dissenting.
I dissent from the holding that the trial court’s dismissal of Mr. Hewitt’s indictment was error because defendant failed to show demonstrable prejudice by establishing that the alleged prosecutorial misconduct both changed the result and infringed upon the independent judgment of the grand jurors. I believe that the majority focuses on the issue of whether the proffered evidence is in fact exculpatory, rather than giving full consideration to the question of whether the prosecutors violated their duty to act in a fair and impartial manner under NMSA Section 31-6-7 (Repl. Pamp.1984). While I recognize that Buzbee v. Donnelly is controlling for determining whether evidence is exculpatory, I suggest that the instant case also required this court to consider the parameters of prosecutorial behavior in the grand jury setting. I believe that this court had an opportunity to decide that there must be a fair balance between the discretion invested in a prosecutor vis-a-vis the statutory duties attached to his position.
It is clear that, under Buzbee, in order to merit dismissal of an indictment based upon the prosecutor’s alleged misconduct, a defendant must show resulting prejudice. The prejudice must be such that the conduct in question infringed upon the independent judgment of the grand jury, and that the result would have been different had the questionable conduct not occurred. I believe that the test of prejudice is met in the present case.
I suggest that the prosecutors’ actions here raised serious questions of fairness and partiality in at least three instances. Moreover, I believe that those actions likely affected the independent judgment of the grand jury. First, Mr. Lally unequivocally stated that Mr. Hewitt was notified about the grand jury proceedings, and Mr. Hansen added that if Mr. Hewitt complained of no formal notice, he could then notify the trial court to correct the alleged error. Second, Mr. Lally was delinquent in not attempting to obtain the items proffered by Mr. Hewitt, although they may have been exculpatory. Rather, Mr. Lally merely left it to the grand jurors’ discretion whether to obtain the evidence. Third, both Mr. Lally and Mr. Hansen failed to advise the jurors of their statutory duties under NMSA Section 31-6-ll(B) (Repl.Pamp.1984) to order all (exculpatory) evidence produced.
I suggest that these instances present questions as to the prosecutors’ discretion, and whether that discretion here affected the independent judgment of the grand jury. Of particular consequence is that the prosecutors ventured beyond merely answering the questions posed by the grand jury, but actually made statements calculated to influence the grand jurors’ judgment and to alleviate their concerns.
The second test for prejudice is to determine whether the result of the case would have been different absent the misconduct of the prosecutor. See Buzbee. I believe that this test was met here, as well. I believe the record provides ample evidence to uphold the trial court’s implied finding which states that the prosecutors “provided testimony calculated to influence the Grand Jury to return an Indictment against Steve Hewitt.” (Emphasis added.) The record actually shows that the evidence against Mr. Hewitt was largely circumstantial.
Hence, given the limited and attenuated evidence against Hewitt, I believe that the trial court’s implied finding that the result would have been different absent the prosecutorial misconduct is supported by the evidence. Additionally, I believe that there is substantial evidence to support the trial court’s finding that the prosecutors’ conduct was in bad faith and was prejudicial calculated to influence the independent judgment of the grand jury.
For the foregoing reasons, I respectfully dissent.