State v. White
| Decision Date | 27 June 1994 |
| Docket Number | No. 15086,15086 |
| Citation | 118 N.M. 225,880 P.2d 322,1994 NMCA 84 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Harry WHITE, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Defendant appeals from convictions for two counts of vehicular homicide and one count of great bodily injury by vehicle. He contends that (1) he was deprived of his right to a speedy trial by the ten and one-half months between arrest and trial, and (2) he was deprived of due process of law when the district court instructed the jury on a mandatory presumption. Issues raised at earlier stages of the appeal but not briefed are deemed abandoned. State v. Ramos, 115 N.M. 718, 720, 858 P.2d 94, 96 (Ct.App.), cert. denied, 115 N.M. 602, 856 P.2d 250 (1993). We disagree with Defendant's speedy-trial issue, and we find his due process issue to be without a factual basis in the record of this case. Accordingly, we affirm.
Although the nature of the charges in this case could make for a case of intermediate complexity, the parties do not dispute on appeal that the facts of this particular homicide and great bodily injury by vehicle case were relatively simple. Thus, the ten-and-one-half-month delay from Defendant's arrest, when he was held to answer to the charges and was restrained by bail conditions, to trial was sufficient to trigger the balancing of the speedy-trial factors outlined in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). Salandre v. State, 111 N.M. 422, 428, 806 P.2d 562, 568 (1991). Those factors are the length of the delay, reasons for the delay, defendant's assertion of the right, and prejudice to the defendant. Id. at 425, 806 P.2d at 565.
The length of delay is ten and one-half months, barely a month and a half over the minimum length of time that the Supreme Court indicated could ever be presumptively prejudicial so as to trigger further inquiry. See id. at 428, 806 P.2d at 568. Thus, this factor will not have a large practical effect on the balancing. See id. at 429, 806 P.2d at 569.
The reasons for the delay include: (1) one month of delay caused by both Defendant and the State excusing a magistrate and another magistrate's recusal; (2) three months of delay for the new magistrate to set the preliminary hearing; (3) one month of delay for the State to choose to indict Defendant and for arraignment; (4) four and one-half months of delay prior to the first trial setting, caused by the judge's impending surgery, recovery time, and resultant backlog in his docket; and (5) one month of delay caused by defense counsel's realization that he had a conflict of interest, his motion to withdraw, and new counsel's need for extra time to prepare for trial.
Some of this delay was attributable to Defendant and thus is not weighed against the State. This includes some of the delay at the beginning of the case when magistrates were being excused, as well as the delay at the end of the case when Defendant himself sought and received new counsel who needed more time to prepare. See Work v. State, 111 N.M. 145, 147, 803 P.2d 234, 236 (1990), cert. denied, 499 U.S. 947, 111 S.Ct. 1413, 113 L.Ed.2d 466 (1991); State v. Grissom, 106 N.M. 555, 562, 746 P.2d 661, 668 (Ct.App.), cert. denied, 106 N.M. 439, 744 P.2d 912 (1987), and criticized on other grounds in Salandre, 111 N.M. at 430-31, 806 P.2d at 570-71. Most of the remainder of the delay appears to have been caused by normal caseload pressures, which weighs less heavily against the State, see Zurla v. State, 109 N.M. 640, 643, 789 P.2d 588, 591 (1990), or by the judge's surgery and recovery time, which does not weigh against either side. See State v. Manes, 112 N.M. 161, 168-69, 812 P.2d 1309, 1316-17 (Ct.App.), cert. denied, 112 N.M. 77, 811 P.2d 575, and cert. denied, 502 U.S. 942, 112 S.Ct. 381, 116 L.Ed.2d 332 (1991). See generally Kristine C. Karnezis, Illness or Incapacity of Judge, Prosecuting Officer, or Prosecuting Witness as Justifying Delay in Bringing Accused Speedily to Trial--State Cases, 78 A.L.R.3d 297 (1977).
Defendant specifically asserted his right to a speedy trial two days before trial. While assertion at this late date is timely under Barker, Zurla, 109 N.M. at 644, 789 P.2d at 592, it is not entitled to much weight. State v. Garcia, 110 N.M. 419, 424, 796 P.2d 1115, 1120 (Ct.App.) (when right to speedy trial is not asserted until most of the delay has passed, this factor is not entitled to much weight), cert. denied, 110 N.M. 282, 795 P.2d 87 (1990).
Defendant, having been released on bond, did not suffer oppressive pretrial incarceration. Defendant's wife testified about the symptoms of Defendant's anxiety--loss of weight, inability to sleep, and inability to be attentive at work. However, it was not clear whether these symptoms were caused by the charges or by the fact that Defendant was in an accident caused by his driving on the wrong side of the road with a blood-alcohol content of two to three times the legal limit that killed two people and seriously injured another. Defendant did not contend that there was any impairment in his defense. Zurla, 109 N.M. at 647, 789 P.2d at 592 ().
The Supreme Court noted that Salandre was a close case. Salandre, 111 N.M. at 431, 806 P.2d at 571. The delay in this case is shorter than in Salandre. Some of the delay here was attributable to Defendant and some was caused by valid reasons, whereas in Salandre all delay appeared to be unjustified. Both Defendant and Salandre timely asserted the right in a way to weigh slightly in their favor. There was some impairment to the defense in Salandre which the State did not rebut whereas such is not an issue in this case. If Salandre was close and the balance tipped in the defendant's favor there largely because of the prejudice factor, we must conclude that the balance tips in the State's favor here due to the factors enumerated above, particularly the lack of prejudice, but also the fact that the delay was not overly long and much of it was explained and justifiable. We affirm the trial court's denial of Defendant's speedy-trial motion.
Defendant was charged with two counts of homicide by vehicle and one count of great bodily injury by vehicle, all in violation of NMSA 1978, Section 66-8-101(C) (Cum.Supp.1993). The indictment accused Defendant of committing the crime "while driving under the influence of intoxicating liquor" or in the alternative "while having one-tenth of one percent or more by weight of alcohol in his blood." Prior to trial, the indictment was amended to delete the alternative provision.
It does not appear that homicide by vehicle or great bodily injury by vehicle contrary to Section 66-8-101(C) may be committed by simply having one-tenth of one percent by weight of alcohol in one's blood. Section 66-8-101(C) requires the person to be "under the influence of intoxicating liquor" or "under the influence of any drug" or driving recklessly. That statute does not appear to contemplate exclusive reliance on NMSA 1978, Section 66-8-102(C) (Cum.Supp.1993) ().
The jury in this case was nonetheless instructed that the elements of the crimes were that "defendant operated a motor vehicle while under the influence of intoxicating liquor" and "defendant thereby caused the death [or great bodily harm of the victims]." The jury was also instructed that:
A person is "under the influence of intoxicating liquor" when as a result of consuming alcoholic beverage he is less able, to the slightest degree, either mentally or physically, or both, to exercise the judgment and coordination safely to drive a vehicle.
See SCRA 1986, 14-243 (Cum.Supp.1993). It was also instructed that:
Test results showing the percentage of weight of alcohol in the blood of the defendant at the time that the test was given have been introduced into evidence. These test results are to be considered for the purpose of determining whether or not defendant's blood at the time of the incident contained one-tenth (.10%) or more by weight of alcohol. If a person's blood contains one-tenth of one percent (.10%) of alcohol or more, he is under the influence of intoxicating liquor.
(Emphasis added.)
This instruction is not included in the Uniform Jury Instructions. It was represented by the State as SCRA 1986, 14-242. That representation was not accurate due to substantial modifications made by the prosecutor, which appear to make the instruction conform to the alternative charge that was deleted prior to trial. To compound the apparent error, SCRA 14-242 had been withdrawn by our Supreme Court prior to the time of trial. SCRA 1986, 14-242 (Cum.Supp.1993). However, Defendant's attorney did not object to the offered instruction at trial.
Defendant contends that the effect of the emphasized sentence was to take from the jury its ability to determine an essential element of the crime (driving "under the influence" without the irrebuttable presumption inherent in the erroneous instruction). Therefore, Defendant presents this issue in the context of fundamental error under State v. Orosco, 113 N.M. 780, 784-86, 833 P.2d 1146, 1150-52 (1992), and State v. Osborne, 111 N.M. 654, 662-63, 808 P.2d 624, 632-33 (1991), or in the context of an impermissible mandatory presumption, see SCRA 1986, 11-302(C), that must be analyzed for harmless error under Sullivan v. Louisiana, --- U.S. ----, ---- - ----, 113 S.Ct. 2078, 2081-83, 124 L.Ed.2d 182 (1993), and Yates v. Evatt, 500 U.S. 391, 401-06, 111 S.Ct. 1884,...
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