State v. Montoya

• Citation: 2011 -NMCA- 074,150 N.M. 415,259 P.3d 820
• Decision Date: 27 May 2011
• Docket Number: No. 28,881.,28,881.
• Parties: STATE of New Mexico, Plaintiff–Appellee,v.Freddie Benji MONTOYA, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

150 N.M. 415

259 P.3d 820

2011 -NMCA- 074

STATE of New Mexico, Plaintiff–Appellee,

v.Freddie Benji MONTOYA, Defendant–Appellant.

No. 28,881.

Court of Appeals of New Mexico.

May 27, 2011.

Gary K. King, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, NM, for Appellee.Law Office of Craig C. Kling, Craig C. Kling, San Diego, CA, for Appellant.

OPINION

FRY, Judge.

{1} Defendant appeals from convictions of kidnaping, conspiracy to commit kidnaping, second-degree criminal sexual penetration (CSP II), and aggravated burglary. He raises three points on appeal: (1) his right to a speedy trial was violated by a twenty-one-month delay between his arrest and trial; (2) he was deprived of his right to a trial by jury because a certified court interpreter was not sworn in before voir dire commenced; and (3) his right to be free from double jeopardy was violated by his convictions for kidnaping, CSP II, and aggravated burglary. We conclude that Defendant's convictions of kidnaping and CSP II violate principles of double jeopardy, and we therefore remand with instructions to vacate one of Defendant's convictions. We affirm on all other issues.

I. BACKGROUND

{2} Defendant's convictions stem from an incident that occurred on March 2, 2006, in Doña Ana County, New Mexico. At trial, Victim testified that she was driving home that evening after stopping for fuel at a gas station. Shortly after leaving the gas station, Victim observed a work truck pass her vehicle. A few minutes later, Victim testified that she stopped her vehicle on the roadway because the work truck she had observed earlier was now parked sideways across the road, blocking traffic in both directions. Victim stated that two men exited the truck and approached her vehicle. She explained that she opened her car door after the driver of the truck displayed a gun. She testified that after the truck driver gained entry to her vehicle, he proceeded to sexually assault her while the passenger of the truck held her hands above her head. After the assault, Victim stated that the men let her go, returned to the work truck, and drove away. The next day, Victim reported the incident to the police and subsequently identified Defendant as the driver of the truck.

{3} Defendant was arrested and charged with: (1) kidnaping; (2) conspiracy to commit kidnaping; (3) aggravated burglary committed with a deadly weapon or, in the alternative, committed during the commission of a battery; and (4) CSP II committed during the commission of a felony, or in the alternative, committed while being aided or abetted by another. Following a jury trial, Defendant was convicted on all charges. This appeal followed.

II. DISCUSSION

{4} Defendant argues that his right to a speedy trial was violated, that he was denied his right to trial by jury, and that his convictions violate his right to be free from double jeopardy. We address each argument in turn.

A. The District Court Did Not Violate Defendant's Right to a Speedy Trial

{5} Defendant argues that the delay of his trial for over twenty-one months prejudiced his defense due to the death of an alibi witness during the pretrial delay. As a result, he maintains that the delay violated his right to a speedy trial.

{6} As an initial matter, we consider Defendant's argument that our Supreme Court's decision in State v. Garza, 2009–NMSC–038, 146 N.M. 499, 212 P.3d 387, should not apply retroactively to his case. Defendant claims that Garza overturned established precedent governing speedy trial analysis and held that the burden no longer shifts to the state if pretrial delay is determined to be presumptively prejudicial. As a result, according to Defendant, this holding in Garza is a “new rule” enacted prior to Defendant's convictions becoming final, and it should not have retroactive effect. See State v. Mascarenas, 2000–NMSC–017, ¶ 24, 129 N.M. 230, 4 P.3d 1221 (“An appellate court's consideration of whether a rule should be retroactively or prospectively applied is invoked only when the rule at issue is in fact a ‘new rule.’ ”).

{7} While Defendant correctly states the relevant holding in Garza, we disagree with his characterization of that holding. The Court in Garza sought to clarify what it perceived to be ambiguities in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court's seminal decision concerning the right to speedy trial. Garza, 2009–NMSC–038, ¶ 15, 146 N.M. 499, 212 P.3d 387. The Court in Garza reviewed New Mexico case law and case law from federal appeals courts and stated that “[i]n light of the overwhelming consensus among the federal Circuit Courts of Appeals and our policy of providing a functional analysis based on the facts and circumstances of each case, we abolish the presumption that a defendant's right to a speedy trial has been violated based solely on the threshold determination that the length of delay is presumptively prejudicial.” Id. ¶ 21 (internal quotation marks omitted). Although the Court used the term “abolish” in describing its holding, it nonetheless characterized its holding as “modify [ing]” New Mexico precedent on the issue. Id. ¶¶ 21, 22. As a result, we do not view Garza 's holding as a “new rule” triggering an inquiry into whether it may be applied retroactively. See Kersey v. Hatch, 2010–NMSC–020, ¶ 16, 148 N.M. 381, 237 P.3d 683 (explaining that “a court establishes a new rule when its decision is flatly inconsistent with the prior governing precedent and is an explicit overruling of an earlier holding” (internal quotation marks omitted)).

{8} Defendant's argument regarding the alleged retroactive application of Garza appears to be directed solely at Garza 's modification of the burden-shifting employed in prior New Mexico case law. To the extent that Defendant's argument is also directed to Garza 's modification of the guidelines governing the determination of presumptive prejudice, we reject the argument. The Court in Garza changed the existing guidelines from nine months to one year for a simple case, from twelve months to fifteen months for an intermediate case, and from fifteen months to eighteen months for a complex case. 2009–NMSC–038, ¶¶ 41, 47, 48, 146 N.M. 499, 212 P.3d 387. The Court explicitly stated that these new guidelines would apply “to speedy trial motions to dismiss initiated on or after August 13, 2007.” Id. ¶ 50. Because Defendant filed his motion to dismiss on December 26, 2007, the new guidelines announced in Garza are applicable.

1. Application of the Barker factors

{9} We turn now to analysis of Defendant's argument that his speedy trial right was violated. In making this determination, we employ the balancing test created in Barker and weigh the conduct of both the prosecution and the defendant in light of four factors: “(1) the length of delay, (2) the reasons for the delay, (3) the defendant's assertion of his right, and (4) the actual prejudice to the defendant.” Garza, 2009–NMSC–038, ¶ 13, 146 N.M. 499, 212 P.3d 387 (internal quotation marks omitted). In considering each of the factors, we defer to the district court's factual findings but review de novo the question of whether Defendant's constitutional right to a speedy trial was violated. State v. Brown, 2003–NMCA–110, ¶ 11, 134 N.M. 356, 76 P.3d 1113.

{10} According to Garza, the initial inquiry in speedy trial analysis is a determination as to whether the length of pretrial delay is “presumptively prejudicial.” 2009–NMSC–038, ¶ 15, 146 N.M. 499, 212 P.3d 387. “[A] presumptively prejudicial length of delay is simply a triggering mechanism, requiring further inquiry into the Barker factors.” Id. ¶ 21 (internal quotation marks omitted). In the present case, there was a delay of approximately twenty-one months between Defendant's indictment and the beginning of his trial. Although the district court made no findings regarding the complexity of the present case, twenty-one months exceeds the guideline for even the most complex case. See id. ¶ 48. Accordingly, inquiry into the Barker factors is warranted.

{11} Garza provides guidance as to the order in which we consider the factors. Our Supreme Court in Garza stated that “generally a defendant must show particularized prejudice of the kind against which the speedy trial right is intended to protect.” 2009–NMSC–038, ¶ 39, 146 N.M. 499, 212 P.3d 387. If a defendant does not demonstrate prejudice, he or she may still show violation of the speedy trial right “if the length of delay and the reasons for the delay weigh heavily in [the] defendant's favor and [the] defendant has asserted his right and not acquiesced to the delay.” Id. Therefore, we turn first to the fourth Barker factor and consider whether Defendant has demonstrated actual prejudice. See Garza, 2009–NMSC–038, ¶¶ 35–37, 146 N.M. 499, 212 P.3d 387 (explaining that the defendant has the burden to demonstrate and substantiate prejudice).

a. Prejudice Factor

{12} “The United States Supreme Court has identified three interests under which we analyze prejudice to the defendant: (i) to prevent oppressive pretrial incarceration[,] (ii) to minimize anxiety and concern of the accused [,] and (iii) to limit the possibility that the defense will be impaired.” Id. ¶ 35 (internal quotation marks omitted). “As to the first two types of prejudice, some degree of oppression and anxiety is inherent for every defendant who is jailed while awaiting trial.” Id. (alterations omitted) (internal quotation marks omitted). “Therefore, we weigh this factor in the defendant's favor only where the pretrial incarceration or the anxiety suffered is undue.” Id. Furthermore, “[t]he oppressive nature of the pretrial incarceration depends on the length of incarceration, whether the defendant obtained release prior to trial, and what prejudicial effects the defendant has shown as a result of the incarceration.” Id.

{13} In the present case, Defendant spent only three...