State v. O'Neal

• Decision Date: 18 December 2008
• Docket Number: No. 27,751.,27,751.
• Citation: 2009 NMCA 020,203 P.3d 135
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Richard C. O'NEAL, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

203 P.3d 135

2009 NMCA 020

STATE of New Mexico, Plaintiff-Appellee, v. Richard C. O'NEAL, Defendant-Appellant.

No. 27,751.

Court of Appeals of New Mexico.

December 18, 2008.

Gary K. King, Attorney General, Santa Fe, NM, Ralph E. Trujillo, Assistant Attorney General, Albuquerque, NM, for Appellee.

Frechette & Associates, P.C., Todd Hotchkiss, Albuquerque, NM, for Appellant.

OPINION

SUTIN, Chief Judge.

{1} Defendant Richard O'Neal appeals the district court's denial of his pretrial motion to dismiss for violation of his constitutional right to a speedy trial. We address (1) whether Defendant waived that constitutional right and (2) whether the right was violated. We hold that Defendant did not waive his constitutional right to a speedy trial but that the right was not violated. Accordingly, we affirm the district court's order denying Defendant's motion to dismiss for violation of his right to a speedy trial.

BACKGROUND

{2} Defendant was arrested for driving while intoxicated (DWI) on July 16, 2003. On July 17, 2003, a criminal complaint charging aggravated DWI was filed against him in magistrate court. The same day, Defendant posted a $1700 surety bond, was released subject to conditions, and was ordered to appear on July 21, 2003. The conditions of Defendant's release included, among other things, his agreement not to leave the State of New Mexico without prior permission of the court. On or about July 23, 2003, Defendant was notified that a pretrial conference was set for September 3, 2003. An amended criminal complaint was filed in the magistrate court case on July 30, 2003, charging Defendant with aggravated DWI fourth or subsequent offense based on prior DWI convictions. The aggravated DWI charge was a fourth degree felony.

{3} On July 31, 2003, Defendant filed an unopposed motion asking the magistrate court to continue the September 3 pretrial conference, and on August 4, 2003, the magistrate court vacated the pretrial conference. On September 10, 2003, the magistrate court bound Defendant over for trial in district court, and the State filed its criminal information in district court on September 15, 2003, charging Defendant with a fourth degree felony aggravated DWI. On October 7, 2003, the district court set Defendant's arraignment for October 21, 2003. Defendant filed a waiver of arraignment on October 21, 2003, and on October 24, 2003, the district court scheduled a pretrial conference for February 9, 2004, and a jury trial for March 12, 2004. Defendant filed a motion to suppress and an amended motion to suppress on February 3 and 9, 2004, respectively, and on February 26, 2004, the district court scheduled the hearing on Defendant's motion to suppress for April 9, 2004, which caused the March 12, 2004, trial to be vacated as noted in the court's notice of hearing.

{4} Defendant filed a motion to continue the April 9, 2004, hearing on April 2, 2004. This motion stated, "Undersigned counsel does not object and does hereby agree to a waiver of any time limitation period and/or an extension thereof[] [f]rom the New Mexico Supreme Court." The court granted this motion on April 7, 2004. On May 12, 2004, the court rescheduled the hearing on Defendant's motion to suppress for July 6, 2004, and also set the case for jury trial on September 2, 2004. The court heard the motion to suppress as scheduled and filed an order denying the motion on July 15, 2004.

{5} On August 30, 2004, Defendant filed a motion to continue the September 2, 2004, trial in order to retain substitute counsel, and substitute counsel entered his appearance the next day. On September 1, 2004, the court entered a stipulated order for continuance of the September 2 trial date. New notices for a pretrial conference for February 14, 2005, and a jury trial on March 15, 2005, were entered on September 20, 2004. The pretrial conference was eventually moved to February 17, 2005, and was held on that date, but the jury trial set for March 15, 2005, was continued due to inclement weather.

{6} The jury trial was rescheduled for August 25, 2005, but the court declared a mistrial after jury selection but before the jury was sworn. Defendant filed a motion to reconsider the order of mistrial on September 30, 2005, the State responded on October 6, 2005, and a hearing was held on November 10, 2005. The motion was denied on December 8, 2005, and on February 27, 2006, the court set the case for jury trial on August 15, 2006.

{7} Throughout these proceedings, the State filed for and the Supreme Court granted four six-month extensions at various intervals. See Rule 5-604(D) NMRA. The first three Supreme Court orders extended deadlines through October 18, 2004, April 16, 2005, and October 13, 2005. After the district court on September 1, 2005, granted a new six-month-time limit following the mistrial on that date, see Rule 5-604(C), the Supreme Court again, on March 3, 2006, granted a six-month extension through August 25, 2006. In addition to his initial waiver, it appears that Defendant either agreed to or did not object to each of the six-month extensions, with the exception of the last one.

{8} Defendant filed a motion to dismiss for violation of his constitutional right to a speedy trial on July 24, 2006, and on August 2, 2006, he requested a hearing on the motion. In a hearing held on August 15, 2006, the date which had been set for trial, the court heard Defendant's motion to dismiss and Defendant's plea to the charge against him. The district court found the delay in bringing the case to trial to be presumptively prejudicial thereby triggering a weighing of the factors in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). During this analysis, the district court addressed the waiver of time limits that was contained in Defendant's April 2, 2004, motion for continuance. The motion for continuance was signed by Defendant's first attorney, but not by Defendant. The court stated that it considered this to be an express waiver of Defendant's speedy trial right, that an attorney speaks for his client, and that, but for the waiver, the court would grant the motion to dismiss. Thus, the court denied Defendant's motion to dismiss for a speedy trial violation, and Defendant entered a conditional plea.

{9} Defendant contends on appeal that the district court erred in denying his motion to dismiss for violation of his right to a speedy trial. He asserts that he did not waive his constitutional right to a speedy trial and that, absent a waiver, the district court would have found a violation of that right.

DISCUSSION

I. Waiver

{10} In the district court, Defendant argued that his waiver was not sufficient because there was no affirmative waiver by him in the record.

{11} A defendant may waive fundamental constitutional rights. See State v. Pacheco, 2007-NMSC-009, ¶ 10, 141 N.M. 340, 155 P.3d 745 ("Fundamental rights, such as the right to trial by a fair and impartial jury, may be waived or lost."); State v. Herrera, 2004-NMCA-015, ¶ 8, 135 N.M. 79, 84 P.3d 696 (recognizing that "a defendant can waive fundamental rights, including constitutional rights"). This includes the right to a speedy trial. See Raburn v. Nash, 78 N.M. 385, 387, 431 P.2d 874, 876 (1967) (stating that the constitutional right to a speedy trial is a personal privilege that may be waived). A defendant may also waive statutory rights. Baird v. State, 90 N.M. 667, 670, 568 P.2d 193, 196 (1977); Raburn, 78 N.M. at 387, 431 P.2d at 876. This includes waiver of the requirements of Rule 5-604. State v. Guzman, 2004-NMCA-097, ¶ 13, 136 N.M. 253, 96 P.3d 1173.

{12} "Waiver is an intentional abandonment of a known right, and the burden of proof to establish waiver falls upon the [prosecution]." County of Los Alamos v. Beckman, 120 N.M. 596, 599, 904 P.2d 45, 48 (Ct.App.1995). Here, the question is one of law, which we review de novo. See State v. Padilla, 2002-NMSC-016, ¶ 18, 132 N.M. 247, 46 P.3d 1247 ("Whether a defendant made a valid knowing, intelligent, and voluntary waiver of his constitutional rights is a question of law which we review de novo." (internal quotation marks and citation omitted)); County of Los Alamos, 120 N.M. at 599, 904 P.2d at 48 (stating that the fact finder shall determine whether waiver occurred, but construction of whether written evidence qualifies as a proper waiver is a question of law).

{13} Our Supreme Court has recognized that the district court bears a weighty responsibility to ensure that a defendant's waiver of a constitutional right was knowingly and voluntarily made. Padilla, 2002-NMSC-016, ¶ 19, 132 N.M. 247, 46 P.3d 1247. Neither Defendant's April 2, 2004, motion to continue nor the record in this case shows that the waiver of time limits was express or was a knowing, voluntary waiver of his constitutional right to a speedy trial. See id. ¶ 18. On its face, the waiver was intended to relate only to a six-month extension pursuant to Rule 5-604(D). Although an agreement to allow indeterminate six-month extensions might imply agreement to waive a constitutional right to a speedy trial, we are unwilling to accept that construction of the waiver in question. We hold that Defendant's agreement in his motion to continue, filed in April 2004, did not waive his constitutional right to a speedy trial. However, his waiver did open the door to consideration by the court of the agreed-to extensions, in its weighing of fault for delay under a Barker speedy trial analysis. We therefore turn to a Barker analysis.

II. Speedy Trial

{14} "The [United States] Supreme Court has declared the [S]ixth [A]mendment right to a speedy trial to be a fundamental constitutional right that applies to states through the [F]ourteenth [A]mendment." Zurla v. State, 109 N.M. 640, 642, 789 P.2d 588, 590 (1990); see U.S. Const. amends. VI, XIV; Klopfer v. North Carolina, 386 U.S. 213, 222-23, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). Barker established a...