State v. Gunthorpe

STATE OF NEW MEXICO, Plaintiff-Appellee, v. WENDELL GUNTHORPE, Defendant-Appellant.

No. A-1-CA-36535

COURT OF APPEALS OF THE STATE OF NEW MEXICO

February 17, 2020

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Cindy Leos, District Judge

Hector H. Balderas, Attorney General

Benjamin Lammons, Assistant Attorney General

Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender

MJ Edge, Assistant Appellate Defender

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

MEDINA, Judge.

{1} Defendant Wendell Gunthorpe appeals his convictions for aggravated battery, contrary to NMSA 1978, Section 30-3-5(C) (1969); aggravated assault, contrary to NMSA 1978, Section 30-3-2(B) (1963); battery against a household member, contrary to NMSA 1978, Section 30-3-15(A) (2008); and violation of a protective order, contrary to NMSA 1978, Section 40-13-6 (2013). He argues that (1) his speedy trial rights were violated by the delay in this case; (2) his trial counsel was ineffective for failing to investigate a potential alibi; (3) there is insufficient evidence to support his convictions; and (4) Defendant's Fifth Amendment rights were violated because he was not read his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). We affirm.

DISCUSSION

I. Speedy Trial

{2} "The right of the accused to a speedy trial is guaranteed by both the Sixth Amendment of the United States Constitution and Article II, Section 14 of the New Mexico Constitution." State v. Spearman, 2012-NMSC-023, ¶ 16, 283 P.3d 272. In determining whether a defendant has been deprived of the right to a speedy trial, "we consider the four factors articulated in Barker [v. Wingo, 407 U.S. 514 (1972)]: (1) the length of delay in bringing the case to trial, (2) the reasons for the delay, (3) the defendant's assertion of the right to a speedy trial, and (4) the prejudice to the defendant caused by the delay." State v. Serros, 2016-NMSC-008, ¶ 5, 366 P.3d 1121. "We 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.

A. Length of Delay

{3} We first determine whether the length of the delay is presumptively prejudicial. "The first factor, the length of delay, has a dual function: it acts as a triggering mechanism for considering the four Barker factors if the delay crosses the threshold of being presumptively prejudicial, and it is an independent factor to consider in evaluating whether a speedy trial violation has occurred." Serros, 2016-NMSC-008, ¶ 22 (internal quotation marks and citation omitted). Our Supreme Court has established benchmarks for presumptively prejudicial delay according to the complexity of a case: twelve months for a simple case, fifteen months for a case of intermediate complexity, and eighteen months for a complex case. State v. Garza, 2009-NMSC-038, ¶¶ 47-48, 146 N.M. 499, 212 P.3d 387. The weight we assign this factor varies with the length of the delay-"[a]s the delay lengthens, it weighs increasingly in favor of the accused." Ochoa, 2017-NMSC-031, ¶ 14.

{4} The district court determined this case to be of intermediate complexity, and we defer to such a finding on appeal. See id. ¶ 15 (noting that the appellate courts defer to the district court's findings of complexity when the finding is supported in the record). Accordingly, the presumptive period for this "intermediate" case to be brought to trial is fifteen months. See Garza, 2009-NMSC-038, ¶ 2. Defendant asserts that there has been a forty-three-month delay in this case, while the State asserts that the amount of delay continues to Defendant's second trial setting for a total of forty-five months. It is unnecessary to resolve this conflict as a forty-three month delay is more than double the presumptive period necessary to trigger further inquiry into the Barker factors and weighs heavily in favor of Defendant. See State v. Taylor, 2015-NMCA-012, ¶ 9, 343 P.3d 199 (weighing a length of delay approximately twice as long as the presumptively prejudicial threshold, heavily against the state); State v. Vigil-Giron, 2014-NMCA-069, ¶¶ 19, 65, 327 P.3d 1129 (same).

B. Reasons for Delay

{5} The second Barker factor evaluates the reasons for each period of delay and assigns responsibility for each period accordingly. See Garza, 2009-NMSC-038, ¶ 25. "Our courts have recognized three types of delay that may be attributable to the state and one type attributable to the defense." State v. Brown, 2017-NMCA-046, ¶ 18, 396 P.3d 171. First, intentional delay, which is "a deliberate attempt to delay prosecution of the case in order to hamper the defense." Id. Intentional delay weighs heavily against the state. See id. The second type of delay is negligent or administrative, which also weighs against the state because "it still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun[,]" but it does so more lightly than intentional delay. Id. (internal quotation marks and citation omitted). "[A]s the length of the delay increases, this type of delay begins to weigh more heavily against the state." Id. Third is delay caused by valid reasons, which "are neutral and do not weigh against the state." Id. Finally, any delay caused by the defendant generally weighs against the defendant. See id.

{6} We identify eight periods of pretrial delay in this case: (1) from December 25, 2011 to July 18, 2012; (2) from July 19, 2012 to July 2, 2013; (3) from July 3, 2013 to November 5, 2013; (4) from November 6, 2013 to February 18, 2014; (5) from February 18, 2014 to November 4, 2014; (6) from November 5, 2014 to February 2, 2015; (7) from February 3, 2015 to August 26, 2015; and (9) from August 27, 2015 to October 26, 2015. We address each time period in turn.

December 25, 2011 to July 18, 2012

{7} During the first time period, the State and Defendant filed customary pleadings one expects to see filed in a criminal case. The State filed a certificate of disclosure, a demand for notice of alibi or entrapment defense, a request for disclosure, a notice of intent to call witnesses, a motion to compel Defendant to select counsel and request for a prompt trial setting, and an amended witness list. The New Mexico Public Defender Department entered its appearance on Defendant's behalf, moved for discovery, and asserted a speedy trial demand. In addition, the district court scheduled a status conference, pre-trial conference, and an August 20, 2012, jury trial. We therefore agree with the district court that the case was progressing normally until July 18, 2012, when defense counsel filed a stipulated order for stay to determine Defendant's competency and weigh this period of six months and twenty three days neutrally. See State v. Parrish, 2011-NMCA-033, ¶ 25, 149 N.M. 506, 252 P.3d 730 (weighing the delay neutrally when "the case progressed with customary promptness"). To the extent Defendant claims this period of time should be weighed against the State, he provides no explanation supporting this claim and the authority he cites does not support this assertion. See State v. Guerra, 2012-NMSC-014, ¶ 21, 278 P.3d 1031 (stating that appellate courts are under no obligation to review unclear or undeveloped arguments); Vigil-Giron, 2014-NMCA-069, ¶ 60 ("[A]ppellate courts will not consider an issue if no authority is cited in support of the issue and that, given no cited authority, we assume no such authority exists." ).

July 19, 2012 to July 2, 2013

{8} During this period Defendant underwent a competency evaluation and private counsel, Kelly A. Golightely, entered her appearance on behalf of Defendant. The district court entered an order finding Defendant competent to stand trial on July 2, 2013. Although the district court weighed this period neutrally, delays for the purpose of obtaining a competency evaluation are "clearly for the benefit of the defendant who cannot stand trial until the issue of competency has been properly assessed." State v. Mendoza, 1989-NMSC-032, ¶ 9, 108 N.M. 466, 774 P.2d 440. Therefore, we weigh this twelve-month period against Defendant.

July 3, 2013 to November 5, 2013

{9} On July 29, 2013, the district court scheduled trial for November 12, 2013, and placed the case on the November 5, 2013 docket call. On October 24, 2013, Defendant's attorney, Kelly A. Golightley, withdrew as counsel and Rachel Walker Al-Yasi entered her appearance on Defendant's behalf. Defendant's new counsel failed to appear for the November 5, 2013 docket call. Until the November docket call, the case was progressing normally. We therefore weigh this period of six months and twenty-three days neutrally. See Parrish, 2011-NMCA-033, ¶ 25.

{10} Though Defendant agrees that the case was proceeding normally during this time, he nonetheless contends that this time should be weighed against the State as administrative delay. Defendant offers no argument or authority in support of this contention. Thus we do not consider his argument further. See Guerra, 2012-NMSC-014, ¶ 21; Vigil-Giron, 2014-NMCA-069, ¶ 60.

November 6, 2013 to February 18, 2014

{11} Over the State's objection the district court vacated Defendant's November 12, 2013, jury trial because Defendant's counsel failed to appear for the docket call and would presumably be unprepared for trial. The State requested that a new trial date be set. On February 18, 2014, the State filed a motion for a definite trial setting. No trial settings occurred during this time period. The district court determined that three months would have been an acceptable time to set a new trial date and...