State v. Salazar

• Decision Date: 23 January 2007
• Docket Number: No. 29,456.,29,456.
• Parties: STATE of New Mexico, Plaintiff-Respondent, v. Raul SALAZAR, Defendant-Petitioner.
• Court: New Mexico Supreme Court

152 P.3d 135

2007 NMSC 004

STATE of New Mexico, Plaintiff-Respondent, v. Raul SALAZAR, Defendant-Petitioner.

No. 29,456.

Supreme Court of New Mexico.

January 23, 2007.

John Bigelow, Chief Public Defender, Vicki W. Zelle, Assistant Public Defender, Santa Fe, NM, for Petitioner.

Patricia A. Madrid, Attorney General, Arthur W. Pepin, Assistant Attorney General, Santa Fe, NM, for Respondent.

OPINION

MINZNER, Justice.

{1} Defendant Raul Salazar appeals his conviction of criminal sexual penetration of a minor under the age of thirteen, contrary to NMSA 1978, § 30-9-11(C)(1) (2001, prior to 2003 amendment). Defendant appeals from a memorandum opinion issued by the Court of Appeals, which affirmed the district court's finding that Defendant was given adequate time to prepare his defense. State v. Salazar, No. 24,465 (N.M.Ct.App. Aug. 26, 2005). On appeal, Defendant contends that his constitutional rights to present a meaningful defense and to have effective assistance of counsel were violated when his unopposed motion for a continuance was denied. We conclude that the trial court abused its discretion in denying Defendant's motion. See State v. Torres, 1999-NMSC-010, 127 N.M. 20, 976 P.2d 20. We reverse the Court of Appeals and remand for a new trial.

I. BACKGROUND

{2} We take the following facts from the Court of Appeals' Memorandum Opinion. Salazar, No. 24,465, slip. op. at 2. Defendant began living with Irene Hernandez and her three-year-old daughter Gizelle (Victim) in 1993. While living together the couple had three sons. In 1997, Defendant and Ms. Hernandez were living together in a trailer in Las Cruces, New Mexico. The victim, two of the three sons,¹ a friend of Defendant and the friend's wife also lived in the trailer. While living in Las Cruces, the younger son Jorge became ill and required medical attention. Sometime between August 8, 1997, and October 8, 1997, Ms. Hernandez took Jorge to Albuquerque for medical treatment. The victim testified that while her mother was gone, Defendant raped her.

{3} Defendant was indicted by grand jury of one count of criminal sexual penetration of a minor under the age of thirteen on February 20, 2003, and was arraigned on March 3, 2003. Due to personnel problems in the Public Defender Department Defendant had three different attorneys between the time he was arraigned and when his case went to trial. Salazar, No. 24,465, slip. op. at 2. Contract counsel, Stephen Ryan, was substituted as counsel of record on August 5, 2003, at which point he received a file containing no investigative notes or witness interviews.

{4} The State petitioned the court for a three-month extension of the six-month rule on August 6, 2003, which was granted, thereby extending the deadline to try its case until December 3, 2003. Defense counsel requested a continuance on August 7, 2003; August 22, 2003; and August 26, 2003, the day of trial. Salazar, No. 24,465, slip. op. at 3. All three motions were denied. Id.

{5} In denying Defendant's final motion for a continuance, the court noted that Defendant had been in jail almost six months and that he had made a speedy trial demand, a request the court considers very seriously. Further, the trial court recognized defense counsel as having considerable skill and noted that the court was convinced Defendant would receive a fair trial.

{6} At trial, the State presented no physical evidence to support the allegations. The victim alleged the incident occurred between August and October 1997. She reported the incident to her mother in March 2001. Defendant testified on his own behalf. Defendant claimed he was a strict father but denied the charges. On appeal Defendant argues the strength of the State's evidence turned on whether the jury believed the testimony of the Victim or Defendant.

{7} Other problems arose during trial. The State's opening statement referenced Victim's attempt to commit suicide twice; defense counsel had only recently, on the Friday and Monday before trial, become aware of Victim's mental health issues. Defense counsel moved for a mistrial on the ground that the State's opening statement was overreaching. The trial court denied the motion on the basis that defense counsel had not objected to the statement during opening. Further complications arose when defense counsel sought a copy of the safe house interview, and the State discovered there were actually two safe house interviews, the first of which defense counsel had not received. Defense counsel had not seen and had no knowledge of the first interview when cross-examining the detective who reopened the case in 2002 and decided to pursue the case based on the safe house interviews. On the morning of trial, the State notified the court of its intent to call one or both of the Victim's therapists but failed to produce records or reports of these witnesses' testimony. The State was allowed to make an offer of proof, and defense counsel was given fifteen to twenty minutes to interview one therapist before he testified. Defense counsel wanted to use a couple of witnesses listed and subpoenaed by the State but was unable to locate these witnesses on the second day of trial. Therefore, Defendant's entire defense consisted solely of his testimony. Defendant was convicted and sentenced to eighteen years incarceration.

{8} On appeal, Defendant contends his constitutional rights were violated when his motion for a continuance was denied. Defendant contends the trial court abused its discretion in relying on the court's policy of no continuances and Defendant's speedy trial request in denying Defendant's motion. We agree.

{9} The Court of Appeals affirmed the trial court, holding Defendant was not denied effective assistance of counsel, counsel had an adequate opportunity to prepare a defense, and the motion for a continuance was properly denied. Salazar, No. 24,465, slip. op. at 10, 11. In briefing the issues on appeal to the Court of Appeals, Defendant's arguments emphasized the Torres factors rather than a claim he was denied effective assistance of counsel. For this reason, we believe the Court of Appeals may have misconstrued Defendant's claim. Further, in relying on State v. Brazeal, 109 N.M. 752, 790 P.2d 1033 (Ct.App.1990), we believe the Court of Appeals addressed a different question than Defendant argued. Our case law probably contributed to the difficulty, but the Court of Appeals recently addressed comparable facts in an opinion that we conclude controls this appeal. See State v. Stefani, 2006-NMCA-073, 139 N.M. 719, 137 P.3d 659, cert. denied, 2006-NMCERT-006, 140 N.M. 224, 141 P.3d 1278. Further, we believe that the trial court abused its discretion by relying solely on Defendant's speedy trial request and the Court's desire to maintain the trial docket rather than considering the Torres factors. We discuss our reasons at greater length in the discussion that follows.

II. DISCUSSION

{10} The grant or denial of a continuance is within the sound discretion of the trial court, and the burden of establishing abuse of discretion rests with the defendant. State v. Sanchez, 120 N.M. 247, 253, 901 P.2d 178, 184 (1995). "`An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case. We cannot say the trial court abused its discretion by its ruling unless we can characterize it as clearly untenable or not justified by reason.'" State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (quoting State v. Woodward, 121 N.M. 1, 4, 908 P.2d 231, 234 (1995)). Defendant must establish not only an abuse of discretion, but also that the abuse was "to the injury of the defendant." State v. Nieto, 78 N.M. 155, 157, 429 P.2d 353, 355 (1967).

{11} In this appeal, Defendant contends the trial court abused its discretion by continually denying defense counsel's unopposed motions for a continuance when defense counsel clearly asserted that he was unprepared to proceed to trial. Defendant further contends in argument to this Court that by denying his motion for a continuance he was denied effective assistance of counsel, probably in response to the Court of Appeals' analysis under Brazeal. Id. at 20, 908 P.2d 231. Defendant contends that had the trial court granted his motion, his attorney would have had time to secure witnesses for trial, interview all the witnesses listed on the State's witness list, have the Victim evaluated, and adequately prepare a defense.

{12} Our opinions leave some uncertainty as to the analysis applied in cases raising the issue of trial court denials of motions for continuance. See Torres, 1999-NMSC-010, 127 N.M. 20, 976 P.2d 20; State v. Hernandez, 115 N.M. 6, 846 P.2d 312 (1993); Stefani, 2006-NMCA-073, 139 N.M. 719, 137 P.3d 659; State v. Salazar, No. 24,465 slip. op. at 4; Brazeal, 109 N.M. 752, 790 P.2d 1033. Two approaches have been used to determine if the denial of the defendant's motion for a continuance should have been granted.

{13} In appeals where the defendant claims that the denial of the motion for a continuance violated his or her right to effective assistance of counsel because counsel did not have an adequate time to prepare for trial, the standard set forth in Brazeal has been used. 109 N.M. 752, 790 P.2d 1033. See also Hernandez, 115 N.M. at 14, 846 P.2d at 320. We use a two-prong analysis to determine whether the denial of the continuance amounts to ineffective assistance of counsel. Id. at 755, 790 P.2d at 1036. The first consideration is whether a per se violation of the defendant's constitutional rights has occurred. Id. The second consideration is the defendant's specific claims of ineffective assistance of counsel. Id.

{14} We have applied a different standard in appeals in which the defendant makes two separate claims: abuse of discretion in denying the motion for a continuance and that the denial of the motion ultimately resulted in ineffective...