State v. McDaniel

STATE OF NEW MEXICO, Plaintiff-Appellee, v. CARLEOUS McDANIEL, Defendant-Appellant.

NO. 31,501

COURT OF APPEALS OF THE STATE OF NEW MEXICO

October 1, 2015

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Neil Candelaria, District Judge

Hector H. Balderas, Attorney General

Nicole Beder, Assistant Attorney General

Santa Fe, NM

for Appellee

Jorge A. Alavarado, Chief Public Defender

Nicole S. Murray, Assistant Appellate Defender

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

VIGIL, Chief Judge.

{1} Defendant Carleous McDaniel appeals his convictions for attempted first degree murder and four counts of aggravated battery. We affirm in part, reverse in part, and remand.

{2} On the afternoon of December 31, 2008, (New Year's Eve) Defendant called his ex-wife Kimberly Davison to ask if he could go to her home to visit their children. She agreed. That same day, Davison, her boyfriend Anthony Hicks, and Terrence Turner decided to have a small New Year's Eve party at Davison's home.

{3} Alicia Coleman, Adrian Lewis, Nakisha Alexander, Katrina Bustos, Turner, Hicks, Davison, and several children attended the party. Everyone at the party was drinking alcohol except Davison. Coleman and Hicks had been drinking since early in the afternoon. The party guests described Hicks as "sloppy drunk." At one point Hicks knocked the Christmas tree down while dancing.

{4} When Defendant initially arrived, Coleman went to his car and spoke with him. She told Defendant that they did not want any problems. Defendant responded that he did not go there to cause any problems, he only wanted to see his kids. When Defendant entered Davison's home he greeted his children. Defendant held Josiah, eighteen months, and Tamar, five years old, sat on his lap. His attention was toward the children.

{5} At one point, Defendant left the party with Turner and Lewis to buy a cigar. While in the car, Lewis spotted a gun in Defendant's pocket. When they returned the three men were talking and laughing. They then went outside to smoke marijuana.

{6} Later Defendant was sitting on the couch holding Tamar and Josiah. Davison tried to talk to him about the children. At some point Hicks fell into Defendant while he was holding Josiah. Defendant said to Hicks, "Look, please be careful," and "You're wasted."

{7} Defendant and Lewis were talking and then they began to "tussle." Defendant claims that Lewis was threatening him with a broken bottle, but no witnesses testified to Lewis holding anything in his hands. Defendant then fired a shot at Lewis. The shot hit Lewis in the face knocking him to the ground. Lewis then stood up and ran out the door. Lewis testified to Defendant firing multiple shots in the house. However, Defendant testified to firing only one shot, Alexander testified to Defendant firing shots at Lewis outside, and no other witnesses testified to hearing gun shots. Lewis and Alexander also testified that Defendant chased Lewis outside and then returned to the house.

{8} Then Defendant and Hicks began arguing in the hallway. Defendant testified that Hicks pulled out a pistol. Davison heard Hicks say, "I'm not tripping on you. Those are your kids." Coleman was standing between the two men. She bent downto pick up her child, and Defendant fired a shot at Hicks's head. Defendant ran out the door and left the scene.

{9} Davison and her guests called 911. Police officers and an ambulance arrived.

{10} Defendant was arrested on January 12, 2009, and indicted by a grand jury on January 27, 2009. The public defender assigned three attorneys to Defendant's case over the twenty-seven month period he awaited trial. Defendant stood trial on April 12, 2011. A jury convicted defendant of attempted first degree murder, aggravated battery causing great bodily harm, and aggravated battery with a deadly weapon towards Hicks; and aggravated battery causing great bodily harm and aggravated battery with a deadly weapon towards Lewis. Defendant brings five arguments on appeal: (1) a delay of twenty-seven months from arrest until trial violated his constitutional right to a speedy trial; (2) the multiple convictions violate the prohibition against double jeopardy; (3) the evidence was insufficient to support a finding beyond a reasonable doubt; (4) he was denied effective assistance of counsel; and (5) he was denied his right to testify before the grand jury. We address each issue.

I. Right to a Speedy Trial

{11} Defendant appeals his convictions arguing that a delay of twenty-seven months from arrest until trial violated his constitutional right to a speedy trial.

{12} "Violation of the speedy trial right is only determined through a review of the circumstances of a case[.]" State v. Garza, 2009-NMSC-038, ¶ 13, 146 N.M. 499, 212 P.3d 387. We apply the four-factor Barker balancing test to determine if there was a violation of Defendant's right. Id.

A. The Length of Delay

{13} Under the first prong of the Barker analysis, we determine whether the length of the delay to bring the defendant's case to trial is "presumptively prejudicial." Id. ¶ 15. "The length of delay serves two purposes under the speedy trial analysis." State v. Spearman, 2012-NMSC-023, ¶ 20, 283 P.3d 272. First, it triggers the analysis of the speedy trial factors and, second, it is also a speedy trial factor to be weighed in the overall balance. Id. "[T]he greater the delay the more heavily it will potentially weigh against the State." Garza, 2009-NMSC-038, ¶ 24. "[T]he burden of persuasion rests with the State to demonstrate that, on balance, the defendant's speedy trial right was not violated." Id. ¶ 16.

{14} In Garza, our Supreme Court adopted benchmarks for determining presumptive prejudice: for a simple case, twelve months of delay becomes presumptively prejudicial; for an intermediate case, fifteen months is presumptively prejudicial; and for a complex case, eighteen months is presumptively prejudicial. Id. ¶ 48. In distinguishing between the level of complexity for each case, we have stated that"simple cases require less investigation and tend to involve primarily police officer testimony during the trial." State v. Laney, 2003-NMCA-144, ¶ 14, 134 N.M. 648, 81 P.3d 591 (internal quotation marks and citation omitted). Cases of intermediate complexity "involve numerous or relatively difficult criminal charges and evidentiary issues, numerous witnesses, expert testimony, and scientific evidence." Id.

{15} Defendant argues that this is a simple case because the trial lasted just over three days, there were six civilian witnesses including Defendant, and law enforcement officers that were called as witnesses. Defendant argues that although there was some conflicting testimony, all the witnesses described a discrete series of events that occurred over the course of the single evening. Defendant also points out that there were no expert witnesses and no significant pretrial motions except for motions in limine.

{16} In contrast, the State argues that this case is complex or intermediate-complex. The State argues that with voir dire and jury deliberations the trial was five days. The State asserts that the seriousness of the victims' injuries and their recovery required additional time to schedule and coordinate interviews. Hicks suffered brain damage making it difficult for him to understand and communicate clearly, and Lewis was arrested and indicted on separate charges which delayed his witness interview.

{17} In Laney, we determined that case fell "in the high end of the simple complexity range." 2003-NMCA-144, ¶ 15. In Laney, the defendant was charged with vehicular homicide, great bodily injury by vehicle, leaving the scene of an accident, receiving or transferring a stolen vehicle, and reckless driving. Id. ¶ 2. Both sides provided expert testimony including a forensic pathologist and accident reconstructionist, and the use of DNA evidence was contemplated. Id. ¶¶ 5, 12. We held that although many facts were stipulated, the ultimate question of who was driving was contested and required ten witnesses, including an accident reconstruction expert and two experts in forensic pathology. Id. ¶ 15.

{18} We view the present case as less complex than Laney and determine that it is a simple case. Here, only eyewitnesses, law enforcement officers, emergency room doctors, and Defendant testified. Expert witness testimony was not required. The sequence of events on the night in question were generally corroborated among all the witnesses and there was no dispute as to who committed the illegal acts since Defendant testified that he shot Hicks and Lewis.

{19} The case was not tried until twenty-seven months after Defendant was indicted. As a simple case, twenty-seven months exceeded the twelve-month benchmark by fifteen months. Because "the greater the delay the more heavily it will potentiallyweigh against the State[,]" Garza, 2009-NMSC-038, ¶ 24, we weigh the length of the delay against the State.

B. The Reasons for the Delay

{20} "Closely related to [the] length of delay is the reason the government assigns to justify the delay." Id. ¶ 25 (internal quotation marks and citation omitted). Defendant argues that the State's requests for continuances to conduct plea negotiations, rescheduling witness interviews, and a heavy caseload resulting in conflicting trial scheduling should weigh against the State. However, he also argues that the State's continuances allowing Defendant's new attorney time to prepare should not weigh against the State.

{21} The reasons for the delay may "heighten or temper the prejudice to the defendant caused by the...