State v. Rackley

Decision Date11 February 2000
Docket NumberNo. 20,011.,20,011.
Citation128 N.M. 761,998 P.2d 1212
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Allan Ray RACKLEY, Defendant-Appellant.
CourtCourt of Appeals of New Mexico

Patricia A. Madrid, Attorney General, M. Anne Kelly, Assistant Attorney General, Santa Fe, for Appellee.

Phyllis H. Subin, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, for Appellant.

Certiorari Denied, No. 26,223, March 31, 2000.

OPINION

ALARID, Judge.

{1} Defendant appeals from his convictions for attempt to commit a felony (armed robbery), aggravated battery with a deadly weapon (firearm enhancement), aggravated assault with a deadly weapon (firearm enhancement), felon in possession of a firearm, and tampering with evidence. For the reasons set forth below, we reject Defendant's contentions and affirm the judgment of the trial court.

SIXTH-MONTH RULE

{2} Defendant argues that he was entitled to dismissal of the charges against him because the State did not commence trial within the time limits prescribed by Rule 5-604(B) NMRA 2000. Neither party disputes that a petit jury was selected on September 2, 1998; that the six-month period of Rule 5-604(B) expired on September 6, 1998; and that the petit jury was not sworn and the State did not begin presentation of its case until September 24, 1998. Defendant argues that the selection of a jury did not constitute the "commencement" of his trial for purposes of Rule 5-604(B). Defendant argues that we should adopt a rule whereby a trial is not commenced for purposes of Rule 5-604(B) unless the proceeding has reached the point at which jeopardy attaches. According to Defendant, jeopardy did not attach until September 24, 1998—well after the expiration of the six-month period—when the jury was impaneled and sworn.

{3} The State responds that double jeopardy principles should not determine when a trial is commenced for purposes of Rule 5-604(B). Instead, according to the State, we should hold that Defendant's trial commenced on September 2, 1998, when voir dire began.

{4} We agree with the State. While we have no New Mexico case law directly on point, we note that Rule 5-607 NMRA 2000, "Order of trial," designates the selection and swearing of a jury as the first stage of a trial. Here, this process was begun within the prescribed period. We have previously recognized that Rule 5-604(B) requires that the defendant's trial commence within the prescribed period; it does not require that the trial be completed within that period. See State v. Higgins, 107 N.M. 617, 622, 762 P.2d 904, 909 (Ct.App.1988)

. We note parenthetically that decisions from other jurisdictions overwhelmingly, if not uniformly, recognize that a trial has commenced for purposes of speedy trial rules or statutes once jury selection has begun. See, e.g., State v. Becerra, 66 Wash.App. 202, 831 P.2d 781, 783 (1992) (construing state rule of criminal procedure); United States v. Gonzalez, 671 F.2d 441, 443-44 (11th Cir.1982) (construing federal Speedy Trial Act). Indeed, Defendant has not cited, and we have not found, a single case holding otherwise.

{5} Defendant further argues that even if a trial normally would be deemed to have commenced upon the initiation of the jury selection process, the procedure followed in the present case does not satisfy Rule 5-604(B). Defendant points out that although the jury was selected on September 2, 1998—within the time limits of Rule 5-604(B)—the trial was continued until September 24, 1998, with the result that the jury was not sworn, and the State did not begin the presentation of its case, until eighteen days after the six-month period of Rule 5-604(B) had expired. The State responds with two arguments. First, the State argues that the delay between the selection of the jury and the remainder of Defendant's trial—three weeks—did not amount to "undue delay." Second, the State argues that Defendant was aware from the trial court's remarks at an August 18, 1998, docket call that the court intended to bifurcate his trial to accommodate the schedule of a prosecution witness. The State points out that it was not until September 24, 1998 that Defendant raised the issue of compliance with Rule 5-604(B) by arguing that the case should be dismissed for failure to comply with the six-month deadline. The State, citing State v. Arellano, 1998-NMSC-026, ¶ 18, 125 N.M. 709, 965 P.2d 293, characterizes Defendant's conduct as impermissible "gamesmanship" that should be deemed a waiver of any Rule 5-604(B) claim.

{6} Again, there is no New Mexico case directly on point and, once again, Defendant has not cited a single case supporting his position. However, as we have noted above, the literal language of Rule 5-604(B) merely requires that a defendant's trial be commenced within the six-month period—a circumstance that occurred in the present case. There is no requirement in the rule that all subsequent stages of the trial must be contiguous as Defendant argues, and we will not read such a requirement into the rule. Our review of the case law from other jurisdictions indicates that a majority of courts considering this issue likewise have rejected the argument that voir dire and the remainder of the trial must be contiguous in order to satisfy speedy trial rules or statutes. Because we hold that the bifurcation of jury selection and the remainder of Defendant's trial was not inconsistent with Rule 5-604(B), we need not address the State's alternate argument that Defendant engaged in impermissible gamesmanship in not objecting to the bifurcation prior to September 24, 1998.

{7} We emphasize that our holding is limited to the facts of this case. Prolonged, unjustified delay or conduct suggestive of an attempt to circumvent Rule 5-604(B) will be closely scrutinized by this Court. Cf. United States v. Stayton, 791 F.2d 17, 20, 21 (2d. Cir.1986)

(holding twenty-three month delay between voir dire and remainder of trial impermissible under Speedy Trial Act).

JUROR BIAS

{8} Defendant argues that three jurors, Jurors 9, 13, and 22, should have been excused for cause. Defendant argues that due to the trial court's refusal to excuse Jurors 9 and 13 for cause, he was forced to exercise two peremptory challenges to remove them. Defendant argues that had he not been forced to exhaust his peremptory challenges to remove Jurors 9 and 13, he would have been able to exercise a peremptory challenge to remove Juror 22 when the trial court refused to excuse her for cause.

{9} Whether a prospective juror must be excused for cause is a decision committed to the discretion of the trial court. See State v. Baca, 111 N.M. 270, 274, 804 P.2d 1089, 1093 (Ct.App.1990)

. The jury selection process, including the excusal of jurors for cause, insures that a defendant is tried before an impartial jury. See Fuson v. State, 105 N.M. 632, 633, 735 P.2d 1138, 1139 (1987). Applying these principles, we find no error under the facts of this case.

{10} During voir dire, defense counsel inquired into the jurors' attitudes about the constitutional right to remain silent. Juror 9 stated that he resented Defendant's relying on a lawyer to speak for him. Later, Juror 9 pointed out the distinction between a defendant "having" to speak and "wanting" to speak. In response to further questioning by defense counsel, Juror 9 stated that "I don't think he should have to speak; he has the right to speak under the Constitution—if he desires." Defense counsel asked Juror 13 if she needed to hear from Defendant. Juror 13 responded that she would like to know where Defendant was at the time of the crime. In response to further inquiry by defense counsel, Juror 13 stated that if the State failed to prove guilt beyond a reasonable doubt, she would vote not guilty, and that she would not be bothered by Defendant's failure to take the stand in his defense.

{11} Defendant's objection to these two jurors appears to be based on the erroneous assumption that a juror is biased simply because the juror has a natural expectation that he or she will hear a defendant's version of events directly from the defendant. In determining whether these jurors were unable to function impartially, we focus on the presence or absence of evidence demonstrating that they were unwilling or unable to decide the case based on the evidence adduced at trial and the instructions given by the trial court, including any requested instructions explaining that a defendant's refusal to testify has no effect on the presumption of innocence. See UJI 14-5031 NMRA 2000. As the party claiming juror bias, Defendant had the burden of proving it. Baca, 111 N.M. at 274, 804 P.2d at 1093. We conclude that taken in context, the statements of Jurors 9 and 13 merely reflected a layperson's natural desire to hear Defendant's version of events in his own words; these statements did not indicate that Jurors 9 and 13 were unable or unwilling to decide Defendant's case on the facts established at trial and the trial court's instructions on the law. The trial court did not abuse its discretion in refusing to excuse these jurors for cause.

{12} Defendant argues that Juror 22 should have been stricken for cause because she expressed concern about Defendant's status as a convicted felon. Again, we believe that Defendant is trying to convert a juror's admission of a layperson's natural response into prima facie evidence of impermissible bias. Evidentiary rules restricting the use of propensity evidence reflect a judgment that the probative value of such evidence is outweighed by unfair prejudice, confusion and waste of time. Christopher B. Mueller & Laird C. Kirkpatrick, Modern Evidence-Doctrine and Practice § 4.11 (1995). Although these rules and the policies they represent may be known to and accepted by lawyers, they are not necessarily familiar to non-lawyers, who routinely rely on information about a person's past behavior in making...

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