State v. Lovato

• Court: New Mexico Court of Appeals
• Decided: July 23, 2014
• Docket: 32,361
• Status: Unpublished

Opinion

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. No. 32,361

5 ARTHUR J. LOVATO,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY 8 Albert J. Mitchell, Jr., District Judge (by designation)

9 Gary K. King, Attorney General 10 Corinna Laszlo-Henry, Assistant Attorney General 11 Santa Fe, NM

12 for Appellee

13 Attorney and Counselor at Law, P.A. 14 Eric D. Dixon 15 Portales, NM

16 for Appellant

17 MEMORANDUM OPINION

18 SUTIN, Judge. 1 {1} A jury found Defendant Arthur Lovato guilty of driving with a breath alcohol

2 concentration of .08 or more, driving while his license was suspended or revoked, and

3 improperly turning at an intersection. See NMSA 1978, § 66-8-102(C)(1) (2008,

4 amended 2010) (stating that it is unlawful for a person to drive in New Mexico with

5 a breath or blood alcohol concentration of eight one hundredths or more); NMSA

6 1978, § 66-5-39(A) (1993, amended 2013) (prohibiting driving with a suspended or

7 revoked license); NMSA 1978, § 66-7-322 (1978) (stating the required position and

8 method of turning at intersections). The district court entered a judgment reflecting

9 that Defendant had four prior convictions for driving while intoxicated (DWI) and

10 was, therefore, a habitual DWI offender. In addition to ordering him to pay a fine, the

11 court sentenced Defendant to a term of two and one-half years of incarceration

12 followed by six months of supervised probation, and permanently revoked

13 Defendant’s driver’s license. Defendant appeals from the court’s judgment.

14 {2} Defendant raises six issues on appeal, including a claimed violation of his

15 constitutional right to a speedy trial, sufficiency of the evidence, evidentiary and

16 constitutional confrontation challenges, and issues in regard to his sentencing. We

17 conclude that Defendant has not demonstrated reversible error. We affirm.

18 BACKGROUND

2 1 {3} Because this is a memorandum opinion, and the parties are familiar with the

2 factual and procedural background, we do not provide that information in a separate

3 section. Relevant facts are presented, as needed, accompanying our analysis of

4 Defendant’s appellate issues.

5 I. SPEEDY TRIAL

6 {4} Defendant was arrested and charged in this case on February 26, 2010.

7 Defendant’s case was tried before a jury on March 30, 2012. From the date that

8 Defendant was arrested to the date that he was tried spanned approximately

9 twenty-five months.

10 {5} Defendant filed two motions to dismiss on speedy trial grounds, the first on

11 May 26, 2011, and the second on January 4, 2012; both were denied. Defendant

12 argues that the district court erred in failing to dismiss the charges against him on

13 speedy trial grounds. In reviewing the district court’s ruling on a speedy trial motion,

14 the appellate courts “give deference to the district court’s factual findings,” but we

15 review the speedy trial factors de novo. State v. Spearman, 2012-NMSC-023, ¶ 19,

16 283 P.3d 272 (alteration, internal quotation marks, and citation omitted).

17 {6} Defendant and the State agree that this was a simple case and that the twenty-

18 five-month delay in bringing Defendant to trial therefore required consideration of the

19 four speedy trial factors. See State v. Garza, 2009-NMSC-038, ¶ 48, 146 N.M. 499,

3 1 212 P.3d 387 (holding that delay in excess of one year in a simple case requires

2 evaluation of the speedy trial factors). Thus, we consider “(1) the length of delay[;]

3 (2) the reasons for the delay[;] (3) the defendant’s assertion of his right [to a speedy

4 trial;] and (4) the actual prejudice to the defendant[.]” Id. ¶¶ 13-14. The district court

5 did not weigh any one factor heavily in Defendant’s favor.

6 A. Length of Delay

7 {7} While the length of delay plays a role in the threshold determination of

8 presumptive prejudice, it is also weighed in the balance at the second stage of the

9 analysis. Id. ¶ 23. “Considering the length of delay as one of the . . . factors, the

10 greater the delay the more heavily it will potentially weigh against the [prosecution].”

11 Id. ¶ 24. In evaluating the length of delay factor, we examine “the extent to which the

12 delay stretches beyond the bare minimum needed to trigger judicial examination of

13 the claim.” State v. Coffin, 1999-NMSC-038, ¶ 59, 128 N.M. 192, 991 P.2d 477

14 (internal quotation marks and citation omitted). On appeal, Defendant does not take

15 a position regarding the weight that should be assigned to the delay of approximately

16 thirteen months beyond the twelve-month threshold for simple cases. We have held

17 that a delay of six months beyond the triggering date in an intermediate case weighed

18 only slightly against the prosecution. See State v. Montoya, 2011-NMCA-074, ¶ 17,

19 150 N.M. 415, 259 P.3d 820. In contrast, in Garza, our Supreme Court recognized

4 1 that a delay of five or more years weighed heavily in the defendant’s favor. 2009-

2 NMSC-038, ¶ 24. Here, the delay of thirteen months beyond the triggering date,

3 being longer than the six-month delay in Montoya, but significantly shorter than the

4 five to six years discussed in Garza, weighs moderately against the State and in

5 Defendant’s favor. See 2009-NMSC-038, ¶ 24 (recognizing that a delay of three years

6 and nine months “was too short to weigh heavily” in the defendant’s favor).

7 B. Reasons for the Delay

8 {8} Defendant argues that the State delayed the trial in this matter in four

9 ways: (1) by excusing Judge Orlik; (2) by failing to offer to stipulate to a judge,

10 thereby “allow[ing] the matter to proceed through the bureaucracy of multiple [j]udge

11 reassignments until finally the Supreme Court stepped in and appointed Judge

12 Mitchell”; (3) failing to seek a trial date from Judge Mitchell as a first priority and

13 choosing instead as a “first thing” to move to revoke Defendant’s bond; and

14 (4) vacating the July 28, 2011, trial setting so that the prosecutor could attend a

15 nominating committee hearing.

16 {9} The record reflects that the State filed a notice of excusal as to Judge Orlik on

17 November 16, 2010. Between November 16 and December 14, 2010, two judges

18 were assigned to and recused from the case. On December 14, 2010, our Supreme

19 Court designated Judge Mitchell to preside over the case. On December 14, 2010, the

5 1 State filed a motion to set aside Defendant’s bond and to modify the conditions of his

2 release on the ground that Defendant had been arrested on December 14, 2010, for

3 another DWI offense. On July 28, 2011, the court granted a stipulated joint order for

4 continuance on the basis that the prosecutor would not be available for the August 2,

5 2011, trial. In the stipulated order, the State and Defendant agreed to vacate the

6 August 2, 2011, trial date and that any resultant delay would weigh against the State

7 in a speedy trial analysis. Trial was re-set to commence on September 28, 2011.

8 {10} In light of the foregoing, approximately one month of delay can reasonably be

9 viewed as having resulted from the State’s excusal of Judge Orlik; and pursuant to the

10 parties’ stipulation, the approximate two-month delay from the vacated trial date of

11 August 2, 2011, to the re-set trial date of September 28, 2011, weighs against the

12 State. Defendant does not demonstrate by evidence in the record or by argument in

13 his briefs that the State’s motion to revoke Defendant’s bond that was filed the same

14 day that Judge Mitchell was assigned to the case caused any delay in bringing the case

15 to trial, and we will not assume that it did. Thus, Defendant’s argument regarding the

16 State-caused delay in this case accounts for three months of the approximate twenty-

17 five-month delay in this case.

18 {11} Defendant does not demonstrate that the court erred in its weight assignment

19 in regard to the remaining twenty-two months of delay, at least eight of which were

6 1 attributed by the district court to Defendant’s failures to appear and requests for

2 continuances. See State v. Harvey, 1973-NMCA-080, ¶ 7, 85 N.M. 214, 510 P.2d

3 1085 (“[D]elay occasioned by the accused will weigh heavily against him.”). Beyond

4 showing that three months of the delay was caused by the State, Defendant offers no

5 argument or record support to show that this factor should weigh in his favor. We will

6 not assume that the district court erred by not weighing the reasons for the delay factor

7 in Defendant’s favor, nor will we search the record on Defendant’s behalf to

8 determine whether this factor should weigh in his favor. See State v. Dominguez,

9 2014-NMCA__, ¶ 26, __ P.3d __ (2014 WL 621866) (stating that we will not search

10 the record to find facts to support the defendant’s argument).1 Having been provided

11 with no persuasive argument or record support to support doing so, we do not weigh

12 the reasons for the delay factor in Defendant’s favor.

13 C. Assertion of Defendant’s Right

1 14 The dissent appears to contend that we must review all arguments and 15 evidence presented to the district court, even if Defendant failed to raise these 16 arguments or discuss this evidence in his briefs on appeal. It has never been the 17 practice of our appellate courts to raise arguments not mentioned by a party on appeal 18 or to search for evidentiary support that a party does not tell us about in his or her 19 briefing. Our Supreme Court has cautioned, “[c]ourts risk overlooking important facts 20 or legal considerations when they take it upon themselves to raise, argue, and decide 21 legal questions overlooked by the lawyers who tailored the case to fit within their 22 legal theories.” N.M. Dep’t of Human Servs. v. Tapia, 1982-NMSC-033, ¶ 11, 97 23 N.M. 632, 642 P.2d 1091.

7 1 {12} The third factor in the analysis requires us to assign weight to Defendant’s

2 assertion of his right to a speedy trial. State v. Tortolito, 1997-NMCA-128, ¶ 15, 124

3 N.M. 368, 950 P.2d 811. Frequent and forceful assertions of the right to a speedy trial

4 will weigh in a defendant’s favor. See Garza, 2009-NMSC-038, ¶ 32. On the other

5 hand, where a defendant waits to assert his right to a speedy trial until many months

6 have passed from the time of the arrest or indictment, the assertion of the right factor

7 will weigh only slightly in his favor. See State v. Valencia, 2010-NMCA-005, ¶ 27,

8 147 N.M. 432, 224 P.3d 659 (weighing the assertion of the right factor “only slightly

9 in [the defendant’s] favor” where the defendant made a pro forma assertion at the

10 outset of the case and then waited approximately nineteen months before filing a

11 motion to dismiss on speedy trial grounds); see also State v. Johnson, 1991-NMCA-

12 134, ¶ 42, 113 N.M. 192, 824 P.2d 332 (Hartz, J., dissenting) (recognizing that “courts

13 regularly have found that the assertion-of-the-right factor weighs against the defendant

14 despite a motion to dismiss on speedy trial grounds, particularly when the motion was

15 filed well after arrest or indictment”).

16 {13} In this case, Defendant asserted his right to a speedy trial by filing two motions

17 to dismiss for an alleged violation of that right. The first was filed on May 26, 2011,

18 approximately fifteen months after his arrest; and the second one was filed on January

19 4, 2012, almost twenty-three months after his arrest. Although Defendant’s assertion

8 1 of the right was adequate, it was neither forceful nor frequent. See Garza, 2009-

2 NMSC-038, ¶ 32 (stating that we “accord weight to the ‘frequency and force’ of the

3 defendant’s objections to the delay”). Owing to the lateness and infrequency of

4 Defendant’s assertion of his right to a speedy trial, we weigh this factor only slightly

5 in his favor. See Valencia, 2010-NMCA-005, ¶ 27.

6 D. Prejudice to Defendant

7 {14} We consider three interests relevant to the prejudice factor analysis: (1) to

8 prevent oppressive pretrial incarceration, (2) to minimize the accused’s anxiety and

9 concern, and (3) to limit the possibility of an impairment to the defense. Garza, 2009-

10 NMSC-038, ¶ 35. It is the defendant’s burden to provide proof in the district court of

11 any alleged prejudice. See Spearman, 2012-NMSC-023, ¶ 39 (requiring the

12 defendant to offer evidence to support his claims of prejudice). Defendant argues that

13 as a result of the delay, he “endured oppressive pretrial incarceration,” “undue anxiety

14 and concern[,]” and impairment to his defense. Notwithstanding these bare assertions

15 of prejudice, Defendant presents an argument and citations to the record only in regard

16 to the impairment of his defense.

17 {15} Defendant argues that his “defense was terminally hobbled” by the absence of

18 Javier Hernandez, “a key defense witness who was available for trial on October [4],

19 2010[,] but left the jurisdiction of the [c]ourt by the time of trial on March [30], 2012.”

9 1 Defendant claims that Mr. Hernandez would have supported the defense’s contention

2 that it was not Defendant who was driving the truck.

3 {16} Defendant testified in his own defense at trial. To paraphrase Defendant’s

4 testimony, in relevant part, he stated that on the day in question he had a couple of

5 beers and asked his friend, Mr. Ramirez-Ramirez, to give him a ride home. According

6 to Defendant, Mr. Ramirez took Defendant home and left. Then Defendant called a

7 friend, Javier Hernandez, and asked Mr. Hernandez to bring him some keys.

8 According to Defendant, Mr. Hernandez showed up fifteen or twenty minutes later,

9 driving the pickup that was subject to the traffic stop, gave Defendant the keys to the

10 pickup, and “took off running[.]” Defendant testified that he never drove the pickup.

11 According to Defendant, when he saw the “cop lights,” he walked from the front

12 porch to the pickup to see what was going on. Defendant testified further that he did

13 not know where Mr. Hernandez was on the date of the trial.

14 {17} Despite the seeming importance to the defense of Mr. Hernandez’s testimony,

15 Defendant declined an offer by the district court to issue a bench warrant for Mr.

16 Hernandez to go to court. Additionally, Defendant argues that two other witnesses,

17 Richardo Ramirez-Ramirez and Xitalali Soto, would have testified that Defendant did

18 not drive home, but was driven home on the night in question; but, owing to the delay,

19 those witnesses had left the jurisdiction by the date of trial.

10 1 {18} Defendant fails, on appeal, and failed in the district court to provide any

2 evidence to substantiate his claim that, but for the delay in this case, Mr. Hernandez,

3 Mr. Ramirez-Ramirez, and Ms. Soto would have been available and willing to testify

4 favorably to the defense. Defendant’s counsel’s assertion of the witnesses’ non-

5 availability and his further assertion that their non-availability was caused by the delay

6 do not constitute evidence. State v. Hall, 2013-NMSC-001, ¶ 28, 294 P.3d 1235

7 (“The mere assertions and arguments of counsel are not evidence.” (internal quotation

8 marks and citation omitted)). In light of Defendant’s having wholly failed to

9 substantiate his claims that he was prejudiced by the delay in this case, we do not

10 weigh this factor in his favor.

11 {19} The dissent concludes that Defendant suffered “conditions of incarceration” that

12 were “oppressive” by virtue of having spent fifteen months either held in jail or under

13 house arrest. We disagree with the dissent’s view.

14 {20} The record reflects that on February 26, 2010, Defendant was arrested for the

15 DWI fifth offense that is presently at issue and having posted a secured bond, he was

16 released from jail on the same day. The conditions of Defendant’s February 26, 2010,

17 release were enumerated on a “release order and bond” form, including a prohibition

18 against possession or consumption of alcohol. Notably, house arrest was not among

19 the conditions of Defendant’s February 26, 2010, release.

11 1 {21} On December 14, 2010, Defendant was arrested again for DWI and charged

2 with a sixth offense.2 Because Defendant’s fifth offense was still pending and

3 Defendant was bound by the February 26, 2010, conditions, including the prohibition

4 against alcohol consumption, the State moved, on December 14, 2010, to set aside

5 Defendant’s bond for a violation of the conditions of his release. The district court

6 set aside Defendant’s bond and issued a bench warrant, and on December 15, 2010,

7 Defendant was taken into custody. On December 15, 2010, the court refused to permit

8 Defendant to post a bond, and he was held in jail. On January 5, 2011, after a

9 December 22, 2010, hearing to review his conditions of release, Defendant posted a

10 secured bond and was released from jail pursuant to certain conditions, including

11 house arrest except for work, during which time he would wear an ankle monitor.

12 Defendant remained under the January 5, 2011, conditions of release until March 30,

13 2012, when he was convicted of the fifth DWI offense that is the subject of this

14 appeal. Thus, Defendant was confined in jail for less than one full day related to the

2 15 Remarkably, Defendant’s counsel represented to the district court that 16 Defendant was not the driver involved in the sixth DWI incident; rather, according to 17 Defendant’s counsel, “Javier” was driving Defendant’s vehicle in that incident. We 18 are not made aware whether “Javier,” who was the driver in the sixth DWI incident 19 for which Defendant was arrested was “Javier Hernandez” or, coincidentally, someone 20 with the same first name as the person who Defendant claims to have been the driver 21 in the present matter.

12 1 charge at issue in this case. The remaining period of “confinement” was related to

2 Defendant’s sixth DWI arrest.

3 {22} The dissent suggests that in the speedy trial context, as in the context of

4 measuring presentence confinement credit, there is no practical distinction between

5 house arrest and incarceration because they both restrict the defendant’s liberty. We

6 disagree. In the context of speedy trial, our Supreme Court has recognized a

7 distinction between restrictions on a defendant’s liberty imposed as part of a bond

8 release and the “actual restraints” on a defendant’s liberty associated with

9 incarceration. See Salandre v. State, 1991-NMSC-016, ¶¶ 15, 29-30, 111 N.M. 422,

10 806 P.2d 562 (rejecting the defendant’s argument that restrained liberty as a result of

11 a bond constituted “oppressive pretrial incarceration”); see also Spearman, 2012-

12 NMSC-023, ¶ 37 (recognizing that impaired liberty associated with bail, though

13 substantial, is nevertheless a lesser impairment than incarceration). This distinction

14 is especially apt in the present case where Defendant was permitted to leave the

15 confines of house arrest in order to go to work. See id. ¶¶ 36-37 (recognizing that

16 consideration of pretrial incarceration in evaluating the prejudice factor of a speedy

17 trial claim is largely aimed at addressing the loss of employment and the enforced

18 idleness associated with incarceration).

13 1 {23} Furthermore, we are not persuaded that the restraint on Defendant’s liberty that

2 resulted from Defendant’s arrest for a sixth DWI offense constituted prejudice for the

3 purpose of evaluating the speedy trial claim related to Defendant’s fifth DWI offense.

4 We do not read Zurla v. State, 1990-NMSC-011, 109 N.M. 640, 789 P.2d 588, to

5 support a contrary proposition. In Zurla, in his dissenting opinion, Justice Baca

6 adopted and set out this Court’s memorandum opinion filed in the same case. Id. ¶ 38

7 (Baca, J., dissenting). This Court’s opinion rejected the defendant’s argument that

8 incarceration for a parole violation associated with an unrelated crime should be

9 counted in evaluating the prejudice factor of his speedy trial claim in the at-issue

10 crime. Id. ¶¶ 51-53 (Baca, J., dissenting). Although our Supreme Court disagreed

11 with this Court’s conclusion, the disagreement was grounded in the fact that by virtue

12 of his lengthy incarceration and the government’s failure to prosecute him earlier, the

13 defendant lost the possibility of serving the sentence for the at-issue crime

14 concurrently with the sentence of imprisonment for his parole violation. Id. ¶¶ 21-23;

15 see id. ¶ 55 (Baca, J., dissenting). As recognized in Salandre, Zurla held only “that

16 the loss of the possibility of concurrent sentences may constitute an aspect of

17 oppressive pretrial incarceration[.]” Salandre, 1991-NMSC-016, ¶ 30. The

18 circumstances here do not resemble the circumstances in Zurla, and we do not

19 interpret Zurla to stand for the proposition that, under the circumstances of this case,

14 1 the consequences of Defendant’s subsequent arrest demonstrate prejudice from the

2 delay in bringing him to trial.

3 E. Weighing the Factors

4 {24} In sum, in regard to Defendant’s speedy trial claim, insofar as Defendant has

5 failed to demonstrate prejudice resulting from the delay in this case, and because none

6 of the other speedy trial factors weigh heavily in his favor, we conclude that the court

7 properly denied Defendant’s motions to dismiss on speedy trial grounds. See Garza,

8 2009-NMSC-038, ¶ 40 (concluding that because the defendant failed to show

9 prejudice, and the other factors did not weigh heavily in his favor, the defendant’s

10 right to a speedy trial was not violated). We hold that the district court did not err in

11 denying Defendant’s motions to dismiss on speedy trial grounds.

12 II. SUFFICIENCY OF THE EVIDENCE

13 {25} Defendant challenges the sufficiency of the evidence in regard to his conviction

14 for driving with a suspended or revoked license. He argues that the only manner in

15 which the fact of his license suspension could have properly been introduced, without

16 violating his right of confrontation, was through “a records custodian[.]” See State v.

17 Chung, 2012-NMCA-049, ¶ 2, 290 P.3d 269 (recognizing that, under the United

18 States and New Mexico Constitutions, an accused has the right to confront witnesses

19 against him). According to Defendant, because the State failed to produce a records

15 1 custodian to testify that his license was suspended, the State failed to meet its burden

2 of proving, beyond a reasonable doubt, that his license was suspended. We review the

3 sufficiency of the evidence by considering whether, when viewed in the light most

4 favorable to the verdict, substantial direct or circumstantial evidence exists to support

5 a conclusion that the defendant was guilty beyond a reasonable doubt. State v. Torrez,

6 2013-NMSC-034, ¶ 40, 305 P.3d 944. We review questions of admissibility under the

7 Confrontation Clause de novo. State v. Massengill, 2003-NMCA-024, ¶ 14, 133 N.M.

8 263, 62 P.3d 354.

9 {26} The traffic stop that led to the charges against Defendant in this case was video-

10 recorded. Portions of the video were played for the jury; and in relevant part, the jury

11 observed the videotaped exchange between Defendant and Officer Harold Edwards,

12 the officer who conducted the DWI investigation following the traffic stop. The video

13 showed Officer Edwards ask Defendant to produce his driver’s license, but Defendant

14 told the officer that his license was suspended. After the video was played during trial

15 for the jury and for Officer Edwards, Officer Edwards testified that Defendant had

16 stated that his license was suspended.

17 {27} Defendant’s admission to Officer Edwards that his driver’s license was

18 suspended constituted a statement against his penal interest and was therefore exempt

19 from the rule against hearsay. See Rule 11-804(B)(3) NMRA (defining a statement

16 1 against interest, in relevant part, as one that “a reasonable person in the declarant’s

2 position would have made only if the person believed it to be true because, when

3 made, it . . . [tends] to expose the declarant to . . . criminal liability,” and when

4 “offered in a criminal case . . . tends to expose the declarant to criminal liability”). As

5 such, the fact was properly admitted through Officer Edwards. Moreover, because

6 Defendant’s admission to Officer Edwards that his license was suspended was not “[a]

7 solemn declaration or affirmation made for the purpose of establishing or proving

8 some fact[,]” it was not testimonial, and it did not implicate Defendant’s right to

9 confront witnesses against him. State v. Navarette, 2013-NMSC-003, ¶ 7, 294 P.3d

10 435 (alterations, internal quotation marks, and citation omitted); see also State v.

11 Telles, 2011-NMCA-083, ¶ 19, 150 N.M. 465, 261 P.3d 1097 (“[A] defendant’s own

12 admissions cannot violate his right to confront the witnesses against him[.]” (internal

13 quotation marks and citation omitted)).

14 {28} Defendant’s own admission of the fact that his license was suspended

15 constituted substantial evidence to support the jury’s conclusion that Defendant was

16 guilty of driving with a suspended or revoked license. Defendant’s sufficiency of the

17 evidence argument provides no basis for reversal.

17 1 III. HEARSAY

2 {29} “Hearsay is an out-of-court statement offered to prove the truth of the matter

3 asserted.” State v. Sisneros, 2013-NMSC-049, ¶ 18, 314 P.3d 665. “We review the

4 admission of hearsay evidence for an abuse of discretion.” Id. To the extent that

5 Defendant’s hearsay argument includes an alleged violation of his right to confront

6 a witness against him, our review is de novo. See Massengill, 2003-NMCA-024, ¶ 14

7 (stating that we review alleged violations of the Confrontation Clause de novo).

8 {30} Officer Edwards testified that he conducted a test of Defendant’s breath alcohol

9 level using an IR8000 machine. Officer Edwards testified further that a certificate of

10 calibration hangs on the wall in the “IR room” and that he always checks to ensure

11 that the certification is current before performing a breath test. Officer Edwards also

12 testified that the IR8000 was working properly when he measured Defendant’s breath

13 alcohol level. Following this testimony, the court admitted into evidence, through

14 Officer Edwards, a copy of Defendant’s breath test results that reflected a breath

15 alcohol concentration of .15.

16 {31} Defendant argues that the court erred in permitting Officer Edwards to testify

17 that the calibration certificate of the IR8000 was current and that the machine was

18 working properly when Officer Edwards administered Defendant’s breath alcohol test.

19 In Defendant’s view, Officer Edwards’ testimony as to those two facts was testimonial

18 1 hearsay that could only have been properly presented through the Department of

2 Health’s Scientific Laboratory Division employee who completed the certification.

3 We disagree.

4 {32} This Court has previously considered and rejected the notion that testimony

5 regarding the calibration certification and the proper working order of breath testing

6 instruments, when presented as a foundation for the admittance of a defendant’s breath

7 alcohol results, is testimonial. See State v. Anaya, 2012-NMCA-094, ¶¶ 19, 22, 287

8 P.3d 956 (explaining that issues that are preliminary and foundational in nature, such

9 as a breath testing instrument’s current certification and the fact of its proper working

10 order, are non-testimonial and do not implicate the Confrontation Clause). Here,

11 Officer Edwards’ testimony regarding the calibration certificate and the proper

12 working order of the IR8000 was information that was foundational to the matter

13 being asserted; the matter being asserted was Defendant’s breath alcohol content.

14 State v. Martinez, 2007-NMSC-025, ¶ 9, 141 N.M. 713, 160 P.3d 894 (recognizing

15 that the fact that the breath testing instrument is working properly and is properly

16 calibrated are foundational requirements that must be met before the results of a breath

17 test can be admitted into evidence). Accordingly, the State was not required to present

18 the laboratory employee who completed the calibration certificate or otherwise

19 confirmed that the IR8000 was properly working. See Anaya, 2012-NMCA-094,

19 1 ¶¶ 19, 22. It was permissible to allow Officer Edwards to testify as to these

2 foundational facts. Id. ¶ 19. Had Defendant wished to challenge Officer Edwards’

3 foundational testimony, he could have obtained the relevant laboratory records. See

4 Martinez, 2007-NMSC-025, ¶ 24. Defendant’s argument to the contrary provides no

5 basis for reversal.

6 IV. PROSECUTOR’S CLOSING ARGUMENT

7 {33} In his next argument, Defendant appears to argue that the district court erred in

8 failing to grant a mistrial based on the prosecutor’s allegedly improper remarks during

9 closing argument. We review this issue for an abuse of discretion. See State v.

10 Torres, 2012-NMSC-016, ¶ 7, 279 P.3d 740 (“The trial court abuses its discretion in

11 ruling on a motion for mistrial if in doing so it acted in an obviously erroneous,

12 arbitrary, or unwarranted manner.” (internal quotation marks and citation omitted)).

13 In considering whether prosecutorial closing arguments warrant reversal of the

14 defendant’s conviction we consider whether, in the context of the whole trial, “the

15 statement invade[d] some distinct constitutional protection[,]” the statement was

16 “repeated and pervasive[,]” and “the statement [was] invited by the defense.” State

17 v. Sosa, 2009-NMSC-056, ¶ 26, 147 N.M. 351, 223 P.3d 348.

18 {34} In its closing argument, the State argued that Defendant’s version of the facts

19 was not reasonable, querying “[h]ow reasonable is it that this mystery person gives

20 1 him the keys and disappears[?]” Continuing in that vein, the prosecutor further

2 observed to the jury that “[t]he mystery person didn’t testify today[.]” Defendant

3 argues that the prosecutor’s closing argument reference to Mr. Hernandez as “the

4 mystery person who didn’t testify today” warranted a mistrial because the prosecutor’s

5 comment “impermissibly turned the burden of proof from the [State] to . . . Defendant

6 to produce witnesses.” In support of his statement, he cites UJI 14-5060 NMRA for

7 the proposition, stated in the uniform jury instruction, that “[t]he burden is always on

8 the [prosecution] to prove guilt beyond a reasonable doubt.”

9 {35} The jury was instructed that the burden was on the State to prove Defendant’s

10 guilt of each charged offense beyond a reasonable doubt. In order to meet its burden

11 of proof, the State presented evidentiary exhibits, as well as the testimony of Sergeant

12 Cain Wyatt, who initiated the traffic stop, and Officer Edwards, who conducted the

13 DWI investigation. Defendant has not demonstrated that the State’s evidentiary

14 presentation was insufficient to carry the prosecution’s burden of proving Defendant’s

15 guilt beyond a reasonable doubt.

16 {36} Nor are we persuaded that the prosecutor’s reference in closing argument to Mr.

17 Hernandez as the “mystery person” had the effect of shifting the burden of proof to

18 Defendant. The prosecutor’s comments in that regard were obviously intended to cast

19 doubt on Defendant’s version of events. It was permissible for the prosecutor to

21 1 comment on Mr. Hernandez’s absence from trial. See State v. Gonzales, 1991-NMSC-

2 075, ¶ 20, 112 N.M. 544, 817 P.2d 1186 (stating that “[c]omment during closing

3 argument concerning the failure to call a witness is permitted”). Moreover, by

4 testifying about Mr. Hernandez’s involvement in the events in question, Defendant

5 opened the door to the prosecutor’s comments regarding Mr. Hernandez. See State

6 v. Taylor, 1986-NMCA-011, ¶ 25, 104 N.M. 88, 717 P.2d 64 (stating that generally,

7 the prosecutor’s remarks must be based on the evidence or they must be in response

8 to the defendant’s argument, and “[w]here the defendant opens the door to comments

9 by the prosecutor, such comments are invited and do not constitute reversible error”

10 internal quotation marks omitted)).

11 {37} It was within the jury’s purview to estimate the value of the prosecutor’s

12 attempt to call into question the credibility of Defendant’s testimony regarding Mr.

13 Hernandez. Gonzales, 1991-NMSC-075, ¶ 20. We hold that the court did not abuse

14 its discretion in denying Defendant’s motion for a mistrial on the basis of the

15 prosecutor’s closing argument comments regarding Mr. Hernandez.

16 V. JURY INSTRUCTIONS

17 {38} Defendant argues that the district court erred in refusing to give the jury his

18 proffered instruction, UJI 14-4512 NMRA, that enumerates a number of factors that

19 the jury may consider in determining whether a defendant actually posed a threat to

22 1 the public by exercising “actual physical control” over a vehicle while the defendant

2 was impaired. We review the district court’s decision to deny a proffered jury

3 instruction de novo. State v. Lucero, 2010-NMSC-011, ¶ 11, 147 N.M. 747, 228 P.3d

4 1167. We consider whether the decision to omit the instruction resulted in a failure

5 to provide the jury “with an accurate rendition of the relevant law.” State v. Soutar,

6 2012-NMCA-024, ¶ 21, 272 P.3d 154 (internal quotation marks and citation omitted).

7 {39} Sergeant Wyatt testified that he saw Defendant operating the vehicle on the

8 night in question. Defendant argues that because the theory of the case that he

9 presented to the jury was that “he was never actually in the physical control of the

10 vehicle[,]” and “the officer was mistaken about [Defendant] driving on the night in

11 question[,]” he was entitled to instruct the jury with UJI 14-4512. UJI 14-4512

12 contemplates a situation in which a defendant may have been “using the vehicle as

13 stationary shelter[,]” but did not intend, prospectively, to drive the vehicle. See id.

14 (stating that a jury may consider a number of factors to determine whether the

15 prosecution proved that the defendant “was in actual physical control of the vehicle

16 and that the defendant intended to drive the vehicle” or whether he “was simply using

17 the vehicle as stationary shelter”). UJI 14-4512 does not appear to have any

18 application in a circumstance where, as here, the defendant claims that he was not in

19 the vehicle, either for shelter or for transportation, and that another person had been

23 1 driving the vehicle. Under the facts of this case, instructing the jury as to “actual

2 physical control” would not have been appropriate. See State v. Sims, 2010-NMSC-

3 027, ¶ 3, 148 N.M. 330, 236 P.3d 642 (stating that “[h]ad [a] police officer or other

4 witnesses observed [the d]efendant behind the steering wheel of a moving vehicle at

5 or near the time of his apprehension,” the actual physical control instruction would not

6 have been required and noting that “[i]t is only when there are no witnesses to the

7 vehicle’s motion that actual physical control is essential to prove DWI”).

8 {40} On the other hand, based on the instructions that were given to the jury in this

9 case, the jury was required, as to each charged offense, to determine whether

10 Defendant drove the vehicle. In relevant part, the jury was instructed that in order to

11 find Defendant guilty of driving with a breath alcohol concentration of .08 or above,

12 the State had to prove beyond a reasonable doubt that Defendant “operated a motor

13 vehicle[.]” Likewise, in order to find Defendant guilty of driving while his license

14 was suspended or revoked, the jury was instructed, in relevant part, that the State had

15 to prove Defendant “operated a motor vehicle in New Mexico[.]” Finally, in regard

16 to the charging of failure to maintain a traffic lane, the jury was instructed that the

17 State had to prove beyond a reasonable doubt that Defendant “drove a motor vehicle

18 on a street[.]”

24 1 {41} Because each charge required the jury to determine whether Defendant was

2 driving the vehicle on the night in question, the jury was given the specific

3 opportunity to consider Defendant’s theory of the case, i.e., that he was not driving.

4 The jury was free to accept or reject the notion that Defendant was not the driver of

5 the vehicle. See State v. Herrera, 2014-NMCA-007, ¶ 30, 315 P.3d 343 (recognizing

6 that “the jury is free to reject the defendant’s version of the facts” (alteration, internal

7 quotation marks, and citation omitted). That the jury rejected Defendant’s version

8 of events, when the instructions adequately led them to consider Defendant’s theory,

9 is not grounds for reversal.

10 VI. SENTENCING

11 {42} The State presented evidence of four prior DWI judgments entered against

12 Defendant on May 4, 1993, December 22, 1998, September 11, 2000, and April 4,

13 2002. Based thereon, the court found that Defendant had been convicted of DWI on

14 four previous occasions, and was, therefore, “a habitual DWI criminal offender[.]”

15 Defendant argues that the State failed to meet its burden of proving that he had four

16 previous DWI convictions. He also argues that the court erred in denying Defendant

17 an opportunity to present evidence in support of a collateral attack on the April 4,

18 2002, judgment. Finally, Defendant argues that his right to confront witnesses against

25 1 him was violated at sentencing because the State failed to produce “a custodian of

2 records” to “authenticate [the] alleged prior” convictions.

3 {43} “The [prosecution] bears the initial burden of establishing a prima facie case of

4 a defendant’s previous convictions.” State v. Sedillo, 2001-NMCA-001, ¶ 5, 130

5 N.M. 98, 18 P.3d 1051. Once the prosecution meets its initial burden of proof by a

6 preponderance of the evidence, “[t]he defendant is then entitled to bring forth contrary

7 evidence.” Id. Ultimately, the State bears the burden of persuasion on the validity of

8 the prior convictions. Id. “We review the sufficiency of the evidence presented in

9 habitual offender proceedings under a substantial evidence standard of review.” State

10 v. Bailey, 2008-NMCA-084, ¶ 23, 144 N.M. 279, 186 P.3d 908. “Substantial evidence

11 is relevant evidence that a reasonable mind would accept as adequate to support a

12 conclusion.” State v. Contreras, 2007-NMCA-045, ¶ 15, 141 N.M. 434, 156 P.3d 725

13 (internal quotation marks and citation omitted). Whether Defendant may collaterally

14 attack a prior conviction based on a claim of fundamental error is a question of law

15 that we review de novo. State v. Nash, 2007-NMCA-141, ¶ 11, 142 N.M. 754, 170

16 P.3d 533.

17 {44} Before reaching Defendant’s other sentencing arguments, we summarily reject

18 his claim that his right to confront witnesses against him was violated at sentencing

19 because the State failed to produce a custodian of records to authenticate the alleged

26 1 prior convictions. The constitutional right to confront witnesses is a trial right; it does

2 not apply at sentencing proceedings. State v. Lopez, 2013-NMSC-047, ¶¶ 18, 24, 314

3 P.3d 236. Defendant’s argument provides no basis for reversal.

4 {45} Defendant does not contest the validity of the court’s reliance, at sentencing,

5 on the December 22, 1998, or the September 11, 2000, convictions. Defendant’s

6 arguments regarding the impropriety of the court’s reliance on his previous

7 convictions concerns the May 4, 1993, and the April 4, 2002, judgments. In regard

8 to the May 4, 1993, judgment, Defendant argues that because his signature does not

9 appear on the judgment, the district court could not properly consider it to be evidence

10 of a prior conviction.

11 {46} The district court rejected Defendant’s contention that the May 4, 1993,

12 judgment, insofar as it was unsigned, did not constitute proof of a first DWI offense,

13 observing that the April 4, 2002, judgment reflected that Defendant had pleaded guilty

14 to a fourth DWI offense. Along those lines, although the district court did not so

15 observe on the record, we note that the December 22, 1998, and the September 11,

16 2000, judgments reflect that they were Defendant’s second and third DWI offenses,

17 respectively.

18 {47} The May 4, 1993, judgment is one page of a four page exhibit presented to the

19 court at Defendant’s sentencing hearing. The document titled “judgment and

27 1 sentence” did not include a signature line, and it appears to have been only a portion

2 of a larger document. Attached to the judgment and sentence document was a “waiver

3 of counsel” form, also dated May 4, 1993; that document bore Defendant’s signature,

4 as well as that of a judge, and stated, in relevant part, that Defendant understood that

5 he was charged with “driving while under the influence of intoxicating liquor[,]” and

6 that he waived his right to counsel. That the waiver of counsel form, which was

7 signed by Defendant and by the court, reflected the same date as the judgment and

8 sentence reasonably supports an inference that the judgment and sentence was

9 acknowledged in court by Defendant on May 4, 1993.

10 {48} We conclude that the foregoing constituted substantial evidence from which the

11 district court could properly conclude that Defendant’s May 4, 1993, DWI conviction

12 was valid. See Contreras, 2007-NMCA-045, ¶ 15 (stating that substantial evidence

13 is that which “a reasonable mind would accept as adequate to support a conclusion”

14 (internal quotation marks and citation omitted)). Defendant did not provide any

15 evidence to contradict the State’s showing in regard to the May 4, 1993, conviction.

16 And we are not persuaded that the court erred in using that conviction as a basis for

17 concluding that Defendant was a habitual DWI criminal offender.

18 {49} State’s Exhibit 4 included a judgment and sentencing document filed on April

19 4, 2002, reflecting that Defendant had, on April 3, 2002, appeared in court and

28 1 pleaded guilty to DWI, among other crimes. Defendant sought, in the district court,

2 and seeks on appeal, to collaterally attack the April 4, 2002, judgment so as to

3 preclude the court’s consideration thereof for purposes of sentencing him in the

4 present case.

5 {50} To succeed in collaterally attacking the April 4, 2002, judgment, thereby

6 showing that the district court was precluded from considering it in sentencing him

7 in the present case, Defendant was required to demonstrate that fundamental error

8 occurred in the entry of the 2002 judgment. See State v. Pacheco, 2008-NMCA-059,

9 ¶ 12, 144 N.M. 61, 183 P.3d 946. Because the April 4, 2002, judgment was the result

10 of a guilty plea, to demonstrate that fundamental error occurred, Defendant was

11 required to show that an error “clearly . . . affected the outcome” of the 2002 case. Id.

12 (internal quotation marks and citation omitted). Defendant attempts to demonstrate

13 fundamental error in the April 4, 2002, judgment in two ways.

14 {51} First, Defendant argues that the attorney who signed the judgment and sentence

15 on his behalf was “incompetent because she was a drug abuser,” who had “appeared

16 under the influence at the [sentencing] hearing,” and “did not explain any of his rights

17 to him[,]” and therefore his conviction was constitutionally invalid. Second,

18 Defendant contends that the attorney who signed the judgment and sentence on his

19 behalf was not his retained counsel, but she “showed up [on] the morning of his

29 1 sentencing[,]” on his behalf. Defendant appears to argue that because the allegedly

2 incompetent attorney was not his “retained” counsel, his constitutional right to the

3 counsel of his choice was violated. See State v. Gamlen, 2009-NMCA-073, ¶ 6, 146

4 N.M. 668, 213 P.3d 818 (recognizing that, pursuant to the Sixth Amendment to the

5 United States Constitution, a defendant who does not require appointed counsel shall

6 have the right to the counsel of his choice).

7 {52} Notably, Defendant does not argue that, but for the allegedly incompetent

8 counsel’s appearance on his behalf at the April 3, 2002, sentencing hearing and the

9 alleged deficiencies in her representation, he would not have accepted the plea

10 agreement. On this basis alone, we reject his fundamental error argument. See

11 Pacheco, 2008-NMCA-059, ¶ 12 (requiring a showing that the alleged error “clearly

12 . . . affected the outcome” of the case (internal quotation marks and citation omitted)).

13 Furthermore, although Defendant claims that the allegedly incompetent counsel did

14 not advise him of his rights, he does not contend that he was unaware of his rights,

15 either by virtue of a plea colloquy by the sentencing judge in the 2002 case, or by

16 virtue of his “retained” counsel’s counseling prior to the April 3, 2002, hearing.

17 Notably, the district court here, having considered that Defendant would likely have

18 engaged in a plea colloquy, gave Defendant ten days from the date of sentencing in

30 1 the present case to file a motion presenting “any other information” in regard to the

2 judgment and sentence in the 2002 case. Defendant did not file any such motion.

3 {53} Moreover, in order to demonstrate a violation of his constitutional right as to

4 counsel of choice, Defendant would be required to demonstrate that he was deprived

5 of his counsel of choice by virtue of the actions of a State agent. See id. ¶¶ 7-9. Here,

6 Defendant made no attempt to show by evidence or argument in the district court or

7 on appeal that the actions of a State agent caused the allegedly incompetent counsel

8 to appear in the stead of his retained counsel at the April 3, 2002, sentencing hearing

9 that resulted in the April 4, 2002, judgment and sentence. Accordingly, Defendant’s

10 argument in that regard is unavailing.

11 {54} In sum, Defendant has not demonstrated that the district court erred in relying

12 on his four previous DWI convictions in order to enhance Defendant’s sentence.

13 Substantial evidence supported the court’s finding in regard to the May 4, 1993,

14 conviction, and Defendant has not demonstrated fundamental error in regard to the

15 April 4, 2002, judgment.

16 CONCLUSION

17 {55} For the foregoing reasons, we affirm Defendant’s convictions.

18 {56} IT IS SO ORDERED.

19 __________________________________ 20 JONATHAN B. SUTIN, Judge

31 1 I CONCUR:

2 _______________________________ 3 CYNTHIA A. FRY, Judge

4 TIMOTHY L. GARCIA, Judge (dissenting).

32 1 GARCIA, Judge (dissenting).

2 {57} I respectfully dissent in this case. I disagree with the majority’s de novo review

3 and its resulting decision that Defendant’s right to a speedy trial was not violated in

4 this case.

5 {58} I start with the majority’s references to Defendant’s briefing and a presumed

6 failure to properly argue positions regarding the four speedy trial factors that were

7 presented to the district court for consideration. Majority Opinion ¶¶ 7, 8, 12, 14.

8 Although the majority properly cites Spearman as the basis for the standard of review,

9 it then fails to analyze the underlying facts presented in the record and argued in

10 Defendant’s two speedy trial motions that were specifically cited in Defendant’s

11 briefs. See 2012-NMSC-023, ¶ 19. The majority argues that Defendant failed to take

12 positions or arguments in his briefs or that it would not search the record to analyze

13 Defendant’s position regarding two of the speedy trial factors. Majority Opinion ¶¶

14 11, 14. Where Defendant’s motions are part of the appellate record and specifically

15 referenced in Defendant’s briefs, our de novo review would require us to analyze

16 these motions, the supporting evidence in the record, the hearings held by the district

17 court, and the speedy trial arguments presented to the district court. See State v.

18 Wilson, 2010-NMCA-018, ¶ 23, 147 N.M. 706, 228 P.3d 490 (“[W]hile deferential

19 to the district court’s fact finding, [the appellate courts] independently balance the

33 1 [four speedy trial] factors.”). Under these circumstances, I disagree with the majority

2 that the appellate briefing must specifically focus upon and argue anew every position

3 presented to the district court regarding its initial evaluation of the reasons for the

4 delay and the prejudice incurred by a defendant due to the delay. See Majority

5 Opinion ¶¶ 11, 14. Independent balancing necessitates a full and thorough review of

6 the factors identified in Defendant’s underlying motions to dismiss and a re-weighing

7 of the speedy trial factors analyzed by the district court. See Zurla, 1990-NMSC-011,

8 ¶ 10 (reviewing de novo and determining that this Court weighed several speedy trial

9 factors too lightly and incorrectly when it decided the prejudice prong in its analysis).

10 {59} Our Supreme Court has provided guidance regarding the individualized focus

11 that must be undertaken in a speedy trial analysis. Garza, 2009-NMSC-038,¶ 13

12 (“Violation of the speedy trial right is only determined through a review of the

13 circumstances of a case, which may not be divorced from a consideration of the [s]tate

14 and the defendant’s conduct and the harm to the defendant from the delay.”). The

15 Supreme Court has explained that “generally a defendant must show particularized

16 prejudice to his ability to defend himself [except] where the length of delay and the

17 reasons for the delay weigh heavily in [the] defendant’s favor and [the] defendant has

18 asserted his right and not acquiesced to the delay.” State v. Samora, 2013-NMSC-038,

19 ¶ 27, 307 P.3d 328 (internal quotation marks and citation omitted). In the present case,

34 1 I disagree with the majority’s analyses of the four speedy trial factors. First, I

2 determine the length of delay should weigh more strongly in Defendant’s favor than

3 the majority acknowledges. Second, I determine the administrative delay that was not

4 discussed by the majority opinion should weigh against the State, even if only slightly

5 against the State. Third, Defendant strongly asserted his right to a speedy trial in the

6 district court on two separate occasions. Finally, I determine Defendant adequately

7 demonstrated particularized prejudice, and the State did not meet its burden of

8 rebutting these showings. I shall explain in more detail why I disagree with the

9 majority’s analyses of these factors.

10 Length of Delay

11 {60} Although the majority asserts that Defendant did not take a position regarding

12 the weight that should be assigned to the delay of approximately twenty-five months,

13 precedent exists to adequately address the length of delay in a simple case. It is

14 undisputed that Defendant never waived his speedy trial right in this particular case.

15 {61} Our Supreme Court has previously recognized that delays of this nature do not

16 weigh slightly against the state. See State v. Maddox, 2008-NMSC-062, ¶¶ 1, 12, 36,

17 145 N.M. 242, 195 P.3d 1254 (recognizing that a twenty-eight month delay in an

18 unlawful taking of a motor vehicle case was extraordinary); State v. Urban, 2004-

19 NMSC-007, ¶ 20, 135 N.M. 279, 87 P.3d 1061 (weighing a twenty-seven month delay

35 1 in a simple case heavily against the state); see also Zurla, 1990-NMSC-011 , ¶ 12

2 (weighing a seventeen-month delay in a simple shoplifting case somewhat heavily

3 against the state). Our Supreme Court looks for a delay that is extraordinary before it

4 will weight the delay heavily in a defendant’s favor. Garza, 2009-NMSC-038, ¶ 24

5 (noting that the greater the delay the more heavily it will potentially weigh against the

6 state and a delay that scarcely crosses the bare minimum to trigger review is not

7 extraordinary). This Court has issued more modest measures for weighing the delay

8 factor in a defendant’s favor. See State v. Steinmetz, 2014-NMCA-__, ¶¶ 6, 66, 2014

9 WL 1600916 (April 17, 2014) (recognizing that a delay of twenty-eight months

10 beyond the triggering date in a criminal sexual contact of a minor case weighed

11 moderately against the state, not heavily); State v. Ochoa, 2014-NMCA-__, ¶¶ 6-7, 13,

12 2014 WL 982506 (March 11, 2014) (recognizing that a delay of twenty-four months

13 in a complex case weighed in the defendant’s favor, although not heavily); State v.

14 Fierro, 2014-NMCA-004, ¶¶ 1, 13, 315 P.3d 319 (recognizing that a delay of twenty-

15 three months in a criminal sexual penetration case weighed against the state, although

16 not heavily); Montoya, 2011-NMCA-074, ¶ 17 (recognizing that a twenty-one month

17 delay in an intermediate case only weighed slightly against the state); Wilson, 2010-

18 NMCA-018, ¶ 50 (recognizing that a five-month delay beyond the presumptive nine-

19 month period in an intermediate case only weighed slightly against the state);

36 1 Valencia, 2010-NMCA-005, ¶¶ 14, 16 (recognizing a fifteen-month delay in a simple

2 case to weigh only slightly in the defendant’s favor); State v. Plouse, 2003-NMCA-

3 048, ¶ 43, 133 N.M. 495, 64 P.3d 522 (recognizing that a total delay of twenty-one

4 months in a complex case, six months beyond the bare minimum of fifteen months at

5 that time, appeared to weigh “somewhat heavily” in the defendant’s favor. (internal

6 quotation marks and citation omitted)).

7 {62} Under the circumstances, the additional thirteen-month delay in this simple case

8 may be weighed more heavily against the State than the moderate factor assigned by

9 the majority. As a result, I would consider weighing the length of delay factor more

10 heavily against the State as our Supreme Court recognized in Maddox, Urban, and

11 Zurla.

12 Reasons for the Delay

13 {63} The majority agreed with the district court that the reasons for the delay in

14 bringing Defendant to trial did not weigh in his favor. Majority Opinion ¶ 11. I

15 disagree and would weigh this factor in Defendant’s favor, even if it only weighs

16 slightly in his favor.

17 {64} During the twenty-five-month period of delay, the district court appropriately

18 found that Defendant and the State were each responsible for some of the

19 circumstances that caused the delay. I cannot disagree with the district court’s

37 1 deduction of six months that Defendant waived due to his failures to appear and

2 requests for continuances. I also deduct the four months of delay that was caused by

3 the inclement weather. This delay was for a valid reason and will not weigh against

4 either party. State v. O’Neal, 2009-NMCA-020, ¶ 21, 145 N.M. 604, 203 P.3d 135

5 (weighing delay due to inclement weather as neutral). This still leaves almost fifteen

6 months of delay that must be addressed. The time period from July 2, 2010, through

7 September 28, 2011, should weigh against the State. Indeed, the State concedes that

8 its request for continuance and excusal of Judge Orlik caused the delay from August

9 2, 2011, through September 28, 2011. The district court weighed this time period

10 heavily against the State.

11 {65} The bulk of the remaining delay was caused by administrative issues in the

12 district court and the unusual situation wherein all of the district court judges recused

13 or were recused from the case. The district court weighed some of this delay against

14 the State, but considered it neutral and ultimately did not weigh this period against

15 either party. While this delay is neutral, it is also negligent and must be weighed

16 against the State. See Garza, 2009-NMSC-038, ¶ 29 (providing that delay attributable

17 to the unavailability of a judge is negligent delay for which the state is responsible).

18 However, we will not weigh this full thirteen-month period of delay against the State.

19 See Valencia, 2010-NMCA-005, ¶ 24 (recognizing that some delay resulting from the

38 1 recusal process should be considered inherent and customary delay); see also State v.

2 Benavidez, 1999-NMCA-053, ¶ 35, 127 N.M. 189, 979 P.2d 234 (refusing to weigh

3 the delay caused by the recusal process against the state), rev’d on other grounds by

4 1999-NMSC-041, 128 N.M. 261, 992 P.2d 274. Due to these factors, we should weigh

5 this time period slightly against the State, keeping in mind that for some of this time

6 the case moved with customary promptness due to the inherent nature of delay caused

7 by multiple recusals. See Valencia, 2010-NMCA-005, ¶ 24.

8 {66} While Defendant undoubtedly bears some responsibility for the delay in this

9 case, I would conclude that the State is more to blame. “Although negligence is

10 obviously to be weighed more lightly than a deliberate intent to harm the accused’s

11 defense, it still falls on the wrong side of the divide between acceptable and

12 unacceptable reasons for delaying a criminal prosecution once it has begun.” Garza,

13 2009-NMSC-038, ¶ 13 (internal quotation marks and citation omitted). We should be

14 weighing more of the delay in this case against the State. However, no evidence of any

15 intentional delay on the part of the State exists, and I see no extraordinary or

16 protracted delay attributable to the State. In addition, I do not agree with Defendant’s

17 unsupported assertion that the delay was deliberately caused by the State. Thus, on

18 balance, we should be weighing this factor slightly in favor of Defendant.

19 Assertion of Right

39 1 {67} Again, the majority weighed Defendant’s assertion of his right to a speedy trial

2 against the State, but only slightly. Majority Opinion ¶ 13. It concluded that

3 Defendant’s assertion was adequate but not forceful or frequent. Id. I disagree and

4 would weigh this factor clearly and more strongly in Defendant’s favor.

5 {68} In assessing this factor of the analysis, we generally “assess the timing of the

6 defendant’s assertion and the manner in which the right was asserted. Thus, we accord

7 weight to the ‘frequency and force’ of the defendant’s objections to the delay.” Garza,

8 2009-NMSC-038, ¶ 32 (citations omitted). “We also analyze the defendant’s actions

9 with regard to the delay.” Id. “[T]he timeliness and vigor with which the right is

10 asserted may be considered as an indication of whether a defendant was denied needed

11 access to speedy trial over his objection[.]” Id.

12 {69} Defendant moved to dismiss the charges against him for the first time on May

13 26, 2011, and for the second time on January 4, 2012, alleging a violation of his right

14 to a speedy trial. It appears as though both parties were prepared to proceed to trial on

15 March 31, 2011, but that the district court failed to calendar the trial date. Shortly after

16 the trial was rescheduled for August 2, 2011, Defendant asserted his right to a speedy

17 trial for the first time. At that time, Defendant argued that he was prejudiced by the

18 unavailability of certain exculpatory witnesses who would have been available to

19 testify on his behalf when the trial was originally set in 2010. The trial was still

40 1 delayed until March 2012. None of Defendant’s exculpatory witnesses testified on

2 Defendant’s behalf at the 2012 trial.

3 {70} The record indicates that changed circumstances, rather than a desire to obtain

4 a windfall through delay, prompted Defendant to assert his speedy trial right after his

5 case lingered for over a year, and he did so in a timely manner. See Work v. State,

6 1990-NMSC-085, ¶ 7, 111 N.M. 145, 803 P.2d 234 (weighing assertion of the right

7 in favor of the defendant when he filed a speedy trial motion seven months after the

8 indictment and five weeks before trial was scheduled to begin); see also Urban, 2004-

9 NMSC-007, ¶ 16 (noting that, contrary to the Court of Appeals position, the original

10 assertion of the defendant’s speedy trial right along with two subsequent motions

11 should be given more than little weight against the state); Johnson, 1991-NMCA-134,

12 ¶¶ 2, 5 (holding that the defendant adequately asserted his right to a speedy trial by

13 filing a motion to dismiss more than a year after his arrest); State v. Lujan, 1991-

14 NMCA-067, ¶ 15, 112 N.M. 346, 815 P.2d 642 (holding that assertion of the right

15 weighed in favor of the defendant because he timely filed a motion for speedy trial

16 and motion to dismiss shortly after receipt of notice of the first trial setting). Once

17 Defendant became aware that his defense would be compromised by the unavailability

18 of witnesses that were material to his defense, he aggressively asserted his

19 constitutional right to a speedy trial. Under the change in circumstances that arose in

41 1 this case, the majority fails to explain how a defendant could possibly assert his right

2 more frequently or forcefully. We should weigh this factor more heavily in favor of

3 Defendant as the timing of the assertions of his speedy trial right were appropriate due

4 to the circumstances that developed during the two-year period that he waited for trial.

5 Under these circumstances, his assertion was both forceful and substantive. This factor

6 should be weighed strongly in his favor.

7 Prejudice to Defendant

8 {71} “The heart of the right to a speedy trial is preventing prejudice to the accused.”

9 Garza, 2009-NMSC-038, ¶ 12. “Prejudice should be evaluated in light of the interest

10 of the defendant, which the right was designed to protect.” O’Neal, 2009-NMCA-020,

11 ¶ 27. Under the three prejudice factors identified in Garza, the majority only

12 considered the third factor applicable, that being the possibility of an impairment to

13 the defense. See 2009-NMSC-038, ¶ 35; Majority Opinion ¶ 14. The majority refused

14 to recognize Defendant’s pretrial confinement as a factor that should be considered

15 when addressing the prejudice factor in this case. Majority Opinion ¶¶ 19-23. It

16 concluded that Defendant was not impaired in presenting his defense, and the

17 prejudice factor did not weigh in his favor. Majority Opinion ¶¶ 18, 23. In reality, two

18 of the Garza factors were properly identified in this case and must be evaluated when

19 determining the prejudice to Defendant. The first factor was the pretrial incarceration

42 1 factor. It was not disputed that, prior to trial, Defendant spent fifteen months either

2 held in jail or under house arrest, even though the majority of this time resulted from

3 a revocation of Defendant’s conditions of release due to a new DWI charge. The

4 second prejudice factor arose because of the unavailability of Defendant’s three

5 exculpatory witnesses who were properly identified as witnesses early in the

6 proceedings and were being called to testify that Defendant was driven home on the

7 night in question and was not the driver of the truck that was approached by Sergeant

8 Wyatt.

9 A. The Pretrial Incarceration Factor

10 {72} Under the first prejudice factor, the State did not contest or dispute that

11 Defendant was either incarcerated or placed under house arrest during the majority of

12 the twenty-five-month period that he awaited trial. Although this restriction may have

13 been of Defendant’s own making due to his subsequent arrest for a new DWI charge,

14 the period of time he was under conditions of incarceration may still be considered

15 oppressive when determining the prejudice factor. See Zurla, 1990-NMSC-011, ¶¶ 21-

16 22, 51-53 (rejecting the Court of Appeals position that a defendant’s incarceration due

17 to his own actions that resulted in a revocation of his parole would prevent

18 consideration of whether his pretrial incarceration could be considered under the

19 prejudice factor of the speedy trial analysis). Although Zurla specifically addressed

43 1 the loss of potential concurrent sentencing that resulted from the delay, it refused to

2 recognize the underlying reasons for incarceration, a parole violation, as the means for

3 totally disregarding incarceration when analyzing the prejudice factor. Id. ¶¶ 21-22.

4 {73} Strict house arrest under an electronic monitoring program constitutes official

5 confinement and is recognized as the equivalent of incarceration for the purposes of

6 presentence confinement credit. NMSA 1978, § 31-20-12 (1977); see State v. Duhon,

7 2005-NMCA-120, ¶¶ 6-7, 138 N.M. 466, 122 P.3d 50. These combined restrictions

8 of Defendant’s freedom of movement can create the types of prejudice that the first

9 prejudice factor in Garza is required to address. 2009-NMSC-038, ¶ 35 (noting that

10 the time spent locked up is dead time that hinders a defendant’s “ability to gather

11 evidence, contact witnesses, or otherwise prepare his defense” (internal quotation

12 marks and citation omitted)). “[T]wo-and-one-half years of pretrial incarceration . . .

13 waiting for one’s trial to commence—is very substantial prejudice, of the precise kind

14 that the Speedy Trial Clause was meant to avoid.” Id.(omission in original) (internal

15 quotation marks and citation omitted) ; see State v. Moreno, 2010-NMCA-044, ¶¶ 36-

16 37, 148 N.M. 253, 233 P.3d 782 (recognizing twenty-two months of pretrial

17 incarceration as the main factor in determining that the defendant was prejudiced,

18 albeit slightly); State v. Stock, 2006-NMCA-140, ¶¶ 1, 44, 140 N.M. 676, 147 P.3d

19 885 (recognizing that the defendant’s three and one-half years of pretrial incarceration

44 1 was unacceptably long and thus oppressive). Defendant’s fifteen month period of

2 custodial confinement my have been of his own making but it would not be

3 disregarded in this case because it is also combined with other factors of particularized

4 prejudice. Samora, 2013-NMSC-038, ¶ 27 (recognizing the significance of

5 particularized prejudice such as the claimed “loss of any exculpatory witnesses, the

6 deterioration of exculpatory evidence, or any other kind of [actual] prejudice to [the]

7 defense”). As a result, we should recognize that Defendant’s custodial confinement

8 for the majority of the time period that he waited for trial was an appropriate

9 consideration when evaluating the prejudice factor under a proper Garza analysis.

10 B. Other Claims of Particularized Prejudice

11 {74} The majority also minimizes Defendant’s claimed assertion of particularized

12 prejudice arising from the unavailability of his exculpatory witnesses. Majority

13 Opinion ¶¶ 15-18. First, the majority asserts that this particularized prejudice was

14 removed when Defendant declined the district court’s offer to issue a bench warrant

15 for one key witness, Mr. Hernandez. Majority Opinion ¶ 17. Second, the majority

16 asserts that Defendant’s notification regarding the availability of his three key

17 witnesses does not constitute substantial evidence and, as such, was insufficient to

18 establish a threshold showing of particularized prejudice. Majority Opinion ¶ 18.

19 Effectively, the majority asserts that Defendant must produce better evidence

45 1 regarding the unavailability of his exculpatory witnesses and that any shifting of the

2 burden for the State to overcome a showing of particularized prejudice is satisfied

3 where the district court offers to issue a bench warrant for an unavailable witness who

4 has moved away to an unknown location. I do not agree.

5 {75} The Supreme Court has provided some guidance regarding what type of

6 evidence is necessary to satisfy a showing of particularized prejudice by a defendant.

7 See Spearman, 2012-NMSC-023, ¶ 39. To support an allegation of work-related

8 prejudice, a defendant should offer “some actual evidence in the form of affidavits,

9 testimony, or documentation in support of the allegations of lost employment and

10 bankruptcy.” Id. However, the additional prejudice in this case was not work-related

11 but was “witness-related.”

12 {76} It is undisputed that Defendant was under house arrest with a release for work

13 during the months leading up to his trial. The identities of Defendant’s exculpatory

14 witnesses were already part of the record and known to the State nineteen months

15 before the 2012 trial commenced. Nearly one year before trial commenced,

16 Defendant’s counsel notified the district court and the State that Defendant’s

17 exculpatory witnesses could no longer be located and that they had apparently moved

18 away. Defense counsel is an officer of the court. See In re Gabell, 1993-NMSC-045,

19 ¶ 13, 115 N.M. 737, 858 P.2d 404 (addressing lies and false evidence presented to the

46 1 district court by counsel and stating that “a license to practice law requires allegiance

2 and fidelity to truth”(internal quotation marks and citation omitted)). Counsel was not

3 making arguments, he was providing factual information to assist the district court

4 regarding a procedural type of problem, witness availability. See Coffin, 1999-NMSC-

5 038, ¶¶ 70-71 (recognizing that factual assertions regarding the availability of a

6 witness for speedy trial purposes may be presented to the district court by defense

7 counsel and properly reviewed on appeal). It would be inappropriate to require

8 defense counsel to testify or provide an affidavit under these circumstances. Rule 16-

9 307 NMRA; see also State v. Martinez, 2001-NMCA-059, ¶ 30, 130 N.M. 744, 31

10 P.3d 1018 (recognizing that if defense counsel was required to testify in a defendant’s

11 case, he would be precluded from continuing as an advocate in the case). In addition,

12 the State did not dispute that Defendant’s witnesses had moved away and could not

13 be located when it responded to the motion to dismiss.

14 {77} If the district court desired a more adequate record regarding the missing

15 witnesses, it could have requested further verification before offering to directly

16 address the problem by issuing a bench warrant for Mr. Hernandez, who, according

17 to Defendant, was the alleged driver of the truck. At trial, none of the three

18 exculpatory witnesses appeared or testified. Based upon the circumstances regarding

19 witness unavailability that were presented to the district court, Defendant fulfilled his

47 1 initial burden to establish that his exculpatory witnesses were unavailable for trial.

2 Once undisputed representations regarding witness availability are recognized by the

3 trial court, the burden should have shifted to the State to rebut the claim of prejudice.

4 See Salandre, 1991-NMSC-016, ¶ 20 (“Policy reasons that lie at the heart of the

5 speedy trial guarantee also support shifting the burden of persuasion to the state when

6 it has delayed [trial] unnecessarily.”). No rebuttal evidence or other representations

7 regarding the availability of Defendant’s three exculpatory witnesses was ever offered

8 or presented by the State. On review, we should recognize that Defendant’s three

9 rebuttal witnesses were unavailable for trial and undertake a proper evaluation

10 regarding how this change affected the defense and caused prejudice to Defendant.

11 {78} “The heart of the right to a speedy trial is preventing prejudice to the accused.”

12 Garza, 2009-NMSC-038, ¶ 12. The critical issue in this case centered on who was

13 driving the white truck that Sergeant Wyatt approached after it pulled into

14 Defendant’s driveway. Sergeant Wyatt testified that the stop occurred after the truck

15 in question turned into a driveway and stopped. He also testified that Defendant was

16 the driver of the truck. Early in the proceedings, Defendant properly identified his

17 exculpatory witnesses and even issued a subpoena to have Mr. Hernandez appear at

18 his first trial setting. Testimony by independent witnesses that someone else was the

19 driver of the truck was significant and relevant to the defense.

48 1 {79} The district court recognized the prejudice that had arisen in Defendant’s case

2 and offered to issue a bench warrant as a potential remedy to locate Mr. Hernandez.

3 Neither the district court nor the State explained why a bench warrant was an

4 appropriate or effective remedy to resolve the unavailability of Mr. Hernandez. Such

5 a suggestion could be viewed as a penalty against a witness for having moved away

6 rather than a natural consequence of a long pre-trial delay. Nothing in the record

7 suggests that Mr. Hernandez had done anything wrong or that he deserved to have a

8 bench warrant issued for his arrest because he moved prior to trial. Although

9 Defendant was able to provide his own testimony at trial, the lack of all three

10 witnesses that were identified to corroborate that Defendant was not the actual driver

11 of the truck on the night of the incident was both material and significant. Defendant

12 testified that Mr. Hernandez drove to his home in the white truck to deliver the keys

13 to Defendant’s residence that Defendant had previously left at work, and when the

14 officer pulled up, Mr. Hernandez ran away from the scene. Under the facts presented

15 in this case, Defendant was not able to present any of his exculpatory witnesses at

16 trial, due to his un-rebutted position that they had moved to unknown locations during

17 the two years that lapsed between arrest and trial. Although the jury was entitled to

18 disbelieve the testimony of Defendant’s exculpatory witnesses, the unavailability of

19 these witnesses was a material impairment to the defense. Considered along with

49 1 Defendant’s custodial confinement, Defendant made a sufficient showing of

2 particularized prejudice under the criteria set forth in Garza. This final and most

3 critical prejudice factor should now be weighed in Defendant’s favor under our Garza

4 analysis.

5 {80} After a proper de novo review and a proper re-weighing of the four factors in

6 Defendant’s favor under Garza, I conclude that Defendant’s constitutional right to a

7 speedy trial was violated. I would reverse and remand for dismissal of the charges in

8 this case.

9 __________________________________ 10 TIMOTHY L. GARCIA, Judge