State v. Kleinegger

STATE OF NEW MEXICO, Plaintiff-Appellee, v. RAYMOND KLEINEGGER, Defendant-Appellant.

No. A-1-CA-36220

COURT OF APPEALS OF THE STATE OF NEW MEXICO

May 28, 2021

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 Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions.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

David N. Williams, District Judge

Hector H. Balderas, Attorney General

Maris Veidemanis, Assistant Attorney General

Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender

MJ Edge, Assistant Appellate Defender

Gregory B. Dawkins, Assistant Appellate Defender

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

IVES, Judge.

{1} Defendant Raymond Kleinegger appeals his conviction for child solicitation by electronic communication device (appearing for a meeting with a child over thirteen, under sixteen) in violation of NMSA 1978, Section 30-37-3.2(A), (C)(1) (2007). Defendant argues that (1) he was denied his right to a speedy trial; (2) he suffered a violation of his right to due process when the district court denied his motions to dismiss based on the State's untimely disclosure of discoverable evidence; (3) he was entrapped; and (4) there was insufficient evidence to support his conviction. Unpersuaded, we affirm.

BACKGROUND¹

{2} Police began investigating Defendant in January 2014 after a woman reported to them that her fifteen-year-old daughter had been having sexually-explicit online conversations with adult men. Detective Jacob Storey of the Albuquerque Police Department obtained Defendant's phone number from the child and initiated a text-message conversation with Defendant using the name "Lulu," which the child had used in her conversations with Defendant. Defendant quickly turned the conversation sexual and suggested a meeting. As "Lulu," Officer Storey agreed to meet and suggested they do so at a gas station in northeast Albuquerque. Defendant appeared for the February 10, 2014, meeting and was arrested. He was twenty-one years old at the time. After protracted pretrial proceedings, Defendant waived his right to a jury trial and stipulated to the State's account of the facts. The district court returned a guilty verdict after a brief bench trial, and Defendant appeals.

DISCUSSION

I. Defendant Did Not Suffer a Violation of His Right to a Speedy Trial

{3} "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, our courts apply the four-factor balancing test that the U.S. Supreme Court 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. "On appeal, we give deference to the district court's factual findings, but we review the weighing and the balancing of the Barker factors de novo." State v. Deans, 2019-NMCA-015, ¶ 5, 435 P.3d 1280 (internal quotation marks and citation omitted).

A. Length of Delay

{4} "The first 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." State v. Ochoa, 2017-NMSC-031, ¶ 12, 406 P.3d 505. An inquiry into the other three Barker factors is only necessary when the length of delay is "presumptively prejudicial," State v. Garza, 2009-NMSC-038, ¶ 23, 146 N.M. 499, 212 P.3d 387 (internal quotation marks and citation omitted), because it exceeds the reasonable guideline for commencing trial,taking into account the complexity of the case. Ochoa, 2017-NMSC-031, ¶ 12. We defer to the district court's finding that this was a simple case, see id. ¶ 15, in which a delay of twelve or more months in bringing the case to trial required further inquiry into the other three Barker factors. Garza, 2009-NMSC-038, ¶ 2. As the length of a presumptively prejudicial delay increases, so does its weight against the State. Ochoa, 2017-NMSC-031, ¶ 14.

{5} Because Defendant's release from jail following his arrest was conditioned on posting bond, we measure the length of delay from the date of his earlier arrest rather than the date of his indictment. Compare State v. Marquez, 2001-NMCA-062, ¶¶ 10-11, 130 N.M. 651, 29 P.3d 1052 (agreeing with the parties that the defendant's right to a speedy trial attached when he was arrested because, thereafter, "criminal charges were pending against [the d]efendant and he was subject to the trial court's conditions of release which acted as a restraint upon his freedom"), with State v. Sanchez, 1989-NMCA-001, ¶¶ 7-8, 108 N.M. 206, 769 P.2d 1297 (holding that the defendant's right to a speedy trial attached when he was indicted because his "arrest alone, without posting bond, imposition of restrictive conditions of release, or being held to answer for unresolved criminal charges[,]" did not trigger the right). Measuring from Defendant's arrest on February 10, 2014, to his trial on August 15, 2016, it took approximately thirty months for the State to bring this simple case to trial, eighteen months longer than was reasonable under the applicable guideline. See Garza, 2009-NMSC-038, ¶ 2. The district court found that, even measuring from Defendant's indictment, the length of delay weighed heavily against the State. The parties do not dispute that finding on appeal, and we likewise conclude that the thirty-month delay in this simple case weighs heavily against the State.

B. Reason for Delay

{6} Because "the burden of persuasion rests on the [s]tate to demonstrate that, on balance, there was no violation of the right to a speedy trial[,]" Ochoa, 2017-NMSC-031, ¶ 14, we scrutinize the reasons the State has given for each period of delay and determine whether the reasons for delay "heighten or temper the prejudice to the defendant." Serros, 2016-NMSC-008, ¶ 29 (internal quotation marks and citation omitted); see also State v. Valencia, 2010-NMCA-005, ¶ 19, 147 N.M. 432, 224 P.3d 659 (explaining that, unless the state demonstrates "why a particular pretrial time lapse was both inevitable and wholly justifiable," the lapse weighs against the state (internal quotation marks and citation omitted)). We recognize four discrete periods within the thirty-month delay in this case and consider each in turn.

1. Three Months Between Arrest and Indictment

{7} The State has not offered any justification for the three-month delay between Defendant's arrest and his indictment during which charges were pending in metropolitan court. Cf. Valencia, 2010-NMCA-005, ¶¶ 19-20 (weighing against the state, in the absence of any justification for it, a one-month delay between arrest and indictment during which charges were pending in magistrate court). Because nothing inthe record suggests that the State caused this delay intentionally or in bad faith, we conclude that the delay was due to negligence and weigh it slightly against the State. See Garza, 2009-NMSC-038, ¶ 28 (characterizing the state's inaction between the filing of charges in magistrate court and the later dismissal of those charges and their reinstatement in district court as negligent delay in the absence of evidence that it was intentional or in bad faith and weighing four months of such delay slightly against the state).

2. Twelve Months Between Indictment and the Original Trial Date

{8} The State argues that the district court was correct in finding that, in the approximately twelve months between Defendant's indictment and the original trial date, the case was proceeding toward trial with "customary promptness" and, therefore, this period does not weigh against either party. Although the trial did not occur as originally scheduled, we see nothing in the record that makes us doubt the district court's finding that neither party caused any delay in the first twelve months following Defendant's indictment. Accordingly, we conclude that the twelve-month period between Defendant's indictment and the original trial date does not weigh against either party. Cf. State v. Moreno, 2010-NMCA-044, ¶ 13, 148 N.M. 253, 233 P.3d 782 (holding that, although it may have been true that the state failed to provide timely and complete witness lists in the months following the defendant's arraignment, the record did not show that the failure "detrimentally affected the progress of the case at [that] preliminary point").

3. Fourteen Months Between Original and July 2016 Trial Dates

{9} We also agree with the State that the district court was correct in finding that the next fourteen months of administrative delay weigh slightly against the State. See generally Garza, 2009-NMSC-038, ¶ 26 ("[T]he ultimate responsibility for [negligent or administrative delay] must rest with the government rather than with the defendant." (internal quotation marks and citation omitted)). Delay that "falls within the administrative burdens on the criminal justice system, such as overcrowded courts, . . . is considered negligent delay and is weighed against the [s]tate" relative to its length. Id. ¶¶ 29-30; State v. Flores, 2015-NMCA-081, ¶ 9, 355 P.3d 81 ("[O]ur tolerance of negligent or administrative delay varies inversely with its protractedness." (alteration, internal quotation marks, and citation omitted)). Although Defendant represented to the district court before the rescheduling of the original trial date that significant discovery remained outstanding, the record indicates that the trial was postponed because of administrative pressures...