State v. Burnham

1

STATE OF NEW MEXICO, Plaintiff-Appellee, v. ROBERT BURNHAM, Defendant-Appellant.

No. A-1-CA-39983

Court of Appeals of New Mexico

June 10, 2024

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY Steven Blankinship, District Court Judge

Raúl Torrez, Attorney General Santa Fe, NM Van Snow Assistant Attorney General Albuquerque, NM for Appellee

Bennett J. Baur, Chief Public Defender Joelle N. Gonzales Assistant Appellate Defender Santa Fe, NM for Appellant

MEMORANDUM OPINION

GERALD E. BACA, JUDGE

{¶1} Defendant Robert Burnham was charged with and convicted of aggravated assault with a deadly weapon (firearm), contrary to NMSA 1978, Section 30-3-2(A) (1963). On appeal, Defendant contends that (1) his right to a speedy trial was violated; (2) the district court erred in admitting surveillance video evidence; (3) the prosecution committed misconduct; and (4) the district court erred by denying Defendant's motion for a new trial without holding an evidentiary hearing on the motion. For the following reasons, we affirm on all issues.

BACKGROUND

{¶2} Because this is an unpublished memorandum opinion written solely for the benefit of the parties, see State v. Gonzales, 1990-NMCA-040, ¶ 48, 110 N.M. 218, 794 P.2d 361, and the parties are familiar with the factual and procedural background of this case, we omit a background section and leave the discussion of the facts for our analysis of the issues.

DISCUSSION

I. Defendant's Right to a Speedy Trial Was Not Violated

A. Standard of Review

{¶3} To determine whether a defendant's right to a speedy trial was violated, we employ a four-factor balancing test articulated by the United States Supreme Court in Barker v. Wingo: (1) length of delay, (2) reasons for delay, (3) assertion of the right, and (4) prejudice to the defendant. 407 U.S. 514, 530 (1972); State v. Serros, 2016-NMSC-008, ¶ 5, 366 P.3d 1121. We weigh each factor either in favor of or against the state or the defendant, and then we determine if, on balance, the right to a speedy trial was violated. State v. Spearman, 2012-NMSC-023, ¶ 17, 283 P.3d 272. In doing so, "[w]e defer to the district court's factual findings in considering a speedy trial claim, but weigh each factor de novo." State v. Ochoa, 2017-NMSC-031, ¶ 4, 406 P.3d 505. "[F]actual findings of a district court are entitled to substantial deference and will be reversed only for clear error." State v. Gurule, ___ NMSC___, ¶ 20, ___ P.3d ___ (S-1-SC-37879, Dec. 7, 2023) (emphasis added) (internal quotation marks and citation omitted). Consequently, "when a district court considers the Barker factors and supporting factual findings are not clearly in error, the district court's judgment of how opposing considerations balance should not lightly be disturbed." Id. (internal quotation marks and citation omitted). We turn now to consider each Barker factor in turn.

B. The Barker Factors

1. Length of Delay

{¶4} The length of delay serves a dual function. Serros, 2016-NMSC-008, ¶ 22. First, once the length of delay crosses the "presumptively prejudicial" threshold, consideration of the Barker factors is triggered. Id. Second, the length of delay is an independent factor to be considered in determining whether the right to a speedy trial was violated. Id.

{¶5} In this case the parties and the district court agree that a forty-two-month delay between Defendant's arrest on January 14, 2018, and his trial on July 26, 2021, for this simple case was presumptively prejudicial and weighed heavily against the State. We agree. As a result, we conclude not only that presumptive prejudice is established, and consideration of the Barker factors triggered, but also that the forty-two-month delay weighs heavily against the State. See id. ¶¶ 22-24 (holding that a fifty-one-month delay in an intermediate or complex case was "extraordinary, and therefore it weigh[ed] heavily in [the d]efendant's favor"); State v. Brown, 2017-NMCA-046, ¶¶ 16-17, 396 P.3d 171 (holding that a delay of forty-two months in a complex case weighed heavily in the defendant's favor). Consequently, we proceed to consider the balance of the Barker factors beginning with the reasons for delay.

2. Reasons for Delay

{¶6}Under the second Barker factor, we evaluate the reasons for the delay. See Ochoa, 2017-NMSC-031, ¶ 18. Different weights are assigned to different reasons for delay. Spearman, 2012-NMSC-023, ¶ 25. On one end of the spectrum, a deliberate attempt to delay trial to hamper the defense weighs heavily against the State. Ochoa, 2017-NMSC-031, ¶ 18. Moving across the spectrum, "negligent or administrative delay weighs less heavily but nevertheless weighs against the [s]tate because the ultimate responsibility for such circumstances must rest with the [state] rather than with the defendant." Id. (internal quotation marks and citation omitted). Next in the spectrum, is "neutral delay, or delay justified by a valid reason, [which] does not weigh against either party." Id. Finally, on the other end of the spectrum is "delay initiated by defense counsel[, which] generally weighs against the defendant." Id. With this in mind, we turn now to the facts of this case.

a. January 14, 2018 to October 2, 2018-Approximately Eight and One-Half Months (Two Hundred and Sixty-One Days) of Neutral Delay

{¶7} Defendant was arrested on January 14, 2018, and a criminal complaint was filed in Doña Ana County Magistrate Court on January 16, 2018. Defendant was subsequently indicted on February 22, 2018. On March 23, 2018, following his designation to preside over the case, Judge Blankinship set the case for an arraignment/pretrial conference to be held on March 29, 2018. At this hearing, the district court set trial for October 2, 2018.

{¶8} Despite the need to appoint a judge from outside the district during this time period and confusion and delay by Defendant in retaining counsel, we conclude that the case was proceeding with customary promptness and treat this two hundred and sixty-one days (eight months and eighteen days) as neutral delay. See State v. Moreno, 2010-NMCA-044, ¶ 13, 148 N.M. 253, 233 P.3d 782 ("During this period, it appears that the case proceeded with customary promptness and delay cannot be held against either party.").

b. October 2, 2018 to May 8, 2019-Seven Months and Six days (Two Hundred Eighteen Days) of Delay Weighing Against Defendant

{¶9} On July 17, 2018, based on the State's motion to determine counsel for Defendant because no counsel had entered their appearance on his behalf, the district court held a hearing. Following the hearing, the district court ordered Defendant to obtain counsel within ten days. The district court further instructed Defendant to inform his prospective attorney that the matter would be set for trial "in November or December." The court reset trial for December 4, 2018. Two days after the hearing, private counsel entered an appearance for Defendant.

{¶10} At a November 5, 2018 pretrial conference, Defendant moved for a ninety-day continuance because he needed time to prepare the defense. The district court granted Defendant's request and reset the jury trial for May 9, 2019. However, on May 8, 2019, Defendant entered into a plea agreement.

{¶11} Defendant argues that the delay from October 2, 2018 to December 4, 2018, was administrative delay "caused by either government entities (the State and [the] LOPD) and the court's docket control and should be attributed to the State." We are not persuaded. Because Defendant wished to be represented in this case by an attorney, it was his responsibility to obtain an attorney, whether it be a public defender or a private attorney. This delay is charged to Defendant.

{¶12} As to the delay from December 4, 2018 to May 9, 2019, Defendant contends that he is only responsible for ninety days of the delay due to his request for a ninety-day continuance and that the balance of the delay should be charged to the State as administrative delay. We disagree and conclude that Defendant must bear the responsibility for any delay caused by his new counsel's request for a continuance- the resetting of the December 4, 2018 trial to May 9, 2019. We, therefore, conclude that the resulting seven months and six days of delay between October 2, 2018, and May 8, 2019 weighs against Defendant.

c. May 8, 2019 to September 5, 2019-Three Months and Twenty-Eight Days (One Hundred Twenty Days) of Neutral Delay

{¶13} On May 8, 2019, Defendant entered into a plea agreement and pleaded guilty to the sole charge in the indictment. Subsequently, new counsel entered his appearance and on August 29, 2019, Defendant moved to withdraw his guilty plea. The district court filed its "Order Granting Motion to Withdraw Plea of Guilty" on September 5, 2019. The district court held that this period weighed against Defendant. However, the State contends that this period should be excluded from the speedy trial calculation and Defendant contends that this period should be weighed neutrally. Based on this Court's recent decision in State v. Castillo, we weigh this period neutrally. 2023-NMCA-063, ¶¶ 12, 14, 535 P.3d 697 (holding that "our speedy trial analysis does not include the period after [the d]efendant pleaded guilty" and that the period between a defendant's entry of a guilty plea and their withdrawal of the guilty plea is "not relevant to our speedy trial analysis").

d September 5, 2019 to March 17, 2020-Six Months and Twelve Days (One Hundred...