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

 2 Opinion Number:

 3 Filing Date:    April 2, 2018

 4 No. A-1-CA-35857

 5 STATE OF NEW MEXICO,

 6       Plaintiff-Appellant,

 7 v.

 8 DARCIE PAREO and
 9 CALVIN PAREO,

10       Defendants-Appellees.

11 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
12 Drew D. Tatum, District Judge

13 Hector H. Balderas, Attorney General
14 Maris Veidemanis, Assistant Attorney General
15 Santa Fe, NM

16 for Appellant

17 Sandra E. Gallagher
18 Portales, NM

19 for Appellees
 1                                        OPINION

 2 KIEHNE, Judge.

 3   {1}   In this case we are called on to decide whether Defendants had a statutory right

 4 to testify before the grand jury that indicted them, whether that right was violated, and

 5 if so, whether they had to demonstrate prejudice to have the indictments quashed. We

 6 hold that Defendants had a statutory right to testify before the grand jury, that their

 7 right to do so was violated, and that the failure to allow them to exercise that right

 8 was a structural error that required no showing of prejudice. We therefore affirm the

 9 district court’s order quashing the indictments.

10 BACKGROUND

11   {2}   This matter is before us on the State’s consolidated appeal from the dismissal

12 of grand jury indictments returned against Defendants Darcie Pareo and Calvin Pareo.

13 The district court quashed the indictments against Defendants because they were not

14 allowed to testify before the grand jury, despite their presence and desire to do so.

15 Before the grand jury proceeding, Defendants informed the prosecutor of their desire

16 to testify. Defendants then appeared for the grand jury investigation and again

17 indicated that they wished to testify. The prosecutor assisting the grand jury informed

18 it multiple times of Defendants’ presence and desire to testify but did not tell the

19 grand jury that Defendants had a right to testify. The grand jury informed the
 1 prosecutor that it did not wish to hear Defendants’ testimony and was ready to begin

 2 its deliberations. Defendants were therefore never given the opportunity to testify

 3 before the grand jury. The grand jury indicted Defendants on multiple counts of fraud,

 4 conspiracy to commit fraud, forgery, racketeering, and conspiracy to commit

 5 racketeering.

 6   {3}   Defendants filed a motion to quash the indictments arguing that their right to

 7 testify before the grand jury was violated. The district court quashed the indictments,

 8 finding that Defendants had a right to testify before the grand jury under NMSA

 9 1978, Section 31-6-11(C)(3) and (4) (2003), Rule 5-302A(B) NMRA, and NMSA

10 1978, Section 31-6-4(D) (2003); that they were denied their right to testify; and that

11 because the right to testify is a “structural protection,” Defendants were not required

12 to demonstrate prejudice. The State appeals.

13 DISCUSSION

14 Defendants’ Statutory Right to Testify Before the Grand Jury Was Violated

15   {4}   The dismissal of an indictment is a matter of law that we review de novo. State

16 v. Blue, 1998-NMCA-135, ¶ 5, 125 N.M. 826, 965 P.2d 945. Our holding in this case

17 turns on whether Section 31-6-11(C)(3) and (4) provide grand jury targets a right to

18 testify before a grand jury, and whether Jones v. Murdoch, 2009-NMSC-002, 145

19 N.M. 473, 200 P.3d 523 held that a grand jury may decline to hear that testimony.


                                              2
 1   {5}   We begin with the applicable statute. Section 31-6-11(C) includes a notice

 2 provision that requires a prosecutor to inform the target of a grand jury investigation:

 3 that he is a target; of the nature and date of the alleged crime being investigated as

 4 well as any applicable statutory citations; and of the target’s right to assistance of

 5 counsel during the investigation. The statute also provides that a grand jury target

 6 must be notified of his “right to testify” before the grand jury. Section 31-6-11(C)(3),

 7 (4). Additionally, Rule 5-302A(A)(1)(d) requires a prosecutor to notify the target of

 8 a grand jury investigation in writing that he has a right to testify. The prosecutor may

 9 decline to notify the target only if the district court determines by clear and

10 convincing evidence that notice to the target may result in flight, obstruction of

11 justice, or danger to another person. See § 31-6-11(C).

12   {6}   Although Section 31-6-11(C)(3) and (4) are within a notice provision, we

13 conclude that they create a right to testify, because it would make no sense for the

14 Legislature to require the prosecutor to notify the target of the “right to testify” if the

15 Legislature did not also intend for such a right to exist. Id.; State v. Davis, 2003-

16 NMSC-022, ¶ 13, 134 N.M. 172, 74 P.3d 1064 (observing that appellate courts will

17 not interpret statutes “in a manner that leads to absurd or unreasonable results”).

18   {7}   The statute’s history also indicates that the Legislature intended to expand a

19 target’s ability to testify before the grand jury. As enacted in 1969, and originally


                                                3
 1 codified as NMSA 1953, § 41-5-11 (1969), the statute contained no provision that

 2 granted a target a right to testify. See 1969 N.M. Laws, ch. 276, § 11. The 1979 and

 3 1981 amendments to the recodified statute, § 31-6-11, added language providing that

 4 “[t]he target shall be notified of his target status and be given an opportunity to

 5 testify, if he desires to do so, unless the prosecutor determines that notification may

 6 result in flight, endanger other persons, obstruct justice, or the prosecutor is unable

 7 with reasonable diligence to notify said person.” 1979 N.M. Laws, ch. 337, § 8(B);

 8 1981 N.M. Laws, ch. 238, § 1. In 2003, the Legislature added subsection C, detailing

 9 the requirements for giving notice to a target of a grand jury investigation, and

10 specifically providing that the target shall be notified of his “right to testify.” See

11 § 31-6-11(C)(3), (4).

12   {8}   Here, the right to testify before the grand jury was not afforded to Defendants.

13 Although the prosecutor informed the grand jury that Defendants were present and

14 ready to testify, he did not inform it that Defendants had a right to testify. Evidently

15 under the impression that it could choose whether or not to hear from Defendants, the

16 grand jury declined to hear their testimony. The prosecutor’s failure to provide correct

17 and complete advice to the grand jury resulted in Defendants being deprived of their

18 right to testify.




                                              4
 1   {9}    The State argues that under Jones the prosecutor assisting the grand jury was

 2 not required to present Defendants’ testimony to the grand jury, but only had to alert

 3 the grand jury to the Defendants’ desire to testify, and that it was the grand jury’s

 4 prerogative to decide whether or not to hear it. We do not agree.

 5   {10}   In Jones, our Supreme Court considered Section 31-6-11(B), which provides

 6 in relevant part that “[a]t least twenty-four hours before grand jury proceedings begin,

 7 the target or his counsel may alert the grand jury to the existence of evidence that

 8 would disprove or reduce an accusation or that would make an indictment unjustified,

 9 by notifying the prosecuting attorney who is assisting the grand jury in writing

10 regarding the existence of that evidence.” While resolving the dispute in that case,

11 which concerned a letter proffered by the target, and the parties’ disagreement about

12 whether it should have been provided to the grand jury, our Supreme Court observed

13 that “[e]ven if the grand jury judge determines that the grand jury should be alerted

14 to the existence of the evidence, the grand jury remains free to decide not to hear the

15 evidence offered by the target or to hear the evidence and weigh it as it sees fit.”

16 Jones, 2009-NMSC-002, ¶ 12.

17   {11}   The State seizes on this language and argues that it was also within the grand

18 jury’s discretion to decide whether or not to hear Defendants’ testimony. We disagree.

19 Our Supreme Court’s observation in Jones was based on Section 31-6-11(B)’s


                                               5
 1 language requiring only that the grand jury be “alerted to the existence of [potentially

 2 exculpatory] evidence” offered by the target. Jones, 2009-NMSC-002, ¶ 12; see id.

 3 ¶ 11 (“Assuming that the target’s offer of evidence meets the evidentiary standards

 4 set forth by statute, Section 31-6-11(B) only requires that the grand jury be alerted to

 5 its existence. We contemplate requiring nothing more.”); see also id. ¶ 24 (“The

 6 provision at issue does not purport to command the grand jury to accept the target’s

 7 evidence. Instead, the provision simply identifies the prosecutor as the conduit by

 8 which a target may alert the grand jury to pertinent evidence. As such, the provision

 9 at issue in this case does not diminish the grand jury’s prerogative to weigh the

10 evidence before it as it sees fit in making an independent decision whether to indict.

11 Indeed, the grand jury is not even required to hear the evidence once it is made aware

12 of its existence.”).

13   {12}   By contrast, Section 31-6-11(C)(3) and (4) recognize that targets have a “right

14 to testify,” not merely a right to alert the grand jury that they would like to testify. As

15 used in this context, the word “right” means “[a] power, privilege, or immunity

16 secured to a person by law[.]” Black’s Law Dictionary 1517 (10th ed. 2014). We

17 therefore conclude that Section 31-6-11(C) provides a target with the power to choose

18 whether to testify, and does not provide the grand jury with any power to decline to

19 hear a target’s testimony. Likewise, if a target expresses a desire to testify, the


                                                6
 1 prosecutor must advise the grand jury that the target has a right to do so.

 2   {13}   Having held that a grand jury target has a statutory right under Section 31-6-

 3 11(C)(3) and (4) to testify before a grand jury, we need not address the district court’s

 4 ruling that Section 31-6-4(D), which provides that the target’s attorney may

 5 accompany him while testifying, also creates a right to testify. Nor will we consider

 6 Defendants’ argument that their right to testify before the grand jury is a substantive

 7 due process right under the United States and New Mexico Constitutions. See Allen

 8 v. LeMaster, 2012-NMSC-001, ¶ 28, 267 P.3d 806 (“It is an enduring principle of

 9 constitutional jurisprudence that courts will avoid deciding constitutional questions

10 unless required to do so.” (internal quotation marks and citation omitted)).

11 Defendants Were Not Required to Show Prosecutorial Bad Faith or Prejudice
12 Because the Failure to Allow Defendants to Testify Before the Grand Jury Was
13 a Structural Defect in the Grand Jury Proceeding

14   {14}   Our Supreme Court has explained that “[c]hallenges arising from grand jury

15 proceedings ordinarily fall into two categories: (1) challenges to the quality or

16 sufficiency of the evidence before the grand jury and (2) structural challenges

17 involving the manner in which the grand jury process has been conducted.” Herrera

18 v. Sanchez, 2014-NMSC-018, ¶ 12, 328 P.3d 1176. To succeed on a challenge in the

19 first category, as required by statute, the target must show that the prosecutor acted

20 in bad faith in presenting the evidence to the grand jury. See id. ¶ 13 (citing § 31-6-


                                               7
 1 11(A)). But “[i]f the target of a grand jury investigation establishes, pretrial, that the

 2 grand jury proceedings were conducted in violation of these structural protections,

 3 the target is entitled to dismissal of the indictment and is not required to demonstrate

 4 prejudice.” Id. ¶ 17.

 5   {15}   The State argues that the district court erred by not requiring Defendants to

 6 demonstrate prosecutorial bad faith or prejudice. We disagree and affirm the district

 7 court’s determination that Defendants’ challenge was a structural one. The issue here

 8 is not the sufficiency or the quality of the evidence supporting the indictments, but

 9 rather that the grand jury proceeding was conducted in violation of Section 31-6-

10 11(C)(3) and (4) because Defendants were not permitted to exercise their right to

11 testify.

12   {16}   The State relies on several of this Court’s previous decisions, such as State v.

13 Penner, 1983-NMCA-116, 100 N.M. 377, 671 P.2d 38; State v. Tisthammer, 1998-

14 NMCA-115, ¶ 24, 126 N.M. 52, 966 P.2d 760; and State v. Gallegos, 2009-NMSC-

15 017, 146 N.M. 88, 206 P.3d 993, to support its argument. In Penner, we did hold that

16 the state’s violation of one of the notice requirements in Section 31-6-11 did not

17 require an indictment to be quashed absent a showing of prejudice, but the version of

18 the statute in effect at that time required the target to “establish[] actual and

19 substantial prejudice” before he could obtain relief. Penner, 1983-NMCA-116, ¶¶ 1-2


                                                8
 1 (internal quotation marks and citation omitted). The Legislature removed this

 2 language from the statute in 2003, see § 31-6-11, and thus Penner is irrelevant.

 3   {17}   The State’s reliance on Tisthammer also fails. The State relies on paragraph

 4 twenty-four of the Tisthammer opinion in support of the proposition that a defendant

 5 must show prejudice before a grand jury indictment may be dismissed, but our ruling

 6 there was based on a violation of the right to counsel under Section 31-15-10(B) of

 7 the Public Defender Act, NMSA 1978, Sections 31-15-1 to -12 (1973, as amended

 8 through 2014). See Tisthammer, 1998-NMCA-115, ¶¶ 20-24. The State does not

 9 explain the relevance of the Public Defender Act to our construction of Section 31-6-

10 11. See State v. Guerra, 2012-NMSC-014, ¶ 21, 278 P.3d 1031 (noting that appellate

11 courts are under no obligation to review unclear or undeveloped arguments).

12   {18}   Finally, in Gallegos, our Supreme Court addressed a challenge to the quality

13 of the evidence supporting an indictment and held that the defendant’s challenge

14 could not succeed absent a showing of prosecutorial bad faith as required by Section

15 31-6-11(A). Gallegos, 2009-NMSC-017, ¶¶ 9, 11. But as we have explained, here

16 Defendants did not challenge the sufficiency of the evidence supporting their

17 indictments under Section 31-6-11(A). Rather, they challenged the State’s failure to

18 ensure that the grand jury process was conducted in accord with Section 31-6-11(C).




                                              9
 1 CONCLUSION

 2   {19}   We affirm the district court’s order quashing the indictments. Defendants had

 3 a statutory right to testify before the grand jury, and the failure to respect that right

 4 was a structural error in the grand jury process that required no showing of prejudice

 5 or of prosecutorial bad faith. An order quashing an indictment does not preclude the

 6 State from presenting its case against Defendants to another grand jury. See State v.

 7 Ulibarri, 1999-NMCA-142, ¶ 24, 128 N.M. 546, 994 P.2d 1164 (“[D]ismissals for

 8 failure to comply with the grand jury statutes and rules are of necessity without

 9 prejudice.”). Should the State ask another grand jury to consider charges against

10 Defendants and if Defendants still wish to testify, the State must inform the grand

11 jury that Defendants have a right to testify.

12   {20}   IT IS SO ORDERED.



13                                                 ______________________________
14                                                 EMIL J. KIEHNE, Judge




                                              10
1 WE CONCUR:



2 ___________________________________
3 LINDA M. VANZI, Chief Judge



4 ___________________________________
5 MICHAEL E. VIGIL, Judge




                                  11
