State v. Ervin, 21,415.
| Decision Date | 01 December 2001 |
| Docket Number | No. 21,415.,21,415. |
| Citation | 131 N.M. 627,41 P.3d 908,2002 NMCA 12 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Michael ERVIN, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Patricia A. Madrid, Attorney General, William McEuen, Ass't Attorney General, Santa Fe, NM, for Appellee.
M. David Chacon, II, Albuquerque, NM, for Appellant.
Certiorari Denied, No. 27,282, January 28, 2002.
{1} Defendant appeals his convictions for criminal sexual penetration of a child under thirteen, kidnapping, false imprisonment, and bribery of a witness. On appeal, Defendant argues that the trial court erred in denying Defendant's motion for a statement of facts and in limiting the scope of defense counsel's cross-examination of the victim. Defendant also claims his counsel were ineffective. We affirm the convictions.
{2} In November 1996, the child (Victim), then eleven years old, told his legal guardian (Guardian) that Defendant had sexually molested him, and Guardian reported the abuse to the Bernalillo County Sheriff's Department. The initial indictment, filed on November 20, 1997, alleged that the acts had occurred between May 1, 1992, and August 30, 1993, a sixteen-month time frame. Defendant filed a motion for a statement of facts, asking the trial court for an order requiring the State to narrow the charging time frame in the indictment so that Defendant could raise an alibi defense. After a hearing, the trial court held the motion in abeyance to see if additional discovery would narrow the time frame. Three weeks before trial, after additional discovery efforts, including an interview with Victim, Defendant renewed his motion, indicating that those efforts had not helped to narrow the time frame of the charges. The trial court held a hearing on the renewed motion on the first day of the trial, April 5, 1999, after the two sides had already taken Victim's videotaped testimony. The State asserted that it could not get more specific dates from its witnesses. The trial court denied Defendant's motion.
{3} In his videotaped testimony, Victim testified that the abuse occurred while both he and Defendant were living at Guardian's house. He could not remember what year the abuse occurred or how old he was at the time. During the trial, both Guardian and Victim's biological mother (Mother) testified that Defendant lived in the house sometime during the summer of 1993.
{4} Defendant's central argument is that the sixteen-month charging period in his indictment was so overly broad as to deprive him of his due process right to reasonable notice of the charges against him. See U.S. Const. amend. XIV, § 1; N.M. Const., art. II, § 14. Defendant relies on State v. Baldonado, in which we held that lengthy charging periods must be carefully scrutinized to ensure that a defendant's due process rights are protected. See State v. Baldonado, 1998-NMCA-040, ¶ 21, 124 N.M. 745, 955 P.2d 214
. Defendant asserts that if the State had narrowed the charging time frame, he could have raised an alibi defense for some of the charges against him.
{5} In Baldonado, the defendant was charged with criminal sexual contact of a minor under thirteen. Id. ¶ 3. The indictment alleged that the crimes could have occurred anytime within a two-year period. Id. ¶ 4. The defendant sought an order requiring the State to narrow the time frame so he could assert an alibi defense. Id. The State argued that it was not required to provide more specific information as to the time frame. Id. ¶ 9. The trial court denied the defendant's motion, and the defendant was eventually convicted of the charges. The defendant appealed, arguing that the two-year charging period violated his due process rights. {6} While we agreed that the trial court had failed to give sufficient consideration to the defendant's due process rights, we declined to hold that the two-year time frame was unconstitutional as a matter of law. Id. ¶ 23. Instead, we set out a two-part test to analyze the constitutionality of lengthy charging periods: (1) whether the State could reasonably have provided greater specificity of the times of the alleged offenses and (2) if so, whether the State's failure to do so prejudiced the defendant. See id. ¶ 29. We provided a list of nine nonexclusive factors to be used in applying this test:
{7} As we stated in Baldonado, there is no set length of time that will automatically necessitate a due process review. See id. ¶¶ 23, 26. Nonetheless, we stressed that trial courts must be diligent in protecting the due process rights of defendants in cases where the indictment is not specific as to the dates of the charged crimes. Id. ¶¶ 21, 28. In this case, the sixteen-month charging period was long enough to alert the trial court to the need to conduct a thorough analysis in order to ensure that Defendant had sufficient notice of the charges against him. The trial court, however, did not engage in a thorough analysis of Defendant's constitutional claims.
{8} First, the trial court did not examine the "extent and thoroughness of the State's efforts," as is required under Baldonado. Id. ¶ 27. During the first hearing on the matter, the trial court postponed making a ruling while the parties continued discovery. When discovery was completed, defense counsel informed the trial court that discovery had not served to narrow the charging time frame. The trial court did not hold another hearing on the issue until the first day of trial, after the victim's testimony was already complete, when it was realistically too late to require the State to conduct further investigation without a significant interruption in the proceedings. During that hearing, the trial court accepted the State's assertion without any inquiry into what efforts the State had made up to that point.
{9} Perhaps more importantly, the trial court did not evaluate the potential prejudice to Defendant. As we explained in Baldonado, if the State's failure to narrow the time frame prejudiced Defendant, then the charges must be dismissed, unless the State can respond with a statement of facts that provides Defendant with proper notice of the charges against him. Id. ¶ 34. The trial court should have more thoroughly evaluated the impact on Defendant's due process rights before allowing the State to move forward with a sixteen-month charging period.
{10} When we derived this two-part test in Baldonado, we did not apply it to that particular case, instead remanding to the trial court to more fully develop the factual record in order to analyze the factors we identified. Here, we believe that the record is sufficiently developed that we can apply the test to determine whether the charges in this case must be dismissed. Before we do so, however, we will address Defendant's suggestion that we reject Baldonado's multi-factor approach in favor of a presumption that extended charging periods violate due process. {11} Baldonado, the defense argues, relaxed the State's burden of proof in child sexual abuse cases. We disagree. As we observed in Baldonado, time is not an element of most offenses, and thus the State usually need not prove the date on which a crime occurred beyond a reasonable doubt. Id. ¶ 29. By adopting a case-by-case approach, we sought to provide safeguards for the due process rights of defendants without allowing the "predictable limitations of young witnesses ... to prevent prosecution of their abusers." Id. ¶ 20. We rejected the even more restrictive approach of several jurisdictions that have refused to hold that extended charging periods raise due process concerns. See, e.g., Dilbeck v. State, 594 So.2d 168, 174 (Ala.Crim.App.1991)
; State v. Martinez, 250 Neb. 597, 550 N.W.2d 655, 657 (1996). We see no reason to abandon the careful balancing required by the Baldonado case at this time.
{12} Defendant also reads Baldonado as mandating an express analysis of all of the nine factors listed above. In fact, the case set out a two-part test to determine whether a charging period is overly broad. Id. ¶¶ 2, 29. The nine factors enumerated in the case "relate to both whether the indictment is reasonably particular and whether the defendant suffered prejudice." Id. ¶ 29. We expressly recognized that "`the weight to be accorded the factors will vary according to the circumstances of the case.'" Id. ¶ 28 (quoting In re K.A.W., 104 N.J. 112, 515 A.2d 1217, 1222 (1986)). We now apply that two-part test to the case at hand.
{13} Under Baldonado, the State is obligated to make reasonable efforts to narrow the charging time frame. Id. ¶ 25. Cf. State v. Ware, 118 N.M. 319, 323, 881 P.2d 679, 683 (1994)
(). The State argues that it could not have narrowed the charging time frame further because Victim was unable to pinpoint the dates on which...
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