State v. Cawley

• Decision Date: 02 October 1990
• Docket Number: No. 18634,18634
• Citation: 799 P.2d 574,1990 NMSC 88,110 N.M. 705
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. William Ray CAWLEY, a/k/a Billy Ray Cawley, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 574

799 P.2d 574

110 N.M. 705

STATE of New Mexico, Plaintiff-Appellee, v. William Ray CAWLEY, a/k/a Billy Ray Cawley, Defendant-Appellant.

No. 18634.

Supreme Court of New Mexico.

Oct. 2, 1990.

Rehearing Denied Oct. 23, 1990.

[110 N.M. 706] Max Houston Proctor, Hobbs, Rothstein, Bennett, Daly, Donatelli & Hughes, Martha A. Daly, Santa Fe, for defendant-appellant.

Hal Stratton, Atty. Gen., Charles H. Rennick, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

SOSA, Chief Justice.

Defendant, William Ray Cawley, was convicted in March 1989 of rape of a child¹, criminal sexual contact of a minor, and one count of contributing to the delinquency of a minor. Defendant pleaded nolo contendere to four other counts of contributing and was acquitted on one count of cocaine possession. Defendant's motion for a new trial was denied. The district court imposed the basic sentence for each crime, enhanced each due to aggravating circumstances, and ordered the sentences to run consecutively for a total of life in prison plus fourteen years². We affirm.

Defendant challenges five of his seven convictions, which include two on the nolo contendere pleas, and all of the sentences imposed. Five issues are presented for our consideration:

(1) Whether the tolling provision of the criminal statute of limitations, during defendant's voluntary absence from New Mexico, violated his constitutional rights to travel and to equal protection;

(2) Whether the offense of contributing to the delinquency of a minor properly was charged in counts V and VI of the criminal information;

(3) Whether failure to instruct the jury on the time limitations involved in counts II and IV constituted jurisdictional error;

(4) Whether the trial court abused its discretion in allowing evidence of one of defendant's nolo contendere pleas at trial on other charges;

(5) Whether the trial court committed error in its sentencing.

As the case comes to us, the material facts are not in dispute.

Criminal Statute of Limitations

The issue presented is one of first impression in New Mexico. In September 1988, defendant was charged, inter alia, with the rape of his ten-year-old stepdaughter that allegedly occurred in May 1968. Between the dates of the alleged crime and the filing of the criminal complaint, the evidence indicated that defendant left New Mexico and resided in Texas for approximately eleven years, occasionally returning to New Mexico for business and personal matters.

The applicable statute of limitations, NMSA 1953, Section 40A-1-8(B) (Repl.Vol.1964), required the filing of a complaint charging a first degree felony³ to occur within ten years from the time the crime was committed.⁴ See NMSA 1978, Sec. 30-1-2 (Repl.Pamp.1984) (prosecutions for prior crimes shall be governed under laws existing at time such crimes were committed). However, a tolling of the statute is authorized for the period a "defendant shall conceal himself, or shall flee from or go out of the state." NMSA 1953, Sec. 40A-1-9(A) (Repl.Vol.1964), now NMSA 1978, Sec. 30-1-9(A) (Repl.Pamp.1984) (emphasis added).

Defendant argues the tolling provision violates the equal protection clause of the fourteenth amendment and the privileges and immunities clause of article IV, section 2 of the United States Constitution. Defendant's argument rests upon the premise that an application of the tolling statute impaired his fundamental right to travel. He asserts the statute is overbroad, that it discriminates between residents and non-residents, and that it should be subject to strict scrutiny. He claims the tolling provision should not be applied in his case because state law enforcement officials could have used information retrieval systems to detect his whereabouts. In these circumstances, defendant alleges his absence did not prevent the state from bringing him to trial within the ten-year limitation period.

Resolution of this issue centers on the fundamental right to travel. See Jones v. Helms, 452 U.S. 412, 418, 101 S.Ct. 2434, 2439, 69 L.Ed.2d 118 (1980) (fundamental nature of right to travel consistently recognized by Court). However, in the criminal context, this right "is subject to qualification when it runs afoul of legitimate state interests." Commonwealth v. Lightman, 339 Pa.Super. 359, 365, 489 A.2d 200, 203 (1985); see also Jones v. Helms, 452 U.S. 412, 419, 101 S.Ct. 2434, 2440, 69 L.Ed.2d 118 (1981) (criminal conduct within state qualifies right to travel). Although New Mexico has not addressed the issue, other jurisdictions have considered similar challenges to their respective criminal statute of limitations. We find instructive the following language from Scherling v. Superior Court of Santa Clara County, 22 Cal.3d 493, 585 P.2d 219, 149 Cal.Rptr. 597 (1978) (In Bank) [T]here is clearly a distinction between one who, like defendant, leaves the state after committing a crime, resulting in the tolling of the statute of limitations during his absence, and one who has committed no crime but is deprived of a government benefit merely because he exercises his right to travel to another state. In the former circumstance, the state has an interest in assuring that the defendant is available locally not only to enhance the possibility of detection but also to avoid the burdens of extradition proceedings, should he be charged, his whereabouts become known, and he refuses to return voluntarily.

Id. at 501, 585 P.2d at 223-24, 149 Cal.Rptr. at 601-02 (emphasis added).

Our legislature intended the tolling statute to foreclose the barring of a prosecution due to the voluntary absence from the state by a criminal offender. Cf. State v. Martinez, 92 N.M. 291, 294, 587 P.2d 438, 441 (Ct.App.), cert. quashed, 92 N.M. 260, 586 P.2d 1089 (1978) (legislative intent of Subsection B is not to bar prosecutions due to procedural problems). The Lightman court correctly observed that "[t]he tolling of [the criminal statute of limitations] does not impose a penalty greater than that imposed upon criminals who remain in the state, but rather subjects those who choose to absent themselves to responsibility for a longer period of time." 339 Pa.Super. at 367, 489 A.2d at 204; see Scherling, 22 Cal.3d at 502, 585 P.2d at 224, 149 Cal.Rptr. at 602 (defendant not subjected to greater penalty because he left state; rather, he is faced with tolled statutory period of limitations).

In this case, defendant's own conduct of leaving the state immediately after the alleged incident qualified his right to travel. We thus conclude that the application of the tolling provision here did not violate defendant's right to travel, and apply the rational basis test in determining the statute's constitutionality under defendant's equal protection challenge, and not review under the strict scrutiny standard as urged by defendant. See Richardson v. Carnegie Library Restaurant, Inc., 107 N.M. 688, 697, 763 P.2d 1153, 1160 (1988) (rational basis test applies to challenges to social and economic legislation); see also Scherling, 22 Cal.3d at 502-03, 585 P.2d at 224-25, 149 Cal.Rptr. at 602-03 (equal protection claim regarding tolling of criminal statute of limitations is measured by less rigorous rational relationship standard); Lightman, 339 Pa.Super. at 367, 489 A.2d at 204 (same); State v. Sher, 149 Wis.2d 1, 15, 437 N.W.2d 878, 883 (1989) (if fundamental right is not involved, there is only equal protection violation when legislature has made irrational or arbitrary classification).

The rational basis test requires classifications to be based on substantial or real distinctions and to be rationally related to the legislative goal. 107 N.M. at 694, 763 P.2d at 1159. The party objecting to the legislative classification has the burden to demonstrate that the classification bears no rational relationship to a conceivable legislative purpose. Id. at 695, 763 P.2d at 1160. Our discussion above leads us to conclude that the classification carved out by the tolling provision is a real distinction that is rationally related to the legislative purpose of subjecting those who voluntarily choose to absent themselves from the state to responsibility for their criminal behavior for a longer period of time. Further, the process of investigation and prosecution of a crime become more complex when a suspect leaves the jurisdiction.

The clear and unambiguous language of our tolling provision places the citizenry on notice that the criminal statute of limitations will be tolled when a criminal suspect "go[es] out of the state." See NMSA 1953, Sec. 40A-1-9(A) (Repl.Vol.1964), now NMSA 1978, Sec. 30-1-9(A) (Repl.Pamp.1984). Our statute, unlike the tolling provision addressed in Sher, does not distinguish between public and non-public residency. Nor does it pattern after the equivalent federal statute, which provides for tolling for "any person fleeing from justice." See 18 U.S.C. Sec. 3290 (1988). Thus, we decline to follow defendant's suggestion to interpret our limitation and tolling statutes in accordance with the federal law. See also State v. Thompson, 427 N.W.2d 266, 269 (Minn.Ct.App.1988) (federal tolling provision not applicable where state provision clearly imposes no restriction on reason for absence from state), other issue affirmed on appeal, 430 N.W.2d 151 (Minn.1988). Moreover, we discount defendant's assertions that the state's interests could be served by applying the tolling provision only to those defendants, residents or not, who voluntarily conceal themselves from law enforcement authorities with the intention of avoiding prosecution. Defendant's other contention that the state's interests already are served by our "summary" extradition procedures is unpersuasive as the state has a legitimate interest in avoiding the burdens involved with that process. See NMSA 1978, Secs. 31-4-1 to -31 (Repl.Pamp.1984). Accordingly, we find no violation of defendant's constitutional guarantee of equal protection...