State v. Serros

• Decision Date: 12 November 2015
• Docket Number: No. S–1–SC–34637.,S–1–SC–34637.
• Citation: 366 P.3d 1121
• Parties: STATE of New Mexico, Plaintiff–Respondent, v. Mark SERROS, Defendant–Petitioner.
• Court: New Mexico Supreme Court

366 P.3d 1121

STATE of New Mexico, Plaintiff–Respondent,

v.Mark SERROS, Defendant–Petitioner.

No. S–1–SC–34637.

Supreme Court of New Mexico.

Nov. 12, 2015.

Jorge A. Alvarado, Chief Public Defender Nina Lalevic, Assistant Appellate Defender, Santa Fe, NM, for Petitioner.

Hector H. Balderas, Attorney General, Yvonne M. Chicoine, Assistant Attorney General, Santa Fe, NM, for Respondent.

OPINION

BOSSON, Justice.

{1} Four years and three months after Defendant Mark Serros was arrested and charged with sexually abusing his nephew, the district court dismissed his case, concluding that his right to a speedy trial under the Sixth Amendment to the United States Constitution had been violated. Among other things, the district court found that Defendant had suffered extreme prejudice as a result of the length and circumstances of his detention. From the time of his arrest over four years earlier, Defendant had been held at the Bernalillo County Metropolitan Detention Center (MDC) in protective custody.

{2} In a divided memorandum opinion, the Court of Appeals reversed. See State v. Serros, No. 31,565, mem. op. ¶¶ 1, 58, 2014 WL 1998986 (N.M.Ct.App. Mar. 10, 2014) (non-precedential). The majority reasoned that the delay in bringing Defendant to trial could not be attributed to the State. See id. ¶ 52. The majority faulted Defendant because he had agreed to numerous requests to extend the time for commencing trial and had twice requested new counsel. See id. By contrast, the dissent concluded that the delays resulted primarily from the "negligence and disregard" of Defendant's trial had been violated. See id. ¶ 60 (Zamora, J., dissenting).

{3} We granted certiorari and now reverse. 2014–NMCERT–005, 326 P.3d 1112. We agree with the district court's conclusion that the length and circumstances of Defendant's pre-trial incarceration resulted in extreme prejudice. We therefore hold that dismissal was appropriate because Defendant did not cause or acquiesce in the numerous delays in his case and because the State failed in its obligation to bring Defendant's case to trial.

I. BACKGROUND

A. The right to a speedy trial

{4} The Sixth Amendment to the United States Constitution begins, "In all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial." See N.M. Const. art. II, § 14. In State v. Garza, we emphasized that "[t]he heart of the right to a speedy trial is preventing prejudice to the accused." 2009–NMSC–038, ¶ 12, 146 N.M. 499, 212 P.3d 387. But we also recognized that the right is unique among the constitutional guarantees afforded a criminal defendant because of the concomitant "societal interest in bringing an accused to trial." Id. (citing Barker v. Wingo, 407 U.S. 514, 519, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) ). As a result, merely showing delay in bringing an accused's case to trial is not enough to establish a speedy trial violation; rather, we must scrutinize every claimed violation to determine whether the accused has suffered an "actual and articulable deprivation" of the right to a speedy trial. See id. ¶¶ 12–13.

{5} In making that determination, we consider the four factors articulated in Barker: (1) the length of delay in bringing the case to trial, (2) the reasons for the delay, (3) the defendant's assertion of the right to a speedy trial, and (4) the prejudice to the defendant caused by the delay. See 407 U.S. at 530, 92 S.Ct. 2182 ; see also Garza, 2009–NMSC–038, ¶ 13, 146 N.M. 499, 212 P.3d 387 ("[W]e have adopted the balancing test created by the United States Supreme Court in Barker. "). We weigh these factors according to the unique circumstances of each case in light of "the State and the defendant's conduct and the harm to the defendant from the delay." See Garza, 2009–NMSC–038, ¶¶ 12–13, 146 N.M. 499, 212 P.3d 387. We therefore begin with a review of the circumstances in this case.

B. Factual and procedural time line

{6} Defendant was arrested on March 9, 2007, and detained at the MDC on suspicion of sexually abusing his four-year-old nephew. Due to the charges against him and because he is homosexual, MDC officials placed him almost immediately in protective custody for his safety. On March 26, 2007, a grand jury indicted Defendant on one count each of first-degree criminal sexual penetration (a child under 13), see NMSA 1978, § 30–9–11(C) (2003) ; bribery of a witness (threats or bribes—reporting), see NMSA 1978, § 30–24–3(A)(3) (1997) ; and contributing to the delinquency of a minor, see NMSA 1978, § 30–6–3 (1990). Defendant pleaded not guilty to all three counts, and the district court set his bond at $150,000 cash or surety. Unable to afford his bond, Defendant remained in protective custody at the MDC awaiting trial.

{7} Defendant never had a trial. Instead, more than four years after his arrest, the district court dismissed Defendant's case with prejudice, following three days of hearings on Defendant's motion to dismiss on speedy trial grounds due to ineffective assistance of counsel. The evidence introduced at the hearings, which we review in some detail throughout this opinion, included testimony from four defense witnesses, including Defendant himself; court-ordered appearances by Defendant's first two court-appointed attorneys, Houston Ross and Scott Pistone; subpoenas for Mr. Ross's and Mr. Pistone's attorney case files and Disciplinary Board records; and extensive argument by the parties.

{8} The record shows the following time line of significant events in Defendant's case. On May 10, 2007, Mr. Ross filed a single document on Defendant's behalf that included his entry of appearance, a request for grand jury tapes, and demands for a speedy trial, discovery, and exculpatory evidence. On September 11, 2007, the district court set Defendant's case for trial on September 24, 2007. Three days later, on September 14, 2007, the State filed its first petition for an extension of time to commence Defendant's trial, noting that the State's investigation was ongoing and that Defendant had not requested or conducted any pretrial interviews. Mr. Ross later stipulated to the petition on Defendant's behalf and requested a plea offer. The district court granted the petition and extended the deadline for commencing Defendant's trial to January 2, 2008. The district court also set a plea hearing for October 23, 2007.

{9} On November 21, 2007, the district court set a pretrial hearing for December 14, 2007. On December 12, 2007, however, the State filed its second petition to extend the time for commencing Defendant's trial, again with Mr. Ross's agreement. In its second petition, the State represented that it was in the process of "formulating an offer" in response to Defendant's request for a plea agreement, that the case was not ready for trial, that Defendant had not requested or conducted any pretrial interviews, and that the parties were "hopeful that if given more time, the case will result in a non-trial disposition." The district court granted the petition, extended the deadline for commencing Defendant's trial to April 2, 2008, and set the trial for March 24, 2008. In the interim, the district court set a second plea hearing for January 25, 2008.

{10} On February 22, 2008, the district court continued the March 24, 2008 trial 3 setting. The court noted in its continuance order that Mr. Ross had requested an "evaluation" and that "[a]dditional/new evidence [had been] disclosed recently." That order was followed on March 20, 2008, by the State's third petition to extend the deadline for commencing Defendant's trial, filed in this Court as was then required by Rule 5–604(D) NMRA, and again stipulated to by Mr. Ross. As grounds for the petition, the State represented that although it had completed its initial investigation, it had been necessary to conduct a second safehouse interview of the victim on February 20, 2008, because of a report that the victim had recanted the allegations against Defendant or possibly had named a different abuser. The State further represented that the victim had not, in fact, recanted his story at the second interview and that a supplemental report had been prepared by a detective and distributed to the parties. The State also noted that Mr. Ross was "still evaluating the case in an effort to determine whether an evaluation of his client is in order" and that Defendant had not requested or conducted any pretrial interviews. The State concluded by stating that Defendant's case had been "set for a definite trial setting on August 11, 2008, which is outside the current ... date [permitted by Rule 5–604 ]," and requested an extension through October 2, 2008. This Court granted the petition on April 1, 2008, and extended the deadline for commencing Defendant's trial to September 2, 2008.

{11} In the ensuing months, the district court set pretrial conferences for May 29, 2008, and July 31, 2008, and set the case for a jury trial on August 25, 2008. But on August 18, 2008, the State—once again noting Mr. Ross's agreement on Defendant's behalf—filed its fourth petition to extend the time to commence Defendant's trial. The State represented to this Court that it had made a plea offer to Mr. Ross that had not yet been accepted, that Mr. Ross had refused the State's request "that a sex offender [evaluation] be completed," and that Mr. Ross had not requested or conducted any pretrial interviews. The State also represented that, because it had not heard from Mr. Ross about the plea offer and because the parties would not be ready for trial on August 25, 2008, the district court had re-set the matter at the parties' request for trial on December 8, 2008, which the State noted was after the previous deadline set by this Court. The State therefore requested, and this Court granted on August 25, 2008, an order extending the time to commence Defendant's trial to March 2, 2009. On September 2, 2008, the district court set a plea hearing for October 14, 2008, and on October 14,...