September 14, 2010 – State of New Mexico v. Kenneth Yaw, No. 29,529, consolidated with State of New Mexico v. Rita Starceski, No. 29,528

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	September 14, 2010
NO. 29,529
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
KENNETH YAW,
Defendant-Appellant.
Consolidated with
NO. 29,528
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
RITA STARCESKI,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Lisa C. Schultz, District Judge

Gary K. King, Attorney General
Margaret E. McLean, Assistant Attorney General
Joel Jacobsen, Assistant Attorney General
Santa Fe, NM
for Appellee
Michael L. Stout
Las Cruces, NM
for Appellant Yaw
David C. Serna
Albuquerque, NM
for Appellant Starceski

OPINION
WECHSLER, Judge.
{1} 	These separate interlocutory appeals arise from the district court’s denial of
Defendants’ joint motion to dismiss their indictments. Defendants raise two issues on
appeal: (1) the district court erred in determining that it was unable to grant the relief
Defendants sought; and (2) the grand jury judge failed to enforce NMSA 1978,
Section 31-6-11(B) (2003) through the procedures outlined in Jones v. Murdoch,
2009-NMSC-002, 145 N.M. 473, 200 P.3d 523. Because the district court did not
have the power to grant the relief Defendants seek, we affirm. We write in a single
opinion deciding both appeals.
BACKGROUND
{2} 	Defendants, Kenneth Yaw and Rita Starceski, husband and wife, were arrested
and indicted on six counts of child abuse in violation of NMSA 1978, Section 30-6-
1(D) (2009). The charges stemmed from instances of locking several of their children
in their garage as punishment for various rules violations and for sending several of
their children to live in a trailer far from the family residence for approximately two
weeks for stealing money in an attempt to purchase clothing and enroll in public
school.
{3} 	After Defendants were issued target notices, but before the grand jury

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proceeding, Defendant Yaw sent a letter to the prosecutor serving as the grand jury
aide, requesting that the prosecutor allow the grand jury to hear testimony from the
children. The letter indicated that the children would testify that the garage in which
they were confined had sufficient provisions, that any punishment the children had
received from Defendants was appropriate and not cruel, and that Defendant
Starceski’s father would also testify about Defendants’ parenting. The prosecutor did
not comply with Defendant Yaw’s request. Defendant Yaw then moved the grand
jury judge to order the prosecutor to present such evidence to the grand jury.
Defendant Starceski joined in this motion.
{4} 	On October 1, 2008, the grand jury judge held a hearing to consider whether
Section 31-6-11(B) compelled him to order the prosecutor to present Defendant Yaw’s
proffered evidence. 	The grand jury judge ruled that Section 31-6-11(B) did not
compel him to order that the prosecutor offer any piece of evidence to the grand jury
and did not remove from the prosecutor the wide discretion granted to him in
decisions regarding the presentation of evidence to the grand jury. The grand jury
judge held that the proper remedy for Defendants was to move to quash the indictment
if and when the grand jury issued one and to raise the issue of a potential violation of
Section 31-6-11(B) at that time. The grand jury indicted each Defendant on six counts

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of intentional child abuse in violation of Section 30-6-1(D). Defendants moved to
dismiss the indictment in the district court, renewing their argument that the grand
jury judge incorrectly applied Section 31-6-11(B). 	After the grand jury issued its
indictment, but before the district court heard Defendants’ motion to dismiss, our
Supreme Court decided Jones. Jones outlined the procedures for resolving disputes
between grand jury targets and prosecutors when targets wish evidence to be
presented to the grand jury in accordance with Section 31-6-11(B). 	Jones, 2009-
NMSC-002, ¶ 35.
{5} 	On appeal, Defendants argue that the district court erred in ruling that
Defendants did not have a right to vindicate their rights under Section 31-6-11(B)
through a motion to quash the indictment. Defendants further argue that the grand
jury judge erred by failing to enforce the procedures for enforcing Section 31-6-11(B)
as articulated in Jones. We hold that the district court was correct in concluding that
Defendants could not receive relief through a motion to quash the indictment and
affirm. Because we hold that the district court did not have the power to review the
grand jury judge’s enforcement of Section 31-6-11(B), we do not address Defendants’
arguments concerning the application of that statute.

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AVAILABILITY OF POST-INDICTMENT REVIEW
{6} 	Whether Defendants have a right to post-indictment review depends on
statutory interpretation of Section 31-6-11(B). 	Statutory interpretation presents a
question of law, which this Court reviews de novo. State v. Myers, 2010-NMCA-007,
¶ 30, 147 N.M. 574, 226 P.3d 673, cert. granted, 2010-NMCERT-001, __ N.M. __,
227 P.3d 1056. Section 31-6-11(B) provides:
It is the duty of the grand jury to weigh all the evidence submitted
to it, and when it has reason to believe that other lawful, competent and
relevant evidence is available that would disprove or reduce a charge or
accusation or that would make an indictment unjustified, then it shall
order the evidence produced. At least twenty-four hours before grand
jury proceedings begin, the target or his counsel may alert the grand jury
to the existence of evidence that would disprove or reduce an accusation
or 	that 	would 	make 	an 	indictment 	unjustified, 	by 	notifying 	the
prosecuting attorney who is assisting the grand jury in writing regarding
the existence of that evidence.
In Jones, our Supreme Court set forth a pre-indictment remedy for enforcement of a
target’s right to offer evidence to the grand jury as allowed by Section 31-6-11(B).
Jones, 2009-NMSC-002, ¶ 35. If a prosecutor wishes to prevent the grand jury from
accessing the evidence proffered by the grand jury target, “the prosecutor must file a
motion with the grand jury judge, with notice to the target, seeking confirmation of
the prosecutor’s decision not to call the witness or not to inquire into the subject
matter proposed by the target.” Id. At this hearing, the prosecutor has the burden of

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persuading the grand jury judge that the evidence in question is not “lawful,
competent and relevant” as required by Section 31-6-11. 	Jones, 2009-NMSC-002,
¶ 39 (internal quotation marks and citation omitted).
{7} 	Normally, New Mexico courts cannot review the evidence presented during
grand jury proceedings after indictment absent a showing of bad faith on the part of
the prosecutor. 	See § 31-6-11(A) (“The sufficiency of the evidence upon which an
indictment is returned shall not be subject to review absent a showing of bad faith on
the part of the prosecuting attorney assisting the grand jury.”); State v. Chance, 29
N.M. 34, 39, 221 P. 183, 184-85 (1923) (“[U]nless there is some clear statutory
authority to do so, we think the courts are without power to review [grand jury
proceedings] to determine whether or not [the grand jury] had sufficient or
insufficient, legal or illegal, competent or incompetent evidence upon which to return
an indictment.”). 	This Court has previously applied this principle in refusing to
review a prosecutor’s refusal to present exculpatory evidence to the grand jury. State
v. McGill, 89 N.M. 631, 633, 556 P.2d 39, 41 (Ct. App. 1976) (holding that post-
indictment review of the prosecutor’s failure to comply with the predecessor statute
to Section 31-6-11(B), which required prosecutors to present direct exculpatory
evidence to the grand jury, would be an impermissible inquiry into the evidence upon

6
which the grand jury based its indictment).
{8} 	Defendants argue that the existence of a pre-indictment enforcement mechanism
in Jones also creates a right to post-indictment review of grand jury proceedings to
ensure that the mechanism is properly applied. They argue that review for the proper
application is distinct from review of the evidence before the grand jury, such that
reviewing for compliance with Section 31-6-11(B) does not conflict with Section 31-
6-11(A). 	However, the nature of the remedy fashioned in Jones indicates that our
Supreme Court did not believe that Section 31-6-11(B) allowed for post-indictment
review of the grand jury proceedings. In reaching its conclusion that a pre-indictment
procedure was necessary to fulfill the purposes of Section 31-6-11(B), the Court
specifically rejected the state’s contention that a post-indictment motion to quash the
indictment would be an adequate remedy for grand jury targets whose evidence was
excluded by the prosecutor. Jones, 2009-NMSC-002, ¶ 18. The Court reasoned, in
part, that any post-indictment review of the application of Section 31-6-11(B) would,
by its nature, be a review of the evidence before the grand jury at the time of the
indictment and that, as a consequence, the district court would only be able to quash
the indictment if the defendant made an additional showing of bad faith on the part of
the prosecutor. 	Jones, 2009-NMSC-002, ¶ 19; Section 31-6-11(A). 	The Court

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acknowledged that this need for a showing of bad faith on the part of the prosecutor
would make it much more difficult for defendants to vindicate their rights under
Section 31-6-11(B). Jones, 2009-NMSC-002, ¶ 19.
{9} 	This analysis by the Court indicates that the Court envisioned that post-
indictment review for violations of Section 31-6-11(B) would be treated like any other
post-indictment review of the evidence before the grand jury at the time of the
indictment as laid out in Section 31-6-11(A). Review would therefore be unavailable
to Defendants absent a showing of bad faith on the part of the prosecutor in the
presentation of evidence to the grand jury. 	See § 31-6-11(A). 	Defendants do not
argue on appeal that there was prosecutorial bad faith, and, as a result, post-indictment
review of the evidence before the grand jury would not generally be available to them.
{10} 	In addition, Jones provides further insight into the propriety of the relief
Defendants seek in its discussion of the procedure for vindicating a target’s rights
under Section 31-6-11(B). The Jones Court recognized that Section 31-6-11(B) did
not provide for appellate review, even of pre-indictment rulings. 	It was thus
“unwilling to recognize a right of appeal from a decision of the grand jury judge under
Section 31-6-11(B).” Jones, 2009-NMSC-002, ¶¶ 40, 41. It contemplated that any
such review would take place by extraordinary writ in extreme cases. 	Id. ¶ 41.

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Defendants seek to distinguish their case from Jones on the grounds that they never
received a “decision of the grand jury judge under Section 31-6-11(B)” because they
were not provided a hearing as outlined in Jones. 	Jones, 2009-NMSC-002, ¶ 40.
However, the grand jury judge in this case reviewed the evidence that Defendants
wished to present under Section 31-6-11(B) and ruled that the State did not have to
present that evidence to the grand jury. Regardless of whether this decision was in
compliance with the procedure set out in Jones, it was certainly a “decision of [the]
grand jury judge under Section 31-6-11(B),” and therefore not the proper subject of
an appeal. Jones, 2009-NMSC-002, ¶ 41.
{11} 	Defendants also argue that a violation of Section 31-6-11(B) should instead be
reviewed by a different standard, the one by which courts review violations of other
grand jury statutes, such as those involving the presence of unauthorized people in the
deliberation room or a failure to demonstrate that the grand jury has been properly
instructed on the elements of the charges alleged. See State v. Ulibarri, 2000-NMSC-
007, ¶¶ 1, 3, 128 N.M. 686, 997 P.2d 818 (holding that failure to read the elements of
the charges against the target to the grand jury before its deliberations warranted
dismissing the indictment without prejudice); Davis v. Traub, 90 N.M. 498, 501, 565
P.2d 1015, 1018 (1977) (per curiam) (holding that the presence of an unauthorized

9
person during grand jury deliberations warranted dismissing the indictment without
prejudice). We agree with Defendants that there are circumstances in which failure
to comply with grand jury statutes warrants quashing an indictment without prejudice.
However, these circumstances are limited to those cases, such as Davis and Ulibarri,
in which there is a failure as to the grand jury process that goes to the heart of the
grand jury’s essential function. See State v. Ulibarri, 1999-NMCA-142, ¶¶ 12-15, 128
N.M. 546, 994 P.2d 1164 (discussing the differences between challenges to the
evidence before the grand jury and challenges to the manner in which the grand jury
is conducted), aff’d, 2000-NMSC-007. In matters relating to the grand jury process,
the prosecutor does not have discretion, and the courts do not defer to any decision the
prosecutor makes if that decision was not in compliance with the law. Ulibarri, 1999-
NMCA-142, ¶¶ 14-15. In those types of cases, prejudice to the defendant is assumed
due to the “obviously improper nature of the violation.” Id. ¶ 13. We treat disputes
over evidence before the grand jury quite differently. Id. ¶ 12. When there is such a
dispute, the prosecutor has broad discretion as to what evidence to present to, or
exclude from, the grand jury, and courts will not review any good-faith decisions the
prosecutor makes in that regard once an indictment is returned. Id. ¶ 12. There is no
post-indictment relief for a defendant once the grand jury returns an indictment absent

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a showing of prosecutorial bad faith. 	Section 31-6-11(A). 	As noted above, Jones
indicates that disputes arising under Section 31-6-11(B) are treated like other disputes
concerning evidence before the grand jury for the purposes of post-indictment relief.
Jones, 2009-NMSC-002, ¶¶ 18-19. As a result of this distinction between the process
of, and the evidence to be submitted to, the grand jury, Defendants were required to
show prosecutorial bad faith before the district court could inquire into their claims.
Because Defendants have made no such showing, they are not entitled to the relief
they seek.
CONCLUSION
{12} 	Jones did not create a statutory right to post-indictment review for compliance
with the pre-indictment procedures for enforcing Section 31-6-11(B). 	Thus,
Defendants are not entitled to post-indictment review absent a showing of bad faith
on the part of the prosecutor. Defendants did not argue prosecutorial bad faith in their
motion to the grand jury judge, in their motion to quash their indictments, or in their
appeal to this Court. They thus do not have a right for post-indictment review of the
evidence presented to the grand jury. 	Because we affirm the district court on this
finding, we do not address either the grand jury judge’s application of Section 31-6-
11(B) or the district court’s analysis of that application. We affirm the decision of the

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district court as to both appeals.
{13} 	IT IS SO ORDERED.
________________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
_________________________________
MICHAEL D. BUSTAMANTE, Judge
_________________________________
LINDA M. VANZI, Judge