State v. Vigil-Giron

• Decision Date: 17 June 2014
• Docket Number: No. 32,615.,32,615.
• Citation: 327 P.3d 1129
• Parties: STATE of New Mexico, Plaintiff–Appellant, v. Rebecca VIGIL–GIRON, Defendant–Appellee.
• Court: Court of Appeals of New Mexico

327 P.3d 1129

STATE of New Mexico, Plaintiff–Appellant,

v.Rebecca VIGIL–GIRON, Defendant–Appellee.

No. 32,615.

Court of Appeals of New Mexico.

April 17, 2014.

Certiorari Denied, June 17, 2014, No. 34,711.

Joseph E. CampBell, Special Prosecutor, Edgewood, NM, for Appellant.

Gorence & Oliveros, P.C., Robert J. Gorence, Albuquerque, NM, for Appellee.

OPINION

SUTIN, Judge.

{1} On August 19, 2009, Defendant Rebecca Vigil–Giron was indicted on fifty counts of fraud, money laundering, embezzlement, and other offenses relating to her use of election funds during her tenure as Secretary of State. On November 14, 2012, following two hearings on Defendant's motion to dismiss for a violation of her right to a speedy trial, the district court entered an order of dismissal of the case on speedy trial grounds. The State appeals from the order of dismissal. We conclude that the district court properly ruled that Defendant's constitutional right to a speedy trial was violated, and we affirm the order of dismissal.

BACKGROUND

{2} The following factual background is, in large part, adopted from the district court's undisputed findings of fact. Defendant was indicted on August 19, 2009. The case against Defendant was initially joined with those against co-defendants Armando Gutierrez, Joseph Carl Kupfer, and Elizabeth Kupfer (collectively “the co-defendants”). On September 4, 2009, Defendant entered a waiver of arraignment and a plea of not guilty and filed a motion requesting the court to dismiss the case pursuant to Rule 5–204 NMRA “until a fair and impartial prosecutor could be secured.” See id. (governing the amendment or dismissal of a complaint, indictment, or information). The district court referred to this motion as one to disqualify the attorney general (a characterization that is not a point of contention in this appeal) and for ease of reference and clarity in this Opinion, we do the same. Prior to filing the motion to disqualify the attorney general, Defendant, through her counsel, sent a letter dated August 5, 2009, to Attorney General Gary King stating the reasons that, in her view, the Attorney General's Office had a duty to recuse itself from investigating or prosecuting the case.

{3} From August to October 2009, a series of district court judges were excused or recused from presiding over the case. Judge Neil Candelaria was excused by Ms. Kupfer on August 27, 2009; Judge Stan Whitaker was excused by Defendant on September 4, 2009; Judge Charles Brown was excused by the State on September 15, 2009; and Judge Robert Schwartz recused himself from the case on October 16, 2009. On October 19, 2009, Judge Albert Murdoch was assigned to the case. On January 13, 2010, without having heard Defendant's motion to disqualify the attorney general, the court set a jury trial for July 19, 2010. On January 29, 2010, pursuant to Rule 5–604 NMRA (2010, prior to May 12, 2010, amendment), the State filed a petition to extend the time in which to commence trial to September 30, 2010. SeeRule 5–604(B)(1) (2010) (requiring the commencement of a trial six months after the waiver of arraignment in district court). The State's motion was premised, in part, on the fact that because Defendant waived arraignment on September 4, 2009, the trial date of July 19, 2010, was “beyond the six[-]month rule [.]” Defendant objected to the extension. The court granted the Rule 5–604 petition on February 2, 2010, ordering that the time to commence trial was extended “to and including” September 30, 2010.

{4} On May 28, 2010, the State filed a motion requesting the court to clarify the status of the case. Among other things, in its motion to clarify, the State pointed to the fact that no hearing had yet been scheduled on Defendant's motion to disqualify the attorney general. On June 18, 2010, the court held a status conference. Also on June 18, 2010, over Defendant's objection, the court formally vacated the July 19, 2010, trial setting; it later reset the trial to commence on January 3, 2011.

{5} On August 13, 2010, Defendant filed a motion for severance of her case from those against the co-defendants, alleging, in part, that the co-defendants could offer exculpatory testimony that would be useful at trial. Included in the motion for severance, Defendant requested that she be tried after Mr. Gutierrez so that he would be prompted “to testify justly without fear of attorney general retribution.” Later, however, Defendant withdrew her request to be tried after the co-defendants, requesting instead that she be tried first so that her right to a speedy trial was preserved. Defendant's motion for severance was finally granted on May 18, 2012, approximately twenty-one months later.

{6} On October 12, 2010, the State filed another motion for clarification of status. In its motion, the State pointed to the fact that there were a number of pending motions, including, among others, Defendant's motion to disqualify the attorney general. The State requested that the court address the outstanding motions at its “earliest opportunity[.]” On November 5, 2010, the court held a status conference. The court vacated the January 3, 2011, date, but did not set a new trial date.

{7} Defendant filed her first motion to dismiss for a speedy trial violation on January 4, 2011. In support of her claim of prejudice as a result of the delay in bringing the matter to trial, Defendant attached an affidavit in which she stated that, as a result of not having received a speedy trial, she had suffered a loss of employment, an inability to find new employment, various health issues, and “extreme public humiliation.” Also attached to the January 4, 2011, speedy trial motion were four letters addressed to Judge Murdoch from Robert Gorence, Defendant's counsel. The first letter, dated November 12, 2010, read, in part:

This letter is in response to your directive issued during the November 5, 2010[, p]retrial [c]onference that [Defendant], on a weekly basis, assert her request for a speedy trial and inform the [c]ourt of her readiness to proceed on the January 3, 2011[,] trial setting. As I informed the [c]ourt during the last status conference, [Defendant] is ready to proceed to trial, she asserts her right to a speedy trial, and continued delay will cause her further prejudice.The letter also addressed the prejudice suffered including Defendant's having been “ostracized in the community and [unable to] obtain employment”; having been “castigated in the press”; and suffering health issues caused “by the stress of a scurrilously inaccurate indictment.” By the letter, Defendant “demand[ed] her right to a speedy trial[.]”

{8} A letter dated November 19, 2010, reiterated Defendant's “read [iness] to go to trial” and the continued prejudice suffered as a result of the delay in bringing her case to trial, particularly calling the court's attention to Defendant's suffering “financial hardship” as the result of being unemployable in light of the pending indictment. A letter dated November 24, 2010, indicated Defendant's “readiness to go to trial”; noted her “continued assertion of her right to a speedy trial”; and indicated that “[n]othing ha[d] changed from [the] first two letters.” A fourth letter, dated December 3, 2010, reasserted Defendant's readiness to go to trial and her right to a speedy trial, and it further noted that defense counsel had “kept [his] calendar open for the month of January[ ] 2011, in anticipation of [the] trial[.]” On January 20, 2011, the State responded to Defendant's January 4, 2011, speedy trial motion.

{9} On March 14 and continuing through March 17, 2011, the court held an evidentiary hearing on Defendant's motion to disqualify the attorney general. On March 17, 2011, the court entered an order disqualifying the Attorney General's Office from prosecuting the case. On March 30, 2011, the court entered an order giving the attorney general until April 29, 2011, to name a special prosecutor.

{10} On May 11, 2011, Defendant filed her second motion to dismiss based on a violation of her right to a speedy trial, and on May 12, 2011, she filed an amended version of this motion. The motion referred to Defendant's steadfast assertion of her right to a speedy trial, and it referenced the reasons supporting dismissal set forth in the first speedy trial motion. The State responded to this motion on June 6, 2011.

{11} On June 21, 2011, Defendant and the co-defendants filed a joint motion to dismiss based on the State's failure to designate an independent prosecutor by the date ordered by the court. The State responded on June 30, 2011. A hearing was held on the joint motion, and the motion was apparently denied, although the record in this case does not include a copy of the court's order. On July 27, 2011, special prosecutor Joseph CampBell was appointed to prosecute the case.

{12} On July 29, 2011, Judge Murdoch retired. Judge Sam Winder was appointed to replace him in September 2011, and on December 7, 2011, Judge Winder recused from the case. In the meantime, on December 1, 2011, Defendant filed her third motion to dismiss based on a speedy trial violation. This December 1, 2011, motion referenced the lapse of nearly twenty-seven months since Defendant was indicted, the dozens of pending motions, some of which were filed over two years earlier, and stated that Defendant “should not be the recipient of the prejudice she suffers by not being afforded a speedy trial.” The State filed its response on December 15, 2011.

{13} Judge Ross Sanchez was assigned to the case on January 9, 2012; he recused the same day. Judge Reed Sheppard was assigned to the case on January 13, 2012, and on March 30, 2012, Judge Sheppard scheduled a status conference to be held on April 11, 2012. In the court's order granting Defendant's motion to dismiss for a speedy trial violation, Judge Sheppard observed that by the time he was assigned to the case, “dozens of motions had been...