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State v. Augustin M.3/5/2003
Three cases on appeal present the issue whether failure to instruct a grand jury on a target's probable trial defenses requires dismissal of the indictment. We consolidate the three appeals and hold that the rule requiring instruction to the grand jury on the essential elements of the crimes does not apply to defenses.
In State v. Augustin M., Docket No. 22,900, Augustin M. (Child) appeals from the district court's denial of his pretrial motion to quash an indictment charging Child with willfully discharging a firearm at a motor vehicle with reckless disregard for another person. The indictment followed a petition and notice of intent to seek disposition as a youthful offender. Child asserts that the State failed to instruct the grand jury on his affirmative defenses of self-defense, defense of another, and defense of property, which, Child contends, are defenses that can negate probable cause. He bases this assertion on the theory that the offense contains an unlawfulness element that the grand jury was required to consider. An important issue in this appeal is whether Child has an immediate right to appellate review.
In State v. Flenniken, Docket No. 22,715, Defendant Vicki Lynn Flenniken through interlocutory appeal attacks the denial of her motion to dismiss a grand jury indictment charging her with vehicular homicide. She contends that proximate cause was the crucial issue in the case and an essential element of vehicular homicide. She asserts error on the ground that the prosecutor did not instruct the grand jury on proximate cause.
In State v. Chavez, Docket No. 22,768, the State appeals from the district court's grant of Defendant Richard Chavez's motion to dismiss an indictment charging him with unlawful possession of marijuana. The ground for dismissal was that the prosecutor failed to instruct the grand jury on a defense Defendant would raise at trial, namely, that Defendant had a constitutional right to use marijuana as a matter of religious freedom protected under the New Mexico Constitution.
We hold in Augustin M. that Child does not have an immediate right to appeal and we therefore dismiss the appeal. However, because we have jurisdiction of and decide Flenniken and Chavez, and because, on the issue we decide today, Augustin M. is an excellent case factually through which to present the issue and, in addition, is more fully and carefully briefed on the issue than is Chavez, we develop our holdings in Flenniken and Chavez through discussion of the facts and issue in Augustin M. We specifically note that, while we are using the facts and issue in Augustin M. to develop our rulings in Flenniken and Chavez on the shared issue, we do not dispose of Augustin M. on the merits, lacking jurisdiction to do so in the posture of the appeal presently before us. We affirm Flenniken. We reverse Chavez.
AUGUSTIN M. DISCUSSION
Background
We set out the facts in Augustin M. as Child sets them out in summary form from the testimony of law enforcement officers who testified before the grand jury. The State does not contradict the facts. The facts are important to show what was presented to the grand jury.
Child was seventeen years old and shepherding his family's flock to summer pasture in the Tierra Amarilla, New Mexico area. On the night in question, the flock was pastured on Forest Service land, and camp was located on a spur road off a main Forest Service road. Child was in charge of the camp. It was high school graduation night. Child was with the flock. Late at night a vehicle came from the main road and began to drive through the flock. Child yelled at the occupants of the vehicle to
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