State v. Parrish

• Decision Date: 14 March 2011
• Docket Number: No. 29,058.,29,058.
• Citation: 2011 -NMCA- 033,252 P.3d 730,149 N.M. 506
• Parties: STATE of New Mexico, Plaintiff–Appellant,v.Terry PARRISH, Defendant–Appellee.
• Court: Court of Appeals of New Mexico

149 N.M. 506

252 P.3d 730

2011 -NMCA- 033

STATE of New Mexico, Plaintiff–Appellant,

v.Terry PARRISH, Defendant–Appellee.

No. 29,058.

Court of Appeals of New Mexico.

Jan. 19, 2011.Certiorari Denied, No. 32,853, March 14, 2011.

Gary K. King, Attorney General, Santa Fe, NM, Ralph E. Trujillo, Assistant Attorney General, Albuquerque, NM, for Appellant.Hugh W. Dangler, Chief Public Defender, Mary Barket, Assistant Appellate Defender, Santa Fe, NM, for Appellee.

OPINION

GARCIA, Judge.

{1} Defendant Terry Parrish was charged with aggravated driving while under the influence (DUI) and failure to have an operating license plate lamp. See NMSA 1978, § 66–8–102(D)(3) (2004) (amended 2010); NMSA 1978, § 66–3–805 (1978). The State appeals the district court's order dismissing Defendant's charges based upon a violation of Defendant's Sixth Amendment right to a speedy trial. We hold that Defendant's right to a speedy trial was not violated. As a result, we reverse the district court and remand Defendant's case for trial.

BACKGROUND

{2} Defendant was arrested on November 24, 2006, issued both DUI and traffic citations, and instructed to appear in magistrate court upon the court's order. After posting a $1,750 bond, Defendant was released approximately seven and one-half hours later with eight restrictions, including not leaving Doña Ana County without permission of the court, not possessing firearms or dangerous weapons, and not possessing or consuming alcohol or entering liquor establishments.

{3} On November 28, 2006, the State filed a criminal complaint in magistrate court, charging Defendant with aggravated DUI and failure to have an operating license plate lamp. On January 24, 2007, the State refiled those same charges in district court and then dismissed the charges in magistrate court two days later. Defendant waived arraignment in district court and entered a plea of not guilty on February 8, 2007. The district court set Defendant's bond at $1,000 and imposed twelve restrictions, including not driving a motor vehicle without a valid driver's license.

{4} The next four months included discovery, substitution of counsel, and reassignment of judges. On February 22, 2007, the State produced discovery, identified witnesses, and requested discovery from Defendant. The State substituted counsel on March 15, 2007. Additionally, on April 10, 2007, the district court reassigned Defendant's case from the Honorable Douglas R. Driggers to the Honorable Michael T. Murphy for administrative reasons.

{5} In June 2007, Defendant's trial was scheduled for August 2, 2007. The parties agree that neither of them received notice of the trial. According to the State, on June 7, 2007, the district court misinformed the State that trial could not be held before the expiration of the six-month rule on August 8, 2007, and advised the State to request an extension of time. Consequently, the State filed a petition for an extension of time on August 1, 2007. At a hearing on August 10, 2007, the district court denied the State's petition for an extension of time and issued an oral ruling dismissing Defendant's case for violation of the six-month rule pursuant to Rule 5–604 NMRA (2007). The State subsequently filed a motion for reconsideration, and Defendant filed a motion to dismiss for violation of the six-month rule. On September 7, 2007, the district court heard both motions and issued oral rulings denying the State's motion for reconsideration and granting Defendant's motion to dismiss. The district court entered a written order dismissing the charges against Defendant with prejudice on September 24, 2007.

{6} The State appealed the district court's denial of its petition for extension of time and order of dismissal on September 26, 2007. On March 11, 2008, this Court filed a memorandum opinion reversing the district court, reasoning that judicial error constituted good cause for an extension of time. This Court then issued a mandate to the district court for further proceedings on May 5, 2008.

{7} On May 7, 2008, the State requested a trial setting, and trial was subsequently scheduled for July 10, 2008. On the morning of trial, Defendant orally moved to dismiss his case on speedy trial grounds. Defendant testified that he was concerned about how a DUI conviction might affect his job and membership in a volunteer professional organization, and that he also experienced hardship caused by the Motor Vehicle Department's suspension of his driver's license. The district court issued an oral ruling dismissing Defendant's charges on speedy trial grounds and thereafter entered a written order of dismissal on October 17, 2008. The court entered the following findings: Defendant's case was a simple case in which the applicable guideline for a presumption of prejudice was nine months, Defendant's case had been pending for over eleven months at the time of the scheduled trial, Defendant's testimony regarding the prejudice caused by the delay was credible, and Defendant did not make a written demand for a speedy trial. As a result, the court dismissed Defendant's case for violation of his Sixth Amendment right to a speedy trial, and the State appealed.

DISCUSSION

{8} The State argues that the district court erred in determining that Defendant's speedy trial right was violated. Specifically, the State contends that the length of delay was not presumptively prejudicial. The State further argues that even if this Court determines that the delay was presumptively prejudicial, Defendant's speedy trial right was not violated because he failed to assert his right and was not prejudiced by the delay.

A. Sixth Amendment Right to a Speedy Trial

{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. Thus, the speedy trial right is implicated “when the defendant becomes an accused, that is, by a filing of a formal indictment or information or arrest and holding to answer.” State v. Maddox, 2008–NMSC–062, ¶ 10, 145 N.M. 242, 195 P.3d 1254 (internal quotation marks and citation omitted). “The heart of the right to a speedy trial is preventing prejudice to the accused.” State v. Garza, 2009–NMSC–038, ¶ 12, 146 N.M. 499, 212 P.3d 387. The right includes three core concerns: (1) preventing undue and oppressive pre-trial incarceration prior to trial, (2) minimizing the anxiety and concern associated with public accusation, and (3) limiting the possibilities that long delay will impair the defense of the accused. Id.

{10} In analyzing whether Defendant's speedy trial right was violated, we review the particular facts and circumstances to determine whether an “actual and articulable deprivation” of Defendant's right to a speedy trial occurred. Id. ¶¶ 11–12. We conduct our analysis by balancing four factors: (1) the length of the delay in bringing the defendant to trial, (2) the reasons for the delay, (3) the defendant's assertion of his right to a speedy trial, and (4) the actual prejudice suffered by the defendant as a result of the delay. Id. ¶ 13 (relying on Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). Although we defer to the district court's factual findings, we review de novo the question of whether a violation of a defendant's speedy trial right occurred. State v. Valencia, 2010–NMCA–005, ¶ 11, 147 N.M. 432, 224 P.3d 659. We evaluate speedy trial claims on a case-by-case basis, independently balancing the four factors and considering no individual factor as talismanic. Id. Over time, the balancing test has been adapted to the varying circumstances presented in each case involving a claim of a speedy trial violation. Garza, 2009–NMSC–038, ¶ 14, 146 N.M. 499, 212 P.3d 387. Following the rule set out in Garza, if Defendant fails to make a particularized showing of prejudice, the other three factors must weigh heavily in Defendant's favor. Id. ¶ 39.

B. Speedy Trial Implications of Dismissal of Charges and the State's Appeal

{11} As a preliminary matter, we address the State's argument that the time during which no charges were pending against Defendant while the State appealed the dismissal of all charges should be excluded when considering Defendant's speedy trial claim. Defendant responds that the time on appeal should be considered because he was fully aware of the State's right to appeal, continued to retain the services of his attorney, filed a memorandum during the appeal, and knew that he was still facing possible future prosecution.

{12} In United States v. Loud Hawk, 474 U.S. 302, 310–11, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986), the Supreme Court addressed the speedy trial implications of the district court's dismissal of the defendants' indictments followed by the government's appeal. The Court determined that the time during which the defendants were no longer under indictment or restraint while the state appealed the dismissal should be excluded when considering their speedy trial claim. Id. The Court reasoned that after the charges against the defendants were dismissed, the defendants suffered no actual restraints on their liberty and were no longer the subjects of public accusation. Id. at 311–12, 106 S.Ct. 648; see also United States v. MacDonald, 456 U.S. 1, 9, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982) (reasoning that after charges have been dismissed, a defendant no longer suffers restraints on his liberty and is no longer the subject of public accusation). The Court further concluded that the defendants' need for counsel and the court's order to appear during the appeal did not reach the level of restraint required to apply the speedy trial clause. Loud Hawk, 474 U.S. at 312, 106 S.Ct. 648. In reaching this conclusion, the Court reasoned that impairment of liberty is the core concern of the speedy trial clause and that the speedy trial right does not shield a defendant from...