State v. Kerby
| Decision Date | 16 March 2007 |
| Docket Number | No. 29,533.,No. 29,336.,29,336.,29,533. |
| Citation | 156 P.3d 704,2007 NMSC 014 |
| Parties | STATE of New Mexico, Plaintiff-Petitioner, v. Leslie KERBY, Defendant-Respondent. State of New Mexico, Plaintiff-Respondent, v. Leslie Kerby, Defendant-Petitioner. |
| Court | New Mexico Supreme Court |
Gary K. King, Attorney General, Martha Anne Kelly, Assistant Attorney General, Santa Fe, NM, for Plaintiff.
Titus & Murphy Law Firm, Victor A. Titus, Farmington, NM, for Defendant.
{1} Defendant, Leslie Kerby, was charged with thirteen counts of criminal sexual contact of a minor ("CSCM") in violation of NMSA 1978, § 30-9-13(A)(1) (). Only four of the thirteen counts were submitted to the jury, and the jury convicted Defendant on three counts. Defendant challenges his convictions on the basis that the statute of limitations barred the State from prosecuting him; that the trial judge improperly admitted evidence of a peephole between Defendant's bedroom and Victim's bathroom; and that Defendant's right to a speedy trial was violated. The Court of Appeals concluded that the trial court erred in admitting the peephole evidence and that Defendant was presumptively prejudiced by the thirteen-month delay in commencing trial. State v. Kerby, 2005-NMCA-106, ¶¶ 1, 20, 44, 138 N.M. 232, 118 P.3d 740. The Court of Appeals remanded the speedy trial issue for further analysis and held that Defendant could also raise the statute of limitations issue at that time. Id. ¶¶ 41, 44.
{2} In a separate appeal, the State raised issues regarding Defendant's court-ordered treatment after serving his sentence. When Defendant neared the end of his sentence, he moved the trial judge to alter the terms of his treatment. Defendant sought to attend outpatient treatment, rather than an inpatient treatment facility as originally ordered, since attending an inpatient facility was an impossibility given the long waiting list. The trial judge entered a new order that substituted an outpatient treatment provider; however, the State appealed, arguing inter alia that the victim has a right to participate in this decision. The Court of Appeals agreed with the State, reversing the district court's order and ordering reinstatement of the original sentence. State v. Kerby, No. 25,891, memorandum op. at 4 (Ct.App. Oct. 19, 2005). Defendant appealed to this Court. After granting Defendant's Petition for a Writ of Certiorari, we consolidated the two cases.
{3} We hold that the statute of limitations is a substantive right that may only be waived by a defendant after consultation with counsel, and only if the waiver is knowing, intelligent, and voluntary. The testimony at trial established that the four counts which the jury considered involved only events which were barred by the statute of limitations. See NMSA 1978, § 30-1-9.1 applicability note (1987). Defendant's attorney admitted that he did not consult with Defendant about the statute of limitations because he failed to recognize the issue. For these reasons, Defendant would not have been convicted had the statute of limitations defense been raised before trial. Thus, we vacate Defendant's convictions.
{4} Because we find the statute of limitations issue dispositive in vacating Defendant's convictions, we decline to address the issues Defendant raises regarding the speediness of his trial. Nor do we address the merits of the second appeal addressing the trial judge's actions in substituting an outpatient treatment provider or the victim's participation in that decision. We do, however, note that the Court of Appeals erred in holding that the peephole evidence was inadmissible propensity evidence under Rule 11-404(B) NMRA. Kerby, 2005-NMCA-106, ¶¶ 1, 20. We recently addressed the admissibility of other acts for non-propensity purposes, including intent, in State v. Otto, No. 29,158, slip op., ___ N.M. ___, ___ P.3d ___, 2007 WL 1192015(N.M. 2007) and State v. Gallegos, 2007-NMSC-007, 141 N.M. 185, 152 P.3d 828.
{5} Inasmuch as we find the statute of limitations issue dispositive, we review only the facts relevant to that issue. Defendant lived with Victim and Victim's mother from 1986 to 1988. During this time, Victim was six and seven years old. When Victim became an adult, she alleged that Defendant sexually abused her. On March 28, 2002, Defendant was charged by criminal information with thirteen counts of criminal sexual contact of a minor, a third degree felony. See § 30-9-13(A)(1).
{6} At trial, Victim testified that she could recall four specific instances of touching. Victim also recalled four "clips," as she called them, in which she could recall Defendant leaving her room, but in which she did not actually recall Defendant touching her, and approximately five more instances in which Victim "knew" Defendant touched her, but for which she had no specific memory.
{7} Victim testified as follows with respect to the four specific instances of touching she could recall. In the summer of 1986, Victim and her mother moved into a trailer with Defendant. In October 1986, they moved to a house with Defendant. Regarding the first instance of touching, Victim testified that Defendant rubbed her vulva a couple of months after Victim and her mother moved into the trailer (summer 1986), but before they moved to the house (fall 1986). Victim testified that the second time Defendant touched her was when he rubbed her buttocks while she was sleeping on the couch inside the trailer (summer 1986). Regarding the third instance, Victim testified that Defendant again rubbed her buttocks at the end of 1986, shortly after they moved to the house. Finally, the last specific recollection Victim had of Defendant inappropriately touching her was "[a]bout a month or so later" in the beginning of 1987.
{8} Because Victim testified consistently that she could recall only four specific instances of Defendant touching her, the trial court dismissed nine of the thirteen counts at the close of the State's case. At the same time, the criminal information was amended to allege incidents occurring between June 1, 1986, and December 31, 1987. Nevertheless, the trial court made very clear that it was sending to the jury only those four counts that were tied to Victim's specific recollections, which occurred between summer 1986 and the beginning of 1987. The jury convicted Defendant on three of those four counts.
{9} On appeal, Defendant challenged his convictions on the basis that the statute of limitations barred the State from prosecuting him; that the trial judge improperly admitted evidence of a peephole between Defendant's bedroom and Victim's bathroom; and that Defendant's right to a speedy trial was violated. The Court of Appeals concluded that the trial judge erred in admitting the peephole evidence under Rule 11-404(B). Kerby, 2005-NMCA-106, ¶¶ 1, 20. In addition, the Court of Appeals rejected the trial judge's finding that the case was a complex case for speedy trial purposes and found that the thirteen-month delay in commencing trial was presumptively prejudicial. Id. ¶ 44. The Court of Appeals remanded the speedy trial issue for further analysis. Id.
{10} Defendant raised the statute of limitations defense for the first time on appeal. Id. ¶ 39. Defendant's attorney admitted that he did not consult with Defendant about the statute of limitations because he failed to recognize the issue. Indeed, the Court of Appeals acknowledged that "[n]either defense counsel, the prosecutor, nor the district court appears to have recognized that the State was prohibited by Section 30-1-8 from prosecuting Defendant for touchings that occurred prior to June 19, 1987." Id. The Court of Appeals did not analyze the statute of limitations defense but concluded that Defendant could raise it on remand. Id. ¶ 41.
{11} "When facts relevant to a statute of limitations issue are not in dispute, the standard of review is whether the district court correctly applied the law to the undisputed facts." Haas Enters., Inc. v. Davis, 2003-NMCA-143, ¶ 9, 134 N.M. 675, 82 P.3d 42 (citing Inv. Co. of the Sw. v. Reese, 117 N.M. 655, 657, 875 P.2d 1086, 1088 (1994)). We review questions of law de novo. Id. We look at the trial proceedings to determine if the facts relevant to the statute of limitations were in dispute. Defendant did not dispute the factual time frame relevant to the statute of limitations at trial, but raised the legal issue for the first time on appeal. Kerby, 2005-NMCA-106, ¶ 39. Thus, we conclude that the relevant facts were not in dispute and, accordingly, review de novo Defendant's statute of limitations defense.
{12} Defendant argues that the three counts for which he was convicted are barred by the statute of limitations. Defendant claims that the statute of limitations is "jurisdictional" and, thus, the district court was without jurisdiction to try and sentence him. The State, by contrast, argues that the statute of limitations is an "affirmative equitable defense" that can be "waived." Defendant counters that, even if the statute of limitations can be waived, he did not knowingly waive the defense. Further, to the extent Defendant waived this defense, he argues that his counsel was ineffective in not raising the defense pre-trial.
{13} In the civil litigation context, the statute of limitations defense is generally an affirmative defense that is lost if not properly pled. Rule 1-008(C) NMRA; see Wilson v. Denver, 1998-NMSC-016, ¶ 9, 125 N.M. 308, 961 P.2d 153 (citing Chavez v. Kitsch, 70 N.M. 439, 442-43, 374 P.2d 497, 499 (1962)); Butler v. Deutsche Morgan Grenfell, Inc., 2006-NMCA-084, ¶¶ 28-30, 140 N.M. 111, 140 P.3d 532. Civil statutes of limitations exist "to protect...
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