ROGERS V. STATE, 1980-NMCA-034, 94 N.M.
218, 608 P.2d 530 (Ct. App. 1980)
DALE ROGERS, Petitioner-Appellant,
vs.
STATE OF NEW MEXICO, Respondent-Appellee.
COURT OF APPEALS OF NEW MEXICO
1980-NMCA-034, 94 N.M. 218, 608 P.2d 530
APPEAL FROM THE DISTRICT COURT OF
BERNALILLO COUNTY, ROZIER E. SANCHEZ, Judge.
Petition for Writ of Certiorari Denied
March 11, 1980
JOHN B. BIGELOW, Chief Public Defender,
MARTHA A. DALY, Appellate Defender, Santa Fe, New Mexico, ANN STEINMETZ, Trial
Counsel, Albuquerque, New Mexico, Attorneys for Appellant.
JEFF BINGAMAN, Attorney General, JOHN G.
McKENZIE, JR., Assistant Attorney, General, Santa Fe, New Mexico, Attorneys for
Appellee.
WOOD, Chief Judge, wrote the opinion. WE
CONCUR: William R. Hendley, J., Lopez J.
{*220} WOOD, Chief
Judge.
{1} Defendant moved to
dismiss the indictment on the ground that the "notice" requirements
of § 31-6-11(B), N.M.S.A. (Supp. 1979) had not been met. The trial court denied
the motion; we granted an interlocutory appeal.
{2} The "notice"
provision of § 31-6-11(B), supra, was enacted in 1979. It reads:
B. It is the duty of the grand jury to weigh all the evidence
submitted to it, and when it has reason to believe that other competent
evidence is available that may explain away or disprove a charge or accusation
or that would make an indictment unjustified, then, it should order the
evidence produced. The target shall be notified of his target status and be
given an opportunity to testify, if he desires to do so, unless the prosecutor
determines that notification may result in flight, endanger other persons,
obstruct justice, or the prosecutor is unable with reasonable diligence to
notify said person.
{3} 1. The target "shall
be" notified unless the "unless" clause applies. The statute is
worded in mandatory terms. Section
12-2-2(I), N.M.S.A. 1978. The
"unless" clause states when notice is not mandatory. None of the
"unless" clause provisions was applicable in this case; notice to the
target was mandatory.
{4} 2. The statute does not
state who is to notify the target. The district attorney was attending the
grand jury. See §
31-6-7, N.M.S.A. 1978 (Supp. 1979). It was the obligation of
the district attorney to notify the target. The district attorney undertook to
do so.
{5} 3. Compliance with the
statutory notice requirement is not an issue unless the defendant makes
compliance an issue. Compare
State v. O'Neil,
91 N.M. 727,
580 P.2d 495
(Ct. App. 1978). Once a defendant raises a compliance issue, which party has
the burden of persuading the trial court that there was compliance? The statute
permits avoidance of mandatory notice by the "unless" clause, and the
"unless" clause is based on a determination by the prosecutor. The
statutory language suggests that when the notice requirement is an issue, the
prosecutor has the burden of establishing either that the target was notified
or that notification was excused under the "unless" clause. We so
hold because the prosecutor is the party affirming that the grand jury
indictment is proper. The prosecutor's burden is the burden of persuasion.
State
v. O'Neil, supra. Defendant made notice an issue by introducing a copy of
the target letter, and a representation to the court that the letter was not
received until after the matter had been presented to the grand jury. The
prosecutor recognized that notice was an issue and undertook to persuade the
trial court that the statutory notice requirement had been met.
{6} 4. Whether the statutory
notice requirement had been met was a question of fact.
Saxon v. DuBois,
209 Cal. App.2d 713, 26 Cal. Rptr. 196 (1962). The notice issue
{*221} was a claimed defect in the initiation
of the prosecution. It "must be raised prior to trial" and when raised,
is to be decided by the trial court inasmuch as it does not involve a trial on
the merits. Rule of Crim. Proc. 33(d) and (e);
State v. Mares,
92 N.M.
687,
594 P.2d 347 (Ct. App. 1979). Defendant's notice claim was by pretrial
motion.
{7} 5. "The target shall
be notified of his target status...." Section 31-6-11(B), supra. The
statute does not state in what manner, or in what time, the notification must
be given. See
People v. Rakity, 77 Misc.2d 324, 352 N.Y.S.2d 803 (1974).
{8} (a) The target letter is
as follows:
RE: STATE VS. DALE ROGERS
You are hereby notified that you will be the target of a
Bernalillo County Grand Jury Inquiry. Should you desire to testify at the
proceedings, you will be given the opportunity to do so.
Although the exact time of the proceedings has not been set,
they will take place on WEDNESDAY AUGUST 15. 1979. You may call 842-3928, if
you are interested in appearing to obtain the exact time of the inquiry.
Although no issue is raised as to the contents of the
notification, a non-lawyer could reasonably understand from the letter in this
case that the public defender, rather than Rogers, was the target. Compare People
v. Wagner, 80 Misc.2d 1042, 365 N.Y.S.2d 404 (1975).
{9} (b) "The target
shall... be given an opportunity to testify, if he desires to do so...."
Section 31-6-11(B), supra. The opportunity to testify requires that the target
receive the notification in sufficient time to exercise his right to testify.
Section
31-6-12(A), N.M.S.A. 1978 (Supp. 1979) states "that all subpoenaed
witnesses shall be given a minimum of thirty-six hours' notice unless a shorter
period is specifically approved for each witness by a judge of the district
court." If a target is subpoenaed, see §
31-6-12(B), N.M.S.A. 1978 (Supp.
1979), the 36-hour period would apply to the target. In our opinion, the
36-hour period should apply to a target who has not been subpoenaed to insure
that the target is afforded his statutory opportunity to testify. We hold that
the above-quoted provision of § 31-6-12(A), supra, applies to a target, whether
or not the target has been subpoenaed.
{10} (c) The statute does not
specify the method of giving notice; any method, written or oral, suffices so
long as the method employed complies with the statutory intent that the target
be given an opportunity to testify. Thus, the method of giving notice is no
more than an evidentiary matter going to whether the target was in fact given notice.
Defendant contends that the notice must be actual notice on his part. We are
unwilling to so hold, recognizing there may be cases where a written notice may
not be "actual" notice because the target avoided or evaded the
notification. See
James v. Hutchinson, 211 S.W.2d 507 (Mo. App. 1948)
where a notification letter was received, but not read. The statute negates a
requirement of actual notice by providing, in the "unless" clause,
that the target need not be notified if "the prosecutor is unable with
reasonable diligence to notify said person." If a defendant claims a lack
of notification, an issue, a factual one, will be whether the prosecutor
exercised reasonable diligence. Compare
City of Albuquerque v. Juarez,
93 N.M. 188,
598 P.2d 650 (Ct. App. 1979).
{11} 6. The prosecutor did
not claim that Rogers, the target, could not be notified by the exercise of
reasonable diligence. Rogers was in the county jail because of other charges.
The prosecutor claims that both Rogers and his attorney had received the target
letter which stated that grand jury proceedings concerning the target would
take place sometime on August 15, 1979.
{12} (a) The target letter
was received by the public defender's office sometime on August 13, 1979. The
public defender was not
{*222} representing
Rogers. Exhibits in evidence show that private attorneys had entered their
appearance on behalf of Rogers in two other criminal matters; the second of the
entries of appearance had been filed with the district court clerk on July 27,
1979 and a copy of this second appearance had been furnished to the district
attorney's office. The trial court found that the district attorney's office
"should have known" that the private attorneys represented Rogers.
The exhibits sustain this finding.
{13} The trial court also
found that the target letter was sent to the public defender and not to Rogers'
attorneys. The exhibits also sustain this finding.
{14} The State would have us
ignore the trial court's findings and hold, as a matter of law, that the target
letter received by the public defender was sufficient notice. The State asserts
that the private attorneys had entered their appearance on behalf of Rogers, an
indigent, in the two criminal cases because the public defender had a conflict
in representing Rogers. Assuming, but not deciding, that these contentions are
true, the trial court found as a fact that the district attorney's office did
not send the target letter to Rogers' attorneys.
{15} We recognize that notice
to a target's attorney may amount to compliance with the notice requirement,
depending on the facts of the case. In this case, it is not disputed that
Rogers' attorneys did not receive the target letter (forwarded to them by the
public defender) until August 16, 1979, after the grand jury had met. Notice to
a public defender's office, which did not represent Rogers, did not comply with
the statutory notice requirement.
{16} (b) The only support for
the claim that Rogers received the target letter is the affidavit of a
secretary in the district attorney's office. This affidavit states that the
secretary prepared a target letter for Rogers, that this letter was placed in
an envelope bearing Rogers' name "and endorsed Bernalillo County Detention
Center", that on August 13, 1979 the letter addressed to Rogers was placed
"in a basket marked 'Joe Gutierrez, Corrections', and picked up by Mr. Joe
Gutierrez for delivery" to Rogers.
{17} The affidavit contains
no language indicating that the letter ever reached the detention center or was
delivered to Rogers. The State asks us to apply a presumption of delivery
similar to the presumption which exists for items placed in the United States
Mail. See
Myers v. Kapnison,
93 N.M. 215,
598 P.2d 1175 (Ct. App. 1979).
Even if we were to adopt such a presumption, the presumption would not go to
when (the time) the letter was received. "[T]here is no presumption that
it [the letter] was received on a particular day."
People v. Rakity,
supra. Apart from the presumption, there is no evidence going to the jail's delivery
system and, thus, there can be no inference that the letter to Rogers,
addressed to the jail, was either delivered or was timely delivered.
{18} 7. There is neither
presumption nor inference that Rogers received the target letter or received it
in time to have an opportunity to testify. The trial court found that
"Defendant would have requested that certain evidence be presented to the
Grand Jury if he had received prior notice of the impending indictment."
While this finding is ambiguous, we read it as meaning that Rogers desired to
testify, and would have if given an opportunity to do so. The trial court's
order denying the motion to dismiss was erroneous.
{19} 8. This reversal does
not mean that Rogers is "free" of the charges in the indictment.
Rogers' "notice" rights will be vindicated if he is given the
opportunity to testify. Thus, if the trial court dismisses the indictment,
Rogers may be reindicted. Alternatively, the trial court may remand the
indictment to the same grand jury that returned the indictment (a) so that
Rogers may be given the opportunity to testify, and (b) reconsideration of the
indictment by the grand jury after Rogers has exercised that opportunity. See
State
v. Reese,
91 N.M. 76,
570 P.2d 614 (Ct. App. 1977).
{20} The order denying the
motion to dismiss for noncompliance with the notice requirement of §
31-6-11(b), supra, is reversed.
{*223} The
cause is remanded for proceedings consistent with this opinion.
WE CONCUR: Hendley J., Lopez J.