{1} Defendant James Laney appeals his conviction for homicide by vehicle (reckless),
FACTUAL BACKGROUND AND PROCEEDINGS
{2} On April 14, 2000, Defendant was involved in a fatal car accident. Defendant fled the scene on foot, but was apprehended and arrested eleven days later. An indictment was issued on May 9, 2000, charging Defendant with homicide by vehicle (reckless), great bodily injury by vehicle (reckless), leaving the scene of an accident (great bodily harm or death), receiving or transferring a stolen vehicle (possession), and reckless driving. After three continuances, two rule extensions, and several motions, the case was eventually tried before a jury on March 28, 2001, some eleven months after Defendant’s arrest.
{3} Most of the facts elicited at trial are undisputed. Defendant was in a small Mazda sports car traveling eastbound on Academy Road in Albuquerque, New Mexico. The Mazda turned northbound onto Marcheta in front of an oncoming half-ton, Chevy pickup. The pickup, which was traveling westbound on Academy, “T-boned” the Mazda, instantly killing the right front passenger, Sean Rose-berry. The passenger in the pickup was seriously injured. The driver of the pickup and Defendant sustained only minor injuries. Defendant stipulated that the Mazda’s sudden turn in front of the pickup was one of the primary causes of the accident. The only disputed issue was the identity of the Mazda’s driver.
{4} The defense maintained there were three men in the Mazda, while the State argued there were two, Defendant and Rose-berry. Eyewitnesses, including the driver of the pickup, and two persons who stopped to render aid, observed one person fleeing the scene, although their descriptions varied somewhat. Only one witness, however, could identify Defendant as the man he saw leaving the scene. The defense argued that the pickup driver saw the driver of the Mazda crawl out of the car, whereas the man who was seen leaving the scene by the other witnesses was Defendant, who had been in the right rear seat.
{5} Both sides provided expert testimony to support their theory. A forensic pathologist and OMI supervisor, Dr. Gerri MeLemore, testified for the State about Roseberry’s extensive injuries. The State’s expert in accident reconstruction and occupant kinetics, Parker Bell, opined that given the dynamics of the accident, a person seated in the right rear seat would most likely have sustained injuries similar to those sustained by Roseberry. Defendant’s expert, Dr. Karen Greist, in contrast, testified that Defendant’s injuries, consisting of a long rectangular bruise and abrasion running diagonally from his upper right shoulder to his lower left rib cage, were consistent with a seat belt injury. Two defense witnesses testified Defendant was coughing up blood and had bruising to his right arm and chest area after the accident.
{6} Jury deliberation began on a Friday, the third day of trial. After four hours of deliberation, the jury advised the district
I. Speedy Trial
{7} The initial prosecution of Defendant was quick — he was indicted on May 10, 2000, only fifteen days after his arrest on April 25. Discovery problems, on the other hand, abounded over the next seven months. Counsel for the defense filed his Entry of Appearance and Demand for Speedy Trial on May 17, 2000. A Motion to Dismiss for failure to provide discovery was filed on July 10, 2000. This apparently prompted the State to enter its appearance the next day, two months after the indictment issued. Defense counsel then filed two additional motions, including a Motion to Quash for failure to present exculpatory evidence of Defendant’s “seat belt” injuries to the grand jury and a motion to disclose confidential informant on August 18, 2000. Motions were heard on September 5, 2000. In support of the Motion to Quash, defense counsel displayed photographs of Defendant’s injuries, which he maintained were consistent with a right-hand seat belt injury. At that time, defense counsel advised the district court that he hired a private investigator to take the photographs on May 21, and that in July, it had procured Dr. Greist, an expert in forensic pathology, to testify that the injuries supported Defendant’s defense. The district court denied the motions to quash and dismiss, but ordered the State to disclose the informant and immediately disclose any existing discovery, including initial police reports, photographs, and the search warrant. Supplemental reports and crime lab reports were ordered to be disclosed within one week.
{8} A second Motion to Dismiss was filed on September 22, 2000, in which Defendant complained that he had not yet received the “Final Supp Out,” 1 although the “case [had] been pending for several months.” A second hearing was held on September 27 during which the State represented that the “Supp Out” was provided on September 20, however, because defense counsel did not have a copy, the completed report was provided after the hearing.
{9} As a result of these discovery delays, a Stipulated Motion to Continue vacating an October 4, 2000, trial setting was granted at Defendant’s request. A second stipulated continuance vacating a November 6, 2000, trial setting was granted at the State’s request. As grounds for that continuance, the State explained that pretrial interviews were set for November 1, but one witness was out of town. Over Defendant’s objection, the State then requested a three-month extension, pursuant to Rule 5-604 NMRA 2003, to interview this witness. An extension was granted through February 19, 2001, and the trial was reset for February 5, 2001. In the meantime, the State filed a stipulated Motion for DNA Standard on December 1, 2000, to obtain a sample from Defendant for testing. A second Rule 5-604 Petition was granted by the Supreme Court, over Defendant’s objection, because the DNA results were not ready, and because the defense expert, Dr. Greist, had not been made available to the State for an interview. Eleven months and two days after Defendant’s arrest, the trial began. On the day of the trial, Defendant made several pretrial motions, including a motion to dismiss on speedy trial grounds, which was denied.
{10} The right to a speedy trial is protected by the Sixth Amendment, made applicable to the states through the Fourteenth Amendment, and Article II, Section 14 of our state constitution. State v. Manzanares,
Length of the Delay
{11} The length of the delay is a two-fold inquiry. Initially, we determine whether the delay is presumptively prejudicial. If it is presumptively prejudicial, we balance the length of the delay against the remaining three factors to assess whether the constitution has been violated. See Coffin,
{12} Defense counsel characterizes this case as a “simple traffic accident” in which all of the evidence was available on the day of the accident, most relevant facts were stipulated to, and the only disputed issue was whether Defendant was driving. On the other hand, given that the trial lasted over two days, included ten witnesses, three of whom were experts, and because the use of DNA evidence was contemplated, the State urges that it is a case of intermediate complexity.
{13} The district court did not make any finding on the issue of complexity but considered the four factors and denied the motion. The district court explained:
I’m going to deny the motion. I think that delay can be attributed to both parties. Again, my — when looking at the length of the delay, reason for the delay, the prejudice, assertion of rights, my main reason for denying it is I don’t feel the Defendant has been prejudiced.
{14} Because the district court engaged in an analysis of the four factors, we assume it found the delay was presumptively prejudicial, and thus a simple case. Even so, we do not agree that this was the “simple traffic accident” that Defendant urges. See Coffin,
{15} While the complexity issue is a close call here, we agree with the district court that the delay was presumptively prejudicial. Nonetheless, we find that it falls in the high end of the simple complexity range. Even though the defense stipulated to many facts, the ultimate question of who was driving was hotly contested. Ten witnesses were needed to testify on that single question, including an accident reconstruction expert and two experts in forensic pathology.
{16} We next consider the extent of the delay beyond the presumptively prejudicial period to determine whether the delay will weigh against the State, bearing in mind that the presumption of prejudice to the defendant intensifies over time. See Coffin,
Reasons for the Delay
{17} “We examine the reasons for delay, allocating the reasons for the delay to each side and determining the weight attributable to each reason.” Plouse,
{18} Defendant maintains that any delay in bringing the ease to trial was entirely attributable to the State because of its delay in providing discovery. The State responds that Defendant is largely responsible for the sixty-two day delay. It argues that Defendant not only agreed to the first two continuances, but in fact filed the first one, and the third continuance was required partly because his expert was unprepared. The district court found both parties were responsible for the delay. We first observe that the State’s assumption that we consider only the
{19} The record reflects that the “Final Supp Out” was provided to defense counsel by September 27, 2000, as soon as it was available to the State, albeit some five months after the accident. Although the State provided the reports in the possession of the investigating officer at the September 5 hearing, it did so only in response to the district court’s order to produce it. The record does not reflect that the State made any effort to obtain those reports prior to September 5 despite the fact that the motion to dismiss was filed two months earlier. The only discovery provided before September 5 was the complaint. We also find that the reason given for the delay in producing the “Final Supp Out” at the September 5 hearing was insufficient. While the State explained that the crime lab reports were pending based on the analysis of the clothing found at Defendant’s apartment, there was no explanation for the lab’s four-month delay. Officer Campbell also briefly explained the substation was somewhat disorganized because of the “Big I” construction, but he did not elaborate on why this would delay the report. Without providing a record to better explain the delay, the State has failed to meet its burden of persuasion. On balance, we find the State was negligent in failing to provide discovery before mid-September. Therefore, this delay, and the resulting continuance on October 4, 2000, weigh heavily against the State. See Tortolito,
{20} On the other hand, the failure to provide timely discovery did not cause delay resulting from the second continuance. We find the inability to complete all but one interview by November 1, 2000, because the witness was out of state, is a more neutral reason, that weighs only slightly against the State.
{21} Despite Defendant’s objection to the third continuance, we agree that Defendant was jointly responsible for that delay because his own expert was unprepared and unavailable to the State for an interview. Defendant’s assertion that his expert was unprepared because discovery was delayed is suspect. The record reflects that Defendant knew what his defense was going to be as early as July 2000, when he hired his expert, if not earlier, when he hired a private investigator to photograph Defendant’s injuries on May 21, 2000. Dr. Greist testified that she based her opinion on the police reports, medical records, the May photographs of Defendant’s injuries, and an examination of Defendant, which she did not perform until sometime in October. All reports, except the DNA analysis, were made available by September 25, and the pretrial interviews of the State’s witnesses were done by November. We see no reason why the discovery delay would prevent a pretrial interview of Defendant’s expert, Dr. Greist.
{22} Once again, the State offered no explanation why it waited until December to obtain a DNA standard, but it appears from the record that the blood was being tested at the time of the September 5 hearing. We agree with the district court that the parties were jointly responsible for this delay, and under the circumstances, we give no weight to the delay caused by this continuance. On balance, we conclude that this factor weighs moderately against the State.
Assertion of the Right
{23} To assign weight to Defendant’s assertion of his speedy trial right, we explore the timing and manner in which Defendant asserted his right. Coffin, 1999—NMSC-038, ¶ 67,
{24} The July and September motions to dismiss never raised a speedy trial issue, and we find no evidence in the record that Defendant asserted his right at the hearings on these motions. Further, despite his objection to the last continuance, Defendant was not ready for trial in February. See Coffin,
Prejudice
{25} “The right to a speedy trial protects the following three interests of a criminal defendant: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Coffin,
{26} Defendant claims to have been prejudiced as a result of the delay in four ways. First, he was incarcerated for the entire eleven-month period. Next, the Mazda that was involved in the accident was inadvertently destroyed, thus preventing his expert, as well as the State’s accident reconstruction expert and the investigating officer, from obtaining all of the information they desired. Third, Defendant’s shoulder strap injuries healed and his scars shrank by the time of trial. Finally, Defendant had to be transported to the county courthouse from jail for his wedding on July 25, 2000.
{27} The State persuasively argues that Defendant does not claim and the record does not support the proposition that the car was destroyed after January 25, 2001, the time when the delay became presumptively prejudicial. Defendant claims the car was destroyed several months before trial. Nor is there any evidence that Defendant’s injuries and scars were substantially different before January 25. Even if the injuries had changed substantially after January 25, Defendant was only minimally prejudiced because the defense had access to at least one photograph of Defendant taken eleven days after the accident, had photos taken of the injuries only one month after the accident, waited until October to have his own forensic pathologist conduct an examination of the injuries, and there was some visible bruising apparently left for jurors to observe at trial.
{28} We also find that Defendant was primarily responsible for any impairment to his defense. Defendants must make an effort to discover or obtain evidence, which they are or should be aware of, in support of their defense. Id. at 564,
{29} With regard to Defendant’s other claims, we emphasize that the focus of our inquiry in a speedy trial analysis is on undue prejudice. Coffin,
{30} Based on the foregoing, we hold Defendant’s speedy trial right was not violated. This case sits on the line between simple and intermediate complexity, perhaps giving the State some basis for the lengthy discovery delay, especially in light of Defendant’s less than vigorous assertion of his right. Most critically, however, we find Defendant failed to show he was unduly prejudiced.
II. Testimony of the State’s Expert Witness
{31} Defendant next argues that it was error for the prosecutor to elicit testimony from the State’s accident reconstruction expert, Parker Bell, regarding the specific injuries he would expect Defendant to sustain in the accident. Before Bell testified, Defendant made an oral motion in limine to limit Bell’s testimony because he was not qualified as a medical expert. The district court opted to wait until trial to determine whether Bell was qualified to give such an opinion. During trial, defense counsel renewed his objection, and the district court ordered the State to lay a foundation on occupant kinetics to determine if Bell was qualified to testify regarding the injuries that might be expected given the force of the accident. The district court subsequently ruled, and defense counsel agreed, that Bell could testify about the seriousness of the injuries or the general types of injuries but not specific injuries, such as a broken arm or leg. Sometime later, defense counsel requested that the State lay an Alberico foundation. See State v. Alberico,
Q. Would this individual in this kind of accident sitting in the back seat be able to get away from the scene?
A. No. I believe they would be basically trapped.
[DEF]. I’m going to object. Lack of foundation.
THE COURT. I’m going to sustain the objection to that question.
Q. The injuries that an individual would have in this back seat, what capacity would that individual have?
A. He would be incapacitated.
[DEF]. Again, I’m going to object and ask that it be stricken.
THE COURT. Sustained.
At the bench, the district court advised the State, “I think we’re starting to get into the medical end of it which ... he’s already testified there would be a great amount of
{32} Defendant’s argument is perplexing. He first alludes to error on the grounds of prosecutorial misconduct by citing to the responsibility of a prosecutor as a “minister of justice” rather than as an advocate. Rule 16-308 NMRA 2003 and ABA Comment. Yet, his argument shifts to an unrelated and equally elusive theory — that sustaining defense counsel’s objection and striking the testimony did not cure the damage done. Defendant’s idea seems to be that even though the testimony was excluded, once the jury heard the testimony, it was implicitly admitted and its prejudicial effect requires reversal. Defendant further claims that the prejudice caused by the State’s accident reconstruction expert’s medical opinion was somehow compounded when the district court refused to let his medical expert testify about an area requiring expertise in accident reconstruction.
{33} We underscore our discussion by first noting Defendant’s challenge is improper under Rule 12-213(A)(4)(5) NMRA 2003. His brief in chief cites no standard of review, points to no specific error, and requests no particular relief. We further note that despite Defendant’s argument that the issue was preserved below through his motion in limine and repeated objections to the line of questioning complained of, Defendant does not cite to anywhere in the record where he preserved any of the arguments he raises on appeal. State v. Varela,
{34} To the extent Defendant’s argument implies fundamental or plain error, we find no basis under either theory. First, there was no error. Defense counsel objected and moved to strike the testimony which the district court sustained. Defendant requested nothing further from the district court and thus obtained the relief requested. See In re Crystal L.,
{35} Further, there was more than substantial evidence to convict on the basis of admissible evidence, including eyewitness and expert testimony, photographs showing the extent of damage to the car and to Defendant, as well as testimony regarding the extent of injuries to the front seat passenger. See Lucero,
III. Jury Instruction
{36} The jury instructions for vehicular homicide by reckless driving, great bodily injury by vehicle, and reckless driving require the jury to find the defendant “operated a motor vehicle.” Defendant tendered the following jury instruction to the district court: “A person is ‘operating’ a motor vehicle if the person is driving the motor vehicle.” UJI 14-4511 NMRA 2003 (“ ‘Operating’ or driving a motor vehicle defined.”). The State, in turn, requested an amendment, “A person is ‘operating’ a motor vehicle if the person is: 1. Driving the motor vehicle; or 2. In actual physical control whether or not the vehicle is moving if the vehicle is on a highway.” Both parties argued to the district court that their proposed instruction fit the facts of the ease. Defendant maintained that since the question of whether he was driving was the only disputed issue, the State had the burden to prove he was actually driving. The State countered that Defendant’s proposed instruction misstated the law by implicitly requiring someone to actually see him driving. Since no one had seen Defendant driving, but the evidence supported a reasonable inference that he was in “actual physical control” of the vehicle, the amended instruction was more accurate in the State’s view. The district court noted that the statutes in question required the jury to find Defendant “operated” rather than “drove” a motor vehicle. The district court concluded that the jury could find “physical control” under the facts and accepted the amended instruction.
{37} On appeal, Defendant argues that the jury instruction which was given misstated the law. Defendant urges this Court to find that the instruction, sometimes referred to as the “Boone instruction,” incorporates a much broader definition of “operating a motor vehicle” and a range of activities that was intended to apply to the DWI statute exclusively, and not to vehicular homicide. See Boone v. State,
{38} The issue of whether a given jury instruction is proper presents a mixed question of law and fact, which we review de novo. State v. Gaitan,
{39} Our initial inquiry, therefore, focuses on whether the jury instruction accurately presented the law. A review of the relevant law in New Mexico convinces us that it did. Our legislature has made no distinction between whether a person is charged with driving while intoxicated (DWI), homicide or great bodily injury by vehicle, or reckless driving in the context of whether “operating a motor vehicle” means to drive or be in actual physical control of the vehicle. Each of these offenses is regulated under the Motor Vehicle Code. Cf. NMSA 1978, § 66-8-101 (1991); § 66-8-102 (2003); 66-8-113 (1987). The homicide or great bodily injury by vehicle and reckless driving statutes specifically require the State to prove as an element of the offense that the defendant operated or drove a motor vehicle. Sections 66-8-101 and -113. The uniform jury instructions define “ ‘operating’ a motor vehicle” as “[driving the motor vehicle;] [or] [in actual physical control whether or not the vehicle is moving;].” UJI 14-4511. The Use Note expressly instructs parties to “[u]se this instruction if ‘operating’ or ‘driving’ is in issue.” Id. Parties are further instructed to “[u]se only [the] applicable alternative or alternatives.” Id.
{40} Unlike other statutes in the Motor Vehicle Code, however, the DWI statute prohibits a person from driving a motor vehicle. Because the DWI statute is somewhat different than the others, we have construed the term “operating” a motor vehicle as used in UJI 14-4511 as synonymous with the term “ ‘driving’ a motor vehicle” under the DWI statute. See State v. Tafoya,
{41} We also find that the jury instruction that was given would not confuse a reasonable jury on the law when considered in context with the other instructions that were given. Vehicular homicide by reckless driving, great bodily injury by reckless driving, and reckless driving specifically require the jury to find the defendant drove recklessly. Both instructions on these crimes not only require the jury to find that the “defendant operated a motor vehicle” but also that “the defendant drove with willful disregard of the safety of others and at a speed or in a manner that endangered or was likely to endanger any person.” UJI 14-241 NMRA 2003 (defining “Homicide by vehicle; ‘driving in a reckless manner’ ”) (emphasis added), or that “[t]he defendant drove carelessly and heedlessly in willful or wanton disregard of the rights or safety of others and without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property.” UJI 14-4504(2) NMRA 2003 (outlining elements for “Reckless driving”) (emphasis added).
{42} Thus Defendant’s argument that the jury might have convicted him even if he was not driving in the ordinary sense is without merit. There is no doubt that the jury found Defendant was “driving” at the time of the accident “in the ordinary sense” of the word.
{43} The jury retired to deliberate shortly after noon on Friday. At a little past 4:00 p.m., the jury sent a note to the district court judge. The judge told counsel that the note indicated the jury was “deadlocked on Count 1 and Count 4,” but had reached verdicts on Counts 2, 3, and 5, and that he would not disclose the actual verdicts. Counsel agreed to poll each juror in open court to ascertain whether they believed they were “hopelessly deadlocked” and whether further deliberation would be helpful. The record reflects that ten jurors responded they were hopelessly deadlocked and that further deliberations would not be helpful. Two jurors, however, answered they were not hopelessly deadlocked, and further deliberations would be helpful.
{44} Consequently, the district court proposed to accept the verdicts and declare a mistrial on the remaining counts. The prosecutor disagreed, since one of the ten jurors had hesitated and the jury had been deliberating for only a short time. Defense counsel preferred to send the jury back to deliberate. When asked for how long, defense counsel responded “another hour.” Both parties agreed, however, that rather than trying to rush a verdict, the jury should be sent home for the weekend.
{45} After excusing the jury, the judge received a second note from one of the undecided jurors. The district court revealed its contents to counsel, which read “Count 1 No. 4, the word ‘foresee’ [is] the only thing that we [are] deadlocked on.” After advising counsel that there were numerical values written on the verdict forms which were crossed out, the judge agreed to let the jury recess for the weekend. Without any further instruction or admonishment, except to leave their trial notes and refrain from deliberating on Monday until everyone on the panel was present, the judge promised a cooler jury room and released the jury for the weekend. Two hours after deliberations resumed on Monday, the jury reported a unanimous verdict on all counts. Defendant was acquitted on Count 4 (stolen vehicle) but convicted on the remaining counts. Each juror then unequivocally affirmed the verdicts.
{46} On appeal, Defendant claims that it was fundamental error to send the jury back to deliberate after it was polled on how hopeless further deliberations would be, especially after it revealed the numerical breakdown. Defendant further claims that withholding the numerical breakdown from counsel violated his right to be “present” at all critical stages of the prosecution and deprived him of the critical knowledge needed to make the decision whether to request a mistrial.
{47} Fundamental error is an exception to the rule that parties must preserve issues for appeal. Rule 12-216(A), (B)(2) NMRA 2003; State v. Cunningham,
{48} Defendant does not argue that his innocence is indisputable or his guilt so doubtful that the jury’s verdict “shocks the conscience.” See Reyes,
{49} For the trial to be considered fundamentally unfair in this instance, Defendant must demonstrate that the cumulative effect of the district court’s actions and the circumstances under which they arose were so egregious and so unduly coercive on the jury to abandon its honest convictions to arrive at the verdict that those actions and circumstances violated his right to a fair and impartial trial. See State v. McCarter,
{50} An inquiry into the numerical division does not constitute error unless the cumulative effect of the district court judge’s conduct was coercive. Rickerson,
(a) whether any additional instruction or instructions, especially a shotgun instruction, were given: [sic] (b) whether the court failed to caution a jury not to surrender honest convictions, thus pressuring holdout jurors to conform, and (c) whether the court established time limits on further deliberations with the threat of a mistrial.
Id. at 667,
{51} As a starting point, we believe the unsolicited revelation of the numerical breakdown substantially decreased any risk of coercion under these facts. See id. at 668,
{52} The use of a shotgun instruction is prohibited by our Supreme Court. UJI 14-6030 NMRA 2003 and Use Note; McCarter,
{53} In McCarter, for example, the jury sent a note to the judge, indicating it was deadlocked, eleven to one.
{54} A similar argument, however, was rejected by the Court in Neely,
{55} Based on these cases, and others like them, we find there was no shotgun instruction or its equivalent given in this case. First, unlike McCarter, the district court asked the jury whether it could deliberate. Two jurors clearly affirmed their willingness. The perception of the ten jurors who believed the jury was “hopelessly deadlocked” must be viewed in this context.
{56} McCarter and its progeny also teach us that in determining whether the jury was coerced to arrive at a verdict, the actions as well as the circumstances under which the court’s actions arose should be considered. See Rickerson,
{57} Nor is there any evidence of juror coercion surrounding the second, unsolicited note from one apparently undecided juror. This note was not disclosed to the other jurors, and there were no further instructions to the jury regarding it. The district court instead related this information to counsel and released the jury for the weekend. The lack of coercion is self-evident in light of the fact that the jurors deliberated for two hours more on Monday and returned a “not guilty” verdict on one count. Accordingly, we cannot say the district court’s actions were so coercive as to warrant the extreme remedy of fundamental error.
{59} “To constitute a critical stage of a criminal proceeding, the particular proceeding or act in question must be one at which, or in connection with which, the accused’s constitutionally protected rights may be lost or adversely affected.” State v. Acuna,
V. Cumulative Error
{60} Because we find no error in any of the issues raised, there is no cumulative error. State v. Aragon,
CONCLUSION
{61} Based on the foregoing, we affirm Defendant’s conviction on all counts. We therefore remand the case to the district court to amend its judgment vacating Defendant’s convictions for reckless driving.
{62} IT IS SO ORDERED.
Notes
. The parties use the term "Final Supp Out” which refers to the final supplemental report prepared by the investigating officer that in-eludes police reports, crime lab analysis, and other documents relating to the investigation.