State v. Mascarenas, 887

• Court: Court of Appeals of New Mexico
• Citation: 84 N.M. 153,500 P.2d 438,1972 NMCA 106
• Docket Number: No. 887,887
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Tony Frank MASCARENAS, Defendant-Appellant.
• Decision Date: 28 July 1972

Page 438

500 P.2d 438 84 N.M. 153 STATE of New Mexico, Plaintiff-Appellee,
v.
Tony Frank MASCARENAS, Defendant-Appellant. No. 887. Court of Appeals of New Mexico. July 28, 1972.

[84 NM 154]

Page 439

Robert Dale Morrison, Mitchell, Mitchell & Alley, Taos, for defendant-appellant.

David L. Norvell, Atty. Gen., Victor Moss, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

WOOD, Chief Judge.

The dispositive issue involves the constitutional right to a speedy trial. N.M.Const. Art. II, § 14. Whether this right has been denied depends on the reasonableness of the particular delay. Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970), concurring opinion of Justice Brennan. In judging reasonableness, this court has looked to four factors: length of the delay; the reason for it; prejudice to the defendant; and waiver by the accused of the right. State v. Baca, 82 N.M. 144, 477 P.2d 320 (Ct.App.1970); compare Dickey v. Florida, concurring opinion, supra. We consider each of these factors.

Length of the delay.

Defendant was arrested on May 6, 1970, although no criminal complaint was issued until May 20, 1970. Preliminary hearing was not held until October 16, 1970. The criminal information was filed October 26, 1970. He was tried August 19, 1971. Except for a period of approximately four weeks, he was incarcerated in either the Taos County jail or the State Penitentiary from the date of arrest to date of trial, a period of incarceration of approximately 446 days. The delay from arrest until trial exceeds 15 months. The delay from filing of the information until trial is one week short of 10 months.

In State v. Adams, 80 N.M. 426, 457 P.2d 223 (Ct.App.1969), we held that an interval between arrest and trial of 144 days, without more, did not amount to the denial of the right to a speedy trial. See also State v. Ford, 81 N.M. 556, 469 P.2d 535 (Ct.App.1970). In State v. Crump, 82 N.M. 487, 484 P.2d 329 (1971), a delay of 14 months between indictment and trial did not deny the right to a speedy trial where defendants fled the jurisdiction and was imprisoned in another state. There, defendant's own activities contributed to the delay. These decisions must be considered in relation to § 21--1--1(95), N.M.S.A.1953 (Repl.Vol. 4, Supp.1971) which provides that trial shall commence within six months of the date of filing of the information unless extended by court order. Although this rule is not applicable to this [84 NM 155]

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case, it expresses the policy of the New Mexico Supreme Court as to an acceptable length of delay. See State ex rel. Delgado v. Stanley, 83 N.M. 626, 495 P.2d 1073 (1972).

Here, we have a delay of four months in excess of the policy expressed in § 21--1--1(95), supra, and a 15 month delay between arrest and trial. The 15 month delay is contrary to the purpose of the right to speedy trial because one of the purposes of that right is to prevent undue incarceration prior to trial. State v. Crump, supra.

The reason for the delay.

The right to a speedy trial is a relative right consistent with delays. The essential ingredient of this right is orderly expedition of the criminal process. Raburn v. Nash, 78 N.M. 385, 431 P.2d 874 (1967), cert. dismissed, 389 U.S. 999, 88 S.Ct. 582, 19 L.Ed.2d 613 (1967); State v. Adams, supra; see State v. Crump, supra.

Thus, where a defendant causes or contributes to the delay, or consents to the delay, he may not complain of a denial of the right. Raburn v. Nash, supra; State v. McCroskey, 79 N.M. 502, 445 P.2d 105 (Ct.App.1968). The State does not claim that defendant caused, contributed or consented to the delay.

'* * * The accused has no duty to bring on his trial. He is presumed innocent until proved guilty * * *. The government, on the other hand, would seem to have a responsibility to get on with the prosecution, both out of fairness to the accused and to protect the community interests in a speedy trial. * * *' Dickey v. Florida, concurring opinion, supra. The record indicates that the efforts of the District Attorney in this case were to ask the District Judge (not the one who presided at the trial) every two or three months for 'a jury to try cases' and to furnish the judge a general list of cases. With this sparse explanation, we cannot say that this case '* * * was moving at a designedly deliberate pace consistent with * * *' the right to a speedy trial. State v. Adams, supra. Specifically, there is nothing showing an orderly expedition of the criminal process.

Prejudice to defendant.

Although New Mexico decisions consider the factor of 'prejudice to defendant' and infer that the defendant has the burden of demonstrating prejudice, none have expressly placed that burden on the defendant. See State v. Crump, supra; State v. Baca, supra; State v. Adams, supra. If the burden is upon the defendant, this procedure departs from the approach utilized in other situations.

Under standards of due process, unauthorized communications with jurors are presumptively prejudicial and defendant does not have the burden of establishing the existence of prejudice. State v. Gutierrez, 78 N.M. 529, 433 P.2d 508 (Ct.App.1967). Where a prior incriminating statement was inadmissible, a subsequent incriminating statement was presumptively inadmissible and the State had the burden of establishing that the subsequent statement was not the exploitation of the prior statement. State v. Dickson, 82 N.M. 408, 482 P.2d 916 (Ct.App.1971).

Considering the approach in Gutierrez and Dickson, in relation to the policy disclosed in § 21--1--1(95), supra, in our opinion the delays shown by this record were presumptively prejudicial and the State had the burden of demonstrating an absence of prejudice to defendant by these delays. Compare Dickey v. Florida, concurring opinion, supra.

Even if the defendant did have the burden of demonstrating prejudice, we hold that defendant's showing, which is not contradicted, was sufficient. This showing is the extent of the delays--the 15 month and 10 month intervals previously identified. These delays demonstrate, prima facie, an undue incarceration prior to trial and, thus, establish a prima facie violation [84 NM 156]

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of the right to speedy trial. This prima facie showing of prejudice is not contradicted.

Thus, whether the delay was presumptively prejudicial or whether the delay was a prima facie showing of undue incarceration, prejudice to defendant is not contradicted.

Waiver by the accused.

Raburn v. Nash, supra, applied the majority rule '* * * that absent extreme circumstances a defendant may not be heard to complain unless he has affirmatively made known his desire for a speedy trial. * * *' This approach was followed in State v. Ford, supra, and State v. Adams, supra. This 'demand' requirement is based on the concept of waiver by defendant's inaction, Raburn v. Nash, supra, and has been called 'acquiescence' in the delay, see State v. McCroskey, supra.

Raburn v. Nash, supra, noted a minority that '* * * hold it is not incumbent upon an accused to take affirmative action or demand trial. * * * It will, however, be noted that most of those states have mandatory statutes requiring dismissal unless the accused is brought to trial within a specified period. * * *' New Mexico now has a mandatory requirement in § 21--1--1(95), supra. See State ex rel. Delgado v. Stanley, supra. Because this case was initiated prior to the effective date of the mandatory requirement, § 21--1--1(95), supra, does not apply. However, the policy expressed in § 21--1--1(95), supra, weakens the rule applied in Raburn v. Nash, supra, and supports the view that six months after the filing of the information, a demand might no longer be required and the concept of waiver might not be applied after the six month period is passed.

The concept of waiver by inaction has been criticized. This criticism is based on the definition of waiver--an intentional abandonment of a known right--and the fact that the concept requires a defendant to take affirmative action to preserve a right accorded him by the Constitution. See Dickey v. Florida, concurring opinion, supra. Yet, citation of authority is not required to support the fact that the concept of waiver is firmly established in New Mexico by numerous appellate decisions.

Accordingly, we do not resolve this factor on the basis of whether the concept of waiver should or should not be utilized. Our approach is to recognize the concept, but also recognize that the 'demand' necessary to avoid a waiver is not applicable in 'extreme circumstances.' Raburn v. Nash, supra. The 15 month delay approaches the extreme in this case when the State offered nothing to explain the delay.

In our opinion, we need not decide whether any one of the factors is controlling. We reach our decision by considering all of the factors. Here, there is a showing of...