State v. Laney

• Decision Date: 14 October 2003
• Docket Number: No. 22,748.,22,748.
• Citation: 81 P.3d 591,134 N.M. 648
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. James LANEY, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

81 P.3d 591

134 N.M. 648

STATE of New Mexico, Plaintiff-Appellee, v. James LANEY, Defendant-Appellant.

No. 22,748.

Court of Appeals of New Mexico.

October 14, 2003.

Certiorari Denied December 1, 2003.

Patricia A. Madrid, Attorney General, James O. Bell, Assistant Attorney General, Santa Fe, NM, for Appellee.

John B. Bigelow, Chief Public Defender, Trace L. Rabern, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Certiorari Denied, No. 28,360, December 1, 2003.

OPINION

BUSTAMANTE, Judge.

{1} Defendant James Laney appeals his conviction for homicide by vehicle (reckless), great bodily injury by vehicle, leaving the scene of an accident (great bodily harm or death), and reckless driving. Defendant raises six issues for our review: (1) speedy trial violation, (2) improper testimony elicited by the State from its expert witness, (3) denial of his proposed jury instruction on "operating" a motor vehicle, (4) fundamental error in failing to declare a mistrial, (5) merger of his convictions for vehicular homicide and the lesser-included offense of reckless driving, and (6) cumulative error. As to the fifth issue, the State agrees that it was error to convict and sentence Defendant on the lesser-included offense of reckless driving, and therefore, we do not consider this issue on appeal. As to the remaining issues, we find no error and, hence, no cumulative error. We affirm and remand, directing the district court to enter an amended judgment and sentence vacating the reckless driving conviction. See State v. Pierce, 110 N.M. 76, 87, 792 P.2d 408, 419 (1990)

(holding that State may charge separately for the same offense, but the convictions for more than one of the offenses cannot stand). All other issues raised in Defendant's docketing statement are deemed abandoned. State v. Fish, 102 N.M. 775, 777, 701 P.2d 374, 376 (Ct.App. 1985) (noting issues listed in the docketing statement but not argued in the brief in chief are deemed abandoned).

FACTUAL BACKGROUND AND PROCEEDINGS

{2} On April 14, 2000, Defendant was involved in a fatal car accident. Defendant fled the scene on foot, but was apprehended and arrested eleven days later. An indictment was issued on May 9, 2000, charging Defendant with homicide by vehicle (reckless), great bodily injury by vehicle (reckless), leaving the scene of an accident (great bodily harm or death), receiving or transferring a stolen vehicle (possession), and reckless driving. After three continuances, two rule extensions, and several motions, the case was eventually tried before a jury on March 28, 2001, some eleven months after Defendant's arrest.

{3} Most of the facts elicited at trial are undisputed. Defendant was in a small Mazda sports car traveling eastbound on Academy Road in Albuquerque, New Mexico. The Mazda turned northbound onto Marcheta in front of an oncoming half-ton, Chevy pickup. The pickup, which was traveling westbound on Academy, "T-boned" the Mazda, instantly killing the right front passenger, Sean Roseberry. The passenger in the pickup was seriously injured. The driver of the pickup and Defendant sustained only minor injuries. Defendant stipulated that the Mazda's sudden turn in front of the pickup was one of the primary causes of the accident. The only disputed issue was the identity of the Mazda's driver.

{4} The defense maintained there were three men in the Mazda, while the State argued there were two, Defendant and Roseberry. Eyewitnesses, including the driver of the pickup, and two persons who stopped to render aid, observed one person fleeing the scene, although their descriptions varied somewhat. Only one witness, however, could identify Defendant as the man he saw leaving the scene. The defense argued that the pickup driver saw the driver of the Mazda crawl out of the car, whereas the man who was seen leaving the scene by the other witnesses was Defendant, who had been in the right rear seat.

{5} Both sides provided expert testimony to support their theory. A forensic pathologist and OMI supervisor, Dr. Gerri McLemore, testified for the State about Roseberry's extensive injuries. The State's expert in accident reconstruction and occupant kinetics, Parker Bell, opined that given the dynamics of the accident, a person seated in the right rear seat would most likely have sustained injuries similar to those sustained by Roseberry. Defendant's expert, Dr. Karen Greist, in contrast, testified that Defendant's injuries, consisting of a long rectangular bruise and abrasion running diagonally from his upper right shoulder to his lower left rib cage, were consistent with a seat belt injury. Two defense witnesses testified Defendant was coughing up blood and had bruising to his right arm and chest area after the accident.

{6} Jury deliberation began on a Friday, the third day of trial. After four hours of deliberation, the jury advised the district court it was "deadlocked" on two counts. Although ten jurors polled stated they were hopelessly deadlocked and did not believe further deliberations would be helpful, both counsel rejected the district court's offer to receive the verdicts on three counts and declare a mistrial on the other two. Instead, the parties agreed to send the jury home for the weekend. The jury eventually acquitted Defendant on the stolen vehicle charge, but convicted him on the remaining four counts.

I. Speedy Trial

{7} The initial prosecution of Defendant was quick—he was indicted on May 10, 2000, only fifteen days after his arrest on April 25. Discovery problems, on the other hand, abounded over the next seven months. Counsel for the defense filed his Entry of Appearance and Demand for Speedy Trial on May 17, 2000. A Motion to Dismiss for failure to provide discovery was filed on July 10, 2000. This apparently prompted the State to enter its appearance the next day, two months after the indictment issued. Defense counsel then filed two additional motions, including a Motion to Quash for failure to present exculpatory evidence of Defendant's "seat belt" injuries to the grand jury and a motion to disclose confidential informant on August 18, 2000. Motions were heard on September 5, 2000. In support of the Motion to Quash, defense counsel displayed photographs of Defendant's injuries, which he maintained were consistent with a right-hand seat belt injury. At that time, defense counsel advised the district court that he hired a private investigator to take the photographs on May 21, and that in July, it had procured Dr. Greist, an expert in forensic pathology, to testify that the injuries supported Defendant's defense. The district court denied the motions to quash and dismiss, but ordered the State to disclose the informant and immediately disclose any existing discovery, including initial police reports, photographs, and the search warrant. Supplemental reports and crime lab reports were ordered to be disclosed within one week.

{8} A second Motion to Dismiss was filed on September 22, 2000, in which Defendant complained that he had not yet received the "Final Supp Out,"¹ although the "case [had] been pending for several months." A second hearing was held on September 27 during which the State represented that the "Supp Out" was provided on September 20, however, because defense counsel did not have a copy, the completed report was provided after the hearing.

{9} As a result of these discovery delays, a Stipulated Motion to Continue vacating an October 4, 2000, trial setting was granted at Defendant's request. A second stipulated continuance vacating a November 6, 2000, trial setting was granted at the State's request. As grounds for that continuance, the State explained that pretrial interviews were set for November 1, but one witness was out of town. Over Defendant's objection, the State then requested a three-month extension, pursuant to Rule 5-604 NMRA 2003, to interview this witness. An extension was granted through February 19, 2001, and the trial was reset for February 5, 2001. In the meantime, the State filed a stipulated Motion for DNA Standard on December 1, 2000, to obtain a sample from Defendant for testing. A second Rule 5-604 Petition was granted by the Supreme Court, over Defendant's objection, because the DNA results were not ready, and because the defense expert, Dr. Greist, had not been made available to the State for an interview. Eleven months and two days after Defendant's arrest, the trial began. On the day of the trial, Defendant made several pretrial motions, including a motion to dismiss on speedy trial grounds, which was denied.

{10} The right to a speedy trial is protected by the Sixth Amendment, made applicable to the states through the Fourteenth Amendment, and Article II, Section 14 of our state constitution. State v. Manzanares, 1996-NMSC-028, ¶ 8, 121 N.M. 798, 918 P.2d 714. The right attaches when the defendant becomes an accused, either at the time of arrest or upon the issuance of an indictment or information. See id. When a speedy trial claim is made, the defendant must make a threshold showing that the length of delay is presumptively prejudicial. See State v. Coffin, 1999-NMSC-038, ¶ 55, 128 N.M. 192, 991 P.2d 477

. Once that showing has been made, the burden of persuasion shifts to the State to show, on balance, that the four factors do not weigh in favor of dismissal. Id. ¶ 58; Manzanares, 1996-NMSC-028, ¶ 8,

121 N.M. 798,

918 P.2d 714; Zurla v. State, 109 N.M. 640, 646, 789 P.2d 588, 594 (1990). Courts balance four factors to determine whether a speedy trial violation has occurred. Id. The factors to be considered are: "(1) the length of delay, (2) the reason for delay, (3) the defendant's assertion of the right, and (4) prejudice to the defendant." Plouse, 2003-NMCA-048, ¶ 34, 133 N.M. 495,

64 P.3d 522; accord Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Zurla, 109 N.M. at 642,

789 P.2d at 590. On appeal from a speedy trial claim, "we [defer] to ...