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                                                                New Mexico Compilation
                                                              Commission, Santa Fe, NM
                                                             '00'05- 10:21:58 2012.12.18

         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMSC-038

Filing Date: October 22, 2012

Docket No. 33,136

STATE OF NEW MEXICO,

       Plaintiff-Petitioner,

v.

WAYNE BENT

       Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Gerald E. Baca, District Judge

Gary K. King, Attorney General
Nicole Beder, Assistant Attorney General
Santa Fe, NM

for Petitioner

Law Works, L.L.C.
John A. McCall
Albuquerque, NM

for Respondent

                                       OPINION

BOSSON, Justice.

{1}     By the time Defendant was indicted, the grand jury allegedly had exceeded its
statutory term of service. Having been convicted subsequently of most of the charges in the
indictment, Defendant appeals on the basis of that untimely indictment. He claims that the
untimely indictment deprived the grand jury of jurisdiction and that we should overturn the
subsequent jury verdict against him because of that initial defect in the grand jury.
Persuaded by this argument, our Court of Appeals reversed Defendant’s convictions, in
effect instructing the State to begin the criminal process all over again. On certiorari we

                                            1
assume without deciding that the indictment was issued late as Defendant alleges. We hold,
however, that statutory challenges to the indictment like those presented here must be
adjudicated before trial and before a verdict issues on those same charges. Accordingly, we
reverse the Court of Appeals and remand to that Court for consideration of all other issues
raised but not yet decided in Defendant’s appeal.

BACKGROUND

{2}    On May 20, 2008, Wayne Bent (Defendant) was indicted on two counts of criminal
sexual contact of a minor and two counts of contributing to the delinquency of a minor.
Defendant is the leader of a religious sect and has always maintained that any contact with
the minors was innocent, and is part of a “healing ritual which the sect practiced” with all
members, not just those under eighteen years of age.

{3}     Soon after the indictment, Defendant filed a motion to quash the indictment,
alleging, among other things, that the grand jury had ceased to exist by operation of law
before handing down Defendant’s indictment. Central to the motion to quash was NMSA
1978, Section 31-6-1 (1983), which states that “[a] grand jury shall serve for a period of no
longer than three months.” Significant to this issue, the sequence of dates is as follows.

{4}    The grand jury process began when the district court entered an order dated October
3, 2007, requiring the court clerk to send a summons to 125 citizens of Union County. They
were told to report to the courthouse on November 13, 2007, to begin grand jury duty for a
term of three months. The record is unclear what, if anything, actually happened on
November 13, 2007.

{5}     Instead, the State claims that the “grand jury met for the first time” eight days later,
on November 21, 2007, to consider unrelated criminal charges against another individual,
although the citations to the record proper do not support any such claim. Both counsel
agree, however, that after the completion of business on November 21, 2007, District Judge
Sam Sanchez, presiding over the grand jury, orally extended the grand jury’s term of service
by another three months. Although there is no written record of that extension, neither party
denies it. The grand jury did not meet again until six months later, May 20, 2008, when it
heard evidence and issued the foregoing indictments against Defendant.

{6}     In his motion to quash the indictment, Defendant challenged the court’s authority to
extend grand jury service in light of the statutory three-month limit provided in Section 31-6-
1 (“grand jury shall serve for a period of no longer than three months”). As Defendant
calculated, the grand jury’s three-month term expired long before the indictment issued on
May 20, 2008, and therefore, according to Defendant, the grand jury had no authority even
to convene, much less indict, as of that date.

{7}    After conducting a pre-trial hearing on the motion, District Judge Gerald Baca,
assigned to preside over the criminal trial, declined to quash the indictment. Defendant filed

                                               2
a motion for leave to file an interlocutory appeal, which was denied. Defendant filed no
request with this Court for extraordinary relief, and the case proceeded to trial on the charges
in the indictment.

{8}      At trial, the jury convicted Defendant of one of the two counts of criminal sexual
contact of a minor as well as the two counts of contributing to the delinquency of a minor.
In his appeal to the Court of Appeals, Defendant raised multiple issues that are not before
us now, as well as the one issue that is, namely, the authority of the grand jury to indict after
its three-month term had expired.

{9}    Addressing this one issue only, the Court of Appeals held that the indictment should
have been quashed as a matter of law, and reversed all convictions. State v. Bent, 2011-
NMCA-093, ¶ 24, 150 N.M. 561, 263 P.3d 903. The Court concluded that the grand jury’s
three-month statutory limit is mandatory and jurisdictional, and therefore, an indictment
handed down after that time is “void ab initio.” Id. ¶ 2.

{10} We granted certiorari, 2011-NMCERT-009, 269 P.3d 904, to consider an important
issue of public policy that questions, first, the authority of the grand jury to indict, and
second, whether that indictment can be challenged at this late date, after a petit jury has
already convicted Defendant on the charges in the indictment. Because the Court of Appeals
deferred action on the many other issues in Defendant’s appeal, we limit our review to this
one before us.

DISCUSSION

{11} Article II, Section 14 of the New Mexico Constitution states that “[n]o person shall
be held to answer for a capital, felonious or infamous crime unless on a presentment or
indictment of a grand jury or information filed by a district attorney or attorney general or
their deputies.” While our Constitution makes general provisions for the grand jury, the
three-month term of service derives solely from statute. Section 31-6-1.

{12} Both parties have made extensive arguments directed at the length of the grand jury’s
term in this instance. Those arguments include whether a district judge has authority to
extend the statutory three-month term. If so, should that extension be limited to an incidental
matter of a few hours or days, or can the term be extended for another three months, as
appears to have occurred in this instance? Additionally, we are asked to decide whether the
initial term begins either (a) when the initial order convening the grand jury is signed, or on
the date potential grand jurors were told to initially report to the courthouse (both of which
occurred over six months before the date of this indictment); or (b) whether the initial term
begins on the date the grand jury actually convenes, in this case November 21, 2008, which
is exactly six months before the date of the indictment.

{13} Although the parties raise meritorious questions, we need not decide them at this
juncture. Instead, we assume, without deciding, that Defendant is correct, that the grand

                                               3
jury’s term of service had already expired by the time he was indicted. We do this because,
in our view, the pivotal question is whether a procedural, statutory error in the grand jury
proceedings arising from Section 31-6-1 can be raised and decided after a petit jury has
already found Defendant guilty beyond a reasonable doubt. We proceed to an analysis of
that specific issue.

{14} On its face, Section 31-6-1 does not provide any remedy for its violation. See State
v. Apodaca, 105 N.M. 650, 735 P.2d 1156 (Ct. App. 1987) (holding that portions of Section
31-6-1 are merely directory), overruled on other grounds by State v. Garcia, 110 N.M. 419,
796 P.2d 1115 (Ct. App. 1990). The statute sets forth the manner in which the grand jury
is to be convened and how it will deliberate thereafter. Presumably, if the grand jury
deviates from the statutory plan, the district court can order the statute enforced. In its
entirety the statute states,

       [t]he district judge may convene one or more grand juries at any time,
       without regard to court terms. A grand jury shall serve for a period of no
       longer than three months. The district judge shall summon and qualify as a
       panel for grand jury service such number of jurors as he deems necessary.
       Each grand jury shall be composed of twelve regular jurors and a sufficient
       number of alternates to insure the continuity of the inquiry and the taking of
       testimony. All deliberations shall be conducted by any twelve jurors,
       comprised of regular jurors or substituted alternates. No more than twelve
       jurors may deliberate. No juror may vote on an indictment unless the juror
       has heard all evidence presented on the charge. The district judge may
       discharge or excuse members of a grand jury and substitute alternate grand
       jurors as necessary. The names of jurors summoned for grand jury service
       shall be drawn from the master jury wheel of the district court for the county.

Section 31-6-1 (emphasis added).

{15} If this same question had come to us pre-trial, such as by way of an extraordinary
writ, then this Court could have addressed the statutory term of the grand jury and quashed
the indictment, if appropriate. See State v. Ulibarri, 1999-NMCA-142, ¶ 25, 128 N.M. 546,
994 P.2d 1164 (upholding pretrial quashing of indictment based on a violation of NMSA
1978, Sections 31-6-8 (1983) and 31-6-10 (1979) and Rule 5-506(B) NMRA (1999)), aff’d
2000-NMSC-007, 128 N.M. 686, 997 P.2d 818. We could have sent the matter back to the
district court for a new grand jury proceeding, one conducted in full compliance with the
statute. Faced with the challenge now, however, after a petit jury has already found
Defendant guilty beyond a reasonable doubt of these same charges—as opposed to a grand
jury finding of mere probable cause—we are compelled to recognize a prudential limit on
the exercise of our appellate jurisdiction. In doing so, we first examine the fundamental
purpose of grand juries in our criminal justice system.

{16}   The grand jury is one of the vestiges of early English common law, having been in

                                             4
existence for over eight hundred years. Buzbee v. Donnelly, 96 N.M. 692, 695, 634 P.2d
1244, 1247 (1981). “Over the centuries in Great Britain, the grand jury not only served to
discover and present for trial persons suspected of criminal wrongdoing, but also served to
protect the citizens against oppressive actions by the Crown.” Id.

{17} Today, the grand jury largely serves the same two functions. As our Court of
Appeals has previously stated,

       [t]he modern institution of the grand jury serves two basic functions; both
       aptly described in UJI 14-8001 [NMRA (2008)]. One purpose of the grand
       jury “is to investigate the matter for which [it is] called and to determine
       from the evidence if there is probable cause to believe an offense has been
       committed.” Id. On the other hand it is also the grand jury’s “duty to protect
       citizens against unfounded accusations whether they come from the
       government or others, and to prevent anyone from being indicted through
       malice, hatred or ill will.” Id.

Ulibarri, 1999-NMCA-142, ¶ 10 (second alteration in original). Similarly, the U.S.
Supreme Court has characterized a grand jury’s responsibilities to include “both the
determination whether there is probable cause to believe a crime has been committed and
the protection of citizens against unfounded criminal prosecutions.” United States v.
Calandra, 414 U.S. 338, 343 (1974). It is primarily the second of these responsibilities that
concerns us here.

{18} Importantly, at least in this appeal, Defendant does not challenge the evidentiary
basis for the grand jury’s finding of probable cause that he committed the crimes alleged, he
merely says the grand jury overstayed the statutory time limit. As a result, based on the
present record, we must assume that the quantum of evidence against Defendant, having
been enough to establish guilt beyond a reasonable doubt, is more than adequate to establish
probable cause merely to accuse Defendant of these same crimes. Thus, if we were to quash
the indictment now, the prosecutor would present the same evidence to a new grand jury, the
grand jury would likely find probable cause, and Defendant would be re-indicted and retried.
In short, reversal now, after a guilty verdict, would accomplish little because, based on this
record, probable cause exists to bring these same charges against Defendant.

{19} And what of the second of the grand jury’s responsibilities, that of protecting citizens
from “unfounded accusations” and “unfounded prosecutions” and the reputational damage
that can result? The grand jury can operate as a buffer against governmental
overzealousness; it can decline to indict when not persuaded. For most citizens the mere
accusation of a felony, such as those charged in this very case, can be ruinous to one’s name
and reputation even if the accused is eventually acquitted.

{20} Yet Defendant has already been indicted and convicted. Essentially, Defendant is
asserting a right designed to protect against an unwarranted trial, not to avoid trial, but so

                                              5
that he may suffer a second trial. Here again, because Defendant has brought this issue to
us so late, even if we were to agree with him that the grand jury’s term of service had
expired, we cannot fashion a relief that would be consistent with the constitutional purpose
of requiring a grand jury in the first place.

{21} At this point in the proceedings—post-conviction—there is simply no adequate
remedy available for Defendant. In coming to this conclusion, we are guided by persuasive
precedent, for this is not the first time our nation’s courts have confronted a similar problem.

{22} In United States v. Mechanik, 475 U.S. 66, 71 (1986), the U.S. Supreme Court
concluded,

       there is no simple way after the verdict to restore the defendant to the
       position in which he would have been had the indictment been dismissed
       before trial. He will already have suffered whatever inconvenience, expense,
       and opprobrium that a proper indictment may have spared him. In courtroom
       proceedings as elsewhere, “the moving finger writes; and, having writ, moves
       on.” Thus reversal of a conviction after a trial free from reversible error
       cannot restore to the defendant whatever benefit might have accrued to him
       from a trial on an indictment returned in conformity with [procedural rules].

Like the court in Mechanik, we cannot spare Defendant the “inconvenience, expense, and
opprobrium” that he has already suffered. Indeed, reversal based on error in the term of the
grand jury would only guarantee him more of the same.

{23} The facts of Mechanik are instructive. In that case, the defendants were indicted by
a federal grand jury on various drug and conspiracy charges. Id. at 67. More than a week
after the trial began the defendants learned that two witnesses had testified in tandem before
the grand jury while both were present, contrary to Federal Rule of Criminal Procedure 6(d),
which states that “only specified persons including the witness under examination may be
present at a grand jury proceeding.” Id. (internal quotation marks omitted). Upon learning
of the presence of the two witnesses, the defendants moved to dismiss the indictment, which
was denied. Id. at 68.

{24} Later during trial, the presiding judge fell ill and was replaced. Id. The defendants
then renewed their motion to quash which the new judge took under advisement. Id.
Ultimately, the jury found the defendants guilty of the charges in the indictment. Id. After
the guilty verdict, the new judge ruled that while Rule 6(d) had been violated, “a post-trial
dismissal of the indictment would simply confer a windfall benefit on the defendants who
stand convicted after a three-month trial . . . .” Id. at 69 (internal quotation marks and
citation omitted). The Court of Appeals reversed, overturning the conviction and quashing
the indictment. Id.

{25}   The U.S. Supreme Court reversed the Court of Appeals, agreeing with the trial court.

                                               6
While acknowledging that the defendants had been diligent in the pursuit of their claim, the
Court held that “the petit jury’s verdict rendered harmless any conceivable error in the
charging decision that might have flowed from the violation.” Id. at 73. The holding was
based in part on the societal costs of reversing a conviction free from error during trial. Id.
at 72. The Court noted the difference between errors that may have affected the verdict as
opposed to other errors, stating that

       [t]hese societal costs of reversal and retrial are an acceptable and often
       necessary consequence when an error in the first proceeding has deprived a
       defendant of a fair determination of the issue of guilt or innocence. But the
       balance of interest tips decidedly the other way when an error has had no
       effect on the outcome of the trial.

Id.

{26} In the present case, as in Mechanik, Defendant does not allege, nor could he, that this
technical error with the grand jury “had [any] effect on the outcome of the trial.” The error
in Mechanik, unfair presentation of witnesses before the grand jury, arguably could have
affected the indictment—unlike the technical error that occurred in this case—but in neither
case did the error have any effect upon the conviction at trial.

{27} In each case a petit jury of twelve, concluded that the defendants were guilty beyond
a reasonable doubt at the close of a trial free from any harmful effects of the errors that
occurred in the grand jury proceedings. As in Mechanik, the petit jury’s verdict against
Defendant “rendered harmless any conceivable error in the charging decision.” We agree
with the U.S. Supreme Court that “[i]n such a case, the societal costs of retrial after a jury
verdict of guilty are far too substantial to justify setting aside the verdict simply because of
an error in the earlier grand jury proceedings.” Id. at 73.

{28} This is not the first time that this Court has stressed the importance of a timely
challenge to grand jury proceedings. In Jones v. Murdoch, we created pre-indictment
procedures, based on legislative intent, to resolve disputes between the target and the
prosecutor over what potentially exculpatory evidence should be made available to the grand
jury. 2009-NMSC-002, ¶ 42, 145 N.M. 473, 200 P.3d 523. In doing so, we stated that

       [w]hile some irregularities in a grand jury proceeding are subject to judicial
       review, . . . a post-indictment remedy [much less a post-conviction remedy]
       may be inadequate to cure the very real damage that an ill-advised indictment
       may inflict on a target’s reputation even if the indictment is later dismissed
       or if the accused is innocent.

Id. ¶ 2. In that case the Attorney General also argued that a writ of superintending control
was inappropriate because the petitioner had an adequate remedy on appeal. Id. ¶ 17. This
Court responded by noting that “even if a target could successfully pursue the remedies

                                               7
suggested by the Attorney General, they would all be post-indictment remedies and, as such,
could not remedy the harm flowing from an unjustified indictment itself.” Id. ¶ 18. We
further stated:

       a wrongful indictment is no laughing matter; often it works grievous,
       irreparable injury to the person indicted. The stigma cannot be easily erased.
       In the public mind, the blot on a man’s escutcheon, resulting from such a
       public accusation of wrongdoing, is seldom wiped out by a subsequent
       judgment of not guilty. Frequently, the public remembers the accusation, and
       still suspects guilt, even after an acquittal.

Id. (quoting In re Fried, 161 F.2d 453, 458-59 (2d Cir. 1947)). In short, Jones v. Murdoch
made clear that there comes a point, as a practical matter, when issues with the grand jury
can no longer be remedied.

{29} As in Mechanik, we, too, recognize that Defendant was diligent in the pursuit of his
claim. He filed a motion to quash the indictment, which was denied. He applied to the
district court for interlocutory appeal, which was also denied. Defendant failed, however,
to take the next step which could have afforded him appropriate, meaningful relief; he failed
to file a petition for an extraordinary writ with this Court.

{30} As stated previously, if Defendant had filed such a writ, this Court would have been
in a position to review the matter before trial and, if appropriate, quash the indictment before
a jury convicted him of the charges. We could have intervened, in the words of the
Mechanik opinion, well before the “societal costs of reversal and retrial” had been incurred,
and before the “balance of interests” had tipped “decidedly the other way.”

{31} This Court has said in the past that extraordinary writs should not “be used as a
substitute for a decision on direct or interlocutory appeal.” Chappell v. Cosgrove, 1996-
NMSC-020, ¶ 6, 121 N.M. 636, 916 P.2d 836. In that same case we reviewed the petition
for extraordinary relief because “the relief available on direct appeal appear[ed] wholly
inadequate.” Id. The same would have been true here. We have stated numerous times that
extraordinary relief is appropriate when “the remedy by appeal seems wholly inadequate .
. . or where otherwise necessary to prevent irreparable mischief, great, extraordinary, or
exceptional hardship [, or] costly delays and unusual burdens of expense.” State ex rel.
Schwartz v. Kennedy, 120 N.M. 619, 624, 904 P.2d 1044, 1049 (1995) (alterations in
original) (internal quotation marks and citation omitted) (quoting two previous New Mexico
cases).

{32} We remind counsel that this Court has previously granted such relief in exactly this
context—a problem with the grand jury proceedings brought to our attention before trial.
In Davis v. Traub, this Court issued a writ of prohibition to prevent the district court from
proceeding to trial on a faulty indictment and ordered the indictment quashed and charges
dismissed. 90 N.M. 498, 501, 565 P.2d 1015, 1018 (1977). In so doing, this Court

                                               8
recognized that

        [i]f all the defendants indicted by the grand jury are required to go to trial
        with these issues undecided serious miscarriages of justice may occur and
        expensive and needless jury trials take place causing useless expense to the
        taxpayers and subjecting the relator and other accused to fruitless and
        unnecessary trials.

Id. at 499, 565 P.2d at 1016 (quoting State v. Dist. Ct. of First Jud. Dist., 220 P.2d 1035,
1039 (Mont. 1950)); see also Ulibarri, 1999-NMCA-142, ¶ 25 (quashing indictment pre-trial
for failure to follow grand jury rules for presenting essential elements of the charged crimes).

{33} In its opinion on direct appeal, our Court of Appeals held that an indictment issued
after the grand jury’s term expired is void ab initio and deprives the trial court of jurisdiction
to proceed to trial. Bent, 2011-NMCA-093, ¶ 2. Both Defendant and the Court of Appeals
rely on State v. Chacon, 62 N.M. 291, 309 P.2d 230 (1957), for this position. In that case,
a prosecution for burglary and grand larceny, the State filed charges by way of a criminal
complaint, to which the defendant pleaded guilty, as opposed to an indictment or information
as required by the Constitution. Id. at 291, 309 P.2d at 230. On appeal from a subsequent
revocation of his suspended sentence, Defendant challenged the validity of his guilty plea
because there had been no indictment or information as the state Constitution required. Id.
at 293-94, 309 P.2d at 231-32. This Court agreed and held that the failure to follow the
mandatory requirements of Article II, Section 14 of the New Mexico Constitution, requiring
an indictment or information, denied “the court jurisdiction to accept the guilty plea and
impose sentence on him.” Id. at 294, 309 P.2d at 232.

{34} Chacon stands correctly for the proposition that in New Mexico a felony must be
initiated by an indictment or information, or if not, the court does not acquire jurisdiction
over the case. But, Defendant’s reliance on Chacon in this case is misplaced. Here, the
charges against Defendant were initiated by indictment as the Constitution requires. The
grand jury heard evidence and determined there was probable cause to proceed against
Defendant. Defendant was tried and convicted of the charges in the indictment. This is in
stark contrast to Chacon.

{35} Chacon should be seen as a constitutional limit on the power of the court over
criminal matters that must be initiated by an indictment or information. Beyond such
specific limits, our constitution grants district courts “original jurisdiction in all matters and
causes not excepted in this constitution.” N.M. Const. art VI, § 13. The number of days in
the term of a grand jury, being merely a matter of statute, goes not to the jurisdiction of the
court—its fundamental power over the subject matter and the person of the accused—but to
the manner in which that power is to be exercised. Improper exercise of that power may
well be error, justifying judicial intervention as described earlier in this opinion, but it does
not deprive the court of the very power to act that goes to the heart of jurisdiction.


                                                9
{36} The view of jurisdiction taken by the Court of Appeals resembles more an artifact
of a bygone era when courts took a hyper-technical, almost talismanic approach to the
concept of subject matter jurisdiction. Any minor defect in a charging document could
deprive the district court of the power to act. We have long since disavowed such a theory
of jurisdiction. See Sundance Mech. & Util. Corp. v. Atlas, 109 N.M. 683, 690, 789 P.2d
1250, 1257 (1990) (holding that a defect in a civil complaint, even one required by statute,
did not deprive the district court of jurisdiction). We have previously suggested as much in
the criminal context. See State v. Weiss, 105 N.M. 283, 285-86, 731 P.2d 979, 981-82 (Ct.
App. 1986) (holding that an indictment returned after normal business hours in violation of
NMSA 1978, Section 31-6-4(A) (2003) was a mere technical violation of grand jury
procedures); Apodaca, 105 N.M. 650, 653, 735 P.2d 1156, 1159 (holding that a failure to
follow statutory procedures for replacing a grand juror with an alternate did not require post-
trial dismissal of the indictment). Accordingly, we disavow any use of a jurisdictional
analysis for what amounts to a statutory error in how the grand jury conducted its business.

{37} Finally, we observe that the district court is not without its share of blame in this
case. When it presided over the grand jury, the district court created a cloud of uncertainty
over the grand jury’s term of service. Then, relying on Apodaca to justify its denial of post-
indictment relief, the district court failed to recognize that Apodaca was dealing with, as we
do here, the appropriate post-conviction remedy for a violation of Section 31-6-1. This does
not mean that the grand jury statute can be disregarded in a situation pre-trial, as presented
here, that could have been easily remedied.

{38} Additionally, the district court should have granted an interlocutory appeal. This
kind of issue—one that cannot be remedied on direct appeal—is most appropriate for
resolution before trial, for the reasons discussed earlier. Proper pre-trial management would
have permitted this issue to be properly vetted before our appellate courts, in time for
appropriate relief.

CONCLUSION

{39} We reverse the Court of Appeals and remand to the Court of Appeals for further
consideration of the remaining issues Defendant raised on appeal.

{40}   IT IS SO ORDERED.

                                               ____________________________________
                                               RICHARD C. BOSSON, Justice

WE CONCUR:

____________________________________
PETRA JIMENEZ MAES, Chief Justice


                                              10
____________________________________
EDWARD L. CHÁVEZ, Justice

____________________________________
CHARLES W. DANIELS, Justice

____________________________________
PAUL J. KENNEDY, Justice

Topic Index for State v. Bent, No. 33,136

APPEAL AND ERROR
Interlocutory Appeal
Remand
Timeliness of Appeal

CONSTITUTIONAL LAW
New Mexico Constitution, General

CRIMINAL LAW
Contributing to the Delinquency of a Minor
Sexual Exploitation of Children

CRIMINAL PROCEDURE
Grand Jury
Indictment
Verdict

JURISDICTION
Appellate Jurisdiction
District Court
Subject Matter




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