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State v. Salazar

Court of Appeals of New Mexico

February 28, 2018

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
PAUL SALAZAR, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY Stephen K. Quinn, District Judge

          Hector 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

          OPINION

          MICHAEL E. VIGIL, Judge

         {¶1} 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.

          BACKGROUND

         {¶2} 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.

         DISCUSSION

         {¶3} 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.

         {¶4} 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).

         I. The Delay Did Not Violate Defendant's Speedy Trial Rights

         {¶5} 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.

         {¶6} 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 Defendant's Case

         {¶7} 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.

         {¶8} 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.

         {¶9} 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.

         {¶10} On July 9, 2014, new counsel entered an appearance on behalf of Defendant, and filed Defendant's first demand for a speedy trial.

         {¶11} 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.

         {¶12} 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.

         {¶14} 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 was denied.

         {¶15} 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.

         {¶16} 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.

         {¶17} 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.

         {¶18} 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.

         B. Length of Delay

         {¶19} 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).

         {¶20} "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.

         {¶21} 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 [s]tate").

         C. Reason for Delay

         {¶22} 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.").

         {¶23} 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 against Defendant.

          D. Assertion of the Right

         {¶24} 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 considered. Id.

         {¶25} 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.

         {¶26} 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.

          E. Prejudice

         {¶27} 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).

         {¶28} 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 Barker factor.

         F. Balancing the Factors

         {¶29} 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.

         II. The State Established That the Substances Found in the Deodorant Sticks Were Synthetic Cannabinoids as Defined Under New Mexico Law

         {¶30} 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.

         {¶31} 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 ...


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