concurring.
Although I concur in the result reached by the majority, I do so on a different ground.
I would hold that Respondent has waived any claimed error which occurred in the grand jury proceeding.
In determining Respondent’s recourse, we should first look at New Mexico’s Criminal Procedure Rule 7, N.M.S.A.1978 (Repl. Pamp.1980). Rule 7(a) states in part:
[An] indictment * * * shall not be deemed invalid, nor shall the trial, judgment or other proceedings thereon be * * in any manner affected, because of any defect, error * * * or repugnancy therein which does not prejudice the substantial rights of the defendant upon the merits * * *. [Emphasis added.]
Therefore, we should determine whether Respondent’s substantial rights upon the merits are affected if he is not allowed to testify in front of the grand jury. “Substantial rights” are not enumerated by the rule. However, I would adopt the definition of “fundamental rights” as the standard under this rule. “Fundamental rights” are those rights equivalent to life, liberty or property. M. Forkosch, Constitutional Law § 390, at 407 (2d ed. 1969).
I do not believe that the statutory right of a target witness under the New Mexico statutory grand jury law rises to substantial right upon the merits. Therefore, relief from this statutory right, should have been raised by Respondent at pre-trial by an interlocutory appeal or extraordinary writ in order for it to be properly reviewed.
Here we have a unanimous finding by a jury of twelve citizens of guilt beyond a reasonable doubt, N.M.R.Crim.P. 44, N.M.S. A.1978 (Repl.Pamp.1980), whereas the grand jury determination that Respondent wants re-litigated, only requires a finding of probable cause by eight of twelve jurors. § 31-6-10, N.M.S.A.1978 (Cum.Supp.1982).
Once an accused is found guilty, there is no need to question an indictment. State v. Guse, 237 Or. 479, 392 P.2d 257 (1964); State v. Gortmaker, 60 Or.App. 723, 655 P.2d 575 (1982). I would follow the view that the State of Oregon has adopted in the above cases, by following the reasoning of Justice Jackson’s dissenting opinion in Cassell v. Texas, 339 U.S. 282, 302, 70 S.Ct. 629, 639, 94 L.Ed. 839 (1950).
The grand jury is a very different institution. The States are not required to use it at all. (Citations omitted.) Its power is only to accuse, not to convict. Its indictment does not even create a presumption of guilt; all that it charges must later be proved before the trial jury, and then beyond a reasonable doubt. The grand jury need not be unanimous. It does not hear both sides but only the prosecution’s evidence, and does not face the problem of a choice between two adversaries. Its duty is to indict if the prosecution’s evidence, unexplained, uncontradicted and unsupplemented, would warrant a conviction. If so, its indictment merely puts the accused to trial. The difference between the function of the trial jury and the function of the grand jury is all the difference between deciding a cáse and merely deciding that a case should be tried.
It hardly lies in the mouth of a defendant whom a fairly chosen trial jury has found guilty beyond a reasonable doubt, to say that his indictment is attributable to prejudice * * *. Under such circumstances, it is frivolous to contend that any grand jury, however constituted, could have done its duty in any way other than to indict.
The United States Supreme Court has not yet adopted Justice Jackson’s view as stated in Cassell v. Texas. Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979). However, both Cassell v. Texas and Rose v. Mitchell, dealt with the racially discriminatory fashion in the selection of a grand jury. The Supreme Court held that:
[Wjhere sufficient proof of discrimination in violation of the Fourteenth Amendment has been made out and not rebutted, this Court uniformly has required that the conviction be set aside and the indictment returned by the unconstitutionally constituted grand jury be quashed. (Citation omitted.) (Footnote omitted.)
Rose v. Mitchell, supra, at 551, 99 S.Ct. at 2998.
However, when a grand jury violation has been asserted because of prosecutorial misconduct after a trial has found the accused guilty, a dismissal of an indictment has been considered an extraordinary remedy. United States v. Broward, 594 F.2d 345 (2d. Cir.), cert. denied, 442 U.S. 941, 99 S.Ct. 2882, 61 L.Ed.2d 310 (1979). United States v. Thibadeau, 671 F.2d 75, 77-78 (2d Cir.1982), states:
To dismiss an indictment because of misconduct means that even though a jury unanimously found the defendant guilty beyond a reasonable doubt — or as here, even though the defendant admitted his guilt — we should nevertheless void his conviction because the prosecution had made a misstep in obtaining a grand jury determination of probable cause. Justification for such action must be found not in any need for securing justice in the particular case, where the verdict supersedes the indictment, but rather in a desire to maintain proper prosecutorial standards generally. Hence, the sanction is reserved for ‘very limited and extreme circumstances.’ (Citation omitted.)
In conclusion, I would adopt for New Mexico, as did the Oregon Supreme Court, the reasoning of Justice Jackson in Cassell v. Texas, and hold that once there has been a valid conviction, a defendant cannot question a grand jury proceeding.