State v. Suskiewich, 33,979.

• Decision Date: 28 September 2015
• Docket Number: No. 33,979.,33,979.
• Citation: 363 P.3d 1247
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Charles SUSKIEWICH, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

363 P.3d 1247

STATE of New Mexico, Plaintiff–Appellee,

v.Charles SUSKIEWICH, Defendant–Appellant.

No. 33,979.

Court of Appeals of New Mexico.

Sept. 28, 2015.

Certiorari Denied, Nov. 17, 2015, No. 35,560.

Hector H. Balderas, Attorney General, Santa Fe, NM, Kenneth H. Stalter, Assistant Attorney General, Albuquerque, NM, for Appellee.

Jorge A. Alvarado, Chief Public Defender, Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

BUSTAMANTE, Judge.

{1} Defendant Charles Suskiewich appeals his conviction for second degree murder on the ground that he was deprived of his right to a speedy trial. He also argues that his sentence of twelve years incarceration is cruel and unusual punishment. We disagree and affirm.

BACKGROUND

{2} Defendant was arrested on December 25, 2011, for the fatal shooting of Dylan Breternitz. He was indicted on January 19, 2012, for first degree murder, tampering with evidence, and receiving stolen property.¹ He was convicted of second degree murder after a jury trial in January 2014. The total time elapsed between December 25, 2011, and the first day of trial, January 13, 2014, was twenty-four months and nineteen days. Defendant was incarcerated throughout this period. Additional facts are included in our discussion of Defendant's arguments.

DISCUSSION

{3} On appeal, Defendant makes two main arguments. First, he maintains that he was denied a speedy trial in violation of the United States and New Mexico Constitutions. See U.S. Const.amend VI ; N.M. Const. art. II, § 14. Second, he maintains that his twelve-year sentence denied him due process and subjected him to cruel and unusual punishment. We begin with Defendant's speedy trial argument.

A. Defendant's Right to a Speedy Trial Was Not Violated

{4} Both the United States and New Mexico Constitutions provide for a speedy trial. U.S. Const.amend. VI (stating that "the accused shall enjoy the right to a speedy and public trial"); N.M. Const. art. II, § 14 (stating that the accused has a right to "a speedy public trial"). "It is ultimately the state's responsibility to bring a defendant to trial in a timely manner." State v. Flores, 2015–NMCA–081, ¶ 3, 355 P.3d 81 (alterations, internal quotation marks, and citation omitted), cert. denied, 2015–NMCERT–008, ––– P.3d ––––. Whether a defendant's right to a speedy trial has been violated depends on analysis of four factors: the "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). "Each of these factors is weighed either in favor of or against the State or the defendant, and then balanced to determine if a defendant's right to a speedy trial was violated." State v. Spearman, 2012–NMSC–023, ¶ 17, 283 P.3d 272 ; see Barker, 407 U.S. at 533, 92 S.Ct. 2182 ("[T]hese factors have no talismanic qualities; courts must ... engage in a difficult and sensitive balancing process."). Speedy trial claims are assessed on a case-by-case basis. State v. Palacio, 2009–NMCA–074, ¶ 9, 146 N.M. 594, 212 P.3d 1148. In each case, we defer to the district court's factual findings but assess the weight of each factor de novo. Flores, 2015–NMCA–081, ¶ 4, 355 P.3d 81.

Length of Delay

{5} We assess the length of delay for two purposes. First, we consider whether the period from arrest to trial is presumptively prejudicial as defined by our Supreme Court: "A delay of trial of one year is presumptively prejudicial in simple cases, fifteen months in intermediate cases, and eighteen months in complex cases." Spearman, 2012–NMSC–023, ¶ 21, 283 P.3d 272 ; see Barker, 407 U.S. at 530, 92 S.Ct. 2182 ("Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance."). Here, the district court determined that the case was of intermediate complexity, and the parties appear to agree with this assessment. See State v. Plouse, 2003–NMCA–048, ¶ 42, 133 N.M. 495, 64 P.3d 522 ("We give due deference to the district court's findings as to the level of complexity."). We therefore employ the presumptively prejudicial threshold of fifteen months.

{6} We pause here to note that the district court did not include in its calculation of the time between arrest and trial, the five months during which the State's interlocutory appeal was under review. Since it excluded this period, the district court calculated the length of the delay as nineteen months (four months beyond the presumptively prejudicial threshold) instead of twenty-four (nine months beyond the presumptively prejudicial threshold). We disagree that this period should be excluded altogether from a speedy trial analysis. In United States v. Loud Hawk, the Court held that "[u]nder Barker, delays in bringing the case to trial caused by the Government's interlocutory appeal may be weighed in determining whether a defendant has suffered a violation of his rights to a speedy trial." Loud Hawk, 474 U.S. 302, 316, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986). In Flores, this Court included a sixteen-month period related to the state's appeal in its calculation of the length of delay and in its assessment of the reasons for delay. 2015–NMCA–081, ¶ 7, 355 P.3d 81 (stating that the delay was sixty-two months); id. ¶¶ 27–29 (discussing whether the period on appeal weighed against the State). We conclude that the district court should have included the time spent in the appellate process in its calculation of the length of delay in the present case.

{7} The parties agree on appeal that approximately twenty-four months elapsed between Defendant's arrest and trial. Thus, the delay here exceeds the presumptively prejudicial threshold by approximately nine months. The fifteen-month threshold period having been exceeded, we proceed to assess the Barker factors, including the weight of the length of delay beyond the threshold. State v. Garza, 2009–NMSC–038, ¶ 21, 146 N.M. 499, 212 P.3d 387 (stating that "a ‘presumptively prejudicial’ length of delay is simply a triggering mechanism, requiring further inquiry into the Barker factors"). "[W]e consider how long the delay extends beyond [the] presumptively prejudicial period, because the greater the delay the more heavily it will potentially weigh against the state." Flores, 2015–NMCA–081, ¶ 5, 355 P.3d 81 (alteration, internal quotation marks, and citation omitted).

{8} In other intermediate complexity cases, we have held that a delay of six months beyond the threshold weighed only slightly against the state. State v. Montoya, 2011–NMCA–074, ¶ 17, 150 N.M. 415, 259 P.3d 820. We have also held that a delay of twelve months beyond the threshold weighed "moderately to heavily" against the state. State v. Montoya, 2015–NMCA–056, ¶ 15, 348 P.3d 1057. We conclude that here the nine-month delay beyond the fifteen-month threshold weighs moderately against the State.

Reasons for Delay

{9} Defendant argues that the delay in proceedings was caused by (1) "the State's failure to timely and adequately produce discovery," (2) "the State's motion for reconsideration of the [district] court's suppression of ... evidence," and (3) the State's appeal of the district court's suppression of evidence. Different reasons for delay are assigned different weights. State v. Lujan, 2015–NMCA–032, ¶ 15, 345 P.3d 1103. "There are three types [of delay]: (1) deliberate or intentional delay; (2) negligent or administrative delay; and (3) delay for which there is a valid reason." Id. (internal quotation marks and citation omitted). The first type weighs "heavily against the government[,]" whereas "[n]egligent or administrative delay weighs against the [s]tate, though not heavily." Id. (internal quotation marks and citation omitted).

{10} We begin with a review of the events leading to trial. After arraignment, trial was set for August 2012. All told, trial was subsequently postponed four times until it was finally held in January 2014. The first continuance (from August 2012 to November 2012) was at the request of Defendant with the State's concurrence. At the May 2012 hearing, at which Defendant first requested the continuance, Defendant stated that he would "waive all time limits" but the written motion to continue did not include any waiver of Defendant's speedy trial rights. The ground for Defendant's motion was "that discovery is continuing and the parties anticipate requiring additional time to complete discovery." The trial was postponed to November 26, 2012. The day after the May hearing, Defendant filed a demand for discovery.

{11} When the State did not respond to Defendant's demand for discovery, Defendant sent two follow-up letters in June and July 2012. The State did not respond. Defendant then filed a motion to compel discovery and requested an expedited hearing on the motion. The hearing was held in October 2012. Defendant stated at the hearing that some of the items requested had been provided and enumerated those still pending. The State explained that it was awaiting receipt of some of the remaining items from law enforcement. The district court granted the motion to compel, ordered Defendant to draft an order listing the missing items, and set a deadline for receipt of the materials or an explanation for their unavailability. Defendant notified the district court that a second continuance might be necessary due to the delay in discovery. On November 13, 2012, the State filed a stipulated motion for continuance, citing a need for time for both discovery and "evaluat [ion of] the [district c]ourt's ruling on [a] motion to suppress [evidence]." The November 2012 trial date was continued.

{12} From November 2012 through February 2013, the case took a number of interesting twists and turns. First, in December 2012 Judge Andria L. Cooper granted Defendant's motion to suppress evidence, including a gun found in Defendant's home and inculpatory...