State v. Salazar, A-1-CA-34909

• Decision Date: 28 February 2018
• Docket Number: NO. A-1-CA-34909,A-1-CA-34909
• Citation: 458 P.3d 485
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Paul SALAZAR, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

458 P.3d 485

STATE of New Mexico, Plaintiff-Appellee,

v.Paul SALAZAR, Defendant-Appellant.

NO. A-1-CA-34909

Court of Appeals of New Mexico.

Filing Date: February 28, 2018

Certiorari Denied, April 13, 2018, No. S-1-SC-36939

Hector H. Balderas, Attorney General, Maha Khoury, Assistant Attorney General, Santa Fe, NM, for Appellee.

Bennett J. Baur, Chief Public Defender, Allison H. Jaramillo, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

VIGIL, Judge.

{1} Defendant Paul Salazar appeals his convictions for one count of trafficking methamphetamine, contrary to NMSA 1978, Section 30-31-20 (2006), one count of distribution of synthetic cannabinoids, contrary to NMSA 1978, Section 30-31-22(A)(1) (2011), and one count of conspiracy to traffic methamphetamine or to distribute synthetic cannabinoids, contrary to NMSA 1978, Section 30-28-2 (1979). For the reasons that follow, we affirm Defendant's convictions.

BACKGROUND

{2} The State alleged that on August 15, 2013, Nicole Ramirez, at Defendant's direction, delivered methamphetamine and the chemicals PB-22 and 5F-PB22 hidden within hygiene products (deodorant sticks) to David Patrick, an inmate confined in the Curry County Detention Center (CCDC) in Clovis, New Mexico. Additional factual and procedural background is provided in our analysis as required.

DISCUSSION

{3} Defendant's appeal raises three issues. First, delay amounted to a violation of Defendant's right to a speedy trial. Second, the State failed to prove that the substances contained in the deodorant container were synthetic cannabinoids as defined under New Mexico law. Third, the State did not present sufficient evidence to sustain Defendant's convictions because it did not call Ms. Ramirez to testify at trial.

{4} Defendant also asserts four additional unpreserved issues, invoking either fundamental or plain error. First, the State should have charged Defendant with bringing contraband into the jail, not trafficking. Second, the district court erred in sentencing Defendant to second-degree conspiracy when the jury's finding was unclear. Third, comments made by the prosecutor during closing argument deprived Defendant of a fair trial. Fourth, the district court erred in admitting the testimony of Probation Officer Edie Barela (Officer Barela).

I. The Delay Did Not Violate Defendant's Speedy Trial Rights

{5} It took nineteen months and ten days to bring Defendant to trial on the counts charged in the State's criminal information. Based on this delay, Defendant contends that the delay violated his constitutional right to a speedy trial.

{6} The Sixth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, see Klopfer v. North Carolina , 386 U.S. 213, 222-23, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial[.]" U.S. Const. amend. VI. In determining whether "a defendant has been deprived of his constitutional right to a speedy trial, [New Mexico appellate courts] use the four-factor test set forth in Barker [ v. Wingo , 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) ] balancing the length of delay, the reason for [the] delay, the defendant's assertion of the right to a speedy trial, and the prejudice to the defendant." State v. Ochoa , 2017-NMSC-031, ¶ 4, 406 P.3d 505. The appellate courts "defer to the district court's factual findings in considering a speedy trial claim, but weigh each factor de novo," id. , and consider the Barker factors on a "case-by-case basis." Id. ¶ 5. This analysis is also "not a rigid or mechanical exercise, but rather a difficult and sensitive balancing process." Id. (internal quotation marks and citation omitted).

A. Timeline of Delay in Defendant's Case

{7} We begin by setting forth the facts and circumstances surrounding the delays in bringing Defendant's case to trial. Defendant was arrested on September 12, 2013, and on September 30, 2013, the State filed the criminal information.

{8} On December 5, 2013, the first pretrial conference was held, at which time trial was set for February 25, 2014. On January 8, 2014, the State moved for a continuance. The district court granted the continuance on January 24, 2014, in part because the parties still had not received results from the forensic laboratory identifying the substances found in the deodorant sticks left by Ms. Ramirez at CCDC for Mr. Patrick.

{9} On May 29, 2014, the second pretrial conference was held and trial was set for September 9, 2014. The State represented that it had received the forensic laboratory results, updated its witness list, and was ready for trial. Defendant also informed the district court that he was ready for trial. Defendant also communicated to the district court that he wished to be transferred to a prison facility so that he could earn good time credit while the charges in his current case were pending.

{10} On July 9, 2014, new counsel entered an appearance on behalf of Defendant, and filed Defendant's first demand for a speedy trial.

{11} Between July 29, 2014, and September 8, 2014, the district judge was unavailable for medical reasons. On August 18, 2014, the district court filed an amended notice of jury trial, rescheduling Defendant's trial for September 10, 2014. On August 29, 2014, Defendant moved for a six-month continuance in order to continue his investigation and conduct witness interviews. In this motion, Defendant waived all speedy trial claims for this period of continuance. The district court granted the continuance on September 3, 2014. However, on September 26, 2014, Defendant made his second demand for a speedy trial.

{12} On November 19, 2014, Defendant filed a motion to dismiss on speedy trial grounds due to the fact that fourteen months had passed since the time of his arrest.

{13} On November 24, 2014, a third pretrial conference was held where trial was set for January 22, 2015. The State represented that it was ready for trial. Defendant stated that although he still had investigation and witness interviews to conduct, he would do his best to be ready for trial by January 22, 2015.

{14} On December 17, 2014, a hearing on Defendant's motion to dismiss on speedy trial grounds was held; however, the district court reserved ruling on Defendant's motion until January 20, 2015, at which time Defendant's motion was denied.

{15} On January 20, 2015, at jury selection, Defendant moved for a second continuance of trial on grounds that additional time was needed to set a hearing for remaining motions and to consider the State's plea offer. The motion was granted.

{16} On February 5, 2015, a fourth pretrial conference was held, at which time trial was set for April 22, 2015. The State represented that it was ready for trial. Defendant renewed his motion to dismiss on speedy trial grounds and stated that he would be ready for trial on April 22, 2015.

{17} On March 2, 2015, Defendant filed a motion for reconsideration of the district court's order denying his November 19, 2014 motion to dismiss on speedy trial grounds. The hearing on Defendant's motion for reconsideration was held on March 27, 2015.

{18} On April 17, 2015, the district court denied Defendant's motion for reconsideration. The district court determined: (1) Defendant's case is an intermediate complexity case; (2) the time between the State's January 9, 2014 motion for a continuance and May 29, 2014 (the date on which the State represented that it was prepared for trial) did not count against Defendant; (3) the time during which the district judge was medically unavailable (between July 29, 2014, and September 8, 2014) did not count against either the State or Defendant; (4) the delay between September 8, 2014, and the April 22, 2015 jury trial counted against Defendant based on his August 29, 2014, and January 20, 2015, requested continuances; and (5) because Defendant's probation was revoked in December 2013 and for which he was incarcerated until April 2018, Defendant was not prejudiced by his pretrial incarceration arising in the instant case.

B. Length of Delay

{19} The first Barker factor, "length of delay, is both the threshold question in the speedy trial analysis and a factor to be weighed with the other three Barker factors." Ochoa , 2017-NMSC-031, ¶ 12, 406 P.3d 505. Under Barker , the states are "free to prescribe a reasonable period consistent with constitutional standards" for bringing a case to trial. 407 U.S. at 523, 92 S.Ct. 2182 ; Ochoa , 2017-NMSC-031, ¶ 12, 406 P.3d 505. Our Supreme Court established speedy trial guidelines in State v. Garza , 2009-NMSC-038, ¶ 2, 146 N.M. 499, 212 P.3d 387. Garza holds that "the length of delay necessary to trigger the speedy trial inquiry [is] twelve months for simple cases, fifteen months for cases of intermediate complexity, and eighteen months for complex cases." Id. (holding "that these guidelines are merely thresholds that warrant further inquiry into a defendant's claimed speedy trial violation and should not be construed as bright-line tests dispositive of the claim itself").

{20} "When the length of delay exceeds a guideline, it must be weighed as one factor in determining whether there has been a violation of the right to a speedy trial[.]" Ochoa , 2017-NMSC-031, ¶ 14, 406 P.3d 505. "As the delay lengthens, it weighs increasingly in favor of the accused. In other words, a delay barely crossing the guideline is of little help to the defendant's claim, while a delay of extraordinary length weighs heavily in favor of the defendant." Id. (internal quotation marks and citation omitted). Our appellate courts "defer to the district court's finding of complexity" in a given case. Id. ¶ 15. {21} Defendant was arrested on September 12, 2013. Nineteen months and ten days later, on April 22, 2015, Defendant's case was brought to trial. The district court concluded that Defendant's case was of intermediate complexity. See State v....