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New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 15:27:54 2011.09.30
Certiorari Granted, September 16, 2011, No. 33,136
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2011-NMCA-093
Filing Date: June 28, 2011
Docket No. 29,227
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
WAYNE BENT,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF UNION COUNTY
Gerald E. Baca, District Judge (by designation)
Gary K. King, Attorney General
Nicole Beder, Assistant Attorney General
Santa Fe, NM
for Appellee
Law Works L.L.C.
John A. McCall
Albuquerque, NM
for Appellant
OPINION
KENNEDY, Judge.
{1} Defendant stands convicted of various counts of criminal sexual contact of a minor
and contributing to the delinquency of a minor as a result of which he was sentenced to
prison. Of the many issues he raises on appeal, one defect in the grand jury proceedings
deprives the district court of its jurisdiction and is, accordingly, dispositive of all other
issues.
1
{2} Defendant was indicted by a grand jury, which was convened on October 3, 2007,
and whose statutory term would have ended on January 4, 2008, but for an order extending
the statutory term issued verbally by a district judge. Defendant’s case was presented to the
grand jury on May 20, 2008. Since NMSA 1978, Section 31-6-1 (1983) provides that a
“grand jury shall serve for a period of no longer than three months[,]” we hold that this
statutory term is a mandatory limitation on the grand jury’s jurisdiction. An indictment
returned after the grand jury’s term expires is void ab initio. Therefore, Defendant’s motion
to quash the indictment should have been granted, as the grand jury was without legal
authority to consider his case and return an indictment. As a result, the indictment issued
by the grand jury was void, and the district court did not have jurisdiction to proceed with
the trial in this case.
{3} Because our decision renders the proceedings in this matter a nullity ab initio for lack
of jurisdiction, we need not address the issues related to motions brought by Defendant
concerning the State’s manner of conducting the grand jury proceedings, nor matters raised
at trial. See State v. Chacon, 62 N.M. 291, 293-94, 309 P.2d 230, 231-32 (1957) (holding
that a challenge against the court’s jurisdiction for lack of an accusation in the form required
by the New Mexico Constitution was dispositive of the appeal); People v. Williams, 535
N.E.2d 275, 279 (N.Y. 1989) (concluding that because a fundamental defect in the grand
jury proceeding rendered it a nullity, there was no need to reach the defendant’s contentions
regarding other claimed defects arising from the conduct of the state). We reverse the
district court and remand this case for entry of an order quashing the grand jury indictment,
dismissing this case without prejudice, and discharging Defendant.
I. FACTUAL AND PROCEDURAL BACKGROUND
{4} Defendant, the apparent leader of a religious community in northeastern New
Mexico, was charged with various crimes centering around what he maintained were
religious practices intended to be cleansing ceremonies. The State argued that such practices
amounted to criminal sexual contact of minors and contributing to the minors’ delinquency.
The case was presented to the grand jury of Union County on May 20, 2008. Defendant was
indicted and arraigned on the indictment.
{5} There is no dispute in this case as to the facts pertaining to this issue. The grand jury
that heard Defendant’s case had been convened on October 3, 2007. An almost
indecipherable pleading bearing a file stamp from that date appears to have summoned grand
jurors for service on November 12, 2007. At the hearing on Defendant’s motion to quash
the indictment, the prosecutor stated to the court that the grand jury’s term had been verbally
extended “[sua sponte]” by District Judge Sam Sanchez without the entry of any written
order. There is no documentary evidence concerning such an extension, nor does the record
contain any explanation as to why the extension was made. We are left to rely on assertions
by counsel and the district court that it happened. The parties agree that the grand jury only
sat twice, once in November, and again on May 20, 2008. The date in May was beyond
2
three months past the date of any previous grand jury activity.
{6} Defendant’s motion to quash the indictment was heard on August 12, 2008, alleging
that, under NMSA 1978, Section 31-6-3(A) (2003), the grand jury was not selected and
seated in accordance with the law. Specifically, Defendant alleged that the grand jury had
been convened on October 3, 2007, and had convened again on May 20, 2008, in violation
of Section 31-6-1, which mandates a maximum period of grand jury service of “no longer
than three months.”
{7} The district court responded to the portion of the motion related to the grand jury
term by stating that the statute “doesn’t provide for any relief if there’s a violation.”
Defendant responded that the remedy for an illegal indictment is that it be “quashed[,] and
a new [g]rand [j]ury seated properly.” The district court read the annotation to the statute
and noted that the annotation indicated that Sections 31-6-1 and 31-6-2 were “merely
directory, not mandatory” pursuant to State v. Garcia, 110 N.M. 419, 796 P.2d 1115 (Ct.
App. 1990), and State v. Apodaca, 105 N.M. 650, 735 P.2d 1156 (Ct. App. 1987) (overruled
on other grounds by Garcia, 110 N.M. 419, 796 P.2d 1115). The court further inquired as
to whether a showing of prejudice to Defendant was required before an indictment may be
quashed. Defendant responded that the indictment was deficient on its face and should be
quashed because the grand jury exceeded its term, the State denied discovery, and the State
did not present exculpatory evidence to the grand jury that had been requested by Defendant.
The State responded that the district court had already noted that the statute was only
advisory in nature. The State then asserted, without citation to the record, that Judge
Sanchez had explained to the grand jury that he extended their tenure sua sponte for an
additional three months without issuing a written order on the record. The prosecutor,
without having them admitted, showed to the court certified pay records indicating the grand
jury served on two days.
{8} The State was aware and informed the district court of case law indicating that an
indictment handed down by a grand jury after the expiration of its statutory period would in
some states render the indictment “void [ab initio].” The State mentioned that there are such
things as “de facto” grand juries that are allowed to proceed past their terms. At the end of
the argument, the district court ruled:
With respect to the first issue, that the [g]rand [j]ury was [empaneled]
or served beyond the three[-]months time period as provided by Section 31-
6-1, it appears that within that section, there is no remedy provided for a jury
that serves longer than its term. And at this point in time, there’s been no
prejudice shown by . . . Defendant with respect to that issue by itself. And
so, the motion to quash with respect to that violation or apparent violation of
the statute will be dismissed.
What’s more is that even in the constitutional section, Section 14,
dealing with the [g]rand [j]ury[,] the right to a [g]rand [j]ury and the
3
convening of a [g]rand [j]ury, . . . there is no time limitation for the service
of a [g]rand [j]ury. And then . . . Apodaca is a case that tells us that this
section, as well as Section 31-6-2 is directory and not mandatory. I will state
though that Apodaca dealt with not this precise issue, but the issue of the
quashing of an indictment based on the discharge of an individual grand juror
by the [d]istrict [a]ttorney and replacement of him by an alternate to serve on
that case. . . . [E]ven in that situation, . . . which is pretty clearly set out what
the process is in the statute, . . . the Court of Appeals has said that that’s
discretionary or directory and not mandatory. For those reasons, that issue
is denied.
II. DISCUSSION
{9} We review the construction of statutes and the legal requirements for convening and
maintaining a grand jury as a matter of law under a de novo standard. State v. Isaac M.,
2001-NMCA-088, ¶ 4, 131 N.M. 235, 34 P.3d 624.
{10} The New Mexico Constitution provides that the composition of and process for
convening a grand jury be as “prescribed by law.” N.M. Const. art. II, § 14 (“A grand jury
shall be convened upon order of a judge of a court empowered to try and determine cases of
capital, felonious or infamous crimes . . . or . . . may be convened in any additional manner
as may be prescribed by law.”). The statutory basis for the convening of grand juries has
been recognized since at least 1892. Territory v. Baca, 6 N.M. 420, 440, 30 P. 870, 864
(N.M. Terr. 1892) (holding that a constitutionally infirm statute could not create a legal
grand jury). This is so because, while the existence of grand juries is constitutionally
required, the nature of their composition, work, and term are matters enacted by statute. In
re Mills, 135 U.S. 263, 268 (1890) (holding that in the absence of statute, empowering a
court to entertain cases for which grand jury indictment required to charge, a court had no
power to charge a crime).
When an indictment is presented by a grand jury in open court, the
presumption is that it is legally presented; that the jurors were properly
summoned, legally qualified, and competent, and that the required number,
at least concurred in the finding. These facts [are] essential to the lawful
finding and presentment[.]
State v. Rogers, 31 N.M. 485, 498-99, 247 P. 828, 834 (1926) (internal quotation marks and
citation omitted). In this case, the questions are (1) whether the term of the grand jury had
expired; and (2) if the term expired, what was the expiration’s effect on the validity of the
grand jury’s indictment of Defendant. Challenges to the validity of the grand jury are
specifically limited by statute to three enumerated grounds: (1) the grand jury was not
legally constituted, (2) an individual grand juror was not legally qualified to serve as a juror,
and (3) an individual juror was a witness against the person indicted. Section 31-6-3; State
v. Laskay, 103 N.M. 799, 800, 715 P.2d 72, 73 (Ct. App. 1986). It is to the legal constitution
4
of the grand jury that Defendant directs his appeal.
A. The Requirement of the Filing of an Indictment or Information is a
Constitutional Requirement Upon Which the Jurisdiction of the District Court
Depends
{11} “[A] court obtains no jurisdiction to proceed and render judgment in an action
brought without authority.” State ex rel. Attorney Gen. v. Reese, 78 N.M. 241, 243, 430 P.2d
399, 401 (1967). The New Mexico Constitution, Article II, Section 14 and the Fifth
Amendment to the United States Constitution require the State to file an indictment or
information before commencing a felony prosecution. State v. Chacon, 62 N.M. 291, 295-
96, 309 P.2d 230, 233 (1957); State v. Ross, 1999-NMCA-134, ¶ 14, 128 N.M. 222, 991 P.2d
507. In such cases, the district court has no jurisdiction to try a defendant without an
indictment. Ross, 1999-NMCA-134, ¶ 15. The failure of jurisdiction in this regard may not
be waived. Chacon, 62 N.M. at 295, 309 P.2d at 232-33. Nor, in the absence of a proper
indictment conferring jurisdiction on the district court, may a defendant be sentenced. Id.
at 296, 309 P.2d at 233. Thus, if the indictment in this case is void for having been issued
by a grand jury that was not empowered to sit, the indictment cannot confer jurisdiction on
the court to consider the case and would require dismissal.
B. Convening Grand Juries is Governed by Statute
{12} We pointed out earlier that the way in which a grand jury is convened is left to
legislative enactment by our Constitution. A grand jury is thus “a body provided for by the
New Mexico Constitution and by statute[.]” McKenzie v. Fifth Jud. Dist. Ct., 107 N.M. 778,
779, 765 P.2d 194, 195 (Ct. App. 1988). We consider a statute’s plain wording to be the
primary, essential source of its meaning and when the statute contains clear and
unambiguous language, we are compelled to give effect to that language, refraining from
further statutory interpretation. Truong v. Allstate Ins. Co., 2010-NMSC-009, ¶ 37, 147
N.M. 583, 227 P.3d 73. As we employ the plain meaning rule, statutes “are to be given
effect as written without room for construction unless the language is doubtful, ambiguous,
or an adherence to the literal use of the words would lead to injustice, absurdity[,] or
contradiction.” State v. Davis, 2003-NMSC-022, ¶ 6, 134 N.M. 172, 74 P.3d 1064. We are
compelled to construe a statute “according to its obvious spirit or reason.” Id. It is our
responsibility, “if the meaning of a statute is truly clear—not vague, uncertain, ambiguous,
or otherwise doubtful . . . to apply the statute as written and not to second-guess the
[L]egislature’s selection from among competing policies or adoption of one of perhaps
several ways of effectuating a particular legislative objective.” State ex rel. Helman v.
Gallegos, 117 N.M. 346, 352, 871 P.2d 1352, 1358 (1994). In this statute, there is no
ambiguity in the Legislature’s limitation of the term of a grand jury. It unequivocally
expresses the Legislature’s intention to limit the term of a grand jury to “no longer than three
months.” § 31-6-1.
{13} Section 31-6-1 constitutes the statutory framework applicable to grand juries and
5
states: “The 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
Supreme Court, in adopting the Uniform Jury Instructions, uses this construction. The
district court judge swears in a grand jury with an oath, which contains the following
instruction: “Your term as members of the grand jury expires __________ [Use Note 2]
unless you are discharged or excused by the court prior to this time.” UJI 14-8002 NMRA.
Use Note 2 states: “Members of a grand jury may not serve for a period longer than three
months.” We read the statute and jury instruction as being in parity, establishing and
recognizing in turn that a grand jury cannot by law be convened for a period “longer than
three months.” Id. There is no exception to this mandate contained in the statute, nor
provision for an extension of the statutory period. The language is clear and unambiguous.
C. Three Months is not Calculated by Counting Actual Days of Service
{14} The State’s briefing points us to no statute or precedent that allows a grand jury to
operate legally past its term, and we will not pursue avenues left unexplored by a party.
Defendant argues that a grand jury whose term has expired after three months cannot legally
return a valid indictment and, thus, the district court was without jurisdiction to try him. The
State’s first response to this argument is that, although the grand jury was empaneled for
seven-and-a-half months at the time it indicted Defendant, it had actually only served two
days—November 12, 2007 and May 20, 2008—of the three-month term set by statute. To
assert that the grand jury “may have been [empaneled for] six or seven months, but it
actually served for only two days, bringing it within the terms of the statute” is untenable.
The statute clearly contemplates an end to a grand jury’s period of service, yet the State’s
argument seems to suggest that grand jurors could be empaneled indefinitely until they
completed a total of some ninety days of investigation and deliberation. The record indicates
that the grand jury was called to service in October 2007, and was directed to appear in the
month after it was empaneled. The grand jury heard absolutely nothing from the district
court for another six months until recalled in May 2008, to hear Defendant’s case. The
abandonment of statutory control of a grand jury’s term that is inherent to the State’s
approach here stands in stark contrast to the clear three-month limit. We can find no
authority at all that, when Judge Sanchez had “sua sponte” informed the grand jury that its
term was to be extended and did not commit his order to writing, he acted pursuant to any
lawful authority whatsoever, and the State directs us to none.
{15} The clear language of the statute limits the term of a grand jury to not more than three
months. There being no statutory language for extending the period of a grand jury’s
service, we hold that, in the absence of any legislative expression to the contrary, a grand
jury may not be empaneled to serve under Section 31-6-1 for a period longer than three
months. See State ex rel. Jacobson v. Dist. Ct. of Ward Cnty. Fifth Jud. Dist., 277 N.W. 843,
848, 850 (N.D. 1938) (per curiam) (holding that, in the face of a statute limiting the term of
the grand jury, an extension of its term by order of a district judge was of no legal effect, and
the actions of the grand jury beyond the end of its statutory term were invalid). The grand
jury in this case completed its work during the three-month term, making it functus officio
6
thereafter under Section 31-6-1. Because the grand jury’s statutory life had ended, the return
of the May 2008 indictment was not permissible under the circumstances. To ask it to
engage in further work on another matter after the end of its three-month term was beyond
the power of the prosecutor or district court. In re Laurens Cnty. April-June 2001 &
July-September 2001 Grand Jury, 598 S.E.2d 915, 918 (Ga. Ct. App. 2004) (holding that,
after the grand jury had completed its statutory term, the court could not reconvene it in a
special session). New Mexico has never recognized the de facto grand jury which was
suggested below by the State to exist elsewhere. The State did not pursue such an argument
on appeal, and we agree with the Idaho Supreme Court which, in rejecting such an argument,
stated:
The grand jury . . . was properly formed and convened. There was no
defect, error, or irregularity in the filling of the grand jurors’ positions, either
at the commencement of the term or at its conclusion. The term of office
expired, and thus, the offices and positions of the grand jurors ceased to
sustain a legally recognized existence. The grand jurors were not acting as
de facto officers when they returned [the defendant’s] indictment.
State v. Dalling, 911 P.2d 1115, 1118 (Idaho 1996) (holding that indictment was void ab
initio, requiring dismissal of a criminal case). Here, as in Dalling, the grand jury ceased to
sustain its legal existence once the statutorily prescribed three-month term expired.
D. The Statute is Mandatory on Its Face
{16} The State’s second contention does not argue that the statute is ambiguous, just that
it is not “mandatory,” but “directory” in nature. As a canon of construction, we regard the
word “shall” as mandatory. Bursum v. Bursum, 2004-NMCA-133, ¶ 17, 136 N.M. 584, 102
P.3d 651 (internal quotation marks omitted). “It is widely accepted that when construing
statutes, ‘shall’ indicates that the provision is mandatory, and we must assume that the
Legislature intended the provision to be mandatory absent [a] clear indication to the
contrary.” Marbob Energy Corp. v. N.M. Oil Conservation Comm’n, 2009-NMSC-013,
¶ 22, 146 N.M. 24, 206 P.3d 135 (internal quotation marks omitted). We have previously
held that “[d]eviation from a mandatory statute or one intended to prevent fraud and
unfounded prosecutions is usually fatal and renders the grand jury illegal and its indictments
null and void.” State v. Gunthorpe, 81 N.M. 515, 517, 469 P.2d 160, 162 (Ct. App. 1970)
(internal quotation marks and citation omitted). In this case, it is undisputed that the Union
County grand jury that heard this case was convened by the district court on October 3,
2007, and Defendant’s case was considered on May 20, 2008, more than seven months and
two weeks later. If Section 31-6-1 sets three months as a mandatory maximum term for a
grand jury to sit, then the grand jury returned its indictment of Defendant three months after
they ceased to have any legal existence and, accordingly, the indictment must be declared
void.
{17} On appeal, the State cites solely to Apodaca for authority. Apodaca is inapposite,
7
as it deals with neither of their arguments. Rather than dealing with the statutory term of the
grand jury, Apodaca dealt with how qualified grand jurors are substituted once a grand jury
is empaneled. 105 N.M. at 652-53, 735 P.2d at 1158-59. The case involved a challenge of
the release and replacement of a grand juror by a prosecutor where the statute provided that
the district court was to perform that function.1 Our holding concerning provisions of the
statute regards as mandatory those provisions relating to the composition of the grand
jury—the required number and qualification of grand jurors when the grand jury is
convened—but considers provisions concerning “those which prescribe details as to the
manner of selection or drawing [as] usually . . . directory.” Id. at 653, 735 P.2d at 1159.
Apodaca thus supports Laskay’s holding that a failure to convene a legally constituted grand
jury transgresses a mandatory precondition to the empaneling of a grand jury.
{18} Statutory provisions concerning the nature of what is fundamental in empaneling,
convening, and providing structure to the grand jury are thus generally mandatory, and
provisions concerning its administration once empaneled are directory. In State v. Ulibarri,
1999-NMCA-142, ¶¶ 8, 15-25, 128 N.M. 546, 994 P.2d 1164, we held that compliance with
the statutes, requiring the preparation of a verbatim record of grand jury proceedings, setting
the number of concurring jurors necessary to issue an indictment, and requiring instruction
of the grand jurors on the record concerning the elements of offenses they were considering,
were mandatory preconditions to an indictment. There, statutes mandated the existence of
an adequate record of the proceedings and proper instruction on the law and ensured the
overall legal adequacy of the process of the grand jury’s work as protecting “the very heart
of the grand jury system[.]” Id. ¶ 15. When a person appeared to prosecute before the grand
jury who was not properly authorized by statute to do so, we held that the violation of the
mandatory statute compelled dismissal of the indictment. State v. Hollenbeck, 112 N.M. 275,
276-78, 814 P.2d 143, 144-46 (Ct. App. 1991). We have recognized that a “technical
violation” of NMSA 1978, Section 31-6-4(A) (2003), requiring a grand jury to convene
during the business hours of the court, did not require dismissal of the indictment. State v.
Weiss, 105 N.M. 283, 285-86, 731 P.2d 979, 981-82 (Ct. App. 1986). However, Weiss
involved a grand jury continuing their work until two in the morning during their regular
term and not being brought back and convened by the district court more than three months
after their statutory term expired. Id. at 284, 731 P.2d at 980. In fact, Weiss contrasted the
statute requiring work during “business hours” as a “direction” for how to do the work as
opposed to “the essence of things to be done,” the latter of which would be regarded as
mandatory. Id. at 285, 731 P.2d at 981. We have previously noted that, in a statute where
the terms “shall” and “may” occur together, ordinarily it must be concluded that the
Legislature was aware of and intended different meanings. Thriftway Mktg. Corp. v. State,
114 N.M. 578, 579, 844 P.2d 828, 829 (Ct. App. 1992) (internal quotation marks omitted).
Here, the Legislature unequivocally stated that the grand jury’s term of service shall not
exceed three months. Other provisions in the statute are directed to the operation of the
1
A similar issue arises in this case, as a grand juror was apparently aware of a
Children, Youth & Families Department investigation into the religious community of which
Defendant was the leader. We do not address it here.
8
grand jury once convened. As in Weiss and Apodaca, these terms have nothing to do with
the legal existence of the grand jury body and are directory. Accordingly, we conclude that
the language in the statute, restricting the term of the grand jury to three months, is central
to the legal constitution and empanelment of the grand jury and, hence, a mandatory
requirement.
{19} Returning to the State’s argument, its contention that three months’ service can be
parceled out almost infinitely until three months’ actual time is spent by the grand jury in the
grand jury room offends the plain-language rule, its disparagement of using statutory
language to obtain absurd results, and the universal practice of limiting the terms of grand
juries. Even in states that provide for extending a grand jury’s service, there is no provision
for a grand jury to consider new matters not taken up during its original term. To allow a
grand jury to be called back for a day or two until about ninety days’ service was eked out
by the State, as it asks us to hold, offends the underlying idea inherent to the function of the
grand jury as protecting the interests of justice. We are in accord with the Court of Appeals
of New York, which reasoned that statutes limiting grand jury terms are intended to prevent
hold-over grand juries from considering any new matters “eliminat[ing] the danger of
‘vestpocket’ [g]rand [j]uries” that could become the captives of courts or prosecutors.
Williams, 535 N.E.2d at 278-79 (citation omitted).
E. Obtaining an Indictment After the Grand Jury’s Term Expires Results in an
Indictment That is Void Ab Initio and Confers No Jurisdiction to Try
Defendant
{20} Other jurisdictions that set specific terms for their grand juries have held them to
have no power after the expiration of their terms. United States v. Fein, 504 F.2d 1170, 1173
(2d Cir. 1974). Under federal law, “an indictment returned by a grand jury sitting beyond
its legally authorized time is a nullity.” Id. at 1177. “The uniform rule is that in the absence
of statute to the contrary the grand jury is discharged by operation of law at the end of the
term of court for which it was called.” State ex rel. Adami v. Lewis & Clark Cnty., Dist. Ct.
of First Jud. Dist., 220 P.2d 1052, 1058 (Mont. 1950); Grand Jury Law and Practice § 4:12
(2d ed. 2010).
{21} We therefore construe the statute in this case as unambiguously mandatory in
limiting the term of grand juries to not more than three months. We are provided with no
legislative history, but note that, in most other jurisdictions, the terms of grand juries are
limited by statute, and we impute what we know of their intent in limiting grand jury terms
to our situation in New Mexico. The policy considerations employed elsewhere are
illustrative of why a limited term of service is considered mandatory elsewhere, and why we
have come to regard it as such in this case.
{22} “The concept of limited grand jury existence was based on considerations of infusing
new blood into the grand jury at frequent intervals, avoiding the extreme personal sacrifices
to jurors extended service would entail, and eliminating the possibility of semi-professional
jurors.” Steinbeck v. Iowa Dist. Ct. In & For Linn Cnty., 224 N.W.2d 469, 475 (Iowa 1974).
9
The Pennsylvania Supreme Court stated succinctly: “A tendency to establish anything
approaching permanency in a grand jury is repugnant to our scheme of government and
subversive of individual rights.” Shenker v. Harr, 2 A.2d 298, 301 (Pa. 1938).
{23} Thus, for a grand jury to act without authorization beyond the term during which it
is empowered to sit, is fatal to the indictment. An unauthorized extension of the term of a
grand jury beyond its term is a defect which “goes to the very existence of the grand jury
itself[.]” United States v. Macklin, 523 F.2d 193, 195 (2d Cir. 1975) (internal quotation
marks and citation omitted); United States v. Armored Transp., Inc., 629 F.2d 1313, 1316
(9th Cir. 1980) (“Such a defect—that the grand jury lost its power to hand down
indictments—is jurisdictional and may be raised at any time.”). There is no statutory
provision for extending the term of a grand jury in New Mexico contained in Section 31-6-1
or otherwise and, in that absence, we cannot legislate the existence of one. The jurisdiction
of any proceeding in which Defendant is charged with a felony depends on the “presentment
or indictment of a grand jury.” N.M. Const. art. II, § 14. Without a properly constituted
grand jury returning a valid indictment charging Defendant with a crime, we hold that the
district court was without jurisdiction to proceed against him.
III. CONCLUSION
{24} The indictment in this case is void because the group of citizens that issued the
purported indictment was not a legally constituted grand jury, as it had finished its term
some months before and had ceased to exist. Any extension of its term by the district court
was undertaken without statutory authority. Legally speaking, there was no grand jury
convened in this case. Therefore, there was no indictment under the law in this case to
confer jurisdiction on the district court to try, convict, or sentence Defendant. We note that
Defendant’s acquittal in a court lacking proper jurisdiction did not violate the constitutional
prohibitions against double jeopardy and would not in and of itself bar retrial. State v.
Hamilton, 107 N.M. 186, 188, 754 P. 2d 857, 859 (Ct. App. 1988). “[D]ismissals for failure
to comply with the grand jury statutes and rules are of necessity without prejudice.” State
v. Ulibarri, 2000-NMSC-007, ¶ 2, 128 N.M. 686, 997 P.2d 818 (internal quotation marks
and citation omitted). Therefore, we remand this case to the district court and instruct that
the charges and conviction be set aside without prejudice, the indictment be quashed, and
Defendant be discharged from custody.
{25} IT IS SO ORDERED.
____________________________________
RODERICK T. KENNEDY, Judge
WE CONCUR:
____________________________________
JONATHAN B. SUTIN, Judge
10
____________________________________
TIMOTHY L. GARCIA, Judge
Topic Index for State v. Bent, Docket No. 29,227
AE APPEAL AND ERROR
AE-RM Remand
AE-SR Standard of Review
CT CONSTITUTIONAL LAW
CT-NM New Mexico Constitution, General
CA CRIMINAL PROCEDURE
CA-GJ Grand Jury
CA-QU Quashing of Indictment
JD JURISDICTION
JD-DC District Court
ST STATUTES
ST-LI Legislative Intent
11