STATE V. SUMMERALL, 1986-NMSC-080, 105
N.M. 82, 728 P.2d 833 (S. Ct. 1986)
CASE HISTORY ALERT: see ¶1 - affects
1986-NMCA-032
STATE OF NEW MEXICO, Petitioner,
vs.
MELVIN RAY SUMMERALL, a/k/a MELVIN RAY SEARS, Respondent.
SUPREME COURT OF NEW MEXICO
1986-NMSC-080, 105 N.M. 82, 728 P.2d 833
ORIGINAL PROCEEDINGS ON CERTIORARI,
Joseph F. Baca, District Judge
Paul Bardacke, Attorney General, Anthony
Tupler, Assistant Attorney General, for Plaintiff-Appellee.
William A. L'Esperance, for
Defendant-Appellant.
{1} Defendant was convicted
of residential burglary and conspiracy to commit residential burglary. He
appealed his conviction, and the Court of Appeals reversed and remanded for a
new trial. The State petitioned this Court for certiorari. We reverse the Court
of Appeals and reinstate defendant's conviction.
{2} The facts surrounding
defendant's arrest and conviction are adequately set out in the Court of
Appeals' opinion. At trial, a co-defendant by the name of Michael Barela
(Barela) was granted immunity in exchange for his testimony against defendant.
This grant of immunity, however, contained a grant of immunity from prosecution
for perjury committed while Barela testified in defendant's trial. The Court of
Appeals correctly concluded that such a grant of immunity is contrary to New
Mexico law.
See NMSA 1978, Evid.R. 412 (Repl. Pamp.1983); NMSA 1978, §
31-6-15 (Repl. Pamp.1984). The Court of Appeals stated that: "[t]he trial
court cannot give a witness permission to perjure himself by an immunity order
under [NMSA 1978,] Crim.P. Rule 58 (Repl. Pamp.1985), Evid. Rule 412, and
Section 31-6-15."
State v. Summerall, 25 SBB 556, 558,
728 P.2d
835, 838 (Ct. App.1986). On the basis of the defective grant of immunity, the
Court of Appeals held that the trial court had committed plain error and
therefore reversed defendant's conviction. It is with this portion of the Court
of Appeals' opinion that we disagree.
{3} For plain error to exist,
"'grave errors which seriously affect substantial rights of the accused,'
'errors that result in a clear miscarriage of justice,' [and] errors that 'are
obvious or * * * otherwise seriously affect the fairness, integrity, or public
{*83} reputation of judicial
proceedings,'" must be committed.
State v. Marquez,
87 N.M. 57, 61,
529 P.2d 283, 287 (Ct. App.),
cert. denied,
87 N.M. 47,
529 P.2d 273
(1974), (quoting
United States v. Campbell, 419 F.2d 1144, 1145 (5th
Cir.1969)). A defendant must show prejudice before a claim of plain error can
stand.
See State v. Olguin,
88 N.M. 511, 513,
542 P.2d 1201, 1203 (Ct.
App.1975).
{4} In the instant case,
Barela testified under the defective grant of immunity. Contrary to the
implication in the opinion of the Court of Appeals that defendant's conviction
[was] based on such testimony, Barela's testimony was completely exculpatory of
defendant. He testified that defendant was not involved in the burglary.
Defendant claimed on appeal that the mere fact that Barela testified under a
defective grant of immunity was grounds for plain error and the Court of
Appeals agreed. However, as stated previously, a defendant must show prejudice
before a claim of plain error can stand.
Id. We determine that defendant
failed to show any prejudice resulting from Barela's exculpatory testimony
given under the defective grant of immunity. Nor were any of defendant's
substantial rights affected by Barela's testimony.
See State v. Marquez,
87 N.M. at 60, 529 P.2d at 286.
{5} We reverse the Court of
Appeals and hold that, despite the defective grant of immunity given to Barela,
his subsequent testimony under that grant of immunity was not prejudicial to
defendant. Therefore, no plain error occurred, and defendant's conviction is
hereby reinstated.
{6} We also take this
opportunity to point out that Section 31-6-15 applies only to immunity for
testimony before grand juries and not to immunity for testimony at trial. The
Court of Appeals stated that "[t]aken together, Crim.P. Rule 58, Evid.
Rule 412, and Section 31-6-15 (formerly NMSA 1978, Section
31-3A-1 (Cum.
Supp.1981)), give the trial court the authority to grant use immunity * *
*."
State v. Summerall, 25 SBB at 558, (citing
State v. Sanchez,
98 N.M. 428,
649 P.2d 496 (Ct. App.),
cert. denied,
98 N.M. 478,
649
P.2d 1391 (1982)). However, in
State v. Romero,
96 N.M. 795,
635 P.2d
998 (Ct. App.1981) (certiorari not applied for), the defendants asserted that
Section 31-3A-1 (presently compiled as 31-6-15) did not authorize the grant of
use immunity except for grand juries. The Court of Appeals stated:
Laws 1979, ch. 337 contains thirteen sections; twelve of
those sections refer to proceedings before the grand jury. The one section that
does not refer to grand jury proceeding is § 10, on use immunity, compiled as §
31-3A-1.
State v. Romero, 96 N.M. at 796, 635 P.2d at 999. The
title of 1979 N.M. Laws, ch. 337 is "Relating to Grand Juries; Providing
Safeguards and Improving Procedures." Section 31-3A-1 was compiled
erroneously independently of the sections on grand juries. But in 1982, it was
recompiled as Section 31-6-15 and included under the title of grand juries. Compare
NMSA 1978, § 31-3A-1 (Cum. Supp.1981) with NMSA 1978, § 31-6-15 (Cum. Supp.1982).
Read in light of the title requirements of N.M. Const. art. IV, Section 16,
Section 31-6-15 must apply only to grand juries. This does not overrule State
v. Sanchez, or State v. McGee, 95 N.M. 317, 621 P.2d 1129 (Ct.
App.1980), cert. denied, 95 N.M. 426, 622 P.2d 1046 (1981). When Sanchez
and McGee were decided, Section 31-6-15 was compiled as Section 31-3A-1
and not included under the title of grand juries. From the placement of the
statute at the time these cases were decided, it could not be inferred that the
statute applied only to grand juries. With the recompilation, the statute
clearly does now.
FEDERICI and WALTERS, JJ., concur.
STOWERS, J., specially concurs.
SOSA, Senior Justice dissents and adopts the Court of Appeals
opinion as his dissent.
STOWERS, Justice, specially concurring.
{8} I concur with the result
reached by this Court, but write separately to emphasize
{*84}
that we do not condone defective grants of immunity. In
State v. Boeglin,
100 N.M. 470, 471,
672 P.2d 643, 644 (1983), this Court held that implicit in
every grant of immunity in return for testimony is the condition that the
witness testify truthfully or be subject to prosecution for perjury or
contempt. The Legislature clearly intended to impose that condition when it
enacted NMSA 1978, Section
31-6-15 (Repl. Pamp.1984), just as this Court
intended when it promulgated NMSA 1978, Evid. Rule 412 (Repl. Pamp.1983). The
district court's authority under NMSA 1978, Crim.P. Rule 58 (Repl. Pamp.1985)
is limited to the issuance of orders of immunity that properly embody this
principle, and defective grants of immunity should not be permitted or
approved.
{9} The plain error rule,
however, should be applied with caution and invoked only to avoid a miscarriage
of justice.
State v. Marquez,
87 N.M. 57, 61
529 P.2d 283, 287 (Ct.
App.),
cert. denied,
87 N.M. 47,
529 P.2d 273 (1974) (quoting
United
States v. Robinson, 419 F.2d 1109, 1111 (8th Cir.1969). The Court of
Appeals here held that it was plain error to give Barela "a license to
lie" and a miscarriage of justice to allow a conviction "possibly
based on court-authorized perjury" to stand.
State v. Summerall, 25
SBB 556, 560 (Ct. App.1986). A review of the record indicates that Barela's
testimony was exculpatory of defendant. This Court concluded Barela's testimony
could not possibly have formed the basis for defendant's conviction, which was
supported by the other evidence in the record.
{10} I agree with the
majority of the Court that, under the extraordinary circumstances of this case,
although the order of immunity was erroneous the testimony presented under the
defective grant of immunity in no way contributed to a miscarriage of justice.
The plain error rule therefore should not be invoked here, and I concur in the
Court's decision to reverse the Court of Appeals decision and to affirm
defendant's conviction.