State v. Gallegos, 33,920

Citation387 P.3d 296
Case DateJune 23, 2016
CourtCourt of Appeals of New Mexico

387 P.3d 296

State of New Mexico, Plaintiff–Appellee,
Mark Gallegos, Defendant–Appellant.

NO. 33,920

Court of Appeals of New Mexico.

Filing Date: June 23, 2016
Certiorari Denied, August 18, 2016, No.

Hector H. Balderas, Attorney General, Santa Fe, NM, Kenneth H. Stalter, Assistant Attorney General, Albuquerque, NM, for Appellee.

Bennett J. Baur, Chief Public Defender, Nina Lalevic, Assistant Appellate Defender, Santa Fe, NM, for Appellant.



{1} A jury convicted Mark Gallegos (Defendant) of shoplifting of property with a value over $500 but not more than $2500, contrary to NMSA 1978, Section 30–16–20(B)(3) (2006) ; conspiracy to commit shoplifting, contrary to NMSA 1978, Section 30–28–2 (1979) ; and possession of drug paraphernalia, contrary to NMSA 1978, Section 30–31–25.1 (2001). Defendant appeals his convictions. Defendant argues that (1) his constitutional right to a speedy trial was violated, (2) evidence was improperly admitted in violation of the rules of evidence and the Confrontation Clause of the United States Constitution, (3) a witness was improperly allowed to testify, (4) the district court improperly ruled that Defendant could be questioned about a conditional discharge, and (5) there was insufficient evidence to support Defendant's conviction for felony shoplifting. We are not persuaded by Defendant's arguments and, therefore, affirm his convictions.


{2} On January 28, 2011, a security officer in a department store, Christopher Davidson (Davidson), observed Defendant and another person opening videos and concealing the videos in their clothes. Defendant exited the store and was contacted by Albuquerque Police Department officers in the parking lot. Defendant was indicted on April 27, 2011. He was brought to trial on December 16, 2013. In our discussion of the issues, we provide additional facts as necessary.



{3} The accused in New Mexico have a fundamental right to a speedy trial guaranteed by both the Sixth Amendment of the United States Constitution and Article II, Section 14 of the New Mexico Constitution. State v. Garza , 2009–NMSC–038, ¶ 10, 146 N.M. 499, 212 P.3d 387. Our courts have not treated those rights differently, thus we view them as coextensive. State v. Spearman , 2012–NMSC–023, ¶ 16 n. 1, 283 P.3d 272. Because the specific facts and circumstances

387 P.3d 301

of each case determine whether a person's speedy trial right has been violated, the speedy trial analysis is not susceptible to an inflexible, bright-line approach. Garza , 2009–NMSC–038, ¶¶ 11, 14, 146 N.M. 499, 212 P.3d 387.

{4} Our courts have adopted the four-factor balancing test from Barker v. Wingo , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Garza , 2009–NMSC–038, ¶ 13, 146 N.M. 499, 212 P.3d 387. That analysis requires a court to consider "(1) the length of delay, (2) the reasons for the delay, (3) the defendant's assertion of his right, and (4) the actual prejudice to the defendant that, on balance, determines whether a defendant's right to a speedy trial has been violated." Id. ¶ 13 (internal quotation marks and citation omitted). None of these factors is a "necessary or sufficient condition to the finding of a deprivation of the right of speedy trial[, but, instead,] they are related factors and must be considered together with such other circumstances as may be relevant." Barker , 407 U.S. at 533, 92 S.Ct. 2182. The Barker analysis requires that "[e]ach of [the four] factors is weighed either in favor of or against the [s]tate or the defendant, and then balanced to determine if a defendant's right to a speedy trial was violated." Spearman , 2012–NMSC–023, ¶ 17, 283 P.3d 272.

{5} Defendant appeals the district court's denial of his motion to dismiss on speedy trial grounds. We proceed by analyzing the procedural history of this case through the lens of the four-factor Barker analysis. We apply a deferential standard of review to the factual findings of the district court and review de novo the weighing and balancing of the Barker factors. Spearman , 2012–NMSC–023, ¶ 19, 283 P.3d 272.

A. The Length of Delay

{6} The length of the delay is both "a triggering mechanism requiring further inquiry into the Barker factors" and also one of the four factors in the Barker analysis. Spearman , 2012–NMSC–023, ¶ 20, 283 P.3d 272 (internal quotation marks and citation omitted). Whether or not the threshold for further inquiry is met depends upon whether the delay is considered presumptively prejudicial. Garza , 2009–NMSC–038, ¶ 23, 146 N.M. 499, 212 P.3d 387. The amount of time considered presumptively prejudicial varies with the complexity of the case. Spearman , 2012–NMSC–023, ¶ 21, 283 P.3d 272. Here, the district court found, and the parties agree, that this case was simple. For a simple case, a delay of longer than one year is considered to be presumptively prejudicial. Garza , 2009–NMSC–038, ¶ 47, 146 N.M. 499, 212 P.3d 387.

{7} Defendant's right to a speedy trial attached when he was indicted in district court on April 27, 2011. See State v. Taylor , 2015–NMCA–012, ¶ 7, 343 P.3d 199 (stating that the right to a speedy trial attaches when the defendant becomes an accused, either by arrest, indictment, or criminal information). Defendant's trial commenced on December 16, 2013. The time to trial was nearly thirty-two months, approximately twenty months past the one-year threshold for a simple case. Because the delay was presumptively prejudicial, we continue to a full Barker analysis.

{8} This case went to trial more than two-and-one-half years after Defendant's speedy trial right attached. That is a very long time for a simple case, and the length of delay must therefore weigh heavily against the State. See Taylor , 2015–NMCA–012, ¶ 9, 343 P.3d 199 (holding that a delay of nearly two years in a simple case was to be weighed heavily against the State).

B. Reasons for the Delay

{9} There are four types of delay, each of which is to be weighed differently by the appellate courts. Garza , 2009–NMSC–038, ¶ 25, 146 N.M. 499, 212 P.3d 387. "[O]fficial bad faith in causing delay will be weighed heavily against the government," as will "a deliberate attempt to delay the trial in order to hamper the defense[.]" Id. (alteration, internal quotation marks, and citation omitted). Negligent or administrative delay is weighed against the State because, at bottom, the burden rests with the government to bring a defendant to trial. Id. ¶ 26. That type of delay is weighed "more lightly." Id. (internal quotation marks and citation omitted).

387 P.3d 302

The degree of weight tallied against the State for negligent delay "is closely related to the length of delay." Id. Appropriate delay justified by "a valid reason, such as a missing witness," is weighed neutrally. Id. ¶ 27 (internal quotation marks and citation omitted). Finally, our Supreme Court has acknowledged delay "caused by the defense, which weighs against the defendant." State v. Serros , 2016–NMSC–008, ¶ 29, 366 P.3d 1121 (internal quotation marks and citation omitted).

{10} Mindful that the speedy trial analysis depends on the particular facts and circumstances of each case, we review the pertinent facts of this case in order to allocate to each side the reasons for the delay and determine the weight we should assign the reasons for the delay. See Garza , 2009–NMSC–038, ¶ 11, 146 N.M. 499, 212 P.3d 387 (stating that the "substance of the speedy trial right is defined only through an analysis of the peculiar facts and circumstances of each case"); State v. Tortolito , 1997–NMCA–128, ¶ 8, 124 N.M. 368, 950 P.2d 811 ("Analysis of the second Barker factor involves allocating the reasons for the delay to each side and determining the weight attributable to each reason."). We proceed by dividing the time line of this case into periods for the purpose of our analysis of the reasons for delay.

1. April 27 to November 12, 2011

{11} Defendant's speedy trial right attached when he was indicted on April 27, 2011. On July 29, 2011, the State filed a motion to compel selection of counsel for Defendant and request a speedy trial. The State also filed a demand for notice of intention to claim alibi and/or entrapment, a certificate that all information in the district attorney's file had been disclosed, a request for disclosure, and a notice of intent to call listed witnesses. A pretrial conference was held on October 12, 2011, at which by mutual assent the pretrial conference was postponed. The district court found that this delay was intended to be "about a month." A one-month delay implies that the pretrial conference should have taken place by November 12, 2011. We conclude that during the period of approximately six months and two weeks from April 27 to November 12, 2011, this case was proceeding more or less normally, and, accordingly, we weigh this time period neutrally. See Taylor , 2015–NMCA–012, ¶ 11, 343 P.3d 199 (weighing neutrally a period of delay when the case "was progressing in a normal fashion"); see also Garza , 2009–NMSC–038, ¶ 27, 146...

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