State v. Lewis
| Decision Date | 29 June 2020 |
| Docket Number | No. A-1-CA-37139,A-1-CA-37139 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. DAVID W. LEWIS, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.
APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
Hector H. Balderas, Attorney General
Santa Fe, NM
Meryl E. Francolini, Assistant Attorney General
for Appellee
Ben A. Ortega
Albuquerque, NM
for Appellant
{1} Defendant David Lewis appeals his conviction for two counts of criminal sexual penetration of a minor (CSPM) under thirteen years of age, in violation of NMSA 1978, Section 30-9-11(D)(1) (2009), and two counts of CSPM between the ages of thirteen and eighteen, in violation of Section 30-9-11(E)(1). Defendant raises three issues: (1) he was denied his right to a speedy trial; (2) he was denied compulsory process; and (3) he was subjected to an unfair trial because of an outburst from the gallery. We affirm.
{2} Victim provided the following account of the nature and extent of Defendant's sexual abuse during her trial testimony. Victim had known Defendant since she was "four or five" years old. She was close friends with Defendant's daughter, and Victim's mother (Mother) often sent Victim to spend time at Defendant's home. Defendant "began molesting" Victim in approximately 2007, "soon after [her] sixth birthday." Victim recalled Defendant telling her to remove her clothing and to lie on his bed. Defendant touched her vagina with his hand during which he called Victim his princess and told her he was playing a game where he was the "monster kidnapping the princess." After a couple of months, Defendant began to touch her vagina "at least once every two weeks." Over the next eight years, Defendant penetrated Victim vaginally, anally, performed oral sex on Victim multiple times, and forced Victim to perform oral sex on himself.
{3} In July 2015, Victim had a fight with Mother after Mother told Victim she had to stay with Defendant for the weekend. Victim went into her room, "started freaking out [and] having flashbacks" of the abuse and felt "ready to die." Rather than going to Defendant's house, Victim attempted suicide by taking sleeping pills. While hospitalized, Victim disclosed the abuse to Mother. Mother told the nurses about the sexual abuse who in turn contacted the police.
{4} On October 1, 2015, the grand jury indicted Defendant on two counts of CSPM of a child under the age of thirteen and two counts of CSPM of a child at least thirteen years of age but less than eighteen. On September 14, 2017, Defendant filed a motion to dismiss for violation of his right to a speedy trial. The district court denied the motion, and trial commenced on October 31, 2017. A jury convicted Defendant of all four counts of CSPM. Defendant appeals.
{5} "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial[.]" U.S. Const. amend. VI; accord N.M. Const. art. II, § 14. When evaluating a speedy trial issue, "[t]he United States Supreme Court gave four factors to consider in Barker [v. Wingo], 407 U.S. [514,] 530 [(1972)]: (1) length of delay, (2) the reason for the delay, (3) the defendant's assertion of the right, and (4) prejudice to the defendant." State v. Spearman, 2012-NMSC-023, ¶ 17, 283 P.3d 272. "Each of these 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." Id. No one factor alone is dispositive, as "they are related factors and must be considered together with such other circumstances as may be relevant." Id. ¶ 18 (internal quotation marks and citation omitted). When considering a speedy trial claim, we defer to the district court's factual findings supported by substantial evidence but review the Barker factors de novo. Id. ¶ 19.
{6} The first Barker factor—length of delay—serves two purposes. First, it guides the inquiry of whether a delay is presumptively prejudicial based on its length. See State v. Garza, 2009-NMSC-038, ¶ 15, 146 N.M. 499, 212 P.3d 387. Second, if the delay is presumptively prejudicial, it serves as a "triggering mechanism" for considering the other three factors. State v. Serros, 2016-NMSC-008, ¶ 22, 366 P.3d 1121. The presumptively prejudicial threshold is determined by the complexity of the case: twelve months for simple cases, fifteen months for intermediate cases, and eighteen months for complex cases. Id. Length of delay under Barker is an objective determination; it does not consider whether either party is at fault for causing the delay. Id. ¶ 26. In this case, the parties stipulated, and we agree, that this case is one of intermediate complexity for the purposes of the speedy trial analysis. See State v. Montoya, 2011-NMCA-074, ¶ 16, 150 N.M. 415, 259 P.3d 820 ().
{7} "[T]he right to speedy trial attaches when the defendant becomes the 'accused' which occurs with a formal indictment or information or arrest." State v. Talamante, 2003-NMCA-135, ¶ 4, 134 N.M. 539, 80 P.3d 476. Defendant was indicted on October 1, 2015, and thus, approximately twenty-five months passed between Defendant's indictment and trial.1 The delay in this case exceeds the presumptively prejudicial threshold by approximately ten months and, therefore, we proceed to assess the Barker factors, beginning with the weight to be given the length of delay. See State v. Suskiewich, 2016-NMCA-004, ¶ 7, 363 P.3d 1247.
{8} "[T]he greater the delay, the more heavily it will potentially weigh against the [s]tate." Garza, 2009-NMSC-038, ¶ 24. Defendant argues that the length of delay should weigh heavily in his favor because there was delay of eleven months beyond the threshold for intermediate cases. However, as we noted above, the time between Defendant's indictment and trial was twenty-five months, rendering a ten-month delay beyond the presumptive threshold. Nonetheless, even using Defendant's calculation of an eleven-month delay beyond the presumptive threshold, we would only weigh the length of the delay moderately against the State. Suskiewich, 2016-NMCA-004, ¶ 8 (); see also State v. Montoya, 2015-NMCA-056, ¶ 15, 348 P.3d 1057 (). Therefore, we weigh this factor moderately against the State.
{9} The second factor, the reason for the delay, requires us to evaluate the reason the state "assigns to justify the delay." Garza, 2009-NMSC-038, ¶ 25 (internal quotation marks and citation omitted). "The reasons for a period of delay may either heighten or temper the prejudice to the defendant caused by the length of the delay." Id. (internal quotation marks and citation omitted). We "accord weight to the frequency and force of the defendant's objections to the delay[,]" and "analyze the defendant's actions with regard to the delay." Id. ¶ 32 (internal quotation marks and citations omitted). There are three types of delay attributable to the state, which are weighed against the state in varying ways. See State v. Castro, 2017-NMSC-027, ¶ 22, 402 P.3d 688. First, deliberate attempts by the state to delay the trial to hamper the defense weigh heavily against the state. Id. Second, "neutral delays, including negligence or overcrowded courts that should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than the defendant." Id. (alteration, internal quotation marks, and citation omitted). Third, there are "appropriate" delays for which there is "a valid reason, such as a missing witness." Id. (internal quotation marks and citation omitted). These are considered neutral and do not weigh against the state. See id. Finally, delay caused by a defendant weighs against the defendant. See Serros, 2016-NMSC-008, ¶ 29.
{10} The first period of delay is from the date of indictment, October 1, 2015, to the first trial setting on August 1, 2016. During this period, the State and Defendant filed customary pleadings one expects to see filed in criminal cases. Both parties filed excusal of judges, the State filed requests for scheduling orders, discovery, and pretrial interviews, produced discovery, and filed various other pleadings. Defendant also filed motions during this period. Because the case was proceeding with customary promptness from indictment until the first trial date, we weigh this ten-month period of delay neutrally. State v. Valencia, 2010-NMCA-005, ¶ 18, 147 N.M. 432, 224 P.3d 659 ().
{11} The second period of delay is from August 1, 2016, to the second trial setting on January 9, 2017. A pretrial conference was held on July 11, 2016, to determine if the parties were ready to proceed to trial on August 1. Neither defense counsel nor Defendant appeared for the pretrial conference, nor did either provide an explanation for their absence. However, the State moved for a continuance of the trial setting and as...
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