State v. Lujan

• Citation: 815 P.2d 642,1991 NMCA 67,112 N.M. 346
• Decision Date: 28 May 1991
• Docket Number: No. 12,527,12,527
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. Arthur LUJAN, Jr., Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 642

815 P.2d 642

112 N.M. 346

STATE of New Mexico, Plaintiff-Appellant, v. Arthur LUJAN, Jr., Defendant-Appellee.

No. 12,527.

Court of Appeals of New Mexico.

May 28, 1991.

Certiorari Denied July 10, 1991.

[112 NM 347] Tom Udall, Atty. Gen., Gail MacQuesten, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant.

Whitney Johnson, Albuquerque, for defendant-appellee.

OPINION

DONNELLY, Judge.

The state appeals from an order of the trial court dismissing the indictment against defendant based on the trial court's finding that the state violated defendant's right to a speedy trial. The sole issue raised on appeal is whether the trial court erred in dismissing the indictment. We affirm the ruling of the trial court.

The state and defendant have stipulated to the material facts. Defendant was charged with aggravated assault on a peace officer. The charge arose out of an incident that occurred on June 12, 1989. Defendant was arrested on June 12, 1989; on June 13, 1989, he was arraigned and released on a $2,500 bond that remained in effect until the trial court dismissed the indictment. On June 14, 1989, the police report of the incident was completed. At the time of his arrest, defendant was on parole; as a result of the charges from the June 12, 1989, incident, his parole was revoked, and defendant was incarcerated at the state penitentiary until late November or early December 1989.

A preliminary hearing was not held in defendant's case. On June 26, 1989, approximately two weeks after defendant's arrest, defendant's attorney wrote a letter to the prosecutor advising him that he was representing defendant and requesting that he be given notice of any grand jury proceeding involving defendant.

From late June 1989 through November of the same year, defendant's attorney made several attempts to resolve the pending charges by proposing different plea bargains; however, each offer was rejected. Ultimately, on February 8, 1990, defendant was indicted on a charge of aggravated assault on a peace officer. He was rearrested and released after posting an additional bond. On February 19, 1990, defendant waived arraignment. On May 18, 1990, defendant received a definite trial setting for July 9, 1990. On May 31, 1990, he filed a motion to dismiss the charge against him, alleging a violation of his constitutional right to a speedy trial. After a hearing on defendant's motion on July 9, 1990, the trial court granted the motion to dismiss the charge with prejudice.

CLAIM OF DENIAL OF SPEEDY TRIAL

The right to a speedy trial is a fundamental constitutional right. Zurla v. State, 109 N.M. 640, 789 P.2d 588 (1990). The right protects a defendant against unreasonable and unnecessary delay in the resolution of criminal charges against him, as well as society's interest in the prompt resolution of such charges. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Zurla v. State. In Barker, the United States Supreme Court set out the test used to determine whether such right has been violated. The Barker test takes into account four factors: the length of the delay, the reason for the delay, the defendant's assertion of the right, and the prejudice to the defendant's right to a speedy trial. See also Zurla v. State. No one factor is decisive; rather, appellate courts must independently engage in the complex and sensitive process of balancing the factors.¹ Id.; State v. Grissom, 106 N.M. 555, 746 P.2d 661 (Ct.App.1987). We examine each of the Barker factors.

A. Length of Delay

At the outset we must determine whether the length of the delay is presumptively prejudicial in light of the nature and the complexity of the charges and the nature of the evidence against the accused. See Zurla v. State; State v. Kilpatrick, 104 N.M. 441, 722 P.2d 692 (Ct.App.1986) (Kilpatrick II ). If the length of the delay is not presumptively prejudicial, we need not consider the other three Barker factors. State v. Grissom; State v. Santillanes, 98 N.M. 448, 649 P.2d 516 (Ct.App.1982).

The right to a speedy trial attaches when the defendant becomes an accused. Kilpatrick v. State, 103 N.M. 52, 702 P.2d 997 (1985) (Kilpatrick I ) on remand, 104 N.M. 441, 722 P.2d 692 (Ct.App.1986). In this case defendant became an accused for speedy trial purposes when he was arrested and released on bond on June 13, 1989. See United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Kilpatrick I. Cf. State v. Sanchez, 108 N.M. 206, 769 P.2d 1297 (Ct.App.1989) (right does not attach when defendant is arrested and released without restrictions pending further investigation). The parties appear to agree that the end point of the delay period in this case is the date of the trial setting, July 9, 1990. Thus, the delay in question is approximately thirteen months. Because this case involves a relatively lengthy delay considering the simple nature of the charge and the readily available evidence, we believe the trial court correctly determined that the length of the delay was presumptively prejudicial. See Salandre v. State, 111 N.M. 422, 806 P.2d 562 (1991) (holding nine months marks minimum length of time in speedy trial claim that may be considered presumptively prejudicial, even for case involving simple charges and readily available evidence). Cf. Work v. State (thirteen-month delay held presumptively prejudicial where charges included four counts of criminal solicitation and one count of aggravated battery).

The state argues, however, that we should exclude from the delay period the time span dating from the first substantive plea discussion to the last plea discussion because the delay caused by the plea negotiations was for the benefit of defendant. After this case was briefed, our supreme court decided Salandre, and indicated that in considering the first Barker factor (length of delay), and whether the length of the delay is presumptively prejudicial, the court does not initially consider how much of the delay has been caused by the state or the defendant. Salandre v. State, 111 N.M. at 427-28, 806 P.2d at 567-68 (in deciding whether defendant has made a preliminary showing of presumptively prejudicial delay, "inquiry at this stage of a speedy trial claim into the remaining three factors would tangle the courts needlessly in consideration of minutiae of a case prior to the invocation of the full balancing test"). We follow this precept and consider the effect, if any, in the instant case of the unsuccessful plea negotiations in connection with our review of the second Barker factor involving the reason for delay.

B. Reason for the Delay

As defendant correctly points out, the state has a duty to bring defendant to trial. See Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). The state responds, however, that four months of the delay in the instant case were attributable in part to the unsuccessful plea negotiations initiated by defendant, and in part due to the necessity of also waiting approximately three months for the convening of the grand jury once the negotiations broke down. We do not consider the state's argument concerning the period of delay caused by waiting for a grand jury to be convened, because it was not raised below. See State v. Martin, 101 N.M. 595, 686 P.2d 937 (1984) (appellate court cannot consider facts that are not of record); State v. Lucero, 104 N.M. 587, 725 P.2d 266 (Ct.App.1986) (appellate court will not consider argument on appeal unless the argument was made below). Moreover, the state has not explained why in lieu of proceeding against defendant by indictment, it could not have proceeded by criminal information.

Whether delay resulting from attempts to reach an agreement concerning a plea bargain is chargeable against either party in computing defendant's speedy trial claim is an issue of first impression in this jurisdiction. In essence, the state argues that the unsuccessful plea negotiations consumed approximately four months, that the plea negotiations were for the benefit of defendant, and therefore those four months of the delay period should be treated as a valid reason for delay. See State v. Manes, 112 N.M. 161, 812 P.2d 1309 (Ct.App.1991) (analyzing separately the reasons for different portions of the delay period). In support of this position, the state relies on language in State v. Sanchez, 109 N.M. 313, 785 P.2d 224 (1989), and State v. Mendoza, 108 N.M. 446, 774 P.2d 440 (1989), in which the six-month rule, see SCRA 1986, 5-604(B), was held suspended during periods of delay found to be for the benefit of the defendant. See also State v. Lucas, 110 N.M. 272, 794 P.2d 1201 (Ct.App.1990) (time during which agreed-upon plea bargain is being assessed by the court suspends running of six-month rule).

Defendant points out that plea bargaining is explored in numerous cases and that in some proceedings negotiations between the prosecution and the defense continue from the date of arrest through the trial and end only when the jury returns a verdict. Thus, defendant argues that the state's proposed disposition, if accepted, would have the effect of vitiating the constitutional right to a speedy trial.

We believe the position advocated by the state is too sweeping in its effect. If the plea negotiations in this case had resulted in an agreement on a particular plea bargain to be presented to the trial court, or if the facts gave rise to circumstances indicating that the parties implicitly agreed to stay the time within which to process defendant's trial, we would agree that the time between the reaching of the agreement and its presentation to the trial court for approval or disapproval would be a period of delay for which there was a valid reason not to charge the state with such delay. See United States v. Jones, 475 F.2d 322 (D.C.Cir.1972) (period of time involved in considering defend...