State v. SamoraState v. Samora
CHÁVEZ, Justice.
{1} Defendant Anthony Samora was accused of luring a sixteen-year-old male into his truck by deception, driving him to a secluded location in Albuquerque, and then forcibly penetrating him in the anus. A jury convicted Defendant of second-degree criminal sexual penetration in the commission of a felony (CSP-felony), contrary to
{2} Because we conclude that it was fundamental error to omit the phrase “without consent” from the jury instructions relevant to CSP-felony, we must reverse Defendant‘s CSP conviction. The same fundamental error also infected the jury‘s findings with respect to Defendant‘s intent to inflict a sexual offense against the alleged victim, and we must therefore also reverse Defendant‘s kidnapping
I. BACKGROUND
{3} J.Z.1 was at a bus stop in downtown Albuquerque “bugging people for money” so that he could catch a bus home. Defendant approached him, stated that he knew J.Z.‘s family, and offered to give J.Z. a ride home. J.Z. got into Defendant‘s pickup truck, and Defendant started driving.
{4} J.Z. testified that he soon noticed that Defendant was not driving J.Z. toward his house. J.Z. told Defendant he was driving the wrong way, and Defendant did not respond. Defendant eventually stopped the truck in a remote location under a highway underpass. Defendant then punched J.Z. in the head, and J.Z. became “dizzy.” Defendant pulled down J.Z.‘s pants, maneuvered him into a receptive position, got on top of J.Z., and penetrated J.Z.‘s anus with his penis. J.Z. further
{5} Two days later, J.Z. was arrested for absconding from juvenile probation. In jail, J.Z. told a counselor that he had been sexually assaulted. J.Z. went through a sexual assault nurse examination (SANE exam) four days after the alleged attack. During the SANE exam, a nurse took swabs from J.Z.‘s anus, penis, and mouth. The nurse found no evidence of any injuries on his body, and no DNA from Defendant was found on the swabs.
{6} After his release from custody about thirty days later, J.Z. told Jennifer Brown, his big sister under the Big Brothers Big Sisters program, what had happened to him and described his attacker, including the fact that the attacker wore a GPS monitor on his belt. Ms. Brown located a photograph of Defendant and Defendant‘s address on
{7} Defendant was indicted on two counts of criminal sexual penetration in the second degree “by the use of force or coercion on a child thirteen to eighteen years of age” (CSP-force/coercion). Section 30-9-11(E)(1). Each count was alternatively charged as CSP-felony. Section 30-9-11(E)(5). Defendant was also charged with criminal sexual contact of a minor in the fourth degree (CSC), contrary to
{8}
II. DISCUSSION
A. Defendant‘s Right to a Speedy Trial Was Not Violated
{9} The Sixth Amendment to the United States Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial.” See also
1. Length of the delay
{10} The Court must first determine whether the length of the delay is presumptively prejudicial. “The first factor, the length of delay, has a dual function: it acts as a triggering mechanism for considering the four Barker factors if the delay crosses the threshold of being presumptively prejudicial, and it is an independent factor to consider in evaluating whether a speedy trial violation has occurred.” Serros, 2016-NMSC-008, ¶ 22 (internal quotation marks and citation omitted). Defendant was arrested and indicted on September 8, 2008, and his trial began on November 12,
2. Reasons for the delay
{11} The Court must evaluate “the reason the government assigns to justify the delay,” which “may either heighten or temper the prejudice to the defendant caused by the length of the delay.” Id. ¶ 29 (internal quotation marks and citation omitted). If the State deliberately attempts to delay the trial to hamper the defense, the delay weighs heavily against the State. Id. Negligent or administrative delay must be considered because “the ultimate responsibility for such circumstances must rest with the government,” although such delay is not weighed as heavily against the State. Id. (internal quotation marks and citation omitted). However, “[a]s the length of delay increases, negligent or administrative delay weighs more heavily against the State.” Id. Finally, ” ‘appropriate delay,’ justified for ‘a valid reason, such as a missing
{12} In this case, the pretrial delay can be grouped into three time periods: (1) from September 8, 2008 until April 2010; (2) from April 2010 until September 2011; and (3) from September 2011 until trial in November 2013.
{13} During the first time period, the parties individually or jointly filed at least a dozen motions for continuance stating a variety of reasons, including to negotiate a plea deal that potentially included other charges against Defendant, to prepare for trial, and to complete discovery. Defendant either stipulated to each of the State‘s motions or did not oppose them. For the first time on appeal, Defendant asserts that he stipulated to or jointly filed the numerous motions for continuance which stated as grounds the need to continue plea discussions because of the apparent policy of the Second Judicial District Attorney‘s Office that only allowed plea negotiations prior to the victim being interviewed. This is the same policy that we previously disfavored in Serros because “it is well settled that the possibility of a plea agreement does not relieve the State of its duty to pursue a timely disposition of the case.” 2016-NMSC-008, ¶¶ 69, 71-72 (citing State v. Maddox, 2008-NMSC-062, ¶ 26, 145 N.M. 242, 195 P.3d 1254 (“The State must affirmatively seek to move the case to trial, even while plea negotiations are pending.“)). Here, the plea negotiations were complicated and delayed by Defendant‘s admission to a parole violation on June 2, 2009, the filing of additional criminal sexual penetration charges against Defendant in September 2009, and the parties’ effort to reach a plea deal with respect to all charges pending against Defendant and not just the charges in this case. There is no evidence that the State deliberately delayed the case during this time, and therefore these nineteen months from September 8, 2008 until April 2010 weigh only slightly against the State.
{14} During the second time period, Defendant concedes that he was responsible for delaying the trial from April 2010 until February 2011. However, Defendant was also responsible for the delay from March 2011 until April 2011 because his attorney missed a hearing and filed a motion for a continuance due to a scheduling conflict in another case. On May 2, 2011, Defendant filed a request for judicial recusal. This motion was denied, and the judge found that the motion was filed for the purpose of delaying the trial. On May 6, 2011, Defendant petitioned this Court to issue an extraordinary writ reversing the district judge. We denied the writ on May 27, 2011.
{15} The third time period, the twenty-six-month delay from September 2011 until November 2013, involved the district court‘s consideration of numerous motions filed by both parties and an appeal to this Court. The State appealed an order which excluded a statement Defendant made to his counselor, Tewana Bell, which Bell later relayed to police officers. In that statement, Defendant told Bell that he had sex with someone whose description was consistent with the physical characteristics of the alleged victim. The district court entered its order on December 15, 2011 excluding Defendant‘s statement because of the psychotherapist-patient privilege. See
{16} The State then filed a notice of appeal with the district court on December 16, 2011. The State appealed to the Court of Appeals, which transferred the appeal to this Court pursuant to State v. Smallwood, 2007-NMSC-005, ¶ 11, 141 N.M. 178, 152 P.3d 821, because Defendant, if found guilty, might be sentenced to life in prison.
{17} Further, the three and one-half months of motions from September 6, 2011 until December 16, 2011 and the two and one-half months between our dispositional order and the actual trial on November 12, 2013 are administrative delays which weigh, if
{18} To summarize how we have weighed the reasons for the delay, twenty-five months weigh slightly against the State, seventeen months weigh against Defendant, and twenty months weigh neutrally. Considered together, the parties bear a similar responsibility for the delays, and this factor weighs only slightly against the State.
C. Assertion of the right
{19} Under this factor, “[w]e accord weight to the frequency and force of the defendant‘s objections to the delay and analyze the defendant‘s actions with regard to the delay.” State v. Spearman, 2012-NMSC-023, ¶ 31, 283 P.3d 272 (internal quotation marks and citation omitted). This inquiry is “closely related to the other Barker factors, because ‘[t]he strength of [the defendant‘s] efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that [the defendant] experiences.’ ” Garza, 2009-NMSC-038, ¶ 31 (quoting Barker, 407 U.S. at 531) (alterations in original). Further, “[t]he timeliness and vigor with which the right is asserted may be considered as an indication of whether a defendant was denied needed access to [a] speedy trial over his objection or whether the issue was raised on appeal as [an] afterthought.” Serros, 2016-NMSC-008, ¶ 76 (second and
{20} Defendant did not meaningfully assert his right, and therefore this factor does not support his speedy trial claim. Defendant made a pro forma assertion of his right on October 30, 2008, when the Public Defender Department entered its appearance on his behalf. The only other time he asserted the right was five years later in his October 25, 2013 motion to dismiss on speedy trial grounds. Considered alone, these two assertions would often be enough to weigh this factor slightly in favor of Defendant. See, e.g., Spearman, 2012-NMSC-023, ¶¶ 32-33 (holding that the defendant‘s initial pro forma assertion along with a motion to dismiss based on a speedy trial violation weighed against the State). However, Defendant‘s assertions of the right were mitigated by his acquiescence to, and responsibility for, numerous delays. See Garza, 2009-NMSC-038, ¶ 34 (holding that the defendant‘s assertion of the right at the outset of the case along with a motion to dismiss based on a speedy trial violation weighed “slightly” in the defendant‘s favor where the assertion was not “mitigated . . . by any apparent acquiescence to the delay” by the defendant). In this case, Defendant either stipulated to or did not oppose the State‘s numerous motions for a continuance and was himself responsible for seventeen months of delay. Admittedly, it is difficult to determine whether Defendant only stipulated to the
D. Prejudice
{21} This Court must analyze three separate interests to determine whether Defendant suffered prejudice: “(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.” Garza, 2009-NMSC-038, ¶ 35 (internal quotation marks and citation omitted). Defendant must make a particularized showing of prejudice to demonstrate a violation of any of the three interests. Id. ¶¶ 35, 37. Because some oppression and anxiety are inevitably suffered by every defendant awaiting trial, “we weigh this factor in the defendant‘s favor only where the pretrial incarceration or the anxiety suffered is undue.” Id. ¶ 35.
{22} Here, Defendant has not asserted any particularized prejudice, such as identifying a witness whose memory may have been impaired by the delay. See Serros, 2016-NMSC-008, ¶ 92 (holding that the inability to interview the very young
5. Balancing the factors
{23} To find a speedy trial violation without a showing of actual prejudice, the Court must find that the three other Barker factors weigh heavily against the State. Garza, 2009-NMSC-038, ¶ 39. While the extraordinary length of the delay in this case weighs heavily against the State, the reasons for the delay weigh only slightly against the State, and Defendant did not meaningfully assert his speedy trial right. Therefore, we conclude that there was no speedy trial violation. Accordingly, we must examine Defendant‘s other claims.
B.
{24} The district court instructed the jury that to convict Defendant of CSP, CSC, or kidnapping, the jury must find beyond a reasonable doubt that he committed an act that was “unlawful.” The jury instructions defined an unlawful act as follows: “For the act to have been unlawful it must have been done with the intent to arouse or gratify sexual desire or to intrude upon the bodily integrity or personal safety of [J.Z.].” This instruction reflected UJI 14-132 NMRA, except that it failed to include the bracketed phrase “without consent,” which would have clarified that any sexual contact between J.Z. and Defendant had to be non-consensual for the jury to determine that Defendant‘s act was “unlawful.”
{25} If unlawfulness is at issue, then consent is an essential element of CSP-felony. CSP is defined, in relevant part, as “the unlawful and intentional causing of a person to engage in . . . anal intercourse . . . whether or not there is any emission.”
{26} Here, the State provided the unlawfulness jury instruction to the district court and argued that “without consent” had been properly omitted because the issue of consent was “legally irrelevant” to the unlawfulness of CSP-felony in this case under State v. Moore, 2011-NMCA-089, 150 N.M. 512, 263 P.3d 289. Yet, as the State acknowledges on appeal, Moore is inapplicable to this case. Moore held that “the consent of a statutorily defined child is irrelevant to the unlawfulness element of CSP[-felony],” and it was therefore proper in Moore to omit the phrase “without consent” from the jury instructions when the alleged victim was fourteen years old and the defendant was forty-six years old. Id. ¶¶ 13-16. As we noted in Stevens, 2014-NMSC-011, ¶¶ 20, 40, Moore‘s reference to a ” ‘statutorily defined child’ ”
{27} Because Defendant failed to object to the proffered jury instruction or otherwise preserve this issue at trial, we will only reverse if the omission of “without consent” was fundamental error. See Stevens, 2014-NMSC-011, ¶ 42. “Fundamental error only applies in exceptional circumstances when guilt is so doubtful that it would shock the judicial conscience to allow the conviction to stand.” Id. (internal quotation marks and citation omitted). Under this standard, we must determine whether a reasonable juror would have been confused or misdirected “not only from instructions that are facially contradictory or ambiguous, but from instructions which, through omission or misstatement, fail to provide the juror with an accurate rendition of the relevant law.” State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134. “In applying the fundamental error analysis to deficient jury instructions, we are required to reverse when the misinstruction leaves us with ‘no way of knowing whether the conviction was or was not based on the lack of the essential element.’ ” State v. Montoya, 2013-NMSC-020, ¶ 14, 306 P.3d 426 (quoting State v. Swick, 2012-NMSC-018, ¶ 46, 279 P.3d 747).
{28} “[I]f the instructions omitted an element which was at issue in the case, the error could be fundamental.” State v. Orosco, 1992-NMSC-006, ¶ 9, 113 N.M. 780, 833 P.2d 1146. Accordingly, we initially examine whether J.Z.‘s consent was at issue in this case to determine whether the omission of this element could be fundamental error. Cf. id. ¶¶ 9-20 (concluding that it was not fundamental error to omit the unlawfulness element of criminal sexual contact of a minor under age thirteen where there was no evidence putting the lawfulness of the alleged acts “in issue,” and therefore “no rational jury could have concluded that defendants had committed the acts without also determining that the acts were performed in the manner proscribed by law“). There is some evidence in the record that could have led the jury to infer that consent was at issue in this case. First, there was no evidence of physical injuries to corroborate J.Z.‘s story that Defendant held him down and forced him to have sex. Second, during his interview with police Defendant did not deny having sex on May
{29} Fundamental error occurs when jury instructions fail to inform the jurors that the State has the burden of proving an essential element of a crime and we are left with “no way of knowing” whether the jury found that element beyond a reasonable doubt. Swick, 2012-NMSC-018, ¶ 46; see also
{30} Turning to this case, to ascertain whether fundamental error occurred, we must
{31} The jury convicted Defendant of kidnapping by finding beyond a reasonable doubt that J.Z. was taken, restrained, confined, or transported by force, intimidation, or deception by Defendant. As part of the kidnapping conviction, the jury also found that Defendant intended to hold J.Z. against his will to inflict death, physical injury,
{32} Moreover, we agree with Defendant that the juror questions submitted during trial hinted at juror confusion regarding the issue of consent. The record indicates that several juror questions were submitted to the district judge after the jurors were provided with the instructions. In one of those questions, a juror asked “[h]ow old you have to be to have consentual [sic] sex . . . ? We think [the SANE nurse] said the age was 13.” Indeed, the SANE nurse who examined J.Z. testified that the age of consent in New Mexico was thirteen. Another juror asked what it meant that Defendant‘s act needed to be “unlawful,” and further stated that the term “seems conclus[ory] or unnecessary.” The district court responded to these questions by instructing the jurors, “you are to decide this case based on the testimony at trial and the jury instructions as a whole.” These questions indicate some level of confusion regarding the age of consent in New Mexico and the meaning of the “unlawful act” element of CSP-felony, and further support our conclusion that the jurors in this case
{33} Defendant only requests that his CSP-felony conviction be reversed as a result of this error. However, we are responsible for determining whether this fundamental error also infected his conviction for kidnapping. See State v. Arrendondo, 2012-NMSC-013, ¶ 20, 278 P.3d 517 (concluding that appellate courts have a responsibility to raise issues sua sponte when it is necessary to protect a party‘s fundamental rights); see also State v. Cabezuela, 2011-NMSC-041, ¶ 39, 150 N.M. 654, 265 P.3d 705 (“It is the fundamental right of a criminal defendant to have the jury determine whether each element of the charged offense has been proved by the state beyond a reasonable doubt.” (internal quotation marks and citations omitted)). We conclude that the error of omitting the element of consent from the jury instruction affected the kidnapping conviction. The jury instructions did not define
{34} Because we have determined that we must reverse Defendant‘s convictions for CSP-felony and kidnapping, we are required to determine whether sufficient evidence was presented to support these convictions to avoid double jeopardy concerns should the State seek to retry Defendant. State v. Dowling, 2011-NMSC-016, ¶ 18, 150 N.M. 110, 257 P.3d 930; Cabezuela, 2011-NMSC-041, ¶ 40. “The test for sufficiency of the evidence is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt with respect to every
{35} There was sufficient evidence to support Defendant‘s kidnapping and CSP-felony convictions. In this case, the alleged victim‘s testimony was by itself enough to establish every element of each offense beyond a reasonable doubt under a sufficiency of the evidence review. The jury could have reasonably inferred that Defendant took or transported J.Z. by deception based on J.Z.‘s testimony that he got into Defendant‘s truck because Defendant said that he would take J.Z. home. Alternatively, J.Z. also testified that when he tried to escape from Defendant‘s truck, the door was locked—testimony from which the jurors could have reasonably concluded that Defendant confined J.Z. by force. Further, the jurors could have reasonably inferred that Defendant intended to hold J.Z. against J.Z.‘s will to inflict a sexual offense against him based on J.Z.‘s testimony that Defendant took him to a remote location, pulled down J.Z.‘s pants, and then penetrated his anus. This evidence also supports a reasonable inference that Defendant caused J.Z. to engage in anal intercourse. Additionally, the jury also could have reasonably concluded that
{36} Because we have determined that the omission of consent from the jury instructions rose to the level of fundamental error and requires reversal of both convictions, we need not reach the other issues raised by Defendant. However, to provide guidance on remand, we address (1) the admission of GPS evidence and
III. The District Court Did Not Abuse Its Discretion by Admitting Evidence Regarding J.Z.‘s Identification of Defendant via the Internet or by Allowing Testimony Regarding the Fact that Defendant Was Subject to GPS Monitoring
{37} Defendant claims that the district court abused its discretion by admitting evidence that he wore a GPS monitoring device and that J.Z. found Defendant‘s picture, name, and address on an Internet website. Absent a clear abuse of discretion, we will not reverse a trial judge‘s decision to admit evidence. State v. Apodaca, 1994-NMSC-121, ¶ 23, 118 N.M. 762, 887 P.2d 756. “An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case. We cannot say the trial court abused its discretion by its ruling unless we can characterize it as clearly untenable or not justified by reason.” Id. (internal quotation marks and citations omitted).
{38} Prior to trial, Defendant filed a motion to exclude any evidence that he wore a GPS tracker and was subject to GPS monitoring by the State, and any evidence that
{39} As an initial matter, we reject Defendant‘s argument that we should consider his offer to stipulate to being with J.Z. at the time and place of the alleged sexual assault as precluding the State‘s need for the online identification and GPS evidence admitted by the district court. The State is “not bound to present its case to the jury through abstract stipulations,” despite a defendant‘s offer to stipulate to certain facts. State v. Martinez, 1999-NMSC-018, ¶ 34, 127 N.M. 207, 979 P.2d 718. For example, in State v. Sarracino, this Court held that it was not an abuse of discretion to allow the State to elicit testimony regarding statements made by the defendant while threatening a couple with a gun when the defendant had offered to stipulate to making
{40} We also disagree with Defendant‘s contention that admission of “[t]he fact that [Defendant] was on GPS monitoring and that his name and address were listed on a website inexorably leads to one conclusion: he was a convicted sex offender” and that this evidence was therefore improper evidence of prior bad acts under
{41} We reject Defendant‘s additional contention that the probative value of the online identification and GPS evidence was substantially outweighed by a danger of unfair prejudice from its admission under
{42} Finally, we reject Defendant‘s contention that presenting the online identification and GPS evidence improperly bolstered J.Z.‘s credibility. Evidence will be excluded as improper bolstering when it directly comments on a witness‘s credibility, but not when it provides “[i]ncidental verification” of a witness‘s story or only indirectly bolsters that witness‘s credibility. State v. Alberico, 1993-NMSC-047, ¶ 89, 116 N.M. 156, 861 P.2d 192. For example, in State v. Lucero, a psychiatrist‘s testimony was improper bolstering when she commented directly on the victim‘s credibility, repeatedly mentioned that the victim claimed to have been assaulted by
IV. The District Court‘s Limitation of Defendant‘s Cross-Examination of J.Z. Was Not an Abuse of Discretion and Did Not Violate Defendant‘s Rights under the Confrontation Clause
{43} Defendant argues that the district court erred by limiting his cross-examination of J.Z. Generally, “[t]he district court has broad discretion to control the scope of cross-examination, including the discretion to control cross-examination to ensure a fair and efficient trial.” State v. Bent, 2013-NMCA-108, ¶ 10, 328 P.3d 677 (citation omitted). Prior to trial, the State filed a motion seeking to exclude Defendant from using any of J.Z.‘s juvenile adjudications for impeachment purposes, to limit Defendant to only inquiring about the number of J.Z.‘s felony convictions, and to exclude Defendant from using the names of any of those felonies with the exception of J.Z.‘s conviction for commercial burglary. The record indicates that Defendant did
{44} First, Defendant contends that it was improper to limit cross-examination regarding J.Z.‘s prior convictions and his experience with the criminal justice system as an adult and as a juvenile. Under
{45} As to J.Z.‘s adult convictions, under
{46} Second, Defendant asserts that it was an abuse of discretion for the district court to limit his cross-examination of J.Z. regarding how J.Z. made his living on the streets, including the fact that J.Z. “used and/or sold drugs.” The record reflects that
{47} Third, Defendant claims that it was an improper abuse of discretion for the district court to prevent Defendant from providing J.Z. with transcripts of his safehouse interview while J.Z. was on the stand to refresh J.Z.‘s recollection and then impeach him with prior inconsistent statements. “The admission or exclusion of [an] inconsistent statement rests within the sound discretion of the trial court under the particular facts in this case and will not be reversed absent an abuse of that
{48} Fourth and finally, Defendant argues that these limitations on his cross-examination of J.Z. collectively violated Defendant‘s rights under the Confrontation
{49} We disagree with Defendant‘s argument that the limitations on cross-examination in this case were analogous to those limitations held to be violations of the Confrontation Clause by the United States Supreme Court in Davis. In Davis, the defendant, who was accused of stealing a safe, was prohibited from cross-examining a witness against him regarding the fact that the witness was on probation for
CONCLUSION
{50} We reverse Defendant‘s convictions for CSP-felony and kidnapping and remand to the district court, where Defendant may be retried on those charges.
{51} IT IS SO ORDERED.
EDWARD L. CHÁVEZ, Justice
WE CONCUR:
CHARLES W. DANIELS, Chief Justice
PETRA JIMENEZ MAES, Justice
BARBARA J. VIGIL, Justice