STATE OF NEW MEXICO, Plaintiff-Appellant, v. NODEE LUJAN, Defendant-Appellee.
NO. 33,349
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
February 18, 2015
Opinion Number: ________
Louis E. DePauli Jr., District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
Ralph E. Trujillo, Assistant Attorney General
Albuquerque, NM
for Appellant
Jorge A. Alvarado, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM
for Appellee
GARCIA, Judge.
{1} Defendant Nodee Lujan was charged with two counts of criminal sexual contact of a minor in the fourth degree. See
BACKGROUND
{2} On March 16, 2012, the State arrested and filed a criminal complaint against Defendant for two counts of criminal sexual contact of a minor in the fourth degree. Defendant was released on March 22, 2012, and his trial was set for October 16, 2012.
{3} On August 16, 2012, Defendant notified the State that he took and passed a polygraph test and that he intended to use the test results at trial. On September 24, 2012, the State filed a motion to compel Defendant to take another polygraph examination, which the district court denied. On October 4, 2012, twelve days before the trial was to begin, the State notified Defendant‘s counsel that the victim had also taken and passed a polygraph test. Defendant objected to the State‘s motion to admit the results of the victim‘s polygraph examination on the basis of late disclosure. See
{4} On October 15, 2012, the day before the trial was to begin, the State dismissed the charges against Defendant. It refiled identical charges eight days later. Defendant pleaded not guilty to the refiled charges at his May 2013 arraignment. Trial on the refiled charges was set for October 15, 2013, one year after his first trial had been scheduled to begin.
{5} On July 11, 2013, five months before trial, Defendant moved to dismiss the charges against him on speedy trial grounds. After holding an evidentiary hearing on the motion on October 8, 2013, the district court granted the motion and dismissed the case.
{6} On appeal, the State concedes that the delay presumptively prejudiced Defendant and that “the reasons for the delay should be attributed to the State.” However, it argues that the district court should not have weighed the delay heavily against the State “because Defendant caused some of the delay and much of the delay
DISCUSSION
A. General Principles and Standard of Review
{7} The Sixth Amendment of the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial[.]”
{8} In determining whether a defendant‘s speedy trial right was denied, our Supreme Court has adopted the balancing test that the United States Supreme Court created in Barker v. Wingo, 407 U.S. 514 (1972). Garza, 2009-NMSC-038, ¶¶ 9, 13. Under the Barker framework, we weigh “the conduct of both the prosecution and the defendant” under the guidance of four factors: (1) the length of the delay, (2) the
{9} Before applying the balancing test, we first assess whether the length of the delay was “presumptively prejudicial,” depending on the complexity of the case. See Spearman, 2012-NMSC-023, ¶ 21; see also Garza, 2009-NMSC-038, ¶ 21 (“[A] ‘presumptively prejudicial’ length of delay is simply a triggering mechanism, requiring further inquiry into the Barker factors.“). “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. The State concedes that the length of the delay was presumptively prejudicial. We agree with the State‘s concession. See State v. Urban, 2004-NMSC-007, ¶ 13, 135 N.M. 279, 87 P.3d 1061 (agreeing with the state‘s concession that a sufficient lapse of time is
{10} Although we defer to the district court‘s factual findings concerning each factor, we independently review the record to determine whether a defendant was denied his speedy trial right, and we weigh and balance the Barker factors de novo. Spearman, 2012-NMSC-023, ¶ 19; Palacio, 2009-NMCA-074, ¶ 9; see also State v. Collier, 2013-NMSC-015, ¶ 41, 301 P.3d 370 (stating that the Barker factors are “factually based“).
B. Discussion and Weighing of the Factors
1. Length of Delay
{11} In determining what weight to give the length of any delay, we consider the extent to which the delay stretched beyond the presumptively prejudicial period. State v. Ochoa, 2014-NMCA-065, ¶ 6, 327 P.3d 1102, cert. granted, 2014-NMCERT-006, 328 P.3d 1188. “[T]he greater the delay[,] the more heavily it will potentially weigh against the [s]tate.” Garza, 2009-NMSC-038, ¶ 24. A delay that “scarcely crosses the bare minimum needed to trigger judicial examination of the claim” will “not weigh heavily in [a d]efendant‘s favor.” Id. ¶¶ 23-24 (internal quotation marks and citation omitted); compare State v. Steinmetz, 2014-NMCA-070, ¶ 6, 327 P.3d 1145 (concluding that a delay of twenty-eight months beyond the presumptive threshold
{12} The district court found that this was a simple case, because “[t]he only contested issue is the credibility of the witnesses[,]” and “the issues regarding the competing polygraph test results [would] have been resolved pretrial[.]” The State disagrees. It argues that the case was “more complicated” because it “involved minor children” and the results of Defendant‘s and the victim‘s polygraph tests “were at odds with each other.” We defer to the district court‘s finding that this was a simple case because it was in the best position to make that determination. See State v. Coffin, 1999-NMSC-038, ¶ 57, 128 N.M. 192, 991 P.2d 477; State v. Johnson, 2007-NMCA-107, ¶ 7, 142 N.M. 377, 165 P.3d 1153.
{14} A nineteen-month delay extends seven months beyond the twelve-month presumptive threshold for simple cases. See Spearman, 2012-NMSC-023, ¶ 21. This delay weighs in Defendant‘s favor at least slightly. See Id. ¶ 24 (noting that even though a one-to-four-month delay beyond the presumptive minimum does weigh against the state, it will not weigh heavily against the state); State v. Moreno, 2010-NMCA-044, ¶ 38, 148 N.M. 253, 233 P.3d 782 (concluding that, in a complex case, a seven-month delay beyond the presumptive threshold “weigh[ed] against the state and in [the d]efendant‘s favor[,]” but the Court did not say how heavily); Marquez, 2001-NMCA-062, ¶¶ 10, 12 (concluding that, in a simple case, a nine-month delay beyond the presumptive threshold weighed heavily against the state, and that even if the delay was seven months beyond the presumptive period as the state argued, the delay was “significantly well beyond” the threshold); Montoya, 2011-NMCA-074, ¶¶ 16-17 (concluding that, in a case of intermediate complexity, a six-month delay beyond the presumptive threshold weighed slightly against the state).
2. Reasons for Delay
{15} We assign different weight to different types of delay. See Spearman, 2012-NMSC-023, ¶ 25. There are three types: “(1) deliberate or intentional delay; (2)
{16} The district court found that
[t]he State dismissed the case due to the rulings by the trial court to not continue the trial, to not compel Defendant to take a second polygraph test[,] and the adverse position the State was in because of its late filed motions. These reasons are not valid reasons to dismiss a case. The State should have taken the case to trial in the posture it was in.
These circumstances may be viewed adversely against the State. See Garza, 2009-NMSC-038, ¶ 25 (stressing the point that “official bad faith in causing delay will be weighed heavily against the government” (internal quotation marks and citation omitted)). The district court also found that the other delays the State asserts were caused by Defendant and the district court were “foreseeable, if not inherent, and in any event could have been avoided had the case gone to trial as originally scheduled.” The court did not enter any findings about the State‘s bare assertion that it needed more time for discovery in the first case due to Defendant‘s submission of an untimely witness list. We are unable to evaluate this claim because we do not have
3. Assertion of the Right
{17} A defendant‘s failure to demand a speedy trial does not “forever waive[] his right[]” because this right is “fundamental in nature.” Garza, 2009-NMSC-038, ¶¶ 31-32 (internal quotation marks and citation omitted). In determining the weight to assign to a defendant‘s assertion of his speedy trial right, we “assess the timing of the defendant‘s assertion and the manner in which the right was asserted.” Id. ¶ 32. We consider “whether a defendant was denied needed access to speedy trial over his objection or whether the issue was raised on appeal as [an] afterthought.” Id. The
{18} The district court found that Defendant had not formally asserted his speedy trial right until he filed his motion to dismiss in July 2013. It weighed this factor slightly against the State, because it found that Defendant had not acquiesced to the delay. The State, citing a Fifth Circuit Court of Appeals case, argues that Defendant‘s filing of a motion to dismiss should be weighed “strongly” against Defendant because it was “an assertion of the remedy” and not an assertion of the right. See United States v. Frye, 489 F.3d 201, 210-12 (5th Cir. 2007) (concluding that the assertion-of-the-right factor did not “weigh against the government” because the defendant‘s motions for dismissal amounted to an assertion of the remedy rather than an assertion of his speedy trial right and because the motions did not manifest a “desire to be tried promptly“). New Mexico courts, however, have concluded that a motion to dismiss based on speedy trial grounds is an assertion of the right that is weighed against the government, although it is generally not weighed heavily. See, e.g., Work v. State, 1990-NMSC-085, ¶ 7, 111 N.M. 145, 803 P.2d 234 (agreeing with the Court of Appeals that the defendant timely asserted his right to a speedy trial and “weigh[ing] this factor in his favor” where the defendant filed a speedy trial motion seven months after the indictment and five weeks before trial was scheduled to begin); State v. Johnson, 1991-NMCA-134, ¶ 5, 113 N.M. 192, 824 P.2d 332 (concluding that the “[d]efendant asserted his right to a speedy trial by filing a motion to dismiss for delay” and that “[t]his factor . . . weighed in favor of [the] defendant, but not heavily“).
{19} Here, Defendant asserted his speedy trial right by filing his motion to dismiss about nine months after the State refiled the charges against him and about five months before he was scheduled to go to trial. He filed his motion well before trial was set to begin, not “on appeal as [an] afterthought[,]” and he did not otherwise act in a manner that caused delay. See Garza, 2009-NMSC-038, ¶ 32. Therefore, we conclude that his motion amounted to an appropriate assertion of the right and the district court properly weighed the assertion factor slightly against the State. See Work, 1990-NMSC-085, ¶ 7; Johnson, 1991-NMCA-134, ¶ 5.
4. Prejudice
{20} The “heart” of the speedy trial right “is preventing prejudice to the accused.” Garza, 2009-NMSC-038, ¶ 12. We analyze prejudice against a defendant under three interests: (1) preventing oppressive pretrial incarceration, (2) minimizing anxiety and concern of the accused, and (3) limiting the possibility that the defense will be impaired. Id. ¶ 35. We are mindful that “some degree of . . . anxiety is inherent for every defendant . . . awaiting trial.” State v. Maddox, 2008-NMSC-062, ¶ 33, 145 N.M. 242, 195 P.3d 1254 (alterations, internal quotations marks, and citation omitted), abrogated on other grounds by Garza, 2009-NMSC-038, ¶¶ 47-48. “Therefore, we weigh this factor in the defendant‘s favor only where . . . the anxiety suffered is undue.” Garza, 2009-NMSC-038, ¶ 35. A defendant is not required to show that he experienced “greater anxiety and concern than that attending most criminal prosecutions.” Salandre v. State, 1991-NMSC-016, ¶ 32, 111 N.M. 422, 806 P.2d 562, holding modified on other grounds by Garza, 2009-NMSC-038, ¶ 22. “The operative question is whether the anxiety and concern, once proved, has continued for an unacceptably long period.” Id. “It is for the court to determine whether the emotional trauma suffered by the accused is substantial and to incorporate that factor into the balancing calculus.” Id. The evidence must also establish that the alleged prejudice occurred as a result of the delay in trial beyond the presumptively prejudicial threshold as opposed to the earlier prejudice arising from the original indictment. See Spearman, 2012-NMSC-023, ¶ 39.
{21} The district court found that Defendant suffered prejudice because he “lived under a cloud of anxiety, suspicion[,] and hostility from the beginning of the case up to the date of the hearing [on his motion to dismiss]“; “[a]fter the case was dismissed and refil[]ed, . . . Defendant‘s girlfriend ended her long[-]term relationship with . . . Defendant because he had become unbearable to live with[]“; and “Defendant
{22} Defendant testified that at the time he was arrested, he had been serving on the Gallup Fire Department for twenty years and had risen to the level of Lieutenant. As part of his duties he was a CPR instructor; taught at the fire academy and the U.S. Department of Defense; and worked with children through the Police Athletic League, the Boys and Girls Club, and in local schools teaching fire prevention. He testified that after he was arrested in March 2012, Albuquerque and Gallup newspapers published articles about the allegations against him, and his supervisor told a news reporter during a television interview that Defendant was “a black eye to the... department.” Defendant was demoted to general “firefighter” status, resulting in a dramatic decrease in pay, and he was stripped of all of his supervisory and teaching duties. He testified that his department restricted him from having any contact with females, regardless of their age, even to the extent that he was not permitted to perform CPR on females during emergency medical calls. His supervisors began writing him up for numerous minor infractions and indirectly suggested that he retire to “save [his] retirement” before he was fired. As a result, Defendant retired early, causing him to receive a lower pension than he would have received had he retired a few years later, as he had previously intended.
{24} The State did not present any evidence to show that Defendant had not suffered these forms of prejudice, other than confirming that his retirement was “voluntary,” that Defendant had been arrested once before in 2008 for domestic battery, and that one of the reasons that his family left him was because of his behavior in response to his stress around the pending charges.
{25} We defer to the district court‘s factual findings regarding whether Defendant suffered prejudice from the delay, see Spearman, 2012-NMSC-023, ¶ 19, and we conclude that the prejudice was not only “actual” and “particularized[,]” but that it
{26} Thus, the evidence presented to the district court identified the types of serious disruptions and other severe hardships that can be weighed heavily in Defendant‘s favor. We will not substitute the State‘s view of the severity of Defendant‘s personal
C. Balancing the Factors
{27} The length of delay weighs at least slightly or even more heavily in Defendant‘s favor. The assertion of the right is weighed slightly in favor of Defendant. The reasons for the delay and the undue prejudice suffered weigh heavily in Defendant‘s favor. None of these Barker factors weigh in the State‘s favor. Therefore, on balance, we conclude that the Barker factors weigh sufficiently in Defendant‘s favor and the district court appropriately dismissed Defendant‘s charges on speedy trial grounds. See Spearman, 2012-NMSC-023, ¶ 17.
CONCLUSION
{28} We affirm the district court‘s order dismissing this case with prejudice.
TIMOTHY L. GARCIA, Judge
WE CONCUR:
MICHAEL E. VIGIL, Chief Judge
MICHAEL D. BUSTAMANTE, Judge