         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: ____________

Filing Date: June 12, 2014

Docket No. 34,355

AMY HERRERA,

       Petitioner,
v.

HON. ROSS C. SANCHEZ,
SECOND JUDICIAL DISTRICT JUDGE,

       Respondent,

and

STATE OF NEW MEXICO,

       Real Party in Interest.

ORIGINAL PROCEEDING

D. Eric Hannum, Esq.
Lupe Preciado, Esq.
Albuquerque, NM

for Petitioner

Gary K. King, Attorney General
Scott Fuqua, Assistant Attorney General
Santa Fe, NM

for Respondent

Gary K. King, Attorney General
Scott Fuqua, Assistant Attorney General
Santa Fe, NM

for Real Party in Interest


                                          1
                                         OPINION

MAES, Justice.

{1}     After her indictment for second-degree murder, but prior to trial, Petitioner Amy
Herrera sought a writ of mandamus from this Court directing the district court to dismiss the
indictment. Petitioner contends that the prosecuting attorney assisting the grand jury failed
to adhere to certain structural protections of our grand jury statutes that are critical to the
integrity of our grand jury system. Specifically, Petitioner argues that the prosecutor
prevented the grand jury from inquiring into the facts demonstrating probable cause and
failed to act in a fair and impartial manner when instructing the grand jury. We agree that
the manner in which the prosecutor conducted the grand jury proceedings warrants dismissal
of the indictment. We therefore issued a writ of mandamus directing the district court to
dismiss the indictment without prejudice to the State’s right to bring new criminal charges
against Petitioner. In this opinion we discuss our reasons for issuing the writ.

BACKGROUND

{2}     On July 1, 2012, Petitioner’s husband Marc Herrera died at home from a single
gunshot wound to the face. Police initially treated the shooting as a suicide. Several months
later the death was determined to be a homicide, and Petitioner was charged by criminal
complaint with an open count of murder.

{3}     The assistant district attorney decided to present the case to the grand jury for a
determination of probable cause. Petitioner therefore became the target of a grand jury
investigation. A week before the grand jury was scheduled to convene, Petitioner’s attorney
delivered a letter to the assistant district attorney who would be prosecuting the case,
requesting that the prosecuting attorney alert the grand jury to a variety of evidence that
Petitioner deemed exculpatory. The letter included a request that the grand jury be alerted
to potential witness testimony from Petitioner’s friend Elizabeth Downs. As explained in the
letter,

                Ms. Herrera asks that the grand jury be allowed to hear the testimony
       of Elizabeth Downs. Ms. Downs is a friend to whom Ms. Herrera had
       confided that her husband, decedent Marc Herrera, had previously attacked
       her and threatened to kill her. Ms. Downs will testify that she and Ms.
       Herrera had discussed an “escape plan” for Ms. Herrera in the event that she
       felt it was too dangerous to stay in her home with Marc Herrera. Ms. Downs
       will testify that several weeks before the incident, she had given Ms. Herrera
       a key to her home to use whenever she felt too frightened by her husband to
       return to her own home. This evidence will support a finding of self-defense
       by showing the reasonableness of Ms. Herrera’s ongoing fear for her own
       safety.


                                              2
{4}       The State filed a motion to preclude much of Petitioner’s requested evidence,
including the potential witness testimony from Ms. Downs. The grand jury judge granted the
motion in part. He redacted portions of Petitioner’s letter, including the paragraph about Ms.
Downs, and attached the modified letter to an order stating “the Grand Jury shall only be
advised of the parts of the Letter . . . which have not been redacted.” The order explained
that parts of the letter had been redacted because they contained “argumentative assertions
or . . . legal conclusions.”

{5}     The assistant district attorney presented the State’s case to a grand jury. The grand
jury heard testimony from two witnesses, Detective Holly Anderson from the Albuquerque
Police Department and Petitioner. Detective Anderson testified first, describing the events
that occurred on the night of the shooting and her subsequent investigation of the case.

{6}    Petitioner testified after Detective Anderson. Petitioner began,

       Well, I think there’s a lot that you need to know to make this—well, to make
       a good decision here today. First of all, I know you didn’t know Mar[c], you
       don’t know me, but I’m hoping to give you enough information. Feel free to
       ask me any questions any time.

Petitioner then gave her account of the events that occurred on the night of the shooting.
Petitioner and her husband had been hosting a party at their house for a group of foreign
exchange students. At about 3:00 a.m., after an evening of drinking, dancing, and games,
everyone was preparing for bed when Marc, intoxicated, pointed a gun at one of the students.
Petitioner asked Marc to put the gun away, told Marc it was time for bed, and walked into
the couple’s bedroom. Marc followed her. Petitioner testified that Marc pushed her down in
the bedroom closet, got on top of her with the gun, and put the gun in her face. Petitioner
stated she was “absolutely sure” he was going to shoot her, but then he put the gun in his
own mouth. Marc placed the gun in Petitioner’s hands, saying she “was going to do it,” and
she pulled the trigger.

{7}    After Petitioner testified, the prosecuting attorney questioned Petitioner as follows:

       [ASSISTANT DISTRICT ATTORNEY]: Okay. Now, initially, you told a
       couple of different people that Mar[c] shot himself; is that true?
       MS. HERRERA: On the phone, yeah.
       [ASSISTANT DISTRICT ATTORNEY]: Okay. But now you’re saying that
       you shot him?
       MS. HERRERA: Yes.
       [ASSISTANT DISTRICT ATTORNEY]: Okay. Because you’re—you were
       scared?
       MS. HERRERA: Terrified.
       [ASSISTANT DISTRICT ATTORNEY]: Okay. But you didn’t tell anyone
       at the scene that he had—that you were terrified?

                                              3
       MS. HERRERA: You know, there was a past of violence in our relationship
       and I was really accustomed to lying for him.
       [ASSISTANT DISTRICT ATTORNEY]: But you never reported anything
       to anyone, to law enforcement?
       MS. HERRERA: Because he was threatening me.
       [ASSISTANT DISTRICT ATTORNEY]: But you never reported it?
       MS. HERRERA: No.

{8}    The prosecuting attorney proceeded to ask whether the grand jurors had any
questions for Petitioner. One of the grand jurors asked Petitioner questions. Petitioner
answered the grand juror’s questions until the prosecuting attorney halted her testimony, as
follows:

       GRAND JUROR: Was he physically abusive to you?
       MS. HERRERA: Yes, he was, on several occasions.
       GRAND JUROR: Did you ever go to the hospital?
       MS. HERRERA: Not to the hospital, no. He was a highly trained black ops
       pilot in the Air Force. One time that he choked me, he made a point to show
       that he was going to crush my windpipe because it wouldn’t leave any marks,
       and that they had trained him to do that correctly.
       GRAND JUROR: Did you ever tell anyone else that that kind of thing was
       going on?
       MS. HERRERA: Yes, I did tell my friend Elizabeth Downs at work. I
       actually had created an escape plan for myself that June because—
       [ASSISTANT DISTRICT ATTORNEY]: So, I’m going to stop her.
       MS. HERRERA: —it was escalating.
       [ASSISTANT DISTRICT ATTORNEY]: Unfortunately, that—the
       information that she’s providing you has—is not relevant to this proceeding
       at the moment. Are there any other questions for her?

The grand jurors asked no additional questions, and Petitioner left the grand jury room.

{9}     Before releasing the grand jurors to deliberate, the prosecuting attorney gave them
some final jury instructions. The prosecuting attorney began with two instructions modeled
on our Uniform Jury Instructions that explain how the grand jury should evaluate witness
credibility and opinion testimony:

               Credibility. You alone are the judges of the credibility of the
       witnesses and the weight to be given to the testimony of each. In deterring
       [sic] the credit to be given any witness, you should take into account the
       witness’ truthfulness or untruthfulness, ability and opportunity to observe,
       manner—to observe, memory, manner while testifying, and interests, bias,
       or prejudice the witness may have, and the reasonableness of the witness’
       testimony considered in the light of all the evidence.

                                             4
               Opinion testimony. You should consider each opinion received in
        evidence in this case and give it such weight as you think it deserves. If you
        should conclude that the reasons given in support of the opinion are not
        sound or for that—or that for any other reason the opinion is not correct, you
        may disregard it.

See UJI 14-5020 NMRA (Credibility of witnesses); UJI 14-5050 NMRA (Opinion
testimony). The prosecuting attorney then told the grand jury,

               You must not concern yourself with the consequences of the verdict.
        She told you to—to come to the correct conclusion. She was directly
        appealing to you to consider the consequences of your verdict. That is
        absolutely inappropriate. Please do not let anything she said to you about,
        you know, implying what the right decision is influence your decisions. She
        was improperly seeking your sympathy.

The prosecuting attorney followed this admonition with one final instruction modeled on our
Uniform Jury Instructions:

                You are the sole judges of the facts. It is your duty to determine the
        facts from the evidence produced here. Your verdict should not be based on
        speculation, guess, or conjecture. Neither sympathy nor prejudice should
        influence your verdict. You are to apply the law as stated in these instructions
        to the facts as you find them, and in this way decide the case.

See UJI 14-6006 NMRA (Jury sole judge of facts; sympathy or prejudice not to influence
verdict). The prosecuting attorney then released the grand jury to deliberate, and the grand
jury indicted Petitioner for second-degree murder. Petitioner sought to challenge the
indictment.

{10} A target of a grand jury investigation has several avenues for challenging the manner
in which grand jury proceedings have been conducted. The target may file a motion to quash
the indictment in the district court, apply for an interlocutory appeal, or file a petition for an
extraordinary writ with this Court. See State v. Bent, 2012-NMSC-038, ¶ 29, 289 P.3d 1225.
Whichever avenue the target pursues, such challenges should be raised before trial because
a petit jury’s finding at trial of guilt beyond a reasonable doubt typically will moot any post-
conviction challenges to the grand jury’s determination of probable cause. See id. ¶¶ 18, 21
(declining to quash an indictment post-trial because the evidence against the defendant was
“enough to establish guilt beyond a reasonable doubt” and would therefore be more than
adequate to establish the probable cause necessary to retry the defendant).

{11} In this case, Petitioner moved the district court to dismiss the indictment prior to trial.
Petitioner argued that “the prosecutor aiding the grand jury did not act in a fair and impartial
manner, overrode the independence of the grand jury, and improperly instructed the grand

                                                5
jury to disregard [Petitioner’s] testimony.” The State filed a response, asserting that
Petitioner was not entitled to relief because she had failed to show prejudice or prosecutorial
bad faith. The trial judge, Second Judicial District Judge Ross Sanchez, denied the motion.
Petitioner then sought a writ of mandamus and superintending control from this Court to
compel the district court to rescind the order denying her motion to dismiss and to enter an
order dismissing the indictment without prejudice. Our jurisdiction to issue a writ of
mandamus to a district court judge stems from Article VI, Section 3 of the New Mexico
Constitution, which grants this Court “superintending control over all inferior courts” and
the “power to issue writs of mandamus.” N.M. Const. art. VI, § 3.

DISCUSSION

Standards for Reviewing Challenges to Grand Jury Proceedings

{12} Challenges arising from grand jury proceedings ordinarily fall into two categories:
(1) challenges to the quality or sufficiency of the evidence before the grand jury and (2)
structural challenges involving the manner in which the grand jury process has been
conducted. See State v. Ulibarri, 1999-NMCA-142, ¶¶ 12-13, 128 N.M. 546, 994 P.2d 1164,
aff’d, 2000-NMSC-007, 128 N.M. 686, 997 P.2d 818.

{13} A target’s ability to challenge the sufficiency of the evidence before the grand jury
generally is limited to the review permitted by statute. See State v. Chance,
1923-NMSC-042, ¶ 8, 29 N.M. 34, 221 P. 183 (holding that courts cannot review the
sufficiency of the evidence underlying an indictment “unless there is some clear statutory
authority to do so”). Under NMSA 1978, Section 31-6-11(A) (2003), “[t]he sufficiency of
the evidence upon which an indictment is returned shall not be subject to review absent a
showing of bad faith on the part of the prosecuting attorney assisting the grand jury.” In
accordance with this statute, our courts will not entertain a target’s challenge to the quality
or sufficiency of the evidence presented to the grand jury unless the target demonstrates
prosecutorial bad faith. See, e.g., State v. Gallegos, 2009-NMSC-017, ¶¶ 9-11, 146 N.M. 88,
206 P.3d 993.

{14} A different standard applies to a target’s claim that grand jury proceedings have been
conducted in violation of the laws governing the grand jury process. Our courts view these
challenges differently because our grand jury statutes provide structural protections that
safeguard the grand jury’s ability to perform its constitutional function. See generally NMSA
1978, §§ 31-6-1 to -15 (1969, as amended through 2003). Under Article II, Section 14 of the
New Mexico Constitution, the State may prosecute a person for a “capital, felonious or
infamous crime” only after obtaining a neutral determination of probable cause. See State
v. Lopez, 2013-NMSC-047, ¶ 2, 314 P.3d 236. To obtain such a determination, the district
attorney may either present the case to a grand jury and seek an indictment or proceed with
a preliminary examination before a judge and file a criminal information if the judge finds
probable cause to prosecute. See id.


                                              6
{15} When the State proceeds by indictment, the grand jury serves two primary functions:
(1) to determine whether there is probable cause to believe that the target of an investigation
has committed a crime and (2) to protect innocent citizens from hasty, malicious, or arbitrary
prosecutions. See Ulibarri, 1999-NMCA-142, ¶ 10. The grand jury sits without direct
supervision from the grand jury judge and fulfills its constitutional responsibilities with help
from a prosecuting attorney, who serves as an aide to the grand jury. See § 31-6-7(A). The
prosecutor calls witnesses, examines those witnesses, and instructs the grand jury on the law
and the application of the law. Id. If the prosecutor does not strictly adhere to the grand jury
statutes and procedural rules designed to protect the target’s rights and ensure the
fundamental fairness of the proceeding, the structural integrity of the grand jury process is
compromised, along with the grand jury’s determination of probable cause. See Baird v.
State, 1977-NMSC-067, ¶ 6, 90 N.M. 667, 568 P.2d 193 (“[S]tatutes governing grand jury
proceedings [are] to be rigorously observed and strictly enforced.”); see also Davis v. Traub,
1977-NMSC-049, ¶ 5, 90 N.M. 498, 565 P.2d 1015 (per curiam) (explaining that this Court
“will not permit anyone to circumvent the letter or the spirit” of the laws that enable the
grand jury to guard “the citizens’ right to be free from government harassment”).

{16} While the prosecuting attorney plays a central role in the grand jury process, the
target’s participation is confined to testifying, if the target chooses to do so, see § 31-6-
11(C)(3)-(5), and to asking the prosecuting attorney to alert the grand jury to exculpatory
evidence and possible defenses, see § 31-6-11(B). Grand jury proceedings are conducted in
secret, and the target and the target’s attorney are permitted to be present only if and when
the target testifies. See § 31-6-4(B)-(D). The target’s attorney may not participate in the
proceedings—except to advise the target—and may not speak in a manner that is audible to
the grand jurors. See § 31-6-4(D). In these respects a grand jury proceeding is markedly
different from a preliminary examination conducted before a judge, in which the defendant
plays an active, adversarial role. For example, at a preliminary examination the defendant
is permitted to be present with counsel throughout the duration of the proceedings, to cross-
examine the State’s witnesses, and to call and subpoena witnesses on the defendant’s own
behalf. See generally Rule 5-302 NMRA.

{17} Because grand jury proceedings are conducted by a prosecutor acting under the
indirect supervision of the grand jury judge, we rely on the structural protections of the grand
jury statutes and procedural rules to preserve the target’s rights and the integrity of the grand
jury process. If the target of a grand jury investigation establishes, pretrial, that the grand
jury proceedings were conducted in violation of these structural protections, the target is
entitled to dismissal of the indictment and is not required to demonstrate prejudice. See, e.g.,
De Leon v. Hartley, 2014-NMSC-005, ¶¶ 16-17, 316 P.3d 896 (holding that the district court
should have quashed an indictment without requiring the target to show prejudice because
the district attorney improperly exercised control over the selection and excusal of grand
jurors and the defendant brought this to the attention of the district court before trial); Davis,
1977-NMSC-049, ¶ 4 (holding “that the presence of an unauthorized person before the grand
jury requires dismissal of the indictment without the necessity of showing prejudice”);
Ulibarri, 1999-NMCA-142, ¶¶ 13-15 (holding that the prosecuting attorney’s failure to

                                                7
instruct grand jurors on the record of the elements of the relevant criminal offenses
warranted dismissal of the indictment without a showing of prejudice); cf. State v. Bigler,
1982-NMCA-136, ¶¶ 1, 8, 12, 98 N.M. 732, 652 P.2d 754 (holding that a sixty-five second
gap in the audio recording of the grand jury proceedings, which was caused by an equipment
malfunction, did not justify application of the per se prejudice rule). Our courts presume
prejudice in such cases because the structural protections of the grand jury statutes preserve
the integrity of the grand jury system and because, as a practical matter, evaluating actual
prejudice would require a speculative inquiry and impose a difficult burden on the target and
the courts. See De Leon, 2014-NMSC-005, ¶¶ 16-17; Davis, 1977-NMSC-049, ¶ 10;
Ulibarri, 1999-NMCA-142, ¶¶ 14-15.

The Prosecuting Attorney Interfered with the Grand Jury’s Independent Duty to
Investigate the Facts Bearing on the Issue of Probable Cause

{18} During Petitioner’s grand jury testimony, the prosecuting attorney prevented
Petitioner from answering a grand juror’s question regarding whether Petitioner ever told
anyone that her husband was physically abusive to her. Petitioner argues that this inquiry
into prior violence was relevant to her state of mind at the time of the shooting and that her
answers would have helped the grand jury consider the issues of provocation and self-
defense. The State responds that the prosecuting attorney acted in accordance with the grand
jury judge’s preliminary order excluding the potential witness testimony from Ms. Downs.
We disagree with the State’s interpretation of the grand jury judge’s order.

{19} Our grand jury statutes permit the target of a grand jury investigation to alert the
grand jury to exculpatory evidence or a relevant defense. See § 31-6-11(B); see also Rule
5-302A(B)(3) NMRA. To do so, the target must timely submit to the prosecuting attorney
a grand jury alert notice containing “a factual and non-argumentative description of the
nature of any tangible evidence and the potential testimony of any witnesses.” Rule 5-
302A(B)(3)(a). “[A]ny arguments as to the propriety or significance of the requested
evidence and defenses” should be included in a separate cover letter, “which will not go to
the grand jury.” Rule 5-302A(B)(3)(b).

{20} If the target timely submits a grand jury alert notice to the prosecutor, the prosecutor
is obligated to alert the grand jury to any target-offered evidence that is “lawful, competent
and relevant,” § 31-6-11(A), and “that would disprove or reduce [an] accusation or . . . make
an indictment unjustified,” § 31-6-11(B). See Jones v. Murdoch, 2009-NMSC-002, ¶ 33, 145
N.M. 473, 200 P.3d 523; Rule 5-302A(B)(3). Our grand jury statutes require only that the
prosecuting attorney alert the grand jury to the existence of target-offered evidence and do
not require the prosecutor to actually present such evidence. See Jones, 2009-NMSC-002,
¶¶ 12, 24. Once alerted to target-offered evidence, “the grand jury remains free to decide not
to hear the evidence . . . or to hear the evidence and weigh it as it sees fit.” Id. ¶ 12.

{21} Although the prosecutor performs a screening function to evaluate whether any
target-offered evidence meets the evidentiary standard set forth in Section 31-6-11, the

                                              8
prosecutor lacks discretion to unilaterally withhold such evidence from the grand jury. See
Jones, 2009-NMSC-002, ¶¶ 27-28; Rule 5-302A(B)(3). If the prosecutor opposes the target’s
request that the grand jury be alerted to certain evidence or defenses, “the prosecutor must
file a motion with the grand jury judge.” Jones, 2009-NMSC-002, ¶ 35; see Rule 5-
302A(B)(4). The prosecutor bears “the burden of persuading the grand jury judge that the
grand jury should not be alerted to target-offered evidence.” Jones, 2009-NMSC-002, ¶ 39.
Upon receiving such a motion, the grand jury judge must determine whether the target-
offered evidence is “lawful, competent, and relevant,” and whether the evidence “disproves
or reduces a charge or accusation” or “makes an indictment unjustified.” Rule 5-302A(B)(2),
(4); see also Jones, 2009-NMSC-002, ¶ 39. The judge shall issue an order providing the
prosecutor with “clear direction on how to proceed before the grand jury.” Jones, 2009-
NMSC-002, ¶ 36; Rule 5-302A(B)(4).

{22} In this case, Petitioner submitted a grand jury alert letter to the prosecuting attorney,
asking that the grand jury be alerted to the potential witness testimony of Ms. Downs. From
the record before this Court, it appears that Petitioner submitted only the grand jury alert
letter and did not include a separate cover letter or memorandum. See Jones, 2009-NMSC-
002, ¶ 35 (explaining that “arguments as to the propriety or significance of the requested
evidence” should be included in “a separate cover letter or memorandum”). The prosecutor
sought to be relieved of the obligation to alert the grand jury that Ms. Downs was a potential
witness, arguing that “[h]er proposed testimony is not relevant to a determination of probable
cause. Battered Women’s Syndrome is not a legally recognized defense.” The grand jury
judge ruled that the prosecutor did not have to alert the grand jury to the potential witness
testimony from Ms. Downs because the relevant paragraph of Petitioner’s grand jury alert
letter contained legal arguments or conclusions.

{23} The grand jury judge’s order excluding evidence arose in the context of Petitioner’s
request that the grand jury be alerted to the availability of certain evidence. The order was
limited in scope to the prosecutor’s duty to alert the grand jury to the potential testimony that
Ms. Downs might provide if called as a witness. The order did not purport to limit
Petitioner’s own testimony before the grand jury, which she had a statutory right to present,
see § 31-6-11(C)(3)-(4), or to preclude the grand jury from inquiring about domestic abuse
on its own initiative. Given that Petitioner’s testimony was outside the scope of the grand
jury judge’s preliminary order, the prosecutor should have permitted Petitioner to answer the
grand juror’s questions as long as Petitioner’s testimony met the evidentiary standard set
forth in Section 31-6-11, “lawful, competent and relevant.” The State does not argue that the
precluded testimony was irrelevant or otherwise inadmissible under Section 31-6-11. In fact,
the prosecutor’s own questions regarding whether Petitioner had ever “reported anything to
anyone” appear to have triggered the grand juror’s inquiry.

{24} By preventing Petitioner from answering a direct, relevant question from a grand
juror, the prosecuting attorney interfered with the grand jury’s statutory duty to make an
independent inquiry into the evidence supporting a determination of probable cause. Section
31-6-11(B) requires

                                               9
       the grand jury to weigh all the evidence submitted to it, and when it has
       reason to believe that other lawful, competent and relevant evidence is
       available that would disprove or reduce a charge or accusation or that would
       make an indictment unjustified, then it shall order the evidence produced.

This statute makes it clear that the “grand jury may order that evidence be produced over and
above that initially presented by the State.” Ulibarri, 1999-NMCA-142, ¶ 11; see also § 31-
6-12(A) (authorizing the grand jury to subpoena witnesses and cause the production of
evidence). “Unless the grand jury is empowered to consider all lawful, relevant, and
competent evidence bearing on the issue of probable cause, the grand jury cannot perform
its historical role of determining whether those accused of wrongdoing by the government
should suffer the burdens of a criminal prosecution.” Jones, 2009-NMSC-002, ¶ 2.

{25} When serving as an aide to the grand jury, a prosecuting attorney must facilitate the
grand jury’s inquiry into any lawful, relevant, and competent evidence not initially presented
by the State and cannot unilaterally withhold evidence or witnesses requested by the grand
jury. See id.; see also § 31-6-7(A), (D); § 31-6-12(A). If the prosecuting attorney believes
that the grand jury seeks evidence that falls within the scope of an order excluding evidence,
the attorney must call a recess to obtain further guidance from the presiding grand jury judge
before proceeding. For example, if a grand juror had wanted to subpoena Ms. Downs to
testify before the grand jury, the prosecutor should have called a recess and consulted with
the judge. Or, if the prosecutor had reasonable doubt regarding whether Petitioner’s
testimony fell within the scope of the grand jury judge’s order, the prosecutor should have
sought further guidance. And if the judge had ruled that the evidence requested by the grand
jury did not meet the evidentiary standard set forth in Section 31-6-11(A), the prosecutor
could have excluded that evidence and cautioned Petitioner and any other witnesses
regarding any court-ordered limitations on their testimony. The prosecutor failed, however,
to obtain any such guidance.

{26} We hold that the prosecuting attorney lacked authority to preclude Petitioner from
answering direct questions from the grand jury and erred by interfering with the grand jury’s
inquiry into the evidence without first seeking guidance from the presiding grand jury judge.
The grand jury’s ability to obtain evidence beyond that presented by the State is critical to
the structural integrity of our grand jury system. See Ulibarri, 1999-NMCA-142, ¶ 11. By
interfering with the grand jury’s independent investigation into the facts of this case, the
prosecuting attorney undermined the grand jury’s ability to accurately assess whether there
was probable cause to prosecute Petitioner for a felony offense. See Jones, 2009-NMSC-002,
¶ 2 (“[T]he withholding of potentially exculpatory evidence strikes at the very heart of the
grand jury’s assessment of probable cause to indict.”).

The Prosecuting Attorney Failed to Act in a Fair and Impartial Manner When
Instructing the Grand Jury on the Applicable Law

{27}   Petitioner also argues that the prosecuting attorney erred by instructing the grand jury

                                             10
that Petitioner’s testimony was “absolutely inappropriate” and suggesting that her testimony
should be disregarded. The State contends that the grand jury was properly instructed. In the
State’s view, when the prosecuting attorney told the grand jurors that Petitioner’s testimony
was “absolutely inappropriate” she was merely explaining UJI 14-6007 NMRA, under which
jurors are not to consider the consequences of their verdict. We disagree and conclude that
the prosecuting attorney’s remarks were inconsistent with the fair and impartial role that the
prosecuting attorney must play when instructing the grand jury.

{28} Our grand jury statutes require the prosecuting attorney to act “in a fair and impartial
manner at all times during grand jury proceedings,” including when instructing the grand
jury on the applicable law. See § 31-6-7(D). The prosecuting attorney must instruct the grand
jury on “the elements of each offense being investigated and the definitions of any defenses
raised by the evidence,” and must provide any additional instructions that “are necessary to
the fair consideration by the grand jury of the issues presented.” Rule 5-302A(C). When
providing these instructions, the prosecutor “must scrupulously refrain from words or
conduct that may influence the decision of the grand jury.” State v. Augustin M.,
2003-NMCA-065, ¶ 25, 133 N.M. 636, 68 P.3d 182 (internal quotation marks and citation
omitted). By adhering to instructions modeled on the Uniform Jury Instructions promulgated
by this Court, the prosecuting attorney can avoid improper statements and fulfill the duel
obligations of protecting “not only the public interest but also the rights of the accused.”
State v. Hill, 1975-NMCA-093, ¶ 14, 88 N.M. 216, 539 P.2d 236.

{29} It was appropriate in this case for the prosecuting attorney to instruct the grand jury
by reading the equivalent of several Uniform Jury Instructions, including UJI 14-5020
(Credibility of witnesses), UJI 14-5050 (Opinion testimony), and UJI 14-6006 (Jury sole
judge of facts; sympathy or prejudice not to influence verdict). And it was proper for the
prosecuting attorney to instruct the grand jury, “You must not concern yourself with the
consequences of [the] verdict”—this language is taken from UJI 14-6007 (Jury must not
consider penalty).

{30} The prosecuting attorney erred, however, when she expounded upon this Court’s
prescribed jury instructions by telling the grand jury, “She was directly appealing to you to
consider the consequences of your verdict. That is absolutely inappropriate. Please do not
let anything she said to you about, you know, implying what the right decision is influence
your decisions. She was improperly seeking your sympathy.” By adding this narrative to our
Uniform Jury Instructions, the prosecuting attorney presented the equivalent of a closing
argument regarding how the grand jurors should interpret the instructions as they relate to
Petitioner. And in doing so, the prosecuting attorney stepped out of her role as a neutral aide
to the grand jury, compromising the grand jury’s independent evaluation of Petitioner’s
testimony and determination of probable cause.

{31} Providing accurate, unbiased instructions to the grand jury is critical to the structural
integrity of our grand jury system. We hold that the prosecuting attorney’s failure to do so
in this case warrants dismissal of the indictment regardless of whether Petitioner has

                                              11
demonstrated prejudice.

CONCLUSION

{32} The prosecuting attorney conducted the grand jury proceedings in a manner that
violated grand jury statutes designed to protect the structural integrity of our grand jury
system, rendering the proceedings fundamentally unfair and warranting a presumption of
prejudice to Petitioner. We therefore granted Petitioner’s request for extraordinary relief and
ordered the district court to dismiss the indictment. The State remains free to institute new
criminal proceedings against Petitioner.

{33}   IT IS SO ORDERED.

                                               ____________________________________
                                               PETRA JIMENEZ MAES, Justice

WE CONCUR:

____________________________________
BARBARA J. VIGIL, Chief Justice

____________________________________
RICHARD C. BOSSON, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

____________________________________
CHARLES W. DANIELS, Justice




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