict him based on insufficient evidence and

18 that the prosecutor had failed to properly instruct the grand jury with the elements of

19 the crimes charged in the indictment. Citing NMSA 1978, Section 31-6-11(A) (2003),


                                              2
 1 which provides that “[t]he sufficiency of the evidence upon which an indictment is

 2 returned shall not be subject to review absent a showing of bad faith on the part of the

 3 prosecuting attorney assisting the grand jury[,]” the district court rejected this

 4 argument and denied the motion.2 The district court wrote that it “would have

 5 preferred that the prosecutor not use leading questions to elicit testimony from its sole

 6 witness . . . [but] Defendant failed to meet [his] burden in showing the prosecutor

 7 acted in bad faith.”

 8   {5}   Defendant filed a motion to reconsider, arguing that the district court’s decision

 9 was erroneous in light of our Supreme Court’s recent decision in Herrera v. Sanchez,

10 which held that a prosecutor may not “present[] the equivalent of a closing argument

11 regarding how the grand jurors should interpret the instructions as they relate to [the

12 target of its investigation].” 2014-NMSC-018, ¶ 30, 328 P.3d 1176. The district court

13 denied Defendant’s motion to reconsider, reasoning that the prosecutor’s leading

14 questions “summarized what was already testified to by [the d]etective[.]” The district

15 court certified its ruling for interlocutory review under NMSA 1978, Section 39-3-

16 3(A)(3) (1972). We granted Defendant’s request for leave to file an interlocutory

17 appeal and now affirm in part, reverse in part, and remand for further proceedings.


          2
18          The district court dismissed the tampering with evidence count without
19 prejudice, agreeing with Defendant that the prosecutor had failed to properly instruct
20 the grand jury with the elements of that crime. The State does not appeal that ruling.

                                               3
 1   {6}   As noted by the district court in its denial of Defendant’s motion to dismiss,

 2 Section 31-6-11(A) prohibits district court review of the sufficiency of the evidence

 3 in support of an indictment “absent a showing of bad faith on the part of the

 4 prosecuting attorney assisting the grand jury.” Defendant contends that the district

 5 court erred in finding that the prosecutor’s leading questions did not amount to bad

 6 faith because no reasonable prosecutor would have asked leading questions that

 7 suggested the existence of probable cause when the evidence did not support such a

 8 finding. But a fair reading of Section 31-6-11(A) is that not every indictment based

 9 on insufficient evidence is the result of prosecutorial bad faith; the purpose of the

10 statute is to restrict sufficiency of the evidence review (and the delay that such a

11 review entails) to circumstances where an indictment results from intentional

12 misconduct on the part of the prosecutor, not simply negligence or even recklessness.

13 See State v. Romero, 2006-NMCA-105, ¶¶ 7, 8, 140 N.M. 281, 142 P.3d 362

14 (discussing the “bad faith” element in Section 31-6-11(A) as a “statutory condition

15 precedent to judicial review” of the sufficiency of the evidence supporting an

16 indictment). We think the best way to give effect to this purpose is by giving the

17 phrase “bad faith” its ordinary meaning: “[d]ishonesty of belief, purpose, or

18 motive[.]” Black’s Law Dictionary 166 (10th ed. 2014). Reading the phrase “bad

19 faith” in Section 31-6-11(A) to imply an objective assessment of a prosecutor’s


                                              4
 1 conduct would render the statute’s distinction between indictments based on

 2 insufficient evidence and prosecutorial bad faith superfluous because no reasonable

 3 prosecutor would seek an indictment based on insufficient evidence. See State ex rel.

 4 Children, Youth & Families Dep’t v. Christina L., 2015-NMCA-115, ¶ 15, 362 P.3d

 5 155 (“[W]e consider the language of the statute as a whole and construe it so that no

 6 word and no part of the statute is rendered surplusage or superfluous.” (internal

 7 quotation marks and citation omitted)).

 8   {7}   Defendant argues that even if the indictment is not subject to judicial review

 9 for sufficiency under Section 31-6-11(A), his motion to dismiss is also cognizable as

10 a “structural challenge[] involving the manner in which the grand jury process has

11 been conducted[,]” over which our Supreme Court has permitted judicial review

12 without a showing of prosecutorial bad faith. Herrera, 2014-NMSC-018, ¶ 12.

13 Defendant argues that this case is analogous to State v. Sanchez, 1980-NMCA-137,

14 ¶ 9, 95 N.M. 27, 618 P.2d 371, overruled on other grounds by Buzbee v. Donnelly,

15 1981-NMSC-097, ¶ 46, 96 N.M. 692, 634 P.2d 1244, where this Court disapproved

16 of the prosecuting attorney’s presentation of witness testimony at the grand jury

17 proceeding through leading questions.

18   {8}   To the extent that the leading question issue addressed in Sanchez was not

19 dicta, the factual circumstances in the present case are distinguishable. 1980-NMCA-


                                              5
 1 137, ¶¶ 8-9. In Sanchez, all witnesses who testified before the grand jury had their

 2 testimony presented through leading questions—the grand jury’s determination of

 3 probable cause was based entirely on the witnesses’ “yes” or “no” answers to those

 4 questions. Id. ¶ 9. Here, the district court found that the detective “testified in

 5 response to open ended questions about what happened on the date in question. [The

 6 d]etective provided a lengthy narrative of the alleged incident. The majority of the

 7 leading questions summarized what was already testified to by [the d]etective.” This

 8 finding is supported by substantial evidence, and we do not think the use of leading

 9 questions in this manner, especially in light of Section 31-6-11(A)’s express

10 provision exempting grand jury proceedings from the rules of evidence, is the kind

11 of structural error that “strikes at the very heart of the grand jury’s assessment of

12 probable cause to indict.” Jones v. Murdoch, 2009-NMSC-002, ¶ 2, 145 N.M. 473,

13 200 P.3d 523.

14   {9}   Defendant’s third argument is that the prosecutor’s leading questions

15 “compromis[ed] the grand jury’s independent . . . determination of probable cause[,]”

16 and therefore amounted to “structural error” that requires dismissal of the indictment

17 without a showing of prejudice under Herrera. See Herrera, 2014-NMSC-018, ¶ 30.

18 In Herrera, the prosecuting attorney ordered the target not to answer a “direct,

19 relevant question from a grand juror,” id. ¶ 24, and also told the grand jury that the


                                             6
 1 target’s testimony should not be considered because it was an impermissible attempt

 2 to make the grand jury consider the consequences of its decision to indict, which is

 3 prohibited under the grand jury instructions. Id. ¶ 30. Our Supreme Court held that

 4 the prosecutor’s conduct violated the prosecutor’s duty of fairness and impartiality

 5 under NMSA 1978, Section 31-6-7(D) (2003) and “interfered with the grand jury’s

 6 statutory duty to make an independent inquiry into the evidence supporting a

 7 determination of probable cause.” Herrera, ¶¶ 24, 28, 30.

 8   {10}   Here, the prosecuting attorney did not compromise the grand jury’s

 9 independent evaluation of the testimony and application of the instructions it had

10 been given. Instead, the prosecuting attorney simply restated certain aspects of the

11 detective’s testimony and suggested that this testimony established elements of the

12 offenses charged in the indictment. We think this conduct falls within the scope of the

13 prosecuting attorney’s duty to “attend the grand jury, examine witnesses and prepare

14 indictments, reports and other undertakings of the grand jury.” Section 31-6-7(A). To

15 hold otherwise would give rise to absurd results. Under Defendant’s view of Herrera,

16 simply drafting an indictment and handing it to the foreman would compromise the

17 grand jury’s independence because such could be argued to suggest that the grand

18 jury should charge the crimes listed in the indictment. We decline to read Herrera so

19 expansively.


                                              7
 1   {11}   Instead, we understand Herrera to require an assessment of the prosecutor’s

 2 actions, viewed under the totality of the circumstances, in order to determine whether

 3 they prevented the jury from “mak[ing] an independent inquiry into the evidence

 4 supporting a determination of probable cause.” 2014-NMSC-018, ¶ 24. In this case,

 5 the district court was correct in its assessment that the prosecuting attorney’s leading

 6 questions did not work such a compromise on the grand jury’s independent judgment

 7 because the questions simply summarized the detective’s lengthy narrative testimony.

 8 It is telling that after the prosecutor’s leading questions, a member of the grand jury

 9 probed the detective’s testimony, asking that he explain the layout of the crime scene

10 to better understand why there were no other witnesses to the alleged crime. Viewed

11 in context, we do not think the prosecutor’s leading questions compromised the grand

12 jury’s ability to make an independent assessment of probable cause.

13   {12}   Defendant finally argues that the prosecutor failed to properly instruct the

14 grand jury with the counts charging defendant with CSCM in the third degree,

15 attempted CSCM in the second degree, and bribery of a witness.3 See State v.

16 Ulibarri, 1999-NMCA-142, ¶ 9, 128 N.M. 546, 994 P.2d 1164, aff’d, 2000-NMSC-

17 007, 128 N.M. 686, 997 P.2d 818. In Ulibarri, we held that the prosecuting attorney


         3
18         Defendant concedes that the prosecutor correctly read the elements of the
19 counts of the indictment charging Defendant with second-degree CSCM, kidnapping,
20 and intentional or in the alternative negligent child abuse.

                                              8
 1 must “specifically direct[] the grand jurors, on the record, to the portions of the grand

 2 jury manual where the appropriate elements of the offense or offenses under

 3 consideration may be found.” Id. ¶ 20. We explained that this procedure was

 4 necessary in order to enable the grand jury to find “where it can read the elements of

 5 each crime charged and how to get additional help if needed” and allow defendants

 6 “to verify that the jury was at least referred to the correct set of elements before it was

 7 asked to deliberate.” Id.

 8   {13}   The State argues that the prosecutor complied with his obligation under

 9 Ulibarri by referring the grand jury to the pages of the grand jury manual containing

10 instructions for the crimes charged in the indictment. If this was all the prosecutor had

11 done, Defendant would have no argument to make. Id. But the prosecutor went

12 beyond his obligation under Ulibarri and incorrectly read the elements of three

13 crimes set out in the indictment prepared for the grand jury. For the third-degree

14 CSCM count, the prosecutor referred the grand jury to the page in the manual

15 describing the elements of that charge, but incorrectly told the grand jury that it had

16 the same elements as the second-degree CSCM charge. See UJI 14-925 NMRA

17 (uniform jury instruction setting out the elements of second- and third-degree

18 CSCM). As to the attempted second- degree CSCM count, the prosecutor did not tell

19 the grand jury what underlying felony Defendant was being charged with attempting.


                                                9
 1 See UJI 14-2801 NMRA Use Note (requiring a separate instruction for each predicate

 2 felony charged in the attempt count). Finally, regarding the bribery of a witness

 3 count, the prosecuting attorney failed to instruct the grand jury as to the felony that

 4 the witness knew about when Defendant intimidated her. See UJI 14-2403 NMRA

 5 (requiring a reference to the felony that the witness had knowledge concerning in a

 6 bribery of a witness instruction). We agree with Defendant that the prosecutor’s

 7 erroneous instructions to the grand jury on these counts constitute structural error and

 8 require their dismissal without prejudice.

 9   {14}   The district court’s denial of Defendant’s motion to dismiss the counts in the

10 indictment charging Defendant with second-degree CSCM, kidnapping, and

11 intentional or in the alternative negligent child abuse is affirmed. We reverse its

12 denial of the motion to dismiss the counts charging Defendant with attempted second-

13 degree CSCM, third-degree CSCM, and bribery of a witness. The case is remanded

14 to the district court with instructions to dismiss those three counts without prejudice.

15   {15}   IT IS SO ORDERED.



16                                                 _________________________________
17                                                 J. MILES HANISEE, Judge




                                              10
1 WE CONCUR:



2 _________________________________
3 JAMES J. WECHSLER, Judge



4 _________________________________
5 TIMOTHY L. GARCIA, Judge




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