FROM THE DISTRICT COURT OF CURRY COUNTY Stephen K. Quinn,
H. Balderas, Attorney General Maha Khoury, Assistant Attorney
General Santa Fe, NM for Appellee
Bennett J. Baur, Chief Public Defender Allison H. Jaramillo,
Assistant Appellate Defender Santa Fe, NM for Appellant
MICHAEL E. VIGIL, Judge
Defendant Paul Salazar appeals his convictions for one count
of trafficking methamphetamine, contrary to NMSA 1978,
Section 30-31-20 (2006), one count of distribution of
synthetic cannabinoids, contrary to NMSA 1978, Section
30-31-22(A)(1) (2011), and one count of conspiracy to traffic
methamphetamine or to distribute synthetic cannabinoids,
contrary to NMSA 1978, Section 30-28-2 (1979). For the
reasons that follow, we affirm Defendant's convictions.
The State alleged that on August 15, 2013, Nicole Ramirez, at
Defendant's direction, delivered methamphetamine and the
chemicals PB-22 and 5F-PB22 hidden within hygiene products
(deodorant sticks) to David Patrick, an inmate confined in
the Curry County Detention Center (CCDC) in Clovis, New
Mexico. Additional factual and procedural background is
provided in our analysis as required.
Defendant's appeal raises three issues. First, delay
amounted to a violation of Defendant's right to a speedy
trial. Second, the State failed to prove that the substances
contained in the deodorant container were synthetic
cannabinoids as defined under New Mexico law. Third, the
State did not present sufficient evidence to sustain
Defendant's convictions because it did not call Ms.
Ramirez to testify at trial.
Defendant also asserts four additional unpreserved issues,
invoking either fundamental or plain error. First, the State
should have charged Defendant with bringing contraband into
the jail, not trafficking. Second, the district court erred
in sentencing Defendant to second-degree conspiracy when the
jury's finding was unclear. Third, comments made by the
prosecutor during closing argument deprived Defendant of a
fair trial. Fourth, the district court erred in admitting the
testimony of Probation Officer Edie Barela (Officer Barela).
The Delay Did Not Violate Defendant's Speedy Trial
It took nineteen months and ten days to bring Defendant to
trial on the counts charged in the State's criminal
information. Based on this delay, Defendant contends that the
delay violated his constitutional right to a speedy trial.
The Sixth Amendment to the United States Constitution,
applicable to the states through the Fourteenth Amendment,
see Klopfer v. North Carolina, 386 U.S. 213, 222-23
(1967), provides that "[i]n all criminal prosecutions,
the accused shall enjoy the right to a speedy and public
trial[.]" U.S. Const, amend. VI. In determining whether
"a defendant has been deprived of his constitutional
right to a speedy trial, [New Mexico appellate courts] use
the four-factor test set forth in Barker[ v. Wingo,
407 U.S. 514, 530 (1972)] balancing the length of delay, the
reason for [the] delay, the defendant's assertion of the
right to a speedy trial, and the prejudice to the
defendant." State v. Ochoa, 2017-NMSC-031,
¶ 4, 406 P.3d 505. The appellate courts "defer to
the district court's factual findings in considering a
speedy trial claim, but weigh each factor de novo, "
id., and consider the Barker factors on a
"case-by-case basis." Id. ¶5. This
analysis is also "not a rigid or mechanical exercise,
but rather a difficult and sensitive balancing process."
Id. (internal quotation marks and citation omitted).
A. Timeline of Delay in
We begin by setting forth the facts and circumstances
surrounding the delays in bringing Defendant's case to
trial. Defendant was arrested on September 12, 2013, and on
September 30, 2013, the State filed the criminal information.
On December 5, 2013, the first pretrial conference was held,
at which time trial was set for February 25, 2014. On January
8, 2014, the State moved for a continuance. The district
court granted the continuance on January 24, 2014, in part
because the parties still had not received results from the
forensic laboratory identifying the substances found in the
deodorant sticks left by Ms. Ramirez at CCDC for Mr. Patrick.
On May 29, 2014, the second pretrial conference was held and
trial was set for September 9, 2014. The State represented
that it had received the forensic laboratory results, updated
its witness list, and was ready for trial. Defendant also
informed the district court that he was ready for trial.
Defendant also communicated to the district court that he
wished to be transferred to a prison facility so that he
could earn good time credit while the charges in his current
case were pending.
On July 9, 2014, new counsel entered an appearance on behalf
of Defendant, and filed Defendant's first demand for a
Between July 29, 2014, and September 8, 2014, the district
judge was unavailable for medical reasons. On August 18,
2014, the district court filed an amended notice of jury
trial, rescheduling Defendant's trial for September 10,
2014. On August 29, 2014, Defendant moved for a six-month
continuance in order to continue his investigation and
conduct witness interviews. In this motion, Defendant waived
all speedy trial claims for this period of continuance. The
district court granted the continuance on September 3, 2014.
However, on September 26, 2014, Defendant made his second
demand for a speedy trial.
On November 19, 2014, Defendant filed a motion to dismiss on
speedy trial grounds due to the fact that fourteen months had
passed since the time of his arrest. (13} On November 24,
2014, a third pretrial conference was held where trial was
set for January 22, 2015. The State represented that it was
ready for trial. Defendant stated that although he still had
investigation and witness interviews to conduct, he would do
his best to be ready for trial by January 22, 2015.
On December 17, 2014, a hearing on Defendant's motion to
dismiss on speedy trial grounds was held; however, the
district court reserved ruling on Defendant's motion
until January 20, 2015, at which time Defendant's motion
On January 20, 2015, at jury selection, Defendant moved for a
second continuance of trial on grounds that additional time
was needed to set a hearing for remaining motions and to
consider the State's plea offer. The motion was granted.
On February 5, 2015, a fourth pretrial conference was held,
at which time trial was set for April 22, 2015. The State
represented that it was ready for trial. Defendant renewed
his motion to dismiss on speedy trial grounds and stated that
he would be ready for trial on April 22, 2015.
On March 2, 2015, Defendant filed a motion for
reconsideration of the district court's order denying his
November 19, 2014 motion to dismiss on speedy trial grounds.
The hearing on Defendant's motion for reconsideration was
held on March 27, 2015.
On April 17, 2015, the district court denied Defendant's
motion for reconsideration. The district court determined:
(1) Defendant's case is an intermediate complexity case;
(2) the time between the State's January 9, 2014 motion
for a continuance and May 29, 2014 (the date on which the
State represented that it was prepared for trial) did not
count against Defendant; (3) the time during which the
district judge was medically unavailable (between July 29,
2014, and September 8, 2014) did not count against either the
State or Defendant; (4) the delay between September 8, 2014,
and the April 22, 2015 jury trial counted against Defendant
based on his August 29, 2014, and January 20, 2015, requested
continuances; and (5) because Defendant's probation was
revoked in December 2013 and for which he was incarcerated
until April 2018, Defendant was not prejudiced by his
pretrial incarceration arising in the instant case.
Length of Delay
The first Barker factor, "length of delay, is
both the threshold question in the speedy trial analysis and
a factor to be weighed with the other three Barker
factors." Ochoa, 2017-NMSC-031, ¶ 12.
Under Barker, the states are "free to prescribe
a reasonable period consistent with constitutional
standards" for bringing a case to trial. 407 U.S. at
523; Ochoa, 2017-NMSC-031, ¶ 12. Our Supreme
Court established speedy trial guidelines in State v.
Garza, 2009-NMSC-038, ¶ 2, 146 N.M. 499, 212 P.3d
387. Garza holds that "the length of delay
necessary to trigger the speedy trial inquiry [is] twelve
months for simple cases, fifteen months for cases of
intermediate complexity, and eighteen months for complex
cases." Id. (holding "that these
guidelines are merely thresholds that warrant further inquiry
into a defendant's claimed speedy trial violation and
should not be construed as bright-line tests dispositive of
the claim itself).
"When the length of delay exceeds a guideline, it must
be weighed as one factor in determining whether there has
been a violation of the right to a speedy trial[.]"
Ochoa, 2017-NMSC-031, ¶ 14. "As the delay
lengthens, it weighs increasingly in favor of the accused. In
other words, a delay barely crossing the guideline is of
little help to the defendant's claim, while a delay of
extraordinary length weighs heavily in favor of the
defendant." Id. (internal quotation marks and
citation omitted). Our appellate courts "defer to the
district court's finding of complexity" in a given
case. Id. ¶ 15.
Defendant was arrested on September 12, 2013. Nineteen months
and ten days later, on April 22, 2015, Defendant's case
was brought to trial. The district court concluded that
Defendant's case was of intermediate complexity. See
State v. Montoya, 2011-NMCA-074, ¶ 16, 150 N.M.
415, 259 P.3d 820 ("Cases of intermediate complexity...
seem to involve numerous or relatively difficult criminal
charges and evidentiary issues, numerous witnesses, expert
testimony, and scientific evidence." (internal quotation
marks and citation omitted)). Defendant's case was
therefore delayed four months and ten days beyond the
fifteen-month guideline for cases of intermediate complexity.
This delay meets the threshold for further speedy trial
analysis. We also conclude that under the circumstances, the
first Barker factor weighs only slightly against the
State. See id. ¶ 17 (holding that the delay of
six months beyond the fifteen-month guideline for
intermediate complexity case "was not so long or
protracted as to weigh more than slightly against the
Reason for Delay
The second Barker factor requires that we evaluate
the reasons for delay in the defendant's case.
Ochoa, 2017-NMSC-031, ¶ 18. Barker
describes three types of delay: (1) "a deliberate
attempt to delay the trial in order to hamper the defense[,
]" which "should be weighted heavily against the
government"; (2) "negligent or administrative
delay[, ]" which "weighs less heavily but
nevertheless weighs against the [s]tate"; and (3)
"neutral delay, or delay justified by a valid reason,
" which "does not weigh against either party."
Id. (alteration, internal quotation marks, and
citations omitted). Additionally, "delay initiated by
defense counsel generally weighs against the defendant."
Id.; State v. Grissom, 1987-NMCA-123, ¶ 34, 106
N.M. 555, 746 P.2d 661 ("Delay arising from hearing
defendants' motions, not caused by the prosecution, is
weighed against the defendant.").
We agree with the district court's analysis that the time
between the State's January 9, 2014 motion for a
continuance and May 29, 2014 (the date on which the State
stated that it was prepared for trial) was administrative
delay that counts against the State. We also agree with the
district court that the time during which the district court
judge was medically unavailable (between July 29, 2014, and
September 8, 2014) was neutral delay that does not count
against either the State or Defendant. See Statev.
White, 1994-NMCA-084, ¶5, 118 N.M. 225, 880 P.2d
322 (holding that the district court judge's surgery and
recovery time did not weigh against either side in speedy
trial analysis). Finally, we agree with the district
court's finding that the final delay between September 8,
2014, and the April 22, 2015 jury trial weighs against
Defendant due to the August 29, 2014 and January 20, 2015
continuances requested by defense counsel. Because four
months and twenty days of delay are attributable to
administrative delay by the State, one month and ten days of
delay are attributable to neutral delay, but seven months and
fourteen days of delay are attributable to Defendant, we
conclude that the second Barker factor weighs
D. Assertion of the Right
The third Barker factor requires that we consider
whether the defendant asserted the right to a speedy trial.
Ochoa, 2017-NMSC-031, ¶ 41. "The frequency
and force" of the assertion of the right may be taken
into account. Id. "On one hand, a single demand
for a speedy trial is sufficient to assert the right. On the
other hand, a defendant's assertion can be weakened by a
defendant's acquiescence to the delay." Id.
¶ 42. "[T]he consistency of a defendant's legal
positions with respect to the delay" are also
From the date of his arrest to trial, Defendant asserted his
right to a speedy trial on five occasions. First, upon
entering his appearance on July 9, 2014, Defendant's
second trial counsel made Defendant's first demand for a
speedy trial. On August 29, 2014, however, Defendant moved
for a six-month continuance in order to continue his
investigation and conduct witness interviews. In this motion,
Defendant waived "all speedy trial claims for this
period of continuance." Approximately a month later, on
September 26, 2014, Defendant made his second demand for a
speedy trial. This demand was closely followed by
Defendant's third demand for a speedy trial made in the
form of a motion to dismiss on speedy trial grounds on
November 19, 2014. However, upon the district court's
denial of Defendant's motion to dismiss on speedy trial
grounds on January 20, 2015, Defendant immediately moved for
another continuance of trial, stating that additional time
was needed to set a hearing for remaining motions and to
consider the State's plea offer. Defendant asserted his
right to a speedy trial for the fourth time on February 5,
2015, at the fourth pretrial conference. Defendant's
final assertion of his right to a speedy trial came in the
form of his March 2, 2015 motion for reconsideration of the
district court's order denying his November 19, 2014
motion to dismiss on speedy trial grounds.
Although Defendant's assertions of his right to a speedy
trial were frequent, they lacked force and were further
mitigated by Defendant's multiple motions for
continuances, requests to the court for more time to conduct
his investigation and interview witnesses, and requests to
set motions hearings once the State had represented that it
was ready for trial. See State v. Flores,
2015-NMCA-081, ¶ 31, 355 P.3d 81 (holding that "the
force of a defendant's assertions [of his speedy trial
right] is mitigated where he filed motions that were bound to
slow down the proceedings, such as a motion asking for
additional time, a motion to appoint new counsel, a motion to
reset the trial, or other procedural maneuvers"
(alteration, internal quotation marks, and citation
omitted)). Accordingly, we conclude that the third
Barker factor weighs against Defendant.
The fourth Barker factor requires that we analyze
the prejudice to the defendant as a result of the delay in
bringing his case to trial. Ochoa, 2017-NMSC-031,
¶ 48. We assess prejudice "in the light of the
interests of defendants which the speedy trial right was
designed to protect. These interests are preventing
oppressive pretrial incarceration, minimizing anxiety and
concern of the accused, and limiting the possibility that the
defense will be impaired." Id. (internal
quotation marks and citation omitted).
Defendant's sole claim of prejudice arising from his
pretrial incarceration is that he "suffered from anxiety
and concern" while the charges were pending and
"lost the opportunity to earn good time on his probation
violation." We reject this claim. Defendant received
credit for six hundred and twenty-nine days pre-sentence
confinement, which spanned from the date of his arrest on
September 12, 2013, through June 2, 2015, as well as credit
for his post-sentence confinement from June 2, 2015, until
delivery to the New Mexico Department of Corrections.
Additionally, although Defendant may have experienced some
anxiety and concern as a result of his pretrial
incarceration, he has made no showing that such anxiety or
concern was undue beyond bare allegations. See
Garza, 2009-NMSC-038, ¶ 35 (stating that because
"some degree of oppression and anxiety is inherent for
every defendant who is jailed while awaiting trial[, ]"
this factor weighs in the defendant's favor "only
where the pretrial incarceration or the anxiety suffered is
undue."(alterations, internal quotation marks, and
citation omitted)); see also Ochoa, 2017-NMSC-031,
¶ 61 (stating that where the defendant offered no
affidavits, testimony, or documentation with respect to his
specific circumstances of anxiety, the Court declined to
speculate as to the particularized anxiety or concern he may
have suffered); State v. Spearman, 2012-NMSC-023,
¶ 39, 283 P.3d 272 (declining to hold that the defendant
suffered undue anxiety based on the bare allegations of
defense counsel). Accordingly, we conclude that Defendant
failed to establish prejudice cognizable under the fourth
Balancing the Factors
Although Defendant established that his pretrial
incarceration exceeded the guideline for intermediate
complexity cases under the first Barker factor, for
the reasons previously stated, we conclude that the remaining
three factors (reasons for delay, assertion of the right, and
prejudice) weigh against Defendant. Accordingly, we conclude
that Defendant was not deprived of his constitutional right
to a speedy trial.
The State Established That the Substances Found in the
Deodorant Sticks Were Synthetic Cannabinoids as Defined Under
New Mexico Law
Defendant argues that when he was charged and tried for
distribution of synthetic cannabinoids that the particular
chemicals (5F-PB22 and PB-22) found in the deodorant sticks
were not listed as controlled substances under the New Mexico
Controlled Substances Act (CSA). See NMSA1978,
§ 30-31 -6(C)(19)(a)-(k) (2011). Accordingly, Defendant
submits, "[t]he State failed to prove that the
substance[s] inside the deodorant container w[ere] synthetic
cannabinoids as prohibited" by New Mexico law.
Defendant's claim raises a mixed question of law and
fact. Whether chemicals identified as "synthetic
cannabinoids" that are not specifically enumerated under
Section 30-31-6(C)(19)(a)-(k) are excluded from control under
the CSA is a question of statutory interpretation, which we
review de novo. See State v. Leong,2017-NMCA-070,
¶ 10, 404 P.3d 9 (stating issues of statutory
interpretation are reviewed de novo). However, whether the
State proved that the particular chemicals collected from the
deodorant sticks as evidence in Defendant's case (5F-PB22
and PB-22) were "synthetic cannabinoids" as
prohibited by law at the time Defendant was charged and tried
in this case is a question of fact that we review ...