State v. Montoya

• Decision Date: 25 February 2015
• Docket Number: 32,525.
• Citation: 348 P.3d 1057
• Parties: STATE of New Mexico, Plaintiff–Appellant, v. Nikolos MONTOYA, a/k/a Nikolos Soiles, a/k/a Nikolos Solles, Defendant–Appellee.
• Court: Court of Appeals of New Mexico

348 P.3d 1057

STATE of New Mexico, Plaintiff–Appellant

v.Nikolos MONTOYA, a/k/a Nikolos Soiles, a/k/a Nikolos Solles, Defendant–Appellee.

32,525.

Court of Appeals of New Mexico.

Feb. 25, 2015.

Hector H. Balderas, Attorney General, James W. Grayson, Assistant Attorney General, Santa Fe, NM, for Appellant.

Jorge A. Alvarado, Chief Public Defender, Mary Barket, Assistant Appellate Defender, Santa Fe, NM, for Appellee.

OPINION

GARCIA, Judge.

{1} A grand jury indicted Defendant Nikolos Montoya on multiple counts of criminal sexual penetration of a minor (CSPM) and related felonies. The State appeals the district court's order dismissing Defendant's charges based upon a violation of his right to a speedy trial under the United States and New Mexico Constitutions. We affirm.

BACKGROUND

{2} On May 13, 2010, a grand jury indicted Defendant on multiple counts of CSPM, sexual exploitation of a child, criminal sexual communication with a child, kidnapping, aggravated battery, and bribery of a witness, stemming from Defendant's alleged relationship with two teenaged girls. He was arrested three weeks after the indictment, on June 2, 2010. At his June 14, 2010 arraignment, he pleaded not guilty to the charges and his bond was set at $100,000. On June 23, 2010, Defendant's counsel entered an appearance on his behalf, requested disclosures from the State, and asserted Defendant's right to a speedy trial.

{3} On August 9, 2010, the State provided Defendant with its initial disclosures. On October 25, 2010, Defendant moved for a statement of facts, asserting that the indictment lacked details as to where and when the alleged crimes occurred, what specific acts allegedly took place, and on what evidence the State intended to rely in proving each count. At the hearing on this motion, defense counsel stated that he “reviewed all of the discovery[,]” the discovery referred to “images” in the State's possession, and he asked that the State specify which images related to which counts. He also asked that the State be “explicit as to what activity or what averment applie[d] to which count.” The district court granted the motion. In doing so, it recognized that the prosecutor had not yet familiarized herself with the evidence and that providing a statement of facts to Defendant, although not required by the rules, would help “things start to make sense.” Two months later, the State provided a detailed statement of facts.

{4} On December 3, 2010, after spending about six months in jail, Defendant was released on bond. Other than notices concerning two pre-trial conferences that were to take place in April 2011 and June 2011, the record shows no further activity in this case until June 2011, at which time the district court filed a notice setting the trial for November 7, 2011.

{5} On October 25, 2011, about two weeks before the trial was scheduled to begin, Defendant moved to dismiss the case on the ground that the State had failed to respond to his requests to conduct pre-trial interviews with the victims. On November 2, 2011, five days before trial, the State moved to continue the trial because the attorney who had been prosecuting the case left the district attorney's office, and the new prosecuting attorney needed more time to either consider a plea offer or schedule pre-trial interviews with the victims. Defendant amended his motion to dismiss to include copies of email communications between defense counsel and the previous prosecutor. These emails showed that:

• Defense counsel first wrote the prosecutor on October 1, 2010, over a year before he filed his motion to dismiss, asking for documents that appeared to be missing from discovery, whether any safe house interviews had been conducted, whether he could have access to any records concerning the victims' counseling, and expressing his intention to schedule pre-trial interviews with the victims once he had all of the State's discovery. The prosecutor responded the same day, reminding defense counsel, “that once [pre-trial interviews] of [Victims] are done” the policy is “that there is no plea[.]”

• Defense counsel emailed the prosecutor two a half months later on December 14, 2010, telling her that he wanted to set the pre-trial interviews “at [her] earliest convenience[,]” such as “the week after [Christmas]” or “the first week in [January 2011].” The prosecutor responded that she would not be able to set them until mid-to-late January 2011.

• On January 6, 2011, defense counsel emailed the prosecutor again telling her that he was “ready to schedule the [pre-trial interviews]” and to “let [him] know the time frame [she]'d like to schedule them[.]” The prosecutor responded, only to remind defense counsel again that “[i]f we schedule [the pre-trial interviews with the alleged victims]—there is no plea. You do know that is the policy here, correct? Is that what your intent is? Otherwise, I'd suggest we start with other witnesses and work our way to the [alleged victims].” Defense counsel replied that he did not intend to interview anyone other than the alleged victims and suggested that the prosecutor “make a plea offer first (and soon)” and “[i]f that is rejected, then we can schedule the [pretrial interviews].”

• Six months later, on June 21, 2011, defense counsel emailed the prosecutor again. He asked if she “plan[ned] to make a plea offer[ ]” and if so, when he could expect it. He also told her that they “should put this [case] on the trial calendar.” The prosecutor apparently did not respond.

• Two months later, on August 26, 2011, defense counsel emailed the prosecutor telling her that he was “still waiting for [her] to get back to [him] on the [pretrial interviews]” and to “give [him] dates when the two [alleged victims] are available to be interviewed any time [during] the first half of September.” The prosecutor apparently did not respond.

• A few weeks later, on September 13, 2011, defense counsel emailed the prosecutor again, noting that she had not responded to his last email and asking for possible dates on which to set the pre-trial interviews “between now and October 10 so that we can complete the [pre-trial interviews] of the two [alleged victims] in time to have them transcribed before trial which is set for November 7.” The prosecutor responded that she could set pre-trial interviews with witnesses other than the victims during the “last week of September.” (Emphasis added.) Defense counsel reminded her that he wanted to interview the alleged victims and asked again when they could schedule those interviews. The prosecutor responded once again to remind defense counsel, “You know that means, according to [the State's CACU] policy, that there will be no plea offer[ ]?”

{6} At a hearing on December 7, 2011, the district court denied Defendant's motion to dismiss and granted the State's motion to continue the trial. In doing so, it ordered the State to either make a plea offer or set up pre-trial interviews with the victims by the end of December 2011, so that there would be “[n]o more messing around on the State's part.”

{7} The record shows no further activity in this case for seven more months, until July 9, 2012, when the district court entered a notice rescheduling the trial for September 10, 2012. This new trial date was about ten months after the trial was originally scheduled and about twenty-seven months after Defendant was arrested.

{8} On July 23, 2012, seven weeks before trial, Defendant filed several pre-trial motions, including a motion to dismiss for violation of his speedy trial right. About a week later, on July 31, 2012, the State and defense counsel filed a stipulated motion and order requiring mental health providers to release one of the victim's counseling records. During a status conference on August 21, 2012, requested by the State, the prosecutor told the court that he could not attend the hearing on Defendant's pre-trial motions because another case that he was prosecuting had been rescheduled for trial on that date. Because the court could not reschedule the motions hearing to another date before the September 10, 2012, trial, it rescheduled trial for September 24, 2012, and rescheduled the motions hearing for September 13, 2012. After the hearing on the speedy trial motion, the district court granted it and dismissed the indictment. The State appeals.

DISCUSSION

A. General Principles and Standard of Review

{9} The Sixth Amendment of the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial[.]” U.S. Const. amend. VI. The New Mexico Constitution affords a similar right: “In all criminal prosecutions, the accused shall have the right to ... a speedy public trial.” N.M. Const. art. II, § 14. “Though speed is an important attribute of the right,” the right “does not preclude the rights of public justice”—“if either party is forced to trial without a fair opportunity for preparation, justice is sacrificed to speed.” State v. Garza, 2009–NMSC–038, ¶ 11, 146 N.M. 499, 212 P.3d 387 (alteration, internal quotation marks, and citations omitted). We therefore analyze “the peculiar facts and circumstances of each case.” Id.

{10} In determining whether a defendant's speedy trial right was denied, our Supreme Court has adopted the balancing test that the United States Supreme Court created in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Garza, 2009–NMSC–038, ¶¶ 9, 13, 146 N.M. 499, 212 P.3d 387. Under the Barker framework, we weigh “the conduct of both the prosecution and the defendant” under the guidance of four factors: (1) the length of the delay, (2) the reasons for the delay, (3) the timeliness and manner in which the defendant asserted his speedy trial right, and (4) the particular prejudice that the defendant actually suffered. Garza, 2009–NMSC–038, ¶¶ 13, 32, 35, 146 N.M. 499, 212 P.3d 387 (internal quotation marks and citation omitted). “Each of these...