STATE of New Mexico, Plaintiff-Appellee, v. Tony Frank MASCARENAS, Defendant-Appellant.
No. 887.
Court of Appeals of New Mexico.
July 28, 1972.
500 P.2d 438 | 84 N.M. 153
David L. Norvell, Atty. Gen., Victor Moss, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.
WOOD, Chief Judge.
The dispositive issue involves the constitutional right to a speedy trial.
Length of the delay.
Defendant was arrested on May 6, 1970, although no criminal complaint was issued until May 20, 1970. Preliminary hearing was not held until October 16, 1970. The criminal information was filed October 26, 1970. He was tried August 19, 1971. Except for a period of approximately four weeks, he was incarcerated in either the Taos County jail or the State Penitentiary from the date of arrest to date of trial, a period of incarceration of approximately 446 days. The delay from arrest until trial exceeds 15 months. The delay from filing of the information until trial is one week short of 10 months.
In State v. Adams, 80 N.M. 426, 457 P.2d 223 (Ct.App.1969), we held that an interval between arrest and trial of 144 days, without more, did not amount to the denial of the right to a speedy trial. See also State v. Ford, 81 N.M. 556, 469 P.2d 535 (Ct.App.1970). In State v. Crump, 82 N.M. 487, 484 P.2d 329 (1971), a delay of 14 months between indictment and trial did not deny the right to a speedy trial where defendants fled the jurisdiction and was imprisoned in another state. There, defendant‘s own activities contributed to the delay. These decisions must be considered in relation to
Here, we have a delay of four months in excess of the policy expressed in
The reason for the delay.
The right to a speedy trial is a relative right consistent with delays. The essential ingredient of this right is orderly expedition of the criminal process. Raburn v. Nash, 78 N.M. 385, 431 P.2d 874 (1967), cert. dismissed, 389 U.S. 999, 88 S.Ct. 582, 19 L.Ed.2d 613 (1967); State v. Adams, supra; see State v. Crump, supra.
Thus, where a defendant causes or contributes to the delay, or consents to the delay, he may not complain of a denial of the right. Raburn v. Nash, supra; State v. McCroskey, 79 N.M. 502, 445 P.2d 105 (Ct.App.1968). The State does not claim that defendant caused, contributed or consented to the delay.
“* * * The accused has no duty to bring on his trial. He is presumed innocent until proved guilty * * *. The government, on the other hand, would seem to have a responsibility to get on with the prosecution, both out of fairness to the accused and to protect the community interests in a speedy trial. * * *” Dickey v. Florida, supra, concurring opinion. The record indicates that the efforts of the District Attorney in this case were to ask the District Judge (not the one who presided at the trial) every two or three months for “a jury to try cases” and to furnish the judge a general list of cases. With this sparse explanation, we cannot say that this case “* * * was moving at a designedly deliberate pace consistent with * * *” the right to a speedy trial. State v. Adams, supra. Specifically, there is nothing showing an orderly expedition of the criminal process.
Prejudice to defendant.
Although New Mexico decisions consider the factor of “prejudice to defendant” and infer that the defendant has the burden of demonstrating prejudice, none have expressly placed that burden on the defendant. See State v. Crump, supra; State v. Baca, supra; State v. Adams, supra. If the burden is upon the defendant, this procedure departs from the approach utilized in other situations.
Under standards of due process, unauthorized communications with jurors are presumptively prejudicial and defendant does not have the burden of establishing the existence of prejudice. State v. Gutierrez, 78 N.M. 529, 433 P.2d 508 (Ct.App.1967). Where a prior incriminating statement was inadmissible, a subsequent incriminating statement was presumptively inadmissible and the State had the burden of establishing that the subsequent statement was not the exploitation of the prior statement. State v. Dickson, 82 N.M. 408, 482 P.2d 916 (Ct.App.1971).
Considering the approach in Gutierrez and Dickson, in relation to the policy disclosed in
Even if the defendant did have the burden of demonstrating prejudice, we hold that defendant‘s showing, which is not contradicted, was sufficient. This showing is the extent of the delays - the 15 month and 10 month intervals previously identified. These delays demonstrate, prima facie, an undue incarceration prior to trial
Thus, whether the delay was presumptively prejudicial or whether the delay was a prima facie showing of undue incarceration, prejudice to defendant is not contradicted.
Waiver by the accused.
Raburn v. Nash, supra, applied the majority rule “* * * that absent extreme circumstances a defendant may not be heard to complain unless he has affirmatively made known his desire for a speedy trial. * * *” This approach was followed in State v. Ford, supra, and State v. Adams, supra. This “demand” requirement is based on the concept of waiver by defendant‘s inaction, Raburn v. Nash, supra, and has been called “acquiescence” in the delay, see State v. McCroskey, supra.
Raburn v. Nash, supra, noted a minority that “* * * hold it is not incumbent upon an accused to take affirmative action or demand trial. * * * It will, however, be noted that most of those states have mandatory statutes requiring dismissal unless the accused is brought to trial within a specified period. * * *”
New Mexico now has a mandatory requirement in
The concept of waiver by inaction has been criticized. This criticism is based on the definition of waiver - an intentional abandonment of a known right - and the fact that the concept requires a defendant to take affirmative action to preserve a right accorded him by the Constitution. See Dickey v. Florida, supra, concurring opinion. Yet, citation of authority is not required to support the fact that the concept of waiver is firmly established in New Mexico by numerous appellate decisions.
Accordingly, we do not resolve this factor on the basis of whether the concept of waiver should or should not be utilized. Our approach is to recognize the concept, but also recognize that the “demand” necessary to avoid a waiver is not applicable in “extreme circumstances.” Raburn v. Nash, supra. The 15 month delay approaches the extreme in this case when the State offered nothing to explain the delay.
In our opinion, we need not decide whether any one of the factors is controlling. We reach our decision by considering all of the factors. Here, there is a showing of delay for which the defendant is not responsible. The State has offered no explanation for the delay. This delay, together with incarceration for all but four weeks of the period of delay, either required the State to show an absence of prejudice, or stood as an unrebutted prima facie showing of prejudice and, unexplained, amounted to an extreme circumstance to which the concept of waiver doesn‘t apply. From this combination of factors, we hold that defendant was deprived of his constitutional right to a speedy trial.
Defendant provided two or three quarts of beer to minors and was convicted of contributing to the delinquency of a minor.
It is so ordered.
HERNANDEZ, J., concurs.
SUTIN, J., specially concurring.
SUTIN, Judge (specially concurring).
I concur with the result in the majority opinion. We cannot condone the state‘s
To me, an important point to decide is the constitutionality of the statute under which defendant was convicted.
A. Section 40A-6-3, N.M.S.A.1953 (Repl.Vol. 6), Contributing to Delinquency Act is Unconstitutional.
The first claimed error raised by defendant was the constitutionality of
The statute reads as follows:
Contributing to delinquency of minor. - Contributing to delinquency of minor consists of any person committing any act, or omitting the performance of any duty, which act or omission causes, or tends to cause or encourage the delinquency of any person under the age of eighteen [18] years. [Emphasis added].
Defendant was charged with contributing to delinquency “By selling, giving or delivering alcoholic liquor to above minors, Contrary to
This charge was not contrary to
A violation of the Contributing to Delinquency Statute is a fourth degree felony with a penalty of imprisonment for a term of not less than one year nor more than five years, or to the payment of a fine of not more than $5,000, or to both in the discretion of the judge.
A violation of
I know this is a vain attempt to alert district attorneys to carefully scrutinize applicable statutes.
A Juvenile Court Act was enacted in 1955. Laws 1955, ch. 205 [
In 1949, the Supreme Court held the 1943 Act constitutional. State v. McKinley, 53 N.M. 106, 202 P.2d 964 (1949). Justice McGhee dissented. I agree with Justice McGhee. The majority opinion relied on the definitions in the juvenile code and said:
* * * [A]ny act of commission or omission causing or tending to cause juvenile delinquency as specifically defined in the act, to say the least, constitutes the offense. * * * [Emphasis added].
The present statute was divorced from the Juvenile Court Act of 1955. When the legislature separated the present statute without reference to the Juvenile Court Act, it intended the present statute to stand on its own two feet.
Nevertheless, this court in State v. Leyba, 80 N.M. 190, 453 P.2d 211 (Ct.App.1969), said:
According to defendant the applicable statute is
§ 13-8-26, N.M.S.A.1953 (Repl.Vol. 3) . We assume these contentions are correct. See State v. McKinley, 53 N.M. 106, 202 P.2d 964 (1949). [Emphasis added].
In the present case, we do not assume that
There is no reference in
Without the applicability of
In Stroik, the “contributing to delinquency” was a part of the Juvenile Court Act. The court said:
“Contributing to delinquency” is also a broad term involving conduct toward a child in an unlimited variety of ways which tends to produce or to encourage or to continue conduct of the child which would amount to delinquent conduct. [Emphasis added].
From “an unlimited variety of ways,” can any person, including parents, be prosecuted for tending to cause or encourage the delinquency of a minor who merely grew up in idleness, visited a dram shop, wandered the streets in the nighttime, hooked rides on moving trains, used profane language in public places, or are habitually absent from school, (see In re Santillanes, supra, dissenting opinion), or who became a “hippie,” a hitchhiker, an absentee from church or synagogue, an associate of criminals or reputed criminals, or vicious or immoral persons, etc.?
Suppose a person tended to cause or encourage a minor 15 years of age to capture a bullfrog without a valid fishing license,
How vague, indefinite and uncertain can a criminal statute be? Shall each individual criminal charge be left in the hands of any jury called to service?
In State v. Dunn, 53 Or. 304, 99 P. 278, 100 P. 258 (1909), the court said:
“Delinquency” was unknown to the common law, for which reason we must look exclusively to the statute for the definition of this offense.
Where the statute uses words of no determinative meaning, or the language is
so general and indefinite as to embrace not only acts commonly recognized as reprehensible, but also others which it is unreasonable to presume were intended to be made criminal, it will be declared void for uncertainty. * * *
Geis, Contributing to Delinquency, 8 St. Louis U.L.J. 59, 99 (1963), states:
In essence, contributing statutes represent an abdication of legislative responsibility to analyze and respond to itemized aspects of behavior which are stated to be criminal.
P. 80-81:
The federal government manual discussing juvenile court standards also turns its back on the contributing statute: “It seems sounder,” the manual notes, “to define the crime with greater certainty and to tie it to an act which constitutes a violation of law or an omission to perform a duty required by law. It is felt that the presently existing criminal statutes define a sufficiently broad variety of crimes to serve as an adequate basis to protect children.” [Emphasis added].
Presently, New Mexico has existing criminal statutes sufficient to serve as an adequate basis to protect children. When children leave the moral and legal pathways in life, the cause of the tragedy can be found generally in the gradual decay of domestic life, divorce, separation of parents, casting children about to become “vagabonds” and “gypsies.” As a result, New Mexico courts, when concerned with custody of children, have in many cases held that the controlling consideration is the welfare and best interests of the child. Its welfare transcends all other considerations. Kotrola v. Kotrola, 79 N.M. 258, 442 P.2d 570 (1968). “The most important thing a father can do for his children is to love their mother.” If fathers did this, parents would not contribute to the delinquency of their children and would prevent other persons from doing it.
The time has come for our legislature and courts to cast aside our statute on “Contributing to Delinquency” and charge parents and other persons with a criminal offense who lead children into a violation of criminal laws.