State v. Duran

• Decision Date: 07 July 1978
• Docket Number: No. 11819,11819
• Citation: 581 P.2d 19,1978 NMSC 52,91 N.M. 756
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Alonzo L. DURAN, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 19

581 P.2d 19

91 N.M. 756

STATE of New Mexico, Plaintiff-Appellee, v. Alonzo L. DURAN, Defendant-Appellant.

No. 11819.

Supreme Court of New Mexico.

July 7, 1978.

[91 N.M. 757] John Bigelow, Chief Public Defender, Martha A. Daly, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

Toney Anaya, Atty. Gen., Don Montoya, Suzanne Tanner, Asst. Attys. Gen., Santa Fe, for plaintiff-appellee.

OPINION

FEDERICI, Justice.

Defendant was convicted of burglary and larceny over $100 but not more than $2,500. Defendant raised two points on appeal in the Court of Appeals: (1) that the trial court erred in denying defendant's pretrial motion to dismiss the indictment on the ground of prejudicial pre-indictment delay; and (2) that the trial court erred in admitting identification testimony through a third person. In the Court of Appeals a panel of three judges was unable to agree on the proper disposition of the appeal, and, it appearing to the judges that the three separate proposed opinions, if filed, would create uncertainty in the law and provide no guidance for the further conduct of this and similar cases, the case was certified to this Court pursuant to § 16-7-14, N.M.S.A. 1953 (Repl. 1970 and Supp.1975). We affirm the trial court.

Defendant was arrested on February 23, 1976. The police completed their investigation on March 17, 1976. Defendant was indicted on January 19, 1977, nearly one year after his initial arrest. The only explanation given as to the delay between the alleged criminal conduct and the date of the indictment was that the district attorney's office was understaffed and overworked. Defendant contends that he was prejudiced by the delay because he could not recall his activities on February 23 or the events of that day and because the one person through whom he could have reconstructed his activities on that day had died approximately two and one-half months before the pretrial hearing on his motion to dismiss the indictment.

At the hearing on the motion to dismiss defendant testified that he could not recall what happened on February 23. He did recall, however, that he had been arrested on that date and that he had been with Juan Herrera, a longtime friend, that day. Mr. Herrera, as noted above, died before the indictment was returned against defendant.

Both defendant and the State recognize that the case of State v. Jojola, 89 N.M. 489, 553 P.2d 1296 (Ct.App.1976) is controlling on the issue of whether defendant has been denied his right to due process under the fourteenth amendment of the United States Constitution and N.M.Const. art. 2, § 14 by reason of pre-indictment delay. In deciding this issue, the Court of Appeals in Jojola interpreted United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), as follows:

1. A showing of substantial prejudice is required before one can obtain a dismissal for pre-indictment delay. 2. The elapsed time, in itself, does not determine whether prejudice has resulted from the delay. 3. Substantial prejudice may not exist even when actual prejudice is shown; every delay-caused detriment does not amount to substantial prejudice. 4. Where actual prejudice is shown, the actual prejudice must be balanced against the reasons for the delay in determining whether a defendant has been substantially prejudiced.

89 N.M. at 490, 553 P.2d at 1297. The reasoning and standard set forth in State v. Jojola apply in this case.

We interpret "substantial prejudice" to mean actual prejudice to the defendant together with unreasonable delay of the prosecution. Jojola requires the defendant to make a showing of actual prejudice before the court will look to the conduct of the prosecution and balance that conduct against the actual prejudice to the defendant to determine if there has been "substantial prejudice." We do not think the defendant in this case has made the requisite showing of actual prejudice. Defendant has failed to establish in what respect his defense might have been more successful if the delay had been shorter.

The record shows that defendant and an accomplice were arrested at a place near the burglary scene shortly after its occurrence and were jailed. Juan Herrera was not mentioned as being present at the time of the arrest. There is no evidence in the record that Juan Herrera was with the defendant at the time of arrest or any time that day, apart from the testimony of defendant, who was the only witness on his own behalf. It does not appear of record that Juan Herrera was the only available witness who knew of defendant's whereabouts at the time of the burglary, nor did defendant testify that he was unable to locate any such witness. Defendant did not claim an alibi defense. In short, defendant did not establish how Juan Herrera would have aided his defense even if he had been available and willing to testify. Defendant gave no account of what this person might have said. The fact that Herrera died is not enough, and the mere possibility that he might have been able to help the defendant in his case does not establish actual prejudice.

Defendant contends further that the State failed to show any reason for the delay. However, we are not concerned with the reason for the delay because the defendant has not shown he was actually prejudiced by it. State v. Jojola, Supra.

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