State v. Ochoa

• Decision Date: 06 June 2014
• Docket Number: No. 31,243.,31,243.
• Citation: 327 P.3d 1102
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. John Eric OCHOA, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

327 P.3d 1102

STATE of New Mexico, Plaintiff–Appellee,

v.John Eric OCHOA, Defendant–Appellant.

No. 31,243.

Court of Appeals of New Mexico.

March 11, 2014.

Certiorari Granted, June 6, 2014, No. 34,630.

Gary K. King, Attorney General, Santa Fe, NM, Sri Mullis, Assistant Attorney General, Albuquerque, NM, for Appellee.

Jorge A. Alvarado, Chief Public Defender Nina Lalevic, Assistant Appellate Defender Santa Fe, NM, for Appellant.

OPINION

VIGIL, Judge.

{1} Convicted of two counts of criminal sexual contact of a minor and one count of interference with communications, Defendant appeals. Because we agree with Defendant that his constitutional right to a speedy trial was violated, we reverse.

ANALYSIS OF A SPEEDY TRIAL CLAIM

{2} “The right to a speedy trial is a fundamental right of the accused,” guaranteed by the “Sixth Amendment to the United States Constitution, [and] applicable to the states through the Fourteenth Amendment.” State v. Garza, 2009–NMSC–038, ¶ 10, 146 N.M. 499, 212 P.3d 387; seeU.S. Const. amend. VI; N.M. Const. art. II, § 14. To determine whether this right was violated, we consider the following four factors discussed in Barker v. Wingo, 407 U.S. 514, 530–32, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972): “(1) the length of the delay, (2) the reasons given for the delay, (3) the defendant's assertion of the right to a speedy trial, and (4) prejudice to the defendant.” State v. Collier, 2013–NMSC–015, ¶ 39, 301 P.3d 370 (internal quotation marks and citation omitted).

{3} We first determine whether the length of pretrial delay is “ ‘presumptively prejudicial.’ ” Garza, 2009–NMSC–038, ¶ 23, 146 N.M. 499, 212 P.3d 387 (quoting Barker, 407 U.S. at 533, 92 S.Ct. 2182). Only when the length of delay is presumptively prejudicial, do we proceed to consideration of the Barker factors. See Garza, 2009–NMSC–038, ¶ 21, 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.”).

{4} Defendant was arrested on May 12, 2008. His trial occurred just over two years later, on May 17–20, 2010. The twenty-four-month delay between Defendant's arrest and his trial surpasses the eighteen-month threshold for even the most complex cases, thereby triggering the need to weigh all of the Barker factors. See Garza, 2009–NMSC–038, ¶ 48, 146 N.M. 499, 212 P.3d 387 (“[E]ighteen months may be presumptively prejudicial for complex cases.”).

STANDARD OF REVIEW

{5} “In considering each of the factors, we defer to the district court's factual findings but review de novo the question of whether [the d]efendant's constitutional right to a speedy trial was violated.” State v. Montoya, 2011–NMCA–074, ¶ 9, 150 N.M. 415, 259 P.3d 820. Whether the right to a speedy trial has been violated is determined by the circumstances of each particular case. State v. Spearman, 2012–NMSC–023, ¶ 16, 283 P.3d 272. We now turn to the Barker factors.

DISCUSSION1. Length of the Delay

{6} “In determining the weight to be given to the length of delay, we consider the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the [speedy trial] claim.” State v. Wilson, 2010–NMCA–018, ¶ 26, 147 N.M. 706, 228 P.3d 490 (internal quotation marks and citation omitted); see also Garza, 2009–NMSC–038, ¶ 24, 146 N.M. 499, 212 P.3d 387 (same). The district court made a finding that this case is complex, making the threshold eighteen months.¹Seeid. ¶ 48.

{7} Because the delay between Defendant's date of arrest and his trial was slightly over twenty-four months, the delay stretches six months beyond the presumptively prejudicial threshold for complex cases. See Garza, 2009–NMSC–038, ¶ 48, 146 N.M. 499, 212 P.3d 387. Although this delay is not so extraordinary as to weigh heavily in Defendant's favor, it nonetheless weighs in his favor; see alsoid. ¶ 24 (“Considering the length of delay as one of the four Barkerfactors, the greater the delay the more heavily it will potentially weigh against the [s]tate.”); compare State v. Stock, 2006–NMCA–140, ¶ 18, 140 N.M. 676, 147 P.3d 885 (concluding that the three and one-half years delay was “particularly egregious” and weighing the factor heavily in the [d]efendant's favor), with Garza, 2009–NMSC–038, ¶ 24, 146 N.M. 499, 212 P.3d 387 (concluding that a delay of one month beyond the threshold “was not extraordinary and does not weigh heavily in [the d]efendant's favor”), and Wilson, 2010–NMCA–018, ¶ 29, 147 N.M. 706, 228 P.3d 490 (stating that delay of five months beyond the guideline for a simple case was not so extraordinary or protracted as to compel weighing the length of delay factor against the state more than slightly).

2. Reasons for the Delay

{8} “ Barker identified three types of delay, indicating that different weights should be assigned to different reasons for the delay.” Spearman, 2012–NMSC–023, ¶ 25, 283 P.3d 272 (internal quotation marks and citation omitted). These are: (1) deliberate or intentional delay; (2) negligent or administrative delay; and (3) delay for which there is a valid reason. Garza, 2009–NMSC–038, ¶¶ 25–27, 146 N.M. 499, 212 P.3d 387.

{9} Deliberate delay is to be “weighted heavily against the government.” Id. ¶ 25 (internal quotation marks and citation omitted). On the other hand, “ ‘[a] more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.’ ” Id. ¶ 26 (quoting Barker, 407 U.S. at 531, 92 S.Ct. 2182). Indeed, “negligence ... still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun.” Id. (internal quotation marks and citation omitted). “The degree of weight we assign against the [s]tate for negligent delay is closely related to the length of delay [.]” Id. “Intermediate categories of delay, such as bureaucratic indifference or failure to take reasonable means to bring a case to trial, are considered more culpable and weigh more heavily against the [s]tate, especially if the defendant has sought to safeguard his rights.” State v. Gallegos, 2010–NMCA–032, ¶ 22, 148 N.M. 182, 231 P.3d 1124 (alteration in original) (internal quotation marks and citation omitted).

{10} The record reflects that ten months of delay was due to negligence and for administrative reasons. Defendant's trial was set and reset eight times before he was finally tried. Several of the trial settings were vacated because the trial was set for a three-day period when three days were not actually available. The first trial, which was set for approximately six months after Defendant had been arrested, was reset due to one of the days falling on a holiday, causing a delay over one month long. Another trial setting was vacated because the trial was erroneously set for one day, causing a five-month delay. Another trial setting was vacated because the third day fell on a furlough for state employees ordered by the Governor, which would have left the defense counsel without any support staff. This caused a two-month delay. The State argues that this last period should weigh against Defendant because Defendant requested the continuance and defense counsel, having had notice of the furlough day, could have made alternate arrangements. However, the district court granted the continuance, acknowledging that it was necessary “to ensure that [d]efense [c]ounsel has adequate support staff to prepare a defense.” The district court also stated at the hearing on Defendant's motion to continue that it was “aware of the mandatory furlough” and as a policy had “not been setting public defender trials on that day” but that it may not have entered its mind when setting Defendant's trial. Another trial setting was vacated because of a pending defense motion that had not been heard, causing a two-month delay. All of this ten-month delay, though negligent and administrative, weighs against the State. See Gallegos, 2010–NMCA–032, ¶ 23, 148 N.M. 182, 231 P.3d 1124 (“[B]ecause the state has the burden of bringing a case to trial, we weigh unreasonable periods of delay against the state.” (alterations, internal quotation marks, and citation omitted)).

{11} The State argues that Defendant caused a period of delay by moving to continue the second trial date, but we disagree and also weigh this delay against the State. Defendant's motion cites to his expert having inadequate time to prepare her report due to three postponements of interviews with the State's witnesses. Defense counsel was supposed to interview the witnesses on August 11, 2008, but did not get to interview the witnesses until November 10, 2008, which left slightly more than a month until the scheduled trial. Defendant requested a continuance to ensure adequate time to prepare and review the expert report in addition to reviewing any other evidence the State had yet to disclose. The State concurred with the request and did not file a response opposing Defendant's stated grounds. The district court granted Defendant's request. The State now asserts on appeal that defense counsel had to cancel the first interviews and the times the State cancelled after that were for good reasons. The State also alleges that Defendant's expert was not disclosed until sixteen days before the scheduled trial, and the expert needed the safehouse interviews to prepare for trial. We refuse to consider this attempt to attack Defendant's stated reasons for requiring a continuance when the State failed to attack them below and, in fact, concurred. Although Defendant made the request, the three-month delay caused by the continuance weighs against the State.

{12} There are two additional periods of delay that neither party argues should count against the other. One trial setting was vacated by the...