STATE of New Mexico, Plaintiff-Appellant,
v.
Paul STOCK, Defendant-Appellee.
Court of Appeals of New Mexico.
*887 Pаtricia A. Madrid, Attorney General, Santa Fe, NM, Ralph E. Trujillo, Assistant Attorney General, Albuquerque, NM, for Appellant.
Law Offices of Nancy L. Simmons, P.C., Nancy L. Simmons, Albuquerque, NM, for Appellee.
Certiorari Granted, No. 30,069, November 16, 2006.
OPINION
PICKARD, Judge.
{1} This case raises the difficult question of whether a defendant's constitutional right to a speedy trial is violated when he is incarcerated and awaiting trial for more than three years, but the delay is in part attributable to the neglect of his overworked public defenders. We hold that, under the egregious facts of this particular case, the defendant's speedy trial rights were violated. Accordingly, we affirm the district court's dismissal of all the charges against the defendant.
BACKGROUND
{2} Defendant Paul Stock was indicted on numerous counts of criminal sexual penetration of a minor and other charges on August 17, 2000. Defendant was arraigned on September 25, 2000. Trial was initially sеt for March 6, 2001. On February 19, 2001, defense counsel requested an extension of time. The State filed a motion to extend the six-month rule, noting that the reason for the motion was Defendant's request for a continuance, and the district court granted the extension. See Rule 5-604 NMRA. On April 27, 2001, the district court granted Defendant's motion for a forensic evaluation to determine whether Defendant was competent to stand trial. The order stated that the six-month rule would be tolled pending the evaluation. A status conference was held on May 14, 2001, during which the district court was reminded that Defendant's competency needed to be evaluated.
{3} It appears that the forensic examiner issued a report on August 29, 2001, finding Defendant competent to stand trial. The State asserts that the record does not reveal who received this report, аnd it appears that neither the State nor the district court received the report at this time. On April 1, 2002, nearly a year after the last status conference, the State requested a status conference regarding competency. A conference was held on May 6, 2002, at which defense counsel stated that Defendant had been found competent to stand trial. At this conference, however, defense counsel continued to question Defendant's competency and requested another continuance for the purpose of having Defendant evaluated by a second expert. The court granted the continuance and stated that the next hearing would be at Defendant's request. There is no indication in the record that the court actually ordered another evaluation.
{4} The record shows that no further activity occurred in the case for nearly a year and a half until October 9, 2003, when defense counsel filed a request for a status conference. It appears that a second competency evaluation had been completed and sent to defense counsel on November 20, 2002, but once again, there is no indication that this report, or any notification that an evaluation had been completed, was sent to the State or the district court. This report was equivocal regarding Defendant's competency, stating, "Individuals with [Defendant's] intellectual capacity are sometimes competent but often are incompetent. . . . As this issue remains unclear[,] it may take further *888 assessment of [Defendant] to be more definitive."
{5} A status conference was held on October 27, 2003, at which defense counsel stаted that the first expert had found Defendant competent, but the second expert had issued an ambiguous report. Defense counsel and the State both reported that there were ongoing plea negotiations regarding a plea of guilty but mentally ill. The State represented that an additional evaluation would be necessary for such a plea and requested that the court order the required evaluation. The court apparently agreed with this request, but the record does not show an order for evaluation. At the October 2003 hearing, the court also set a trial date of January 6, 2004, in case the plea negotiations were not successful.
{6} A pretrial conference was held on November 3, 2003, at which the court found Defendant competent. On December 4, 2003, the court issued a "Comрetency Order Nunc Pro Tunc," stating that Defendant was competent to stand trial.
{7} Another pretrial conference was held on December 1, 2003. At this conference, it appears that both the State and defense counsel reported that plea negotiations were still ongoing and that another evaluation would be needed. On December 8, 2003, the court ordered another evaluation, stating that the six-month rule was tolled. The court held three more status conferences on January 12, 2004, February 2, 2004, and February 6, 2004. As of at least February 2, 2004, the additional competency evaluation had not been completed. Ruling that Defendant's speedy trial rights had been violated, the court sua sponte dismissed all charges against Defendant and ordered that he be released from custody. The court also appointed a guardian ad litem for Defendant. The State appealed the order of dismissal. In an unpublished memorandum opinion, this Court reversed and remanded in order for the district court to hold an evidentiary hearing.
{8} Defendant filed a motion to dismiss in the district court on June 20, 2005. The court held an evidentiary hearing on August 23, 2005. All three of Defendant's public defenders testified. They all stated that, at the time they worked on Defendant's case, they were operating under extremely heavy caseloads, ranging from 200 to 300 cases each for his attorneys and 75 to 100 cases for the district defender, who also had administrative duties. Two of the attorneys stated that they did not have the resources to both pursue the issue of Defendant's competency and investigate the merits of the case and that, having to choose betwеen these two avenues, they decided to pursue competency only. Defense counsel presented evidence of numerous instances of Defendant being attacked in jail and numerous requests for Defendant to be placed in administrative segregation for his own safety.
{9} The State acknowledged that the delay in bringing Defendant to trial was presumptively prejudicial. The State noted that while defense counsel had "dropped the ball," all of the delay was for the purpose of determining Defendant's competency and was thus for his benefit. The State also argued that there was no actual prejudice because all of the witnesses were still available and there was no evidence that their memories had been tainted. When asked by the court whether the State had some оbligation to move the case along rather than just "sit[ting] on your hands," the prosecutor acknowledged that at least "personally," she felt there was such an obligation.
{10} At the close of the hearing, the district court once again dismissed the charges. The court found that, while all of the public defenders who worked on Defendant's case were competent and ethical, it was "humanly impossible for lawyers to practice law under the conditions that we're asking them to practice law." The court stated that the case showed "the need for the legislature, and the governor, and the people of this state to wake up and start properly funding not only the public defenders' office but also the district attorneys' offices," because otherwise courts would have to continue dismissing casеs that were not timely prosecuted.
{11} The court also found that there had been no intentional strategy of delay on the part of defense counsel, and that the State *889 had an obligation to monitor the case and keep it moving. The court expressed concern that it appeared that Defendant had agreed to the various continuances, but the court questioned such acquiescence in view of the fact that Defendant was found to have the intellectual functioning of a twelve-year-old. The court also noted that even if Defendant had wanted to express his frustration about the delays, he could not have done so because he often was not transported to court for hearings. Finally, the court found that the delay had prejudiced Defendant. The court noted that there was documentation of Defendant being attacked in jail on numerous occasions. The court further noted that (1) it had been five years since the alleged incident, (2) the alleged victim had never been interviewed by defense counsel, and (3) any physical examination would now be useless or of limited value. The State appeals the dismissal.
DISCUSSION
{12} We recently set forth the framework under which we analyze a speedy trial claim:
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. The right attaches when the defendant becomes an accused, either at the time of arrest or upon the issuance of an indictment or information. When a speedy trial claim is made, the defendаnt must make a threshold showing that the length of delay is presumptively prejudicial. Once that showing has been made, the burden of persuasion shifts to the State to show, on balance, that the four factors do not weigh in favor of dismissal. Courts balance four factors to determine whether a speedy trial violation has occurred. The factors to be considered are: (1) the length of delay, (2) the reason for delay, (3) the defendant's assertion of the right, and (4) prejudice to the defendant. On appeal from a speedy trial claim, we [defer] to the district court's fact finding, [but] independently examine the [four factors] to ensure that no violation has occurred.
State v. Laney,
1. Length of Delay
{13} The length of delay factor serves a dual role. First, it is a threshold inquiry that triggers the rest of the analysis, and second, it is considered as part of the balancing test itself. See Laney,
{14} Where a case is simple and relatively easy to prosecute, delay will weigh more heavily against the State because there is less excuse for delay. See Barker,
{15} In this case, Defendant was arraigned on September 25, 2000, and was ordered released from custody on February 11, 2004. The State acknowledges that this delay of nearly three and one-half years is presumptively prejudicial, triggering an analysis of all of the factors. Moreover, the parties appear to agree that this was a simple case. The State planned to rely on eyewitness *890 testimony of the alleged victim and the testimony of her parents, as well as Defendant's confession. The State estimated that the case would take two or thrеe days to try. In view of the lengthy delay and the apparent lack of complexity of the case, we think this factor weighs in Defendant's favor.
{16} While the reason for delay is not relevant to the initial step of determining whether there is a presumption of prejudice that triggers analysis of all the Barker factors, State v. Urban,
{17} Perhaps the methodology of these cases reflects the fact that, even where a defendant bears some responsibility for delay, the sheer fact of lengthy incarceration or other restraint on liberty should count for something in the speedy trial analysis. This makes sense, because it is ultimately the State's responsibility to bring a defendant to trial in a timely manner. See Marquez,
{18} In any event, the three and one-half year delay in this case was particularly egregious. See State v. Lujan,
2. Reasons for Delay
{19} The State argues that Defendant's speedy trial claim must fail because the majority of the delay was occasioned by Dеfendant's repeated requests for continuances for the purposes of competency evaluations. We do not quarrel with the State's assertion that delays caused by competency evaluations should generally not count against the state for speedy trial purposes because the state cannot try an incompetent defendant. See State v. Mendoza,
*891 {20} We examine the period from May 2001 to October 2003, which constitutes more than two-thirds of the total delay in this case, to demonstrate the nearly complete lack of attention to the case on the part of both the State and defense counsel. On May 14, 2001, a status conference was held, at which the district court was informed that defense counsel was having Defendant examined for competency pursuant to the court's previous order. It appears that the expert completed her evaluation, finding Defendant competent, on August 29, 2001. However, this report was not sent to the State or to the court, and its completion was not disclosed until over eight months later, during the May 6, 2006, status conference requested by the State. The status conference was held on May 6, 2002. At the confеrence, defense counsel reported that one expert had found Defendant competent, but counsel asked for a continuance to have Defendant reevaluated by another expert. It appears from the record that defense counsel received a report from the second expert in November 2002. However, defense counsel never sent this report to the State or to the court and in fact did absolutely nothing to move the case forward for nearly a year, when counsel finally requested another status conference in October 2003. Thus, for nearly two and one-half years, nothing happened in the case, with the exception of two competency evaluations (the results of which were not disclosed to anyone but defense counsel), and one status conference.
{21} We simply cannot see how these unreasonable and unnecessary delays can be considered to have been "for [Defendant's] benefit." See Mendoza,
{22} Indeed, we think it noteworthy that there is no indication that Defendant himself ever asked for or expressly consented on the record to any of the delays in this case. While we agree with the general rule that a defendant must be held accountable for the actions of his or her attorneys, we have previously indicated in dicta that there could be a case where delays caused by the neglect of court-appointed counsel cannot be held against a defendant for speedy trial purposes. See Plouse,
{23} We agree with the following pronouncement made by the Supreme Court of Illinois in a case involving an attorney's failure to prosecute an appeal:
For a representative system of litigation to function, it is self-evident that under most circumstances clients must be bound by the acts of their lawyers. However, it is equally self-evident that a mechanical application of this legal proposition can lead to harsh results repugnant to commonly held notions of justice and fair play. These results can be even harsher in a criminal case than a civil one since in the latter suit the aggrieved client has, in theory, a malpractice action against his attorney for damages, while in the former no attorney can restore his client's lost liberty.
People v. Brown,
{24} Here, nothing can restore to Defendant the three-and-one-half years that he spent in jail awaiting trial while his counsel did very little to move the case forward. We *892 are unwilling to reverse the district court's ruling that Defendant's speedy trial rights were violated just because much of the delay is perhaps technically attributable to his counsel.
{25} Moreover, we agree with the district court that the extraordinary delay in this case is partially attributable to the State. It is ultimately the state's duty to make sure that defendants are brought to trial in a timely manner. See Barker,
{26} Finally, we note that the district court was emphatic that Defendant's counsel did not commit any intentional misconduct in this case. Rather, the district court blamed the delay on the fact that the public defenders' office was severely overburdened. As we have noted, the district court was of the view that it was "humanly impossible for lawyers to practice law under the conditions that we're asking them to practice law." To the extent that delays can be blamed on the overburdened system, that also cannot be held against Defendant. Cf. People v. Johnson,
{27} Our holding is also supported by cases involving appellate delay. See Harris v. Champion,
*893 {28} Finally, we reject the State's argument that time spent in plea negotiations cannot be counted against the state in a speedy trial analysis. In Lujan,
{29} In sum, we acknowledge that part of the dеlay in this case is technically attributable to Defendant, because it was occasioned by his counsel pursuing or, more accurately, failing to pursue, the issue of his competency. However, as we have noted, the State bears some responsibility for the delay as well, due to the State's failure to monitor the case and ensure that steps were being taken to bring Defendant to trial in a timely manner. We agree with the district court that the State cannot be permitted to "sit on its hands" during extraordinary periods of delay, such as occurred in this case. We could weigh this factor neutrally because both parties were at fault, but we weigh this factor ultimately against the State because it is the State's responsibility to bring a defendant to trial.
3. Defendant's Assertion of the Right
{30} It is undisputed that Defendant did nothing to assert his right to a speedy trial until after the trial court had sua sponte dismissed the charges. Accordingly, we weigh this factor against Defendant. However, we are unwilling to put a great deal of weight on Defendant's failure to assert his right under the circumstances of this case. The district court acknowledged concern about the appearance that Defendant had acquiesced in the delay by failing to assert his speedy trial rights. But the district court credited an expert report that stated that Defendant has the intellectual capacity of a twelve-year-old. The court questioned whether a twelve-year-old could even understand the concept of a speedy trial or of continuances. The court further noted that Defendant would have had a difficult time expressing his frustration at the delay because he was often nоt transported to court for hearings. We also note that, where defense counsel felt forced to continually delay the trial in part due to an unmanageable caseload, counsel was not in a position to make a speedy trial claim on Defendant's behalf.
{31} Our decision to give less weight to Defendant's failure to assert his speedy trial rights is also supported by the reasoning in Barker and the policy rationales that underlie this factor. In Barker, the Supreme Court specifically considered adopting the "demand-waiver" doctrine, which "provides that a defendant waives any consideration of his right to speedy trial for any period prior to which he has not demanded a trial."
{32} The Supreme Court also articulated two policy considerations that inform the analysis of a defendant's assertion of the right. First, the Court implied that delay sometimes inures to a defendant's benefit, and thus a defendant should not be permitted to purposefully sit by during lengthy delays and then ambush the court and the *894 state with a claim that his or her speedy trial rights have been violated. Under the facts of Barker, for example, the Court determined that "Barker did not want a speedy trial." Id. at 534,
{33} In view of these two policy concerns, it would not be fair to put great emphasis on Defendant's failure to assert his rights. Under the facts of this case, we surely cannot say, as the Court in Barker did, that Defendant "did not want a speedy trial." Like the district court, we question, in view of Defendant's diminished capacity, whether any significance can be attributed to his silence. Also unlike in Barker, the district court here made a specific finding that there was no tactical delay on the part of defense counsel. Finally, we decline to view Defendant's silence as an indicator that he did not mind being incarcerated for three and one-half years without a trial or that he did not think his defense would be prejudiced on the merits by the delay. Thus, while Defendant's failure to assert his right weighs against him, it does so only slightly.
4. Prejudice
{34} We examine the three types of prejudice that Barker held relevant to the speedy trial analysis: "(1) oppressive pretrial incarceration; (2) anxiety and concern of the accused; and (3) the possibility of impairment to the defense." Plouse,
{35} Barker identified the evils that can result from pretrial incarceration loss of a job, disruption of family life, enforced idleness, and the inability to work on one's defense.
{36} The State argues that Defendant's incarceration was not oppressive because the record does not support Defendant's claims that he was harassed and assaulted in jail. We disagree. Defendant attached a number of documents to his reply in support of his motion to dismiss. These documents include a number of requests to stay in administrative segregation made by Defendant because he feared for his safety, and a number of incident reports indicating that Defendant was involved in physical altercations. The State supports its argument with the testimony of Defendant's attorneys who, for the most part, testified that they were unaware of Defendant having serious problems while incarcerated. Hоwever, the district court found otherwise, stating that Defendant "has been prejudiced he's been prejudiced by numerous documented attacks at the jail." We defer to this finding. See Laney,
{37} We next examine any anxiety and concern that Defendant may have suffered as a result of being in jail and having charges pending against him for an extended period. Defendant does not appear to have specifically alleged undue anxiety and concern, and one of his attorneys who visited him in jail testified that he appeared "happy as a clam." We do note the district court's speculation that perhaps Defendant's happy appearance was a result of his diminished mental capacity. Nonetheless, we agree that Defendant did not appear to suffer undue anxiety and concern that should be weighed in his favor.
{38} Finally, we examine whether the delay impaired Defendant's ability to mount a defense. Of the three types of prejudice considered in the speedy trial analysis, this type is "the most serious . . . because the inability of a defendant adequately to prepare his case skews the fairnеss of the entire system." Barker,
{39} In Salandre,
{40} At the evidentiary hearing in this case, defense counsel argued that the passage of time could make it very difficult to ascertain what really happened in this case. Counsel stated, "We have five years of therapy, which is good for the alleged victim, but in terms of trying to find the truth, where are we going to find the truth after that many years." The trial court was apparently persuaded by this argument, noting that five years had passed and "nobody [presumably no one from the public defender department] has even interviewed the victim." The State's only response to this argument is as follows:
At the hearing on Defendant's motion to dismiss, the State eliminated any possibility that the defense was impaired by the delay. Defendant was charged with [numerous sex offenses]. The prosecutor informed the [c]ourt thаt all the witnesses, including the victim . . . are still available to testify at trial. Thus there was no real danger that "witnesses may become unavailable or their memories may fade." Barker,407 U.S. at 521 ,92 S.Ct. 2182 .
*896 {41} We think Defendant's allegation of prejudice regarding the memory of the alleged victim is only moderately persuasive because it is somewhat speculative. On the one hand, Defendant's allegation is not as speculative as, say, a general allegation that due to the passage of time, witnesses may be difficult to find or their memories may have faded. See People v. Gilmore,
{42} On balance, however, we think that Defendant's allegation demonstrates enough specificity to make it somewhat persuasive. Defendant did not just make a general argument that time causes memory loss. Rather, he pointed out that the memory of a child victim is particularly susceptible to the passage of time and that this victim had been in therapy for five years. We find these contentions persuasive in the overall context of this case. Cf. In re Benjamin L.,
{43} We agree with Defendant that to the extent he succeeded in asserting cognizable prejudice, the State did not carry its burden of rebutting his assertions. As our Supreme Court held in Salandre, for the State to properly rebut a specific allegation of prejudice, it is not enough to merely argue that the defendant's assertions are not a matter of concern.
{44} In sum, we hold that the prejudice factor weighs moderately in Defendant's favor. First, he suffered oppressive pretrial incarceration that lasted for an unacceptably long time. See Laney,
5. Balancing the Factors
{45} We have held that Defendant's failure to timely assert his rights weighs slightly against him, and that the other three factors weigh in his favor. We are mindful of the fact that the speedy trial analysis is not "mechanical" and must take into account all the relevant circumstances. Lujan,
CONCLUSION
{46} We affirm the trial court's order dismissing the charges against Defendant.
{47} IT IS SO ORDERED.
WE CONCUR: JAMES J. WECHSLER and CYNTHIA A. FRY, Judges.