State v. Tortolito

• Decision Date: 21 October 1997
• Docket Number: No. 17338,17338
• Citation: 124 N.M. 368,950 P.2d 811,1997 NMCA 128
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Kenneth TORTOLITO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 811

950 P.2d 811

124 N.M. 368

STATE of New Mexico, Plaintiff-Appellee, v. Kenneth TORTOLITO, Defendant-Appellant.

No. 17338.

Court of Appeals of New Mexico.

Oct. 21, 1997.

Certiorari Denied Dec. 15, 1997.

[124 N.M. 370] Tom Udall, Attorney General, Steven S Suttle, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.

Robert E. Tangora, Tangora & Whitley, P.C., Santa Fe, for Defendant-Appellant.

OPINION

ARMIJO, Judge.

¶1 Defendant appeals from the trial court's decision to increase his sentence because of aggravating circumstances and the denial of his motions to dismiss based on his constitutional right to a speedy trial. Balancing the four factors articulated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we determine that Defendant's constitutional right to a speedy trial was not violated by delays which are largely attributable to the collection and scientific analysis of DNA evidence. We also affirm the trial court's decision to increase Defendant's sentence for criminal sexual penetration because of aggravating circumstances.

I. BACKGROUND

¶2 Defendant was arrested on May 27, 1994, on charges of aggravated burglary, criminal sexual penetration (CSP), criminal sexual contact, kidnapping, armed robbery and child abuse. All of the charges relate to an incident in which Defendant entered a neighbor's apartment armed with a knife, bound and blindfolded the victim, forced her to perform sex acts, and then stole money from her. The victim's two small children were present during the incident, thus giving rise to the child abuse charges.

¶3 As part of its investigation of the incident, the State collected DNA samples from the crime scene and compared them with samples of Defendant's DNA. During the pendency of the scientific analysis of the samples collected during this investigation, Defendant filed motions to dismiss alleging that his constitutional right to a speedy trial was violated. The trial court denied these motions, finding that Defendant's case "falls in the high end of the intermediately complex range," and that the majority of the delay was attributable to the "processing of the scientific evidence, specifically the DNA ...." The trial court concluded that there were "acceptable good reasons for the delay" because: 1) "[t]he case load at the Albuquerque Police Department lab does not allow for immediate attention to any case, and this case took its place within the priorities of the lab's schedule"; and 2) there was a serial rape investigation that "had priority in the lab and while it was being worked, [Defendant's] DNA was compared to either include or exclude him as a possible match."

¶4 Almost eighteen months after the date of his arrest, Defendant reached a plea agreement with the State under which he entered pleas pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), on the charges of aggravated burglary, armed robbery, and CSP in the second degree, but expressly reserved the right to appeal the trial court's denial of his motions to dismiss on speedy trial grounds. Defendant's plea agreement also expressly permitted the State to seek enhancement of Defendant's sentence because of aggravating factors.

¶5 The State filed its notice of intent to seek aggravation of Defendant's sentence in open court during Defendant's sentencing hearing. The trial court increased Defendant's sentence for CSP by three years on the grounds that "there are sufficient facts that raised it from the level of a simple [CSP] to one of terror, and that is placing the pillow case over her head, and the children being present at the time ...." This appeal followed.

II. DISCUSSION

A. Constitutional Right to a Speedy Trial

¶6 In Barker, 407 U.S. at 530, 92 S.Ct. at 2192, the United States Supreme Court determined whether a defendant's constitutional right to a speedy trial was violated by balancing four factors: 1) the length of the delay; 2) the reasons for the delay; 3) the defendant's assertion of his right to a speedy trial; and 4) the prejudice to the defendant that resulted from the delay. New Mexico follows this four-factor balancing test. See State v. Manzanares, 121 N.M. 798, 800, 918 P.2d 714, 716 (1996). In considering each of the four factors, we are deferential to the trial court's fact finding but independently examine the record to determine whether Defendant's constitutional right to a speedy trial was violated. See State v. Gallegos, 109 N.M. 55, 63, 781 P.2d 783, 791 (Ct.App.1989).

1) Length of Delay

¶7 The first factor in the Barker analysis is the length of the delay, which in this case amounted to almost eighteen months. We defer to the trial court's determination of the level of complexity this case presented. See Manzanares, 121 N.M. at 801, 918 P.2d at 717. However, even for a complex case, an eighteen-month delay is presumptively prejudicial. Although New Mexico appellate courts have not specifically addressed the effect of DNA testing on pretrial delay, the New Mexico Supreme Court has endorsed the general proposition that a fifteen-month delay is presumptively prejudicial even in a case with a high level of complexity. Id. at 800-01, 918 P.2d at 716-17 (citing Salandre v. State, 111 N.M. 422, 428, 806 P.2d 562, 568 (1991)). Therefore, we conclude that the length of delay in this case is presumptively prejudicial, and the burden shifts to the State to prove that the remaining Barker factors weigh in its favor. Salandre, 111 N.M. at 425, 427-28, 806 P.2d at 565, 567-68.

2) Reasons for Delay

¶8 Analysis of the second Barker factor involves allocating the reasons for the delay to each side and determining the weight attributable to each reason. See State v. Kilpatrick, 104 N.M. 441, 445, 722 P.2d 692, 696 (Ct.App.1986). We begin by dividing the delay into three periods: 1) the period from the date of Defendant's arrest on May 27, 1994, until the State's crime lab began its analysis of the scientific evidence collected from the crime scene on October 4, 1994; 2) the period from October 4, 1994, until the time when Defendant requested a continuance of trial based on late discovery of hair or DNA in September 1995; and 3) the period from September 1995 until the filing of Defendant's plea agreement with the State on November 16, 1995.

¶9 From May 27, 1994, when Defendant was arrested, until October 4, 1994, when the crime lab began its scientific analysis of the evidence collected from the crime scene, there were delays attributable in part to a backlog of other cases on which the crime lab had begun work prior to Defendant's arrest. We do not condone the backlog delay. Insofar as it was not deliberate, it does not weigh heavily against the State. However, it does weigh against the State, as the State should not be entitled to a grace period. "A neutral reason, such as negligence or extensive caseload, 'should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.' " Id. at 445, 722 P.2d at 696 (quoting Barker, 407 U.S. at 531, 92 S.Ct. at 2192). The remaining delay attributable to the State's comparison of Defendant's DNA with samples collected in an otherwise unrelated serial rape investigation is not a determinative factor in this case because the record shows that only "four or five days" during this period were spent on actually preparing Defendant's DNA sample for inclusion in the DNA comparison.

¶10 During the second period running from the beginning of the crime lab analysis in October 1994 to Defendant's requested continuance of trial in September 1995, there were delays attributable to the State's scientific testing of the evidence, primarily the DNA. Other courts that have analyzed the issue have been sympathetic to the need for extended periods of time for testing DNA evidence. See Hull v. State, 687 So.2d 708, 729-30 (Miss.1996) (delay in testing DNA evidence weighed only slightly against state); State v. Davis, 903 S.W.2d 930, 936 (Mo.Ct.App.1995) (delay in testing DNA evidence did not weigh heavily against state); Lazcano v. State, 836 S.W.2d 654, 657 (Tex.Ct.App.1992) (fourteen-month delay attributed in part to DNA testing was not presumptively prejudicial); cf. People v. Fredericks, 157 Misc.2d 822, 598 N.Y.S.2d 682, 685 (Sup.Ct.1993) (state justified in delaying DNA testing during plea negotiations because testing is expensive, complicated and time-consuming); Smith v. Deppish, 248 Kan. 217, 807 P.2d 144, 150 (1991) (length of delay not unreasonable because DNA profiling analysis required extensive testing time); State v. Stroud, 459 N.W.2d 332, 335 (Minn.Ct.App.1990) (trial court abused its discretion in denying reasonable continuance to allow for DNA testing).

¶11 We find at least two possible rationales for this sympathetic treatment of pretrial delays caused by DNA testing. First, allowing additional time for DNA testing may increase the likelihood that such testing will produce an accurate result. Cf. 2 Paul C. Giannelli & Edward J. Imwinkelried, Scientific Evidence §§ 18-4(A), 18-5(B) (2d ed.1993) (describing errors that may result from improper DNA testing procedures and noting cases in which courts have required proof that proper DNA testing procedures were used). In this case, there was evidence that part of the delay was attributable to the crime lab's decision to repeat certain steps in its DNA testing procedure in order to obtain a more accurate and reliable result.

¶12 A second rationale is that DNA evidence is obtained in part for a defendant's benefit because accurate analysis of such evidence ultimately may exculpate that defendant. See Hull, 687 So.2d at 730; Springfield v. State, 860 P.2d 435, 452-53 (Wyo.1993). In some cases it is the defendant who requests the DNA testing and is later precluded from challenging pretrial delays caused by this...