State v. Jojola

• Decision Date: 24 August 1976
• Docket Number: No. 2518,2518
• Citation: 553 P.2d 1296,1976 NMCA 79,89 N.M. 489
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Claudio JOJOLA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1296

553 P.2d 1296

89 N.M. 489

STATE of New Mexico, Plaintiff-Appellee, v. Claudio JOJOLA, Defendant-Appellant.

No. 2518.

Court of Appeals of New Mexico.

Aug. 24, 1976.

Jan A. Hartke, Acting Chief Public Defender, Bruce L. Herr, Appellant Defender, John Zavitz, Asst. Appellate Defender, Sante Fe, for defendant-appellant

Toney Anaya, Atty. Gen., Paquin M. Terrazas, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

WOOD, Chief Judge.

Defendant was convicted of two counts of aggravated sodomy. Section 40A--9--7, N.M.S.A.1953 (2d Repl. Vol. 6), subsequently repealed. He asserts that the trial court improperly admitted hearsay evidence to show that the offenses occurred on the date charged--'on or about the 1st day of February, 1975'. We do not consider whether the evidence was inadmissible hearsay. The date of the offenses was established through testimony to which no objection was made and which was independent of the alleged hearsay evidence. The issues discussed are: (1) pre-indictment delay, and (2) medication of defendant. Other issues were stated in the docketing statement, but were not argued in the briefs. Such issues are deemed abandoned. Novak v. Dow, 82 N.M. 30, 474 P.2d 712 (Ct.App.1970).

Pre-Indictment Delay

Defendant claims he was denied due process of law by the delay between the time he committed the offenses on or about February 1, 1975 and thie indictment date of September 18, 1975. The time is approximately 7 1/2 months.

State v. Baca, 82 N.M. 144, 477 P.2d 320 (Ct.App.1970) recognized that such delay may so prejudice a defendant as to amount to a denial of due process. Baca involved delay due to police undercover work in a number of narcotics cases. A balancing test was applied in Baca--the reasonableness of the conduct of the police was weighed against the possible prejudice to the defendant.

Subsequent to the Baca decision, the United States Supreme Court decided United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Marion indicates: (1) the reference in Baca to 'possible prejudice' is incorrect, and (2) the balancing test is not to be applied until defendant has shown prejudice by the delay.

United States v. Marion, supra, requires a showing of substantial prejudice to the defense before the defendant can obtain dismissal for pre-indictment delay. Due process would require dismissal 'if it were shown . . . that the pre-indictment delay in this case (over three years) caused substantial prejudice to . . . (defendant's) rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.' Marion states: 'Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant's case should abort a criminal prosecution. To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case.'

We understand Marion to mean: 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. We apply our understanding of Marion to this case.

Defendant contends the State failed to show any reason for the delay. We agree however, under the facts of this case we are not concerned with the reason for the delay because the defendant has not shown he was actually prejudiced by the delay.

A pretrial hearing was held on the motion to dismiss for pre-indictment delay. The only evidence introduced in support of the motion was defendant's testimony. Defendant testified he could not remember what he was doing, where he was or who he was with on February 1, 1975. The only showing made was that defendant could not remember his activities on February 1, 1975. Such a showing is insufficient.

United States v. Atkins, 487 F.2d 257 (8th Cir. 1973) states: 'Atkins claims his defense was impaired by the delay between the dates of the incidents here in question and his arrest since he was unable to recall his whereabouts on those days. This is not enough. A claim merely of general inability to reconstruct the events of the period in question is insufficient to establish the requisite prejudice for reversal based on denial of due process.'

A general claim of being unable to remember events for the period in question is insufficient because if such a claim was required to be accepted, it would be a rare case in which a defendant could not successfully assert such a defense. See State v. Crump, 82 N.M. 487, 484 P.2d 329 (1971).

The establish actual prejudice from delay because of inability to remember events for the period in question, a defendant must establish how his lack of memory has precluded him from showing in what respect his defense might have been more successful if the delay had been shorter. See United States v. Feinberg, 383 F.2d 60 (2nd Cir. 1967). As an example, if defendant can establish his activities through others, his own lack of memory as to his activities has not prejudiced the defendant. See United States v. Golden, 436 F.2d 941 (8th Cir. 1971); United States v. Atkins, supra.

There is no evidence in this case that defendant even attempted to reconstruct his activities through others. There is no evidence that his lack of momory precluded a showing that his defense might have been more successful if the delay had been shorter. The trial court correctly denied the motion.

Medication of Defendant

Defendant had a long history of mental illness. An evidentiary hearing was held to determine defendant's competency to stand trial.

The evidence was that defendant was psychotic; that he suffered from a schizophrenia of the paranoid type with signs of being autistic. His paranoia was described as the type where defendant feels he is persecuted by just about everyone with whom he is in contact. 'Autistic' was described as an exaggerated form of daydreaming, daydreaming to the point where one is completely detached from what is going on around one. There was evidence that defendant's condition was in a state of remission, being controlled by a dosage of Thorazine.

Thorazine was described as a type of phenothiazine medication. The effect of Thorazine was described as inhibiting or depressing the emotional part of the brain and allowing the cognitive part to come back into play. A person being dosed with Thorazine is sedated emotionally more than cognitively and would have the ability to make decisions and communicate with others.

The evidence was that defendant was competent to stand trial so long as he was medicated with Thorazine. Defendant withdrew his motion concerning incompetency after the evidence was presented. No claim is made on appeal that defendant was incompetent to stand trial. See People v. Dalfonso, 24 Ill.App.3d 748, 321 N.E.2d 379 (1974); State v. Hampton, 253 La. 399, 218 So.2d 311 (1969); State v. Potter, 285 N.C. 238, 204 S.E.2d 649 (1974); State v. Rand, 20 Ohio Misc. 98, 247 N.E.2d 342 (Ct.Com.Pl.1969); State v. Hancock, 247 Or. 21 426 P.2d 872 (1967).

Defendant testified that he did not wish to go to trial while using Thorazine. His request was denied. He claims the trial court violated his right to due process of law in not permitting defendant to be tried when he was not under the influence of Thorazine. This due process claim has two parts: (1) the absolute right to be tried when not being medicated with Thorazine, and (2) the right not to be so tried because his trial demeanor was relevant to his theory of defense.

The inference from the record is that the Thorazine was administered to defendant by officials at the New Mexico State Hospital at Las Vegas. There is no evidence that defendant consented to taking Thorazine. The record is to the effect that the State had undertaken to control defendant's behavior by administering Thorazine.

In contending that he has an absolute right to be tried free from the influence of Thorazine, defendant relies on State v. Maryott, 6 Wash.App. 96, 492 P.2d 239 (1971). Maryott holds that the state had no right, without defendant's consent, to administer tranquilizing drugs to control a defendant's behavior during trial. Maryott was administered substantial doseages of Sparine, Librium and chloral hydrate by his jailers. 'Expert testimony indicated the dosages administered would affect the thought, expression, manner and content of the person using the drugs.' The decision in Maryott is based on freedom of thought, the right to appear in court with mental...