State v. Vigil

Opinion

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. A-1-CA-34592 5 KAREN VIGIL, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY 8 Sarah C. Backus, District Judge

9 Hector H. Balderas, Attorney General 10 Anita Carlson, Assistant Attorney General 11 Santa Fe, NM

12 for Appellee

13 Bennett J. Baur, Chief Public Defender 14 Nina Lalevic, Assistant Appellate Defender 15 Santa Fe, NM

16 for Appellant 17 MEMORANDUM OPINION 18 BOGARDUS, Judge. 19 {1} Defendant Karen Vigil appeals her convictions, following a jury trial, of two 20 counts of great bodily injury by vehicle (DWI); one count of child abuse (no death

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1 or great bodily harm); one count of knowingly leaving the scene of an accident 2 (great bodily harm); and two counts of criminal damage to property (more than 3 $1,000). Defendant contends that (1) her convictions are not supported by 4 sufficient evidence; (2) the district court erred by improperly instructing the jury 5 on the child abuse charge; (3) the district court abused its discretion in finding 6 Defendant competent to stand trial; (4) the district court abused its discretion in 7 allowing an expert witness to testify on retrograde extrapolation; and (5) the 8 district court erred in failing to dismiss the charges against her on speedy trial 9 grounds. We affirm. 10 BACKGROUND 11 {2} The charges against Defendant stem from a three-car accident in which 12 Defendant, her friend, Venessa Velarde, and Defendant’s minor son, Antonio, were 13 traveling from Santa Fe in a minivan north on U.S. 68 through Taos Canyon at 14 high speed. Other drivers reported having seen the minivan being driven erratically 15 and passing other vehicles in no-passing zones. As the minivan passed another 16 vehicle just before a blind curve, the minivan and a car traveling in the opposite 17 direction collided. Meanwhile, the driver of the car being passed veered off the 18 road and crashed into a guardrail. Ms. Velarde and the driver of the car that 19 collided with the minivan were seriously injured, and the other drivers’ vehicles 20 were totaled.

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1 {3} At trial, Defendant and Ms. Velarde disputed which of them was driving the 2 minivan when it crashed. Defendant testified that Ms. Velarde was driving and that 3 Defendant was sitting in the back seat. According to Ms. Velarde, she was a 4 passenger at the time of the accident. Both she and Defendant testified that they 5 had been drinking alcohol in the minivan during the drive. A test of Defendant’s 6 blood-alcohol content (BAC) conducted several hours after the accident measured 7 her BAC at .07. 8 {4} Because this is a memorandum opinion and the parties are familiar with the 9 facts and the procedural history of the case, we provide additional facts only as 10 necessary to our analysis. 11 DISCUSSION 12 I. Sufficient Evidence Exists to Support the Jury’s Verdict 13 {5} At Defendant’s trial, the jury was instructed that the State had to prove that 14 Defendant “operated a motor vehicle” to convict Defendant of the two counts of 15 great bodily injury by vehicle and of knowingly leaving the scene of an accident. 16 {6} Defendant argues that the evidence the State presented is insufficient to 17 sustain her convictions, and so the convictions must be vacated. Defendant bases 18 her argument on her contention that the State failed to prove that she was driving 19 the minivan when the accident occurred.

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1 {7} “The test for sufficiency of the evidence is whether substantial evidence of 2 either a direct or circumstantial nature exists to support a verdict of guilty beyond a 3 reasonable doubt with respect to every element essential to a conviction.” State v. 4 Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and 5 citation omitted). “Substantial evidence is relevant evidence that a reasonable mind 6 might accept as adequate to support a conclusion.” State v. Rojo, 1999-NMSC-001, 7 ¶ 19, 126 N.M. 438, 971 P.2d 829. When reviewing for sufficiency of evidence, 8 “we resolve all disputed facts in favor of the [s]tate, indulge all reasonable 9 inferences in support of the verdict, and disregard all evidence and inferences to 10 the contrary.” Id. 11 {8} The State, to meet its burden to prove that Defendant was guilty of the 12 crimes charged, presented direct evidence that Defendant was the driver through 13 the testimony of Ms. Velarde. She testified that Defendant was driving the minivan 14 recklessly and dangerously in the moments leading up to the accident. 15 {9} In addition to its direct evidence, the State presented indirect evidence 16 supporting reasonable inferences that Defendant was the driver. For example, Ms. 17 Velarde testified to (1) having shattered her right-side pelvis, her right femur, and 18 her right ankle in the accident; (2) requiring post-accident reconstructive surgery; 19 and (3) not being able to walk unassisted until fifteen months after the accident. 20 Ms. Velarde’s serious injuries to the right side of her body is consistent with the

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1 conclusion that she was sitting in the passenger’s, not the driver’s, seat: the 2 passenger side of the minivan, in Defendant’s own words, was “completely 3 crushed.” 4 {10} As another example, a nurse experienced in treating accident victims and 5 who treated Ms. Velarde after the accident testified to seeing bruising apparently 6 caused by a seatbelt on Ms. Velarde’s right shoulder. The abrasion on Ms. 7 Velarde’s left shoulder, in contrast, appeared not to have been caused by a seatbelt, 8 the nurse said. This evidence supports a reasonable inference that Ms. Velarde was 9 in the passenger’s seat at the time of the crash, placing Defendant in the driver’s 10 seat. 11 {11} Additional testimony of a witness to the accident also supports the verdict. 12 Jesse Montoya, the driver of the car that collided with the minivan, testified that he 13 saw “a big frizzy figure” in the minivan’s driver’s seat before the crash. When 14 asked the color of that “figure’s” hair, he said he saw it after the accident when he 15 saw the figure walking away from the scene; in saying that, he implied that the 16 driver was the same person who walked away from the scene. Mr. Montoya’s 17 statements support the State’s case because—by Defendant’s admission— 18 Defendant was the only one of the two female passengers in the minivan to walk 19 away from the accident scene. Mr. Montoya’s testimony supports a reasonable 20 inference that Defendant was the driver.

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1 {12} Nevertheless, Defendant asks this Court to consider evidence, the absence of 2 additional evidence, and inferences that support a different result. In so doing, she 3 relies on her own testimony that she was not the driver. She notes that Ms. Velarde 4 has curly hair matching the description of witnesses who saw the driver, and that 5 both had post-accident injuries to their left shoulders that could have been caused 6 by a driver’s-side seatbelt. She further complains that the accident investigation 7 was incomplete and that no witness at trial either corroborated or impeached Ms. 8 Velarde’s testimony. In sum, Defendant asserts that there was no more evidence to 9 convict her than there was to convict Ms. Velarde. 10 {13} In essence, Defendant asks us to weigh the witnesses’ credibility and 11 entertain the question of whether—with the evidence presented at trial and without 12 further evidence—the jury could have reached a different conclusion. However, it 13 is the role of the jury to gauge Defendant’s credibility and Ms. Velarde’s 14 credibility and to resolve the conflict in their testimony. See In re Ernesto M., Jr., 15 1996-NMCA-039, ¶ 15, 121 N.M. 562, 915 P.2d 318. The jury was free, as it did, 16 to reject Defendant’s version of the facts. See Rojo, 1999-NMSC-001, ¶ 19. In 17 contrast, we are not free to concern ourselves with the contrary evidence 18 supporting Defendant’s acquittal. See id. 19 {14} Rather, we ask whether there is “relevant evidence that a reasonable mind 20 might accept as adequate to support [the] conclusion” that Defendant was driving

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1 the minivan at the time of the accident. See id. Based on Ms. Velarde’s testimony 2 that Defendant was the driver, on the nature of Ms. Velarde’s injuries, on the 3 location of the damage to the minivan, and on the witnesses’ pre- and post-accident 4 observations, we conclude that sufficient evidence supports the jury’s finding that 5 Defendant was the driver.

6 II. Use of the Child Abuse Jury Instruction Does Not Constitute 7 Fundamental Error

8 {15} Defendant’s next assertion is that the district court fundamentally erred by 9 including the phrase “knew or should have known” in the jury instruction on 10 Defendant’s child abuse charge. The portion of the instruction Defendant refers to 11 reads:

12 For you to find [D]efendant guilty of child abuse which did not 13 result in death or great bodily harm, . . . the [S]tate must prove . . . 14 [that d]efendant acted intentionally or with reckless disregard and 15 without justification; To find that [Defendant] acted with reckless 16 disregard, you must find that [Defendant] knew or should have known 17 [her] conduct created a substantial and foreseeable risk, [D]efendant 18 disregarded that risk and [D]efendant was wholly indifferent to the 19 consequences of the conduct and to the welfare and safety of Antonio 20 Vigil[.]

21 (Emphasis added.) The instruction was based on UJI 14-604 NMRA (1999), the 22 instruction in effect at the time of the trial. Neither party objected to the 23 instruction. 24 {16} Five days before Defendant’s trial, our Supreme Court decided State v. 25 Consaul, 2014-NMSC-030, 332 P.3d 850, which concerned the application of the

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1 child abuse statute and its corresponding uniform jury instructions. Consaul 2 reiterated that the culpability standard associated with the crime of child abuse is 3 recklessness. Id. ¶¶ 34, 38. In Consaul, the Court expressed concern about the 4 then-current child abuse uniform jury instructions, similar to the one used at 5 Defendant’s trial. Id. ¶ 39. In particular, the Court cast doubt on the “continued 6 vitality of ‘knew or should have known’ in [the] instructions,” id. ¶ 40, because of 7 the phrase’s “close association with principles of civil negligence and ordinary 8 care.” Id. ¶ 39. 9 {17} In Consaul, the Supreme Court indicated that it would address “in detail” the 10 uniform jury instructions associated with the child abuse statute “in the near 11 future.” Id. ¶ 40. About seven months later, the Court amended UJI 14-604 in part 12 by removing “knew or should have known” from the definition of “reckless 13 disregard” and inserting in its place “more than merely negligent or careless.” The 14 Court recompiled the instruction as UJI 14-612 NMRA, with an effective date of 15 April 3, 2015. 16 {18} Defendant now objects to the use of “should have known”—the since- 17 removed phrase associated with the civil negligence culpability standard—in the 18 child abuse jury instruction at her trial. We review for fundamental error because 19 the issue was not preserved. See, e.g., State v. Benally, 2001-NMSC-033, ¶ 12, 131 20 N.M. 258, 34 P.3d 1134. Under the fundamental error standard, “we seek to

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1 determine whether a reasonable juror would have been confused or misdirected by 2 the jury instruction . . . despite the fact that the juror considers the instruction 3 straightforward and perfectly comprehensible on its face.” Id. (internal quotation 4 marks and citations omitted). “Thus, juror confusion or misdirection may stem not 5 only from instructions that are facially contradictory or ambiguous, but from 6 instructions which, through omission or misstatement, fail to provide the juror with 7 an accurate rendition of the relevant law.” Id. We bear in mind in our review that 8 “[t]he rule of fundamental error applies only if there has been a miscarriage of 9 justice, if the question of guilt is so doubtful that it would shock the conscience to 10 permit the conviction to stand, or if substantial justice has not been done.” State v. 11 Orosco, 1992-NMSC-006, ¶ 12, 113 N.M. 780, 833 P.2d 1146. 12 {19} On appeal, the parties invite us to resolve this issue by examining, among 13 other topics: (1) the integrity, in light of Consaul, of the child abuse jury 14 instruction used at Defendant’s trial, including whether the instruction’s other parts 15 make up for its alleged deficiency; (2) whether the district court should have 16 learned of Consaul and responded to it by modifying the child abuse jury 17 instruction used at trial; and (3) the level of tolerance for UJI 14-604 our Supreme 18 Court expressed by its Consaul language and its subsequent UJI-amending 19 actions—and, by extension, the level of tolerance for it we should now show. 20 Further, Defendant argues that the district court erred by allowing the jury to be

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1 instructed as to both intentional and negligent child abuse in the same instruction. 2 In light of Defendant’s failure to address this contention further or develop a 3 supporting argument, we decline to review this undeveloped argument. See Corona 4 v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701. 5 {20} We need not address Defendant’s arguments regarding the effect Consaul 6 should have had on the child abuse jury instruction used at trial to resolve the 7 issue. We look instead to the rule of fundamental error and ask if Defendant’s guilt 8 regarding child abuse is so doubtful that it would shock the conscience to let her 9 conviction stand. See Orosco, 1992-NMSC-006, ¶ 12. Under this standard, we 10 cannot conclude that use of the jury instruction amounted to fundamental error. 11 The trial record includes testimony by Ms. Velarde that she and Defendant took 12 turns doing shots from two pints of Yukon Jack whisky on the drive from Santa Fe 13 north toward Taos with Defendant’s teenage son, Antonio, in the minivan. She 14 further testified that, before the accident, Defendant was driving the minivan 15 erratically and recklessly, passing cars in no-passing zones and in blind curves, 16 speeding, driving more daringly in response to Ms. Velarde’s pleas that she slow 17 down, and not caring about the danger of her actions. 18 {21} The evidence presented at trial is sufficient to satisfy the revised UJI’s 19 requirement of showing “more than merely negligent or careless” conduct. See UJI 20 14-612. Thus, we cannot say that there has been a “miscarriage of justice” or that it

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1 would “shock the conscience to permit the conviction to stand[.]” Orosco, 1992- 2 NMSC-006, ¶ 12. We conclude that the district court’s use of the jury instruction 3 on child abuse does not constitute fundamental error. 4 III. District Court’s Finding of Competency Was Not an Abuse of 5 Discretion 6 {22} Defendant argues that the district court abused its discretion by determining 7 that she was competent to stand trial. Defendant claims that she was unable to 8 rationally assist her attorney and contends that the bulk of evidence presented to 9 the district court on the matter suggested that she was not competent. 10 {23} Defendant presented evidence of her incompetency to stand trial, and the 11 State presented countervailing evidence in response. Defendant submitted to three 12 forensic evaluations of her competency. The district court ordered, and Dr. Cave 13 conducted, the first. Dr. Cave concluded that Defendant was not competent. The 14 State requested a second evaluation, which Dr. Kernen conducted. Dr. Kernen 15 found Defendant competent. Lastly, Dr. Westfried, Defendant’s expert, conducted 16 a third evaluation and found Defendant not competent. 17 {24} At the competency hearing, the district court did not hear testimony from Dr. 18 Cave, but did hear testimony from Dr. Westfried, Dr. Kernen, and Dr. Shwartz, 19 who works with Dr. Kernen and who reviewed Dr. Kernen’s evaluation. Dr. 20 Westfried testified that he reviewed the reports of the other experts and found them

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1 inconclusive. He testified that Defendant was not malingering while undergoing 2 evaluations and that she was the driver at the time of the accident but had created a 3 delusion that Ms. Velarde instead was the driver. Overall, Dr. Westfried believed 4 that Defendant lacked a rational perspective and hence was unable to rationally 5 assist her attorney. 6 {25} Dr. Kernen and Dr. Shwartz testified to the contrary. Dr. Kernen testified 7 that, in her opinion, Defendant did not have a delusional disorder and was 8 malingering by feigning a multiple personality disorder. Dr. Kernen believed that 9 Defendant was competent to stand trial. Dr. Shwartz testified that she concurred 10 with Dr. Kernen’s findings of malingering and competency. 11 {26} At the end of the competency hearing, the district court found that Defendant 12 did not overcome the presumption that she was competent to stand trial. The court 13 determined that Defendant failed to show by a preponderance of the evidence that 14 she was incapable of assisting in her own defense, a finding that would have 15 qualified her as incompetent to stand trial. See State v. Rotherham, 1996-NMSC- 16 048, ¶ 13, 122 N.M. 246, 923 P.2d 1131 (“An accused must have the capacity to 17 assist in his own defense and to comprehend the reasons for punishment.”). The 18 district court reached its conclusion largely by finding Dr. Kernen’s and Dr. 19 Shwartz’s testing more reliable than Dr. Westfried’s.

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1 {27} We review district court determinations of competency to stand trial for 2 abuse of discretion, State v. Linares, 2017-NMSC-014, ¶ 23, 393 P.3d 691, which 3 occurs when a ruling is “against logic” and “clearly untenable or not justified by 4 reason.” Id. ¶ 24 (internal quotation marks and citation omitted). “Where an abuse 5 of discretion is claimed by appellant, appellant bears a heavy burden, in view of 6 the long-standing rule that the reviewing court will not overturn the action of the 7 trial court absent a patent abuse of manifest error in the exercise of discretion.” 8 Spingola v. Spingola, 1978-NMSC-045, ¶ 19, 91 N.M. 737, 580 P.2d 958. On this 9 review, “[w]e view the evidence in the light most favorable to the district court’s 10 decision, resolve all conflicts and indulge all permissible inferences to uphold that 11 decision, and disregard all evidence and inferences to the contrary.” Linares, 2017- 12 NMSC-014, ¶ 24. 13 {28} That is, we disregard the findings and conclusions in the reports and 14 testimony on Defendant’s competency to stand trial that do not support the district 15 court’s finding of competency. We are left with the testimony of Dr. Kernen, an 16 expert in forensic neuropsychology, and Dr. Shwartz, an expert in forensic 17 psychology and neuropsychology, who stated plainly that Defendant was 18 competent to stand trial, and who laid out cogent reasons for that conclusion. 19 {29} The district court, in its fact-finding role on this issue, had the choice to 20 accept Dr. Kernen’s and Dr. Shwartz’s testimony and to reject Dr. Westfried’s. See

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1 State v. Jason F., 1998-NMSC-010, ¶ 29, 125 N.M. 111, 957 P.2d 1145 (noting 2 that court, as fact-finder at competency hearing, is not required to credit testimony 3 of experts). The court so chose. Defendant articulates no reason that the choice was 4 illogical or clearly untenable, and having reviewed the record, we see none. We 5 conclude that the district court did not abuse its discretion by determining that 6 Defendant was competent to stand trial.

7 IV. Admission of Expert Witness’s Testimony on Retrograde Extrapolation 8 Was Not an Abuse of Discretion

9 {30} Defendant contends that the district court erred by admitting the trial 10 testimony of Gerasimos Razatos, asserting that the State’s “sole purpose” in calling 11 Mr. Razatos was for him to testify on retrograde extrapolation, which calculates an 12 individual’s prior BAC level on the basis of a subsequently administered BAC test. 13 Defendant further claims that she objected to Mr. Razatos’ retrograde extrapolation 14 testimony because it was not relevant and because he was not qualified to testify 15 on retrograde extrapolation. Defendant argues that admitting this testimony was 16 prejudicial because it invited the jury to improperly speculate as to her BAC at the 17 time of the accident. The State counters that the court did not abuse its discretion in 18 this way because Mr. Razatos had extensive qualifications and experience in the 19 field of blood-alcohol analysis, the general field encompassing retrograde 20 extrapolation. The State contends that shortcomings, if any, in Mr. Razatos’ 21 qualifications affect the weight of his testimony, not its admissibility.

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1 {31} The State called Mr. Razatos, a thirteen-year employee of the Department of 2 Health’s Toxicology Bureau, to testify about Defendant’s BAC because it was he 3 who certified the test result. Mr. Razatos testified on his qualifications, his 4 experience as a test reviewer, and the factors he considered when reviewing 5 Defendant’s BAC test. 6 {32} Defendant raised no objection to Mr. Razatos’ expert testimony until the 7 State asked Mr. Razatos to explain retrograde extrapolation. At that point, 8 Defendant objected, not based on relevancy, but based solely on Mr. Razatos’ 9 qualifications to perform retrograde extrapolation. The court allowed defense 10 counsel to question Mr. Razatos regarding his specific training on and experience 11 with retrograde extrapolation. Mr. Razatos testified that his expertise in blood- 12 alcohol analysis included retrograde extrapolation, although he had not been 13 formally tested on it. The court ruled, over Defendant’s objection, that Mr. Razatos 14 was qualified as an expert in the field of blood-alcohol analysis. 15 {33} Once the court found that Mr. Razatos was qualified in the field of blood- 16 alcohol analysis, he testified generally about the theory of retrograde extrapolation 17 but emphasized that he did not perform a retrograde extrapolation in this case 18 because he lacked the data necessary to do so. Mr. Razatos offered no opinion on 19 Defendant’s BAC at the time of the accident.

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1 {34} We review the district court’s admission of expert testimony under an abuse 2 of discretion standard. “The rule in this [s]tate has consistently been that the 3 admission of expert testimony or other scientific evidence is peculiarly within the 4 sound discretion of the trial court and will not be reversed absent a showing of 5 abuse of that discretion.” State v. Alberico, 1993-NMSC-047, ¶ 58, 116 N.M. 156, 6 861 P.2d 192. “The trial judge has wide discretion to determine whether a witness 7 is qualified to give testimony as an expert, and no set criteria can be laid down to 8 test an expert’s qualifications.” State v. McDonald, 1998-NMSC-034, ¶ 19, 126 9 N.M. 44, 966 P.2d 752 (alteration, internal quotation marks, and citations omitted). 10 “An abuse of discretion occurs when the ruling is clearly against the logic and 11 effect of the facts and circumstances of the case. We cannot say the trial court 12 abused its discretion by its ruling unless we can characterize [the ruling] as clearly 13 untenable or not justified by reason.” Rojo, 1999-NMSC-001, ¶ 41 (internal 14 quotation marks and citation omitted). 15 {35} We see no abuse of discretion here. Mr. Razatos had extensive experience 16 and training in blood-alcohol analysis. The fact that he had not been specifically 17 tested in retrograde extrapolation goes to the weight of his testimony on the 18 subject, but does not preclude its admissibility. See McDonald, 1998-NMSC-034, 19 ¶ 21 (observing that a jury is free to weigh every aspect of an expert’s 20 qualifications and free to disregard an expert’s testimony entirely).

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1 {36} Defendant argues next that she was prejudiced by Mr. Razatos’ general 2 discussion of retrograde extrapolation because it invited jury speculation, which we 3 interpret as an argument that the testimony does not assist the trier of fact to 4 understand the evidence or to determine a fact in issue pursuant to Rule 11-702 5 NMRA. Defendant refers to a question the jury asked—“In general how much 6 alcohol is metabolize[d] per hour by someone [Defendant’s height and 7 weight]?”—as evidence of speculation and asserts that the jury engaged in its own 8 “pseudoscience” to convict her. Defendant cites State v. Downey, 2008-NMSC- 9 061, ¶ 28, 145 N.M. 232, 195 P.3d 1244, for the proposition that expert testimony 10 on retrograde extrapolation is unreliable and inadmissible when it is “predicated on 11 factual assumptions unsupported by the evidence adduced at trial[.]” Unlike the 12 expert in Downey, the expert in this case made clear that he did not have the 13 relevant information to calculate Defendant’s BAC, and he reached no conclusion 14 regarding Defendant’s BAC at the time of the accident. Because no retrograde 15 extrapolation was done by the expert here, Downey does not apply. 16 {37} Defendant offers no evidence, beyond the jury’s question, to support her 17 claim that the jury’s verdict is based on improper speculation. Defendant fails to 18 direct us to any evidence that the jury’s question was put to Mr. Razatos or any 19 witness during the trial. The jury was instructed at the start of trial that it could 20 submit a question to the court, but also that if a question was not asked, not to give

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1 it any further consideration. See UJI 13-112 NMRA. At the end of trial, the jury 2 was specifically instructed that its verdict should not be based on “speculation, 3 guess or conjecture.” We presume that the jury followed the instructions given. See 4 State v. Sellers, 1994-NMCA-053, ¶ 28, 117 N.M. 644, 875 P.2d 400 (“There is a 5 presumption that the jury follows the instructions they are given.”). 6 {38} The jury had ample evidence, without engaging in speculation based on 7 retrograde extrapolation, to conclude that Defendant was driving under the 8 influence of alcohol at the time of the accident. Ms. Velarde testified that she and 9 Defendant shared two pints of Yukon Jack whisky between Santa Fe and the crash 10 site in Taos Canyon. Other witnesses testified that Defendant was driving fast, 11 erratically, and dangerously and was passing cars hazardously on the narrow two- 12 lane road. The Department of Health’s Toxicology Bureau employee who 13 performed the blood-alcohol test testified that Defendant’s BAC was .07 when the 14 sample was taken. Based on the general nature of the testimony and the 15 instructions given by the district court, we hold that the district court did not abuse 16 its discretion by allowing Mr. Razatos’ testimony. 17 V. Defendant’s Right to a Speedy Trial Was Not Violated 18 {39} Defendant asserts that the district court erred by denying her motion to 19 dismiss because her right to a speedy trial was violated. There was a delay of 20 approximately forty months between the filing of the underlying criminal

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1 information and the final trial setting. Defendant contends that the delay is 2 prejudicial because her case was of intermediate complexity, and for such cases, 3 any delay beyond fifteen months is presumptively prejudicial. See State v. Garza, 4 2009-NMSC-038, ¶ 48, 146 N.M. 499, 212 P.3d 387 (adopting fifteen months of 5 delay as the guideline beyond which intermediate cases may become 6 presumptively prejudicial). The State concedes that the delay exceeded the fifteen- 7 month presumptively prejudicial period, but contends that Defendant’s right to a 8 speedy trial was not violated because most of the delay was attributable to her. 9 After careful review of the record, we conclude that the delay in this case did not 10 violate Defendant’s right to a speedy trial. 11 {40} The accused in New Mexico have a fundamental right to a speedy trial 12 guaranteed by both the Sixth Amendment of the United States Constitution and 13 Article II, Section 14 of the New Mexico Constitution. Garza, 2009-NMSC-038, 14 ¶ 10. Our courts have not interpreted New Mexico’s speedy trial guarantee 15 differently from the Sixth Amendment guarantee, and thus we view them as co- 16 extensive. State v. Spearman, 2012-NMSC-023, ¶ 16 n.1, 283 P.3d 272. We do not 17 apply an inflexible, bright-line approach to speedy trial analyses; rather, we 18 analyze the specific facts and circumstances of each case to determine whether an 19 accused person’s speedy trial right has been violated. Garza, 2009-NMSC-038, 20 ¶¶ 11, 14.

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1 {41} To determine whether a criminal defendant’s speedy trial right was violated, 2 we analyze the four factors established in Barker v. Wingo, 407 U.S. 514, 530-32 3 (1972):

4 Under the Barker framework, courts weigh the conduct of both the 5 prosecution and the defendant under the guidance of four factors: (1) 6 the length of the delay; (2) the reasons for the delay; (3) the timeliness 7 and manner in which the defendant asserted his speedy trial right; and 8 (4) the particular prejudice that the defendant actually suffered.

9 State v. Smith, 2016-NMSC-007, ¶ 58, 367 P.3d 420 (internal quotation marks and 10 citation omitted). None of these factors alone is “a necessary or sufficient condition 11 to the finding of a deprivation of the right of speedy trial[;] . . . they are related 12 factors and must be considered together with such other circumstances as may be 13 relevant.” Barker, 407 U.S. at 533. “In analyzing these factors, we defer to the 14 district court’s factual findings that are supported by substantial evidence, but we 15 independently review the record to determine whether a defendant was denied his 16 speedy trial right and we weigh and balance the Barker factors de novo.” State v. 17 Flores, 2015-NMCA-081, ¶ 4, 355 P.3d 81. 18 A. Length of Delay 19 {42} The length of delay is both “a triggering mechanism requiring further 20 inquiry into the Barker factors” and also one of the four factors in the Barker 21 analysis. Spearman, 2012-NMSC-023, ¶ 20 (internal quotation marks and citation 22 omitted). “Whether or not the threshold for further inquiry is met depends upon

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1 whether the delay is considered presumptively prejudicial.” State v. Gallegos, 2 2016-NMCA-076, ¶ 6, 387 P.3d 296. Here, the district court did not determine the 3 complexity of this case, leaving us free to do so. See State v. O’Neal, 2009- 4 NMCA-020, ¶ 16, 145 N.M. 604, 203 P.3d 135. This case involved six felony 5 counts, approximately ten witnesses, expert testimony, and it was set for a three- 6 day trial. These factors support the conclusion that the case was intermediately 7 complex. See State v. Montoya, 2011-NMCA-074, ¶ 16, 150 N.M. 415, 259 P.3d 8 820 (concluding that a case with four “somewhat difficult” charges and nine 9 witnesses, including a forensic scientist, was intermediately complex); see also 10 State v. Laney, 2003-NMCA-144, ¶ 14, 134 N.M. 648, 81 P.3d 591 (noting that 11 intermediately complex cases are characterized by numerous witnesses, expert 12 testimony, and scientific evidence). For an intermediately complex case, a delay of 13 longer than fifteen months is presumptively prejudicial. Garza, 2009-NMSC-038, 14 ¶ 48. 15 {43} Although the crash occurred on August 11, 2010, Defendant was not 16 charged until April 13, 2011, when the State filed a criminal information against 17 her for two counts of great bodily injury, one count of child abuse, and one count 18 of leaving the scene of an accident. Later, on April 19, 2012, a grand jury indicted 19 Defendant on the two counts of criminal damage to property, and the cases were 20 joined on May 14, 2012.

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1 {44} Our appellate courts have yet to address a speedy trial issue with two 2 separate dates of attachment, and we need not do so here. With clarity in mind, and 3 concluding that Defendant’s right to speedy trial was not violated regardless of our 4 approach to the question, we treat all of Defendant’s charges as if they were part of 5 the initial set of charges. Accordingly, we assume that Defendant’s right to a 6 speedy trial attached on the date of her initial charges, April 13, 2011. See State v. 7 Ross, 1999-NMCA-134, ¶¶ 13-15, 128 N.M. 222, 991 P.2d 507 (holding that, in a 8 felony prosecution, an indictment or information must be filed to trigger a 9 defendant’s speedy trial right). Defendant’s trial started on August 26, 2014. The 10 time from attachment of her speedy trial right to trial was more than forty months, 11 or approximately twenty-five months beyond the fifteen-month threshold for an 12 intermediately complex case. Because the delay was presumptively prejudicial, we 13 continue to a full Barker analysis. 14 {45} This forty-month delay, more than twice as long as the presumptively 15 prejudicial delay period, weighs heavily against the State and in Defendant’s favor. 16 See State v. Taylor, 2015-NMCA-012, ¶ 9, 343 P.3d 199 (holding that a twenty- 17 four-month delay in a simple case weighed heavily against the state); see also State 18 v. Brown, 2017-NMCA-046, ¶ 17, 396 P.3d 171 (weighing forty-two-month delay 19 in a complex case, which was approximately twice as long as the presumptively 20 prejudicial delay, heavily against the state).

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1 B. Reasons for Delay 2 {46} The reasons assigned to justify delay in a particular case may lessen or 3 increase the prejudice to the defendant caused by the delay. Garza, 2009-NMSC- 4 038, ¶ 25. We attribute three types of delay to the state and one type to the 5 defendant. Brown, 2017-NMCA-046, ¶ 18. The first type, intentional delay, which 6 is a “deliberate attempt to delay prosecution of the case in order to hamper the 7 defense[,]” is weighed heavily against the state. Id. The second type, negligent or 8 administrative delay, is weighed against the state, but more lightly than intentional 9 delay. Id. The weight assessed against the state for negligent or administrative 10 delay, however, increases as the length of that delay increases. Id. The third type, 11 appropriate delay, which is delay justified by valid reasons, such as a missing 12 witness, is neutral and does not weigh against the state. Id. Finally, delay caused by 13 the defense generally weighs against the defendant. Id. 14 {47} Because speedy trial analysis depends on the facts and circumstances of each 15 case, we review the pertinent facts of this case “to allocate to each side the reasons 16 for the delay and determine the weight we should assign the reasons for the delay.” 17 Gallegos, 2016-NMCA-076, ¶ 10. We proceed by analyzing the periods of delay 18 separately.

19 1. Seven-Month Delay from Filing Criminal Information to First Trial 20 Continuance

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1 {48} For purposes of this appeal, Defendant’s speedy trial right attached when the 2 State filed its criminal information on April 13, 2011. On May 10, 2011, the State 3 filed its request for scheduling order, motion for discovery, demand for notice of 4 alibi, request to interview witnesses, and notice of intent to call witnesses. Trial 5 was set to begin on November 28, 2011. 6 {49} We weigh this approximately seven-month delay neutrally because the case 7 was proceeding normally. See Taylor, 2015-NMCA-012, ¶ 11 (weighing neutrally 8 a delay during which the case was “progressing in a normal fashion”); see also 9 Garza, 2009-NMSC-038, ¶ 27 (recognizing that some pretrial delay is inevitable 10 and justifiable). 11 2. Six-Month Delay for Plea Negotiations and for Joinder 12 {50} The State moved to continue the trial because the parties were engaged in 13 plea negotiations and because discovery was not finished. Defendant concurred in 14 the motion. On January 25, 2012, the State requested a new trial setting and the 15 case was reset for trial on April 9, 2012. The two cases were then joined and trial 16 was rescheduled for June 11, 2012. On May 21, 2012, Defendant filed a motion to 17 determine competency to stand trial, and so the June 11, 2012 trial setting was 18 vacated. We weigh this six-month delay neutrally because the case was still within 19 the presumptive reasonable time for an intermediately complex case, the case was

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1 progressing, and joinder of the two cases caused slight additional pretrial delay. 2 See Taylor, 2015-NMCA-012, ¶ 11; see also Garza, 2009-NMSC-038, ¶ 27. 3 3. Twenty-Three-Month Delay to Determine Competency to Stand Trial 4 {51} After the June 2012 trial setting was vacated, the issue of Defendant’s 5 competency was not resolved until April 1, 2014, when the district court 6 determined Defendant was competent. Trial was then set to commence on August 7 26, 2014. 8 {52} Generally, delays necessary to determine competency are not weighed 9 against the state because “the state cannot try an incompetent defendant.” State v. 10 Stock, 2006-NMCA-140, ¶ 19, 140 N.M. 676, 147 P.3d 885. If a delay is for the 11 defendant’s benefit, it would be unfair to hold it against the state. Id.; see also State 12 v. Mendoza, 1989-NMSC-032, ¶ 8, 108 N.M. 446, 774 P.2d 440 (“[A] competency 13 examination is clearly on behalf of the accused and in no way infringes on that 14 person’s speedy trial rights.”). However, the state may share responsibility for the 15 delay if the state does nothing to move the case forward during this period because 16 “[i]t is ultimately the state’s duty to make sure that defendants are brought to trial 17 in a timely manner.” Stock, 2006-NMCA-140, ¶ 25. 18 {53} Here, while the issue of Defendant’s competency was being determined, the 19 State attempted to move the case forward by filing multiple requests for settings 20 for the competency hearing, as well as requests for expedited hearings on other

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1 disputed issues, such as disclosure of testing data, as those issues arose. The State 2 did cause approximately three months of delay by failing to timely provide its 3 experts’ evaluation data to Defendant’s competency expert. Except for this three- 4 month delay, there is no evidence that the State failed to satisfy its responsibility to 5 keep the case moving forward. Upon review of the facts and circumstances 6 regarding the competency issue delay, we weigh three months of the delay against 7 the State, and the remaining twenty months of delay against Defendant.

8 4. Four-Month Delay After Competency Issue Resolved Until Trial 9 Commenced

10 {54} The State moved for a new trial setting one week after the competency 11 determination. On April 8, 2014, the district court set a new trial date of August 26, 12 2014, and the parties prepared for trial on that date. Although the case had been 13 pending for some time, given the State’s prompt request for a new trial and the 14 court’s quick response, we cannot say that the four-month delay was inappropriate. 15 Rather, it is administrative delay, which we weigh lightly against the State. 16 {55} Based on the foregoing, of the forty months of total delay, we hold that 17 approximately thirteen months weigh neutrally because the case was progressing 18 normally towards trial. See Taylor, 2015-NMCA-012, ¶ 11 (weighing neutrally a 19 delay during which the case was “progressing in a normal fashion”). We hold that 20 the twenty months of delay attributable to the competency issue weighs against 21 Defendant, see Mendoza, 1989-NMSC-032, ¶ 8 (“[A] competency examination is

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1 clearly on behalf of the accused and in no way infringes on that person’s speedy 2 trial rights.”), and also hold that the seven months of delay due to the delay in 3 providing expert materials and trial scheduling weighed lightly against the State as 4 administrative delay. See Garza, 2009-NMSC-038, ¶¶ 26, 29 (stating that 5 administrative delays are weighed against the state and the degree of weight is 6 closely related to the length of the delay). 7 C. Assertion of the Right 8 {56} A defendant does not waive his or her fundamental speedy trial right by 9 failing to assert it. Gallegos, 2016-NMCA-076, ¶ 23. “[T]he timeliness and vigor 10 with which the right [to a speedy trial] is asserted may be considered as an 11 indication of whether a defendant was denied needed access to speedy trial over 12 the defendant’s objection or whether the issue was raised on appeal as an 13 afterthought.” Id. (alteration, internal quotation marks, and citation omitted). “[P]ro 14 forma motions are generally afforded relatively little weight in this analysis.” State 15 v. Urban, 2004-NMSC-007, ¶ 16, 135 N.M. 279, 87 P.3d 1061. 16 {57} Defendant raised her right to a speedy trial three times: once in each of her 17 answers to the charges filed on April 13, 2011 and April 19, 2012, and once by her 18 dismissal motion six days before the August 26, 2014 trial. Her first two assertions 19 were part of her initial pleadings in which her counsel entered an appearance, 20 denied the charges, and asked for discovery materials. These assertions were pro

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1 forma and are assigned minimal weight. See State v. Marquez, 2001-NMCA-062, 2 ¶ 21, 130 N.M. 651, 29 P.3d 1052 (assigning little weight to an assertion in the 3 form of an entry of appearance, request for discovery, and demand for speedy 4 trial). 5 {58} Defendant did not raise the speedy trial issue again until six days before 6 trial, when she did so in the form of a motion to dismiss on speedy trial grounds. 7 This assertion is sufficient to weigh this factor in Defendant’s favor. See id. ¶ 22. 8 Because the motion was filed so close to trial, however, we weigh it less in 9 Defendant’s favor than had it been filed earlier. See Gallegos, 2016-NMCA-076, 10 ¶ 25; see also State v. Moreno, 2010-NMCA-044, ¶ 35, 148 N.M. 253, 233 P.3d 11 782 (concluding that the assertion factor weighed only slightly in the defendant’s 12 favor when he asserted his right once pro forma and once in a motion to dismiss 13 two and one-half months before trial). 14 {59} Defendant’s assertions of her right to a speedy trial were neither repeated 15 nor insistent. She made two perfunctory assertions, and a third assertion, on the eve 16 of trial. Moreover, Defendant’s competency issue caused much of the delay, which 17 undercuts her assertions of her right. See State v. Steinmetz, 2014-NMCA-070, 18 ¶ 62, 327 P.3d 1145 (concluding that the defendant’s multiple assertions of his 19 speedy trial right were undermined by “his own delay-causing actions”). We

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1 determine that, under the circumstances, Defendant’s speedy trial assertions weigh 2 only slightly against the State. 3 D. Prejudice to Defendant 4 {60} Preventing prejudice to those accused is “[t]he heart of the right to a speedy 5 trial.” Garza, 2009-NMSC-038, ¶ 12. The speedy trial right is intended “(i) to 6 prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of 7 the accused; and (iii) to limit the possibility that the defense will be impaired.” Id. 8 ¶ 35 (internal quotation marks and citation omitted). It is the defendant’s burden to 9 “make a particularized showing of prejudice to demonstrate a violation of any of 10 the three interests.” State v. Samora, 2016-NMSC-031, ¶ 21, 387 P.3d 230. 11 Generally, “a defendant must show particularized prejudice of the kind against 12 which the speedy trial right is intended to protect.” Garza, 2009-NMSC-038, ¶ 39. 13 “[W]e weigh this factor in the defendant’s favor only where the pretrial 14 incarceration or the anxiety suffered is undue.” Samora, 2016-NMSC-031, ¶ 21 15 (internal quotation marks and citation omitted). 16 {61} Defendant was not incarcerated while her case was pending. Although she 17 was subject to conditions of release, she was not subject to “undue and oppressive” 18 pretrial incarceration, which the right to a speedy trial is intended to prevent. 19 Garza, 2009-NMSC-038, ¶ 12 (internal quotation marks and citation omitted). 20 Defendant testified that her conditions of release interfered with her ability to find

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1 a job and her desire to visit a sick friend who lived out of state. Yet Defendant did 2 not identify any specific job opportunity she lost as a result of those conditions, nor 3 did she provide evidence that she sought or was denied the court’s permission to 4 leave the state. Defendant therefore failed to show that she was unduly prejudiced 5 by her conditions of release while her trial was pending. 6 {62} Defendant also described the anxiety she suffered pending trial. She testified 7 that she was emotionally stressed and exhausted by the process and that her 8 preexisting mental health issues worsened while awaiting trial. However, 9 Defendant did not introduce any evidence beyond her own assertions establishing 10 that her anxiety was extreme. Without such evidence, we cannot conclude 11 Defendant suffered prejudice due to the delay. See Gallegos, 2016-NMCA-076, 12 ¶ 29 (concluding that the defendant did not suffer prejudice based on undue anxiety 13 when his assertions were not explained in detail and were not supported by 14 affidavits, testimony, or documentation). 15 {63} Defendant asserts that the pretrial delay caused her to lose touch with her 16 son, Antonio, who may have been a witness in her defense. One risk of excessive 17 delay is that a defendant’s defense may be impaired if witnesses disappear and 18 evidence is lost. Garza, 2009-NMSC-038, ¶ 36. Defendant is required to show 19 with particularity what the favorable evidence would have been in order to 20 establish prejudice. See id. (reasoning that a defendant must “state with

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1 particularity what exculpatory testimony would have been offered” to assist with 2 defense (alteration, internal quotation marks, and citation omitted)). Here, 3 Defendant does not describe the testimony Antonio would have given, and she 4 conceded at a pretrial hearing that she was unsure what Antonio might say. It 5 appears that, on the day of the accident, Antonio made statements both that would 6 have supported Defendant’s claim that she was not the driver and that would have 7 contradicted her defense. Although Defendant claims prejudice, Antonio’s 8 unavailability may have strengthened Defendant’s defense because he could have 9 undercut her claim that she was not the driver. We conclude, therefore, that 10 Defendant did not make the required showing of particularized prejudice based on 11 the loss of this witness. See State v. Deans, ___-NMCA-___, ¶ 26, ___ P.3d ___ 12 (No. A-1-CA-35000, Dec. 13, 2018) (holding that a clarification of law during the 13 pendency of the defendant’s trial benefitted the defendant’s defense and tempered 14 prejudice from delay). 15 {64} Accordingly, we assign no weight to this factor, as Defendant has failed to 16 make a particularized showing of prejudice to demonstrate a violation of any of the 17 three interests. 18 E. Balancing 19 {65} “[T]he weighing and balancing of the Barker factors is a difficult and 20 sensitive process.” Gallegos, 2016-NMCA-076, ¶ 32. “The heart of the right to a

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1 speedy trial is preventing prejudice to the accused.” Garza, 2009-NMSC-038, ¶ 12. 2 Even if a defendant cannot make the requisite showing of prejudice, a defendant 3 can show that his or her right to a speedy trial was violated by showing that “the 4 length of the delay and the reasons for the delay weigh heavily in [the] defendant’s 5 favor and [the] defendant has asserted [the] right and not acquiesced to the 6 delay[.]” Id. ¶ 39. 7 {66} Here, Defendant failed to make a showing of particularized prejudice, but 8 the length of delay, forty months total and twenty-five months past the 9 presumptively prejudicial period, weighs heavily in Defendant’s favor. Defendant 10 adequately asserted her speedy trial right. We must, then, determine whether the 11 reasons for delay weigh heavily in favor of Defendant. 12 {67} Of the forty months of total delay in this case, we weigh approximately 13 thirteen months neutrally, twenty months against Defendant, and seven months 14 against the State. This was an intermediately complex case, with a presumptively 15 prejudicial period of fifteen months. Therefore, the question becomes whether the 16 State’s seven-month administrative delay weighs heavily against it where 17 Defendant made no particularized showing of prejudice. 18 {68} We find no authority to support holding that Defendant’s speedy trial right 19 was violated without a presumptive showing of particularized prejudice when the 20 State’s portion of the delay was administrative and was less than the presumptively

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1 prejudicial period. Defendant has not directed us to any and we could not find any 2 New Mexico cases to support such a holding. Compare Gallegos, 2016-NMCA- 3 076, ¶ 34 (holding that a fourteen-month and three-week negligent and 4 administrative delay, which exceeded presumptively prejudicial period by a few 5 months, did not support a finding of a speedy trial right violation without a 6 showing of particularized prejudice), with Taylor, 2015-NMCA-012, ¶¶ 11-12, 16- 7 17 (concluding that, in a simple case, a nineteen-month administrative/negligent 8 delay weighed heavily against the state and holding that there was a speedy trial 9 right violation even in the absence of particularized showing of prejudice). While 10 we acknowledge the State’s obligation to bring Defendant to trial, and that the 11 right to a speedy trial is a fundamental constitutional right, we do not weigh the 12 seven-month administrative delay here heavily against the State. Considering the 13 above factors together, we conclude that the Barker factors support the district 14 court’s denial of Defendant’s motion to dismiss on speedy trial grounds. 15 CONCLUSION 16 {69} We affirm Defendant’s convictions. 17 {70} IT IS SO ORDERED.

18 _________________________________ 19 KRISTINA BOGARDUS, Judge

20 WE CONCUR:

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1 _________________________________ 2 J. MILES HANISEE, Judge

3 _________________________________ 4 JULIE J. VARGAS, Judge