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State v. Lopez

Court of Appeals of New Mexico

July 28, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
FABIAN LOPEZ, Defendant-Appellant.


          Hector H. Balderas, Attorney General Laura E. Horton, Assistant Attorney General Santa Fe, NM for Appellee

          Bennett J. Baur, Chief Public Defender J.K. Theodosia Johnson, Assistant Appellate Defender Santa Fe, NM for Appellant


          TIMOTHY L. GARCIA, Judge

         {1} Defendant, Fabian Lopez, was convicted of aggravated battery with a deadly weapon, following a workplace altercation. Defendant raises multiple issues on appeal, including whether the over two hundred day delay between conviction and sentencing violated due process. As an issue of first impression, we conclude that Defendant failed to show prejudice and that no due process violation occurred. On Defendant's remaining arguments raised on appeal, we hold that there is no reversible error. As such, we affirm Defendant's conviction.


         {2} In February 2011, Saul Montano (Victim or Mr. Montano) and Defendant both worked at the Midway Dairy in Portales, New Mexico. Defendant speaks very little Spanish and Mr. Montano speaks very little English. On February 13, 2011, the two men engaged in an altercation which seemingly resulted from their limited proficiency in the language spoken by the other party. While the two men were working, they began verbally arguing and at first, Jesus Acosta, a witness to the altercation, believed the two men were just kidding around. Mr. Acosta testified that a third person was mistranslating what Defendant and Mr. Montano were saying to each other. Defendant testified that he believed that Mr. Montano was gay and was trying to come on to him, saying "open [your] butt hole." Mr. Montano testified that he said to Defendant "make way asshole" while trying to get by him in the dairy. Defendant became furious and he yelled at Mr. Montano that he was not gay. The two men went outside and both men testified that the other threw the first punch. They scuffled for a few minutes and Defendant ended up on the ground. Defendant testified that he had his shirt over his head, which caused him to panic. Mr. Montano admitted that he was going to continue to punch Defendant, but Defendant pulled a knife out of his boot. Defendant then stabbed Mr. Montano one time in his upper leg near his buttocks.

         {3} State Police Agent Noe Alvarado was dispatched to the home of Mr. Montano, where he was receiving medical attention from paramedics. Agent Alvarado then went to the dairy to speak with Defendant, where Defendant's wife gave Agent Alvarado the knife used in the altercation. Defendant admitted to Agent Alvarado that he had an argument with and then stabbed Mr. Montano.


         {4} Defendant was arrested and then released on bond on February 16, 2011, and remained out on bond during the entirety of the proceedings. A preliminary hearing was held in Roosevelt County Magistrate Court on April 13, 2011. On April 14, 2011, the State filed a criminal information charging Defendant with aggravated battery with a deadly weapon, pursuant to NMSA 1978, Section 30-3-5(A), (C) (1969), and attached a list of witnesses for trial, including Agent Alvarado and Mr. Montano. On June 24, 2011, the State filed a second witness list adding Mr. Acosta with his address as the Midway Dairy in Portales.

         {5} A hearing was held on August 19, 2011, regarding Defendant's motion for discovery. The State notified the district court that discovery had been available on the database since April 28, 2011. Defendant filed a motion to suppress Mr. Montano's testimony on September 9, 2011, claiming the State failed to produce the "alleged victim" for an interview. The district court held a hearing on Defendant's motion on December 9, 2011. The State argued that it had set up two courtesy interviews with Mr. Montano but that he did not show up to either. The district court instructed Defendant to subpoena Mr. Montano and if then he did not appear, it would consider suppressing his testimony. Defendant issued a subpoena for an interview with Mr. Montano at his New Mexico address on December 16, 2011. However, service was not completed because Mr. Montano had moved to Buckeye, Arizona, a fact noted in the State's supplemental witness list filed on December 13, 2011.

         {6} Trial was scheduled for September 18, 2012, but Defendant filed a motion to continue that setting, agreeing to waive time until the next setting. Defendant's motion was granted. Defendant renewed the motion to suppress Mr. Montano's testimony on September 18, 2012. Trial was rescheduled for October 17, 2012. At the docket call on October 9, 2012, Defendant realized that the December 2011 subpoena was served to Mr. Montano's prior address. The State and Defendant filed a joint motion to continue the October 2012 trial setting in an attempt to get Mr. Montano to New Mexico for an interview, agreeing that the delay in time would count against the State.

         {7} On May 13, 2013, Defendant did not appear for the scheduled docket call and a bench warrant was issued. The bench warrant was later quashed, and Defendant notified the district court that his son had been in the hospital. At the hearing, defense counsel indicated that she had interviewed Mr. Montano by phone. On October 17, 2013, Defendant filed a motion to continue the next scheduled pretrial conference, agreeing to waive the time limits until the next setting. The trial was again rescheduled for March 26, 2014.

         {8} Following a jury trial, Defendant was convicted of aggravated battery with a deadly weapon on March 26, 2014. The district court ordered a pre-sentence report from adult probation on October 20, 2014. A supplemental criminal information was filed by the State, and the district court sentenced Defendant as a habitual offender, pursuant to NMSA 1978, Section 31-18-17 (2003) with one year to serve and three years suspended. This appeal followed.


         {9} Defendant makes the following arguments: (1) the delay in holding Defendant's sentencing hearing violated Defendant's right of due process; (2) defense counsel provided ineffective assistance of counsel by failing to assert Defendant's right to a speedy trial; (3) the district court erred in allowing the witness, Mr. Acosta, to testify because the State failed to disclose his address; and (4) the district court made several errors that denied Defendant a fair trial, including holding the trial at the Yam Theater and admitting certain testimony by Agent Alvarado as well as the photographs of the knife used in the altercation. Finally, Defendant argues that the cumulative impact of the errors at trial was so prejudicial that he was denied a fair trial and reversal is required.

         I. Due Process in Delayed Sentencing

         {10} The New Mexico appellate courts have on several occasions analyzed cases where defendants have faced delays in the imposition of a sentence or in the enforcement of a sentence. See e.g., State v. Calabaza, 2011-NMCA-053, ¶¶ 19-22, 149 N.M. 612, 252 P.3d 836 (analyzing whether the thirteen-month delay between this Court's mandate to the district court and the eventual sentencing violated the defendant's right to a spee dy trial and due process); State v. Brown, 2003-NMCA-110, ¶ 9, 134 N.M. 356, 76 P.3d 1113 (involving a case where the defendant argued that "his right to a speedy trial was violated by a delay of twenty months from the time this Court reversed one of his trafficking convictions and remanded the case for re-sentencing until [the d]efendant was actually re-sentenced"). In State v. Todisco, the defendant argued that such a delay violated his right to a speedy trial under the Sixth Amendment of the United States Constitution and this Court, relying on past guidance from the United States Supreme Court, assumed that the Sixth Amendment right to a speedy trial extended to the sentencing phase of a criminal proceeding. 2000-NMCA-064, ¶ 16, 129 N.M. 310, 6 P.3d 1032 (citing to Pollard v. United States, 352 U.S. 354, 361 (1957)). This Court then "[assumed] without deciding, that the [Sixth Amendment] speedy trial right [can be applied to delays in] sentencing proceedings" and applied the factors set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972) to analyze the defendant's claim of an excessive delay in the trial court's imposition of a sentence. Todisco, 2000-NMCA-064, ¶¶ 16, 19.

         {11} In Calabaza, this Court reasoned that, although the Barker factors may be valid considerations when the issue addressed is speedy sentencing, we did "not believe the guidelines [were] . . . specifically applicable in the speedy enforcement context." Calabaza, 2011-NMCA-053, ¶ 11. The defendant in Calabaza, in addition to speedy trial claims, also argued a violation of due process in the delay that occurred in the imposition of his sentence. Id. ΒΆ 12. This Court, in looking to similar cases where there was a delay not in the sentence hearing itself but in the imposition ...

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