State Of N.M. v. Gallegos

• Decision Date: 07 January 2010
• Docket Number: No. 27,393.,27
• Citation: State v. Gallegos, 148 N.M. 182, 231 P.3d 1124, 2010 NMCA 32 (N.M. App. 2010)
• Parties: STATE of New Mexico, Plaintiff-Appellant,v.Fernando GALLEGOS, Jr., Defendant-Appellee.
• Court: Court of Appeals of New Mexico

148 N.M. 182

231 P.3d 1124

2010 NMCA 032

STATE of New Mexico, Plaintiff-Appellant,v.Fernando GALLEGOS, Jr., Defendant-Appellee.

No. 27,393.

Court of Appeals of New Mexico.

Jan. 7, 2010.

Certiorari Denied, No. 32,215, March 8, 2010.

Gary K. King, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellant.

Hugh W. Dangler, Chief Public Defender, S. Erin Brunson, Assistant Appellate Defender, Santa Fe, NM, for Appellee.

OPINION

KENNEDY, Judge.

{1} The district court dismissed this case, having found a speedy trial violation. The facts include both a failure of the State to pursue a timely trial date and some problems setting the case due to judicial retirements, excusals, and appointments. We see as a fundamental principle the State's affirmative duty to bring a defendant to trial. State v. Maddox, 2008-NMSC-062, ¶ 26, 145 N.M. 242, 195 P.3d 1254. Because the amount of time this case was pending is presumptively prejudicial to Defendant's Sixth Amendment right to a speedy trial, it triggers a process in which we balance the factors from Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to determine whether a speedy trial violation occurred. We follow using the recent guidance provided us by the New Mexico Supreme Court in State v. Garza, 2009-NMSC-038, ¶¶ 47, 49, 146 N.M. 499, 212 P.3d 387, in which the presumptive prejudice of delay alone acts as no more than a trigger to analysis of actual prejudice to the defendant. In Garza, our Supreme Court makes it clear that the defendant must show substantial and particularized prejudice of a substantial nature and degree unless the other Barker factors weigh heavily in his favor. Defendant's claims of prejudice fall short under Garza primarily because he was out of custody and showed few facts supporting his claim of personal harm and anxiety that we would recognize as compelling. Second, he did not demonstrate prejudice to his ability to defend the case. Id. ¶¶ 35, 36. Ultimately, because adherence to Garza compels it, we conclude that Defendant's showing of actual prejudice is insufficient under Garza to justify dismissal of the case. We therefore reverse the district court, and remand the case for trial.

BACKGROUND

{2} Defendant was arrested on September 2, 2005, and charged in magistrate court for possession of a controlled substance and other offenses. This was to be a simple three-witness case involving two New Mexico State Police agents and a chemist to identify the controlled substance.

{3} On September 19, 2005, the charges in the magistrate court were dismissed pending further investigation, and Defendant was released. The State then indicted Defendant in district court on October 12, 2005, on charges including trafficking of a controlled substance. He was arraigned before Judge Nelson on October 26, 2005. The State was aware that the six-month rule would expire on April 26, 2006. Defendant had already demanded a speedy trial, and the court set the case for trial on April 10, 2006. Thereafter, Judge Nelson retired, and the case was reassigned to Judge Sanchez on February 1, 2006. Defendant excused Judge Sanchez from hearing the case, and three days later, on February 10, 2006, the case was reassigned to Division I, which was vacant owing to Judge Nelson's retirement. That position was not filled until April 21, 2006, with the swearing-in of Judge Paternoster.

{4} On April 24, 2006, two days shy of the six-month deadline, the State filed a petition with the Supreme Court to extend the trial deadline a full six months until October 26, 2006. Defendant objected. On April 27, 2006, as a result of obtaining the result of the drug analysis for the first time earlier in April, the State filed an amended notice of intent to call witnesses, and directly named, for the first time, the specific DPS forensic drug analyst it intended to call at trial. The Supreme Court granted the extension on May 5, 2006, extending the trial deadline to October 26, 2006. The State filed a request for trial on May 18, 2006, noting the deadline five months hence. On September 1, following an August pretrial hearing in which no pending motions were mentioned, Defendant moved to dismiss the case for violation of his right to a speedy trial. The trial court heard the motion on September 8, 2006. The State then obtained another extension of the trial deadline to December 26, 2006.

{5} On December 27, 2006, the district court dismissed the charges against Defendant on the basis of a speedy trial violation. The State appeals.

DISCUSSIONA. Standard and Method of Review

{6} In order to decide the extent to which a defendant's Sixth Amendment right to a speedy trial was violated, our courts undertake a two-part evaluation. First, although a finding of presumptive prejudice is not absolutely required, we determine whether the total period of time the case was pending was presumptively prejudicial. Garza, 2009-NMSC-038, ¶ 49, 146 N.M. 499, 212 P.3d 387; see Salandre v. State, 111 N.M. 422, 425, 806 P.2d 562, 565 (1991). If so, that determination acts to trigger an evaluation of the factors laid out in Barker to determine the extent of prejudice and any applicable remedy. Garza, 2009-NMSC-038, ¶¶ 23, 49, 146 N.M. 499, 212 P.3d 387. We give deference to the district court's fact finding, while weighing and balancing the Barker factors de novo. Maddox, 2008-NMSC-062, ¶ 8, 145 N.M. 242, 195 P.3d 1254.

B. Presumptively Prejudicial Delay

{7} It is primarily the responsibility of the State to bring a case to trial within a reasonable period of time. State v. Marquez, 2001-NMCA-062, ¶ 8, 130 N.M. 651, 29 P.3d 1052; Barker, 407 U.S. at 527, 92 S.Ct. 2182 (“A defendant has no duty to bring himself to trial; the [s]tate has that duty as well as the duty of insuring that the trial is consistent with due process.” (footnote omitted)). Our State Supreme Court endorsed these principles in Maddox, 2008-NMSC-062, ¶ 26, 145 N.M. 242, 195 P.3d 1254.

{8} The passage of time from October 12, 2005, when Defendant was indicted, through December 27, 2006, when the district court dismissed his case, comprises a period of approximately fourteen months. In that time, one judge retired, another was designated and then excused, and all parties waited for the appointment of a third. Meanwhile, the State was unable to go to trial at all for six months, until April 2006, as it did not have its drug analysis evidence until then, and no evidence appears in the record that the State attempted to hasten the lab results. The case languished until it was eventually dismissed.

{9} All parties agree this is a simple case. Three witnesses would have testified, including two police officers and a chemist purporting to identify the drug as being one prohibited by law. A fifteen-month delay in a simple case like this, counting from arrest, constitutes a delay that is beyond question presumptively prejudicial to Defendant's Sixth Amendment rights. See Salandre, 111 N.M. at 428, 806 P.2d at 568 (holding that a nine-month delay may be considered presumptively prejudicial); Garza, 2009-NMSC-038, ¶¶ 23, 47, 146 N.M. 499, 212 P.3d 387 (applying the guidelines in use at the time the district court decided the case; nevertheless holding that under the new standards, a twelve-month delay in a simple case is presumptively prejudicial).

{10} When this initial presumption becomes operative Work v. State, 111 N.M. 145, 147, 803 P.2d 234, 236 (1990), formerly required that “the burden of persuasion [then] rests with the state to demonstrate that, on balance, the defendant's speedy trial right was not violated.” (Internal quotation marks and citation omitted.) Following the recent holding in Garza, the presumption of prejudice serves only to trigger the Barker analysis. Garza, 2009-NMSC-038, ¶ 49, 146 N.M. 499, 212 P.3d 387. Under Garza, it is only when Defendant demonstrates actual prejudice that the State must carry “its burden of persuasion on the ultimate question of whether the defendant's right to a speedy trial has been violated.” Id. ¶ 22. The amount of time itself, though presumptively prejudicial, does not carry forward into the analysis as a factor which in and of itself could be sufficient to find a violation of the right, but rather as one of the factors to consider in the whole analysis. Id. ¶ 23.

C. Findings of the District Court

{11} The district court, in its order dismissing the case, considered the factors and found that “all four Barker ... factors weigh in favor of ... Defendant.” The court found that Defendant made “timely and repetitive assertions” of his right to a speedy trial, a finding we discuss below. The order also notes that the district court's findings were “further reflected” in a letter from the court to counsel for both sides, dated November 29, 2006. In that letter, the district court found that the State did not adequately justify the delay. It stated that

[t]he overlap of the State's activities involving a speedy recharge of [D]efendant after the dismissal for ‘further investigation,’ coupled with the delay in obtaining the drug analysis results, coupled with the State's failure to seek an immediate replacement judge to hear the case, linked finally to the State's failure to self impose a close deadline on a Supreme Court extension add up, in my mind to a delay that cannot be justifiably explained away, in contravention of [D]efendant's right to a speedy trial.

The court therefore concluded that the initial dismissal for “further investigation” was unjustified, that the State did not proceed with due diligence when the case languished without a judge, and that the State prejudiced Defendant's rights further by requesting a second six-month extension with “knowing indifference” to Defendant's rights.

{12} The State contends that the district court focused only on the State's “actions or inactions” and did not balance each factor to determine whether...