State v. Palacio

• Decision Date: 18 June 2009
• Docket Number: No. 28,028.,28,028.
• Citation: 212 P.3d 1148,2009 NMCA 074
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. Heriberto PALACIO, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

212 P.3d 1148

2009 NMCA 074

STATE of New Mexico, Plaintiff-Appellant, v. Heriberto PALACIO, Defendant-Appellee.

No. 28,028.

Court of Appeals of New Mexico.

June 18, 2009.

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

Hugh W. Dangler, Chief Public Defender, Stephanie Erin Brunson, Assistant Appellate Defender, Santa Fe, NM, for Appellee.

OPINION

CASTILLO, Judge.

{1} In this appeal we address whether a nine-year delay—the longest delay we have found in any of our reported New Mexico cases—violated Defendant's right to a speedy trial. The district court dismissed the case, the State appeals, and we affirm.

I. BACKGROUND

{2} On August 28, 1998, Defendant was indicted in district court for embezzling his sister's Chevrolet pickup. Defendant, who was already on parole, responded by fleeing to El Paso, and a bench warrant was issued for his arrest. The bench warrant was entered into the NCIC database. On September 1, 1998, the New Mexico Corrections Department issued an arrest warrant.

{3} It did not take long for Defendant to be arrested. He was picked up by border authorities on December 7, 1998, when he tried to cross from Mexico into Texas carrying drugs. He was incarcerated in El Paso on a drug charge based on this arrest. On December 8, 1998, the New Mexico Corrections Department lodged a detainer against Defendant and sent it to the El Paso County Detention Center. In March 1999, Defendant pled guilty to the Texas drug charge, and he remained incarcerated.

{4} When Defendant was released on parole in August 2000 on the Texas conviction, his caseworker discovered the New Mexico detainer. According to Defendant, the caseworker tried to contact New Mexico three times before releasing him. Defendant also testified that shortly thereafter, while he was in El Paso on parole, his parole officer advised him that there was an outstanding New Mexico bench warrant. Defendant explained that he was held for almost an entire day until the officer released him, saying, "I guess they don't want you."

{5} In 2004, Defendant was again arrested in Texas. He testified that he was denied bail because of the New Mexico detainer but that, seven days later, he was released on bail and told, "I guess they dropped the detainer." Referring to the detainer, Defendant said, "I thought maybe somebody just dropped it or forgot about it." Defendant served eighteen months in prison after being convicted on the 2004 Texas arrest. He was finally transferred to New Mexico in January 2007 on the August 28, 1998 embezzlement charge.

{6} The State offered no testimony to rebut Defendant's assertions. Instead, it argued that Defendant had absconded and never made any request for a speedy trial.

{7} The court noted that the delay—from August 1998 until August 2007 when the speedy trial motion was heard—had been almost nine years. It remarked that on at least two occasions, if not three, the State had an opportunity to enforce its detainer and to bring Defendant back to New Mexico. The court, crediting Defendant's testimony, said that New Mexico had twice declined to obtain custody of Defendant. The court further noted that El Paso was only forty-five minutes away; yet, New Mexico did not pursue Defendant. The court stated that a combination of reasons caused the delay, but found that the reasons for the delay weighed against the State based on the principle that Defendant did not have to turn himself in to be tried. Consequently, the court granted Defendant's motion.

II. DISCUSSION

{8} We apply the four-factor balancing test set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to determine whether a defendant's constitutional right to a speedy trial has been violated. See State v. Plouse, 2003-NMCA-048, ¶ 34, 133 N.M. 495, 64 P.3d 522. Under the Barker test, we balance, in light of the facts and circumstances of the particular case, (1) the length of the delay, (2) the reasons for the delay, (3) the assertion of the right, and (4) the prejudice to the defendant. Plouse, 2003-NMCA-048, ¶ 34, 133 N.M. 495, 64 P.3d 522. The first factor, the length of the delay, involves a two-fold inquiry. State v. Laney, 2003-NMCA-144, ¶ 11, 134 N.M. 648, 81 P.3d 591. We first decide whether the delay is presumptively prejudicial and, if it is, we then balance the length of the delay against the remaining three factors to assess whether a defendant's constitutional rights have been violated. State v. Urban, 2004-NMSC-007, ¶ 11, 135 N.M. 279, 87 P.3d 1061. The burden is on the state to establish that the Barker factors do not support dismissal. See State v. Talamante, 2003-NMCA-135, ¶ 11, 134 N.M. 539, 80 P.3d 476.

{9} We are deferential to the district court's fact finding, but independently examine the record to determine whether a speedy trial violation has taken place. State v. Tortolito, 1997-NMCA-128, ¶ 6, 124 N.M. 368, 950 P.2d 811. We analyze speedy trial claims on a case-by-case basis, examining all four factors with no one factor as talismanic. See Urban, 2004-NMSC-007, ¶ 11, 135 N.M. 279, 87 P.3d 1061.

1. Length of Delay

{10} The State contends that Defendant's 1998 indictment was a magistrate court indictment and that, under State v. Ross, 1999-NMCA-134, 128 N.M. 222, 991 P.2d 507, Defendant's right to a speedy trial had not attached. We need not address the implications of Ross because the record does not support this contention. Defendant's right to a speedy trial attached on August 28, 1998, when a grand jury indictment was filed against Defendant in district court. See State v. Maddox, 2008-NMSC-062, ¶ 10, 145 N.M. 242, 195 P.3d 1254 ("We calculate the length of delay from the date the Sixth Amendment right to a speedy trial attached when the defendant becomes an accused, that is, by a filing of a formal indictment or information or arrest and holding to answer." (internal quotation marks and citation omitted)). We are therefore dealing with a total delay of nine years, from August 1998 until August 2007.

{11} The State also argues that the speedy trial clock did not start with the indictment in the district court because Defendant fled and that time should run from June 2007 when Defendant was arraigned on the embezzlement charge. Using this calculation, the State argues that we are dealing with a mere three-month delay. We disagree. The first two factors—the length of delay and the reasons for delay—are analytically distinct. See id. ¶ 13 ("The reasons for a period of the delay may either heighten or temper the prejudice to the defendant caused by the length of the delay."). In our view, the fact that Defendant absconded is appropriately considered under the portion of the analysis addressing reasons for delay and not in calculating the length of delay.

{12} Having calculated the length of delay, we consider whether it was sufficiently long to permit a presumption of prejudice. Our Supreme Court has "adopted bright-line guidelines to determine whether the length of delay is presumptively prejudicial, depending on the level of complexity involved in prosecuting a case." Id. ¶ 9. We are directed to first assign a level of complexity to a case: simple, intermediate, or complex. Id. Applying a fixed length of time to the complexity of the case, prejudice is presumed in the face of delays of nine, twelve, and fifteen months respectively for simple, intermediate, or complex cases. Id. In the present case, the delay is so long that it was presumptively prejudicial regardless of the level of complexity. Accordingly, the burden shifts to the State to show that Defendant's Sixth Amendment right to a speedy trial has not been violated. See id. ¶ 12.

2. Reasons for Delay

{13} The delay in this case weighs against both sides. Defendant's conduct in fleeing New Mexico as well as committing crimes and being twice incarcerated in Texas all contributed to the delay. The period during which Defendant fled New Mexico and was incarcerated in Texas, from August 1998 until his release on August 9, 2000, weighs solely against him. See Talamante, 2003-NMCA-135, ¶ 14, 134 N.M. 539, 80 P.3d 476 (holding that when the defendant failed to appear, the delay was attributable to him).

{14} The court accepted Defendant's testimony that upon his release in Texas in August 2000, New Mexico was notified and chose to do nothing. The court also accepted Defendant's testimony that when he was arrested in Texas in 2004, the State again failed to take the opportunity to obtain custody of Defendant. We defer to the court's findings on these factual issues. See Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (accepting the trial court's findings that the government was not diligent in trying to find the defendant and bring him to trial); Tortolito, 1997-NMCA-128, ¶ 6, 124 N.M. 368, 950 P.2d 811. The State did not avail itself of the opportunity to gain custody of Defendant until January 2007 when he was released from his second term of incarceration in Texas.

{15} The State is not responsible for periods of delay in which a defendant is outside of the jurisdiction and it is unaware of his or her whereabouts. See Maddox, 2008-NMSC-062, ¶¶ 15-16, 145 N.M. 242 195 P.3d 1254. The State, however, admits that the New Mexico authorities "apparently knew where Defendant was some of the time when Defendant was incarcerated in Texas," but asserts that the record is unclear why Defendant was not brought back to New Mexico and when New Mexico was actually notified of Defendant's release from Texas custody.

{16} The gaps in the evidentiary record do not aid the State. Defendant testified that the State had two opportunities to detain him and yet declined to take action. In light of the length of the delay and the presumption of prejudice, it was the State's burden to establish that Defendant's right to a speedy trial was not...