State v. Garcia, 11211

• Decision Date: 05 June 1990
• Docket Number: No. 11211,11211
• Citation: 110 N.M. 419,796 P.2d 1115,1990 NMCA 65
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Bernice Johnson GARCIA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1115

796 P.2d 1115

110 N.M. 419

STATE of New Mexico, Plaintiff-Appellee, v. Bernice Johnson GARCIA, Defendant-Appellant.

No. 11211.

Court of Appeals of New Mexico.

June 5, 1990.

Certiorari Denied July 20, 1990.

[110 NM 420] Hal Stratton, Atty. Gen., William McEuen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Penni Adrian, Ron Koch, P.A., Albuquerque, for defendant-appellant.

OPINION

MINZNER, Judge.

Defendant appeals her conviction for aggravated battery with great bodily harm, contending (1) the trial court erred in denying defendant's motion to dismiss the charge of aggravated battery on speedy trial grounds; and (2) the trial court erred in admitting testimony about a telephone call, the contents of which showed that defendant intended to injure the victim. We affirm the decision of the trial court.

BACKGROUND.

On September 29, 1986, defendant and her codefendant (not a party to this appeal) were charged with an open count of murder in a criminal complaint. The murder charge was a result of injuries inflicted on the victim by defendant and codefendant on August 9, 1986, which resulted in the victim's death on September 28, 1986. Defendant and codefendant were arrested on September 30, 1986, and defendant was released on her own recognizance with restrictions. On September 4, 1987, a grand jury indictment was filed charging defendant and codefendant with voluntary manslaughter and aggravated battery arising out of the same incidents.

On November 30, 1987, defendant filed a motion to dismiss the charges based on the denial of her right to a speedy trial. A hearing on this motion was held on February 3, 1988. As a result of this hearing, the trial court found that defendant was prejudiced by the barest preponderance of the evidence and dismissed with prejudice the charge of voluntary manslaughter due to infringement of her speedy trial rights. The trial court, however, declined to dismiss the aggravated battery charge on speedy trial grounds, reasoning that the time did not begin to run against the state with respect to the aggravated battery charge until defendant was indicted. In addition, the court indicated that, because the aggravated battery charge was less significant, it involved less stress and prejudice.

On March 23, 1988, the New Mexico Supreme Court granted an extension of time to the state pursuant to SCRA 1986, 5-604(C). On April 18, 1988, defendant also requested and was granted an extension pursuant to Rule 5-604.

Defendant was tried on May 25, 1988, and convicted by the jury of aggravated battery with great bodily harm. Evidence of a telephone conversation, in which defendant admitted that she intended to injure the victim, was admitted at trial. Defendant claims that the trial court erred in admitting this evidence.

The state filed its notice of appeal of the dismissal of the voluntary manslaughter charge against defendant and her codefendant on speedy trial grounds on June 20, 1988. Defendant filed a notice of appeal from the court's decision denying her motion to dismiss the aggravated battery charge on June 30, 1988. This court dismissed the state's appeal on July 28, 1988, after the state had failed to oppose our calendar notice proposing that the constitutional protection against being placed in double jeopardy precluded further prosecution of the greater offense (voluntary manslaughter) after defendant had been convicted of a necessarily included lesser offense (aggravated battery). Defendant's appeal was dismissed on August 25, 1988, after defendant failed to oppose our calendar notice proposing dismissal for lack of a final order.

On December 28, 1988, on defendant's motion to reconsider the February ruling as to the assault and battery charge, the trial court vacated its dismissal of the voluntary manslaughter charges against defendant and her codefendant, although noting that this court's decision of July 28, 1988 precluded trial of the manslaughter charge against defendant. At the same time, the trial court denied defendant's motion for a new trial on the aggravated battery charge. Judgment and sentence was entered the same day, and defendant appealed from that order on January 3, 1989.

SUPREME COURT EXTENSION.

We first address a threshold issue raised by the state, which is that this court may not consider a speedy trial claim in a case in which the supreme court has granted an extension. State v. Apodaca, 105 N.M. 650, 735 P.2d 1156 (Ct.App.1987); State v. Mazurek, 88 N.M. 56, 537 P.2d 51 (Ct.App.1975); State v. Sedillo, 86 N.M. 382, 524 P.2d 998 (Ct.App.), cert. denied, 419 U.S. 1072, 95 S.Ct. 662, 42 L.Ed.2d 669 (1974). Defendant contends that her appeal is based on the delay that preceded the extensions the supreme court granted in this case. In effect, she argues that this court may consider a speedy trial claim unless the claim depends upon a determination that the supreme court has already made. We agree.

Certainly a supreme court order granting an extension of time within which defendant may be tried precludes this court from reviewing a claim that the supreme court erred in granting the extension. State v Sedillo. Consequently, we may not review a claim that the right to a speedy trial has been denied because an extension was granted. State v. Mazurek. It is less clear that this court may not review a speedy trial claim whenever the delay between accusation and trial includes a period of time within a supreme court extension. But cf. State v. Apodaca (even if motion for a speedy trial was not appropriate when supreme court granted an extension, court of appeals cannot review the speedy trial claim after conviction, because court of appeals cannot review supreme court order). The basis of the Mazurek/Sedillo line of cases seems to be the finality of a supreme court decision. See Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973); State v. Sedillo. Thus, we cannot review a speedy trial claim where it appears that the supreme court necessarily decided the issues underlying the claim. In State v. McCrary, 100 N.M. 671, 675 P.2d 120 (1984), however, the supreme court analyzed a speedy trial claim where its own extension comprised part of the delay. This suggests that the supreme court does not necessarily consider speedy trial violations when granting an extension under Rule 5-604.

Where the supreme court has expressly considered the issues underlying a claim that a defendant's right to a speedy trial has been violated, the supreme court's decision to grant the extension resolves the issues underlying the claim. That decision becomes the law of the case. See Varney v. Taylor, 79 N.M. 652, 448 P.2d 164 (1968). Thus, we would not engage in a balancing of the four speedy trial factors. See Zurla v. State, 109 N.M. 640, 789 P.2d 588 (1990). However, when the supreme court order does not indicate the issues the court considered, the granting of an extension of time to begin trial may mean only that the state has shown good cause for an extension.

Here, defendant filed an objection to the state's petition for extension. The order for extension from the supreme court states that the objection was considered before the extension was granted. This court may take judicial notice of supreme court records in connection with the granting of extensions. State v. Vigil, 85 N.M. 328, 512 P.2d 88 (Ct.App.1973). In her objection to the extension of time, defendant argued that the case had been pending for nineteen months without any fault on her part and any further delay would cause her additional prejudice. However, she did not invoke her right to a speedy trial, and it is unclear whether the supreme court expressly considered the speedy trial factors, see Zurla v. State, in granting the extension. Thus, we are reluctant to treat the order as a decision that defendant's speedy trial rights have not been violated by any of the delay preceding the granting of the extension.

Defendant's speedy trial claim on appeal is based solely on preindictment delay and does not rely on the delay caused by the supreme court's decision to grant the state's request for an extension of the six-month rule. Further, on appeal, her argument has been based in part on this court's decision dismissing the state's appeal, which was rendered after the supreme court granted the extension. Under these circumstances, we do not view Alexander as precluding our review of defendant's speedy trial claim. To the extent Apodaca suggests otherwise, it is overruled. We next address defendant's claim that the trial court erred in failing to dismiss the assault and battery charge when the court dismissed the voluntary manslaughter charge, as well as her claim that the trial court erred in admitting evidence about the telephone call.

CLAIM OF DOUBLE JEOPARDY AND DENIAL OF SPEEDY TRIAL.

Defendant argues that if the voluntary manslaughter charge was dismissed because of a speedy trial violation, then the aggravated battery charge as a lesser included offense should have been dismissed on the same grounds. Defendant relies on this court's dismissal of the state's appeal as determining that the battery charge is a lesser included offense of the dismissed manslaughter charge. She also argues that the trial court erred in applying the relevant analysis to the aggravated battery charge.

Defendant's argument raises an issue concerning the fifth amendment guarantee against double jeopardy. The guarantee against double jeopardy includes three protections: (1) protection against a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Here we are concerned with the first and second protections.

We understand defendant's double jeopardy argument as a claim that the...