State v. Thomas

376 P.3d 184

2016 NMSC 024

State of New Mexico, Plaintiff–Appellee,

v.Truett Thomas, Defendant–Appellant.

NO. 34,042

Supreme Court of New Mexico.

Filing Date: June 20, 2016

Bennett J. Baur, Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Hector H. Balderas, Attorney General, M. Victoria Wilson, Assistant Attorney General, Santa Fe, NM, for Appellee.

OPINION

DANIELS, Chief Justice.

{1} The Sixth Amendment to the United States Constitution and Article II, Section 14 of the New Mexico Constitution guarantee a criminal defendant the right to confront adverse witnesses. Defendant Truett Thomas appeals from his convictions of first-degree deliberate murder and first-degree kidnapping on multiple grounds, including an asserted violation of the Confrontation Clause through the admission of two-way video testimony of a prosecution witness. We reverse Defendant's convictions on this basis but remand for a new trial on the murder charge only, having concluded that there was insufficient evidence to support the kidnapping conviction. Although we need not decide whether social media posts by the district court judge about the case before him also would have required reversal, we caution judges to avoid both impropriety and its appearance in their use of social media.

I. BACKGROUND

{2} On June 3, 2010, Guadalupe Ashford's body was found partially hidden behind a trash can at the edge of a small parking lot. Drag marks and blood spatter indicated that Ashford had initially been assaulted in the lot and then dragged a short distance to its edge where her body was found. The drag marks were contained within the span of one parking space and extended less than ten feet. Ashford's body had significant head injuries, including lacerations, skull fractures, and a dislodged tooth. The medical investigator determined that Ashford died from blunt force injuries to her head, but he could not identify which of the several injuries was the cause and could not calculate a specific time of death. Police testimony indicated that there were no known witnesses to the assault and that no one reported seeing Defendant in the area.

{3} An Albuquerque Police Department (APD) forensic scientist analyst performed DNA measurements of samples collected from Ashford's body and from a six-inch by six-inch bloodied brick described as “paver stone” and believed to be the murder weapon, generating DNA profiles of Ashford and of the presumed perpetrator. Unidentified DNA was also discovered on the paver stone, though in smaller amounts than the DNA evidence matching either of the full profiles. The forensic analyst entered the presumed perpetrator's profile into the CODIS database, which resulted in a match to Defendant. “Authorized by Congress and supervised by the Federal Bureau of Investigation, the Combined DNA Index System (CODIS) connects DNA laboratories at the local, state, and national level ... [and] collects DNA profiles provided by local laboratories taken from arrestees, convicted offenders, and forensic evidence found at crime scenes.” Maryland v. King , ––– U.S. ––––, 133 S.Ct. 1958, 1968, 186 L.Ed.2d 1 (2013). Defendant was arrested and charged on the basis of this DNA evidence, but he denied ever having met Ashford.

{4} Defendant was held in pretrial custody for twenty-two months before he moved to dismiss the charges for violation of his right to a speedy trial. The district court denied the motion and set the trial to begin approximately twenty-six months after Defendant's arrest.

{5} By the time the case came to trial, the State's forensic analyst had moved out of New Mexico. At a hearing two weeks before trial, the prosecutor expressed concerns about securing the presence of that forensic analyst at trial and suggested that she be allowed to testify over the live, two-way audio-video communications application Skype as an alternative. See State v. Schwartz , 2014–NMCA–066, ¶ 5, 327 P.3d 1108 (describing Skype as “an Internet software application[ ] that ... allow[s] users to engage in real time video and audio communications between two or more locations” (alterations and omission in original) (internal quotation marks and citation omitted)). When the court asked about defense counsel's “thoughts with regard to Skype,” counsel, who had previously interviewed the witness through Skype, responded,

I don't like it, but I think it will work.... It's just weird. She's really just going to be there to establish the chain of custody, so she's not—I mean, she's important, obviously, for the State, but she's not too important. I don't really have a problem with Skyping it, as long as there's no technical issues.

If there's technical difficulties, then they're not going to be able to establish the chain of custody. Then it's game over.

At another pretrial hearing in the following week, the court asked if there were “any other matters” that needed to be addressed before trial. In response, defense counsel expressed hesitation at the use of Skype testimony, stating,

We are going to do the research on this. I don't think we have enough research on the Skype issue[,] ... and we have rethought our position on that, and we're thinking it's going to cause a confrontation problem.

The prosecutor replied that the State had not sought an enforceable subpoena for the witness in reliance on defense counsel's statement a week earlier that Skype would “work.” The district court judge took the position that Defendant had waived any objection to the use of two-way video by defense counsel's initial informal acquiescence.

{6} At trial seven days later, the State called the absent forensic analyst to testify via Skype. During her testimony, a computer image of the forensic analyst faced the jury, but she was able to see only an image of the attorney questioning her and could not see Defendant, the jury, or the district court judge at any time. A second APD forensic scientist analyst did testify in person for the State. She had reviewed and interpreted the measurements performed by the forensic analyst who testified by Skype but had not performed any of the DNA measurements herself.

{7} The jury found Defendant guilty of first-degree murder and first-degree kidnapping. The district court imposed consecutive sentences of life imprisonment for the murder and eighteen years for the kidnapping. Defendant moved for a new trial based on additional DNA evidence developed after trial that, according to Defendant's argument, suggested that one or more other individuals could have had contact with Ashford or with the murder weapon.

{8} At the hearing on that motion, before a successor district court judge, Defendant also raised the issue of social media posts made by the original district court judge during the pendency of the trial. The posts, made on a Facebook page used for the unsuccessful election campaign of the original district court judge, discussed Defendant's case. During trial, the district court judge had posted, “I am on the third day of presiding over my ‘first’ first-degree murder trial as a judge.” After trial, but before sentencing, the district court judge posted, “In the trial I presided over, the jury returned guilty verdicts for first-degree murder and kidnapping just after lunch. Justice was served. Thank you for your prayers.” The district court denied the motion for a new trial, and Defendant appealed his convictions directly to this Court pursuant to the New Mexico Constitution. See art. VI, § 2 (“Appeals from a judgment of the district court imposing a sentence of death or life imprisonment shall be taken directly to the supreme court.”).

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

{9} We first address Defendant's argument that his twenty-six months of pretrial custody violated his constitutional right to a speedy trial. See U.S. Const. amend. VI (guaranteeing a speedy trial “[i]n all criminal prosecutions”); N.M. Const. art. II, § 14 (same). The Due Process Clause of the Fourteenth Amendment applies the Sixth Amendment speedy trial right to state prosecutions. Klopfer v. North Carolina , 386 U.S. 213, 222–23, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). Because Defendant makes no claim that his rights under the New Mexico Constitution should be interpreted more broadly than those guaranteed by the Fourteenth Amendment of the United States Constitution, “we base our discussion of this issue on the constitutional requirements established under federal law.” State v. Coffin , 1999–NMSC–038, ¶ 54 n.2, 128 N.M. 192, 991 P.2d 477.

{10} Pretrial delay may trigger a speedy trial inquiry but is not alone determinative of a constitutional violation. State v. Samora , 2013–NMSC–038, ¶ 24, 307 P.3d 328. Instead, in accordance with the federal constitutional guidelines established by the United States Supreme Court in Barker v. Wingo , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we must review the individual circumstances of the case, including the conduct of both prosecution and defense, and the actual harm that a defendant may have suffered as a result of pretrial delay. State v. Garza , 2009–NMSC–038, ¶ 13, 146 N.M. 499, 212 P.3d 387. Factors in this analysis are (1) the length of the delay, (2) the reasons for the delay, (3) the defendant's assertion of his right, and (4) the actual prejudice to the defendant incurred from the delay. Barker , 407 U.S. at 530, 92 S.Ct. 2182. “Each of these factors is weighed either in favor of or against the State or the defendant, and then balanced to determine if a defendant's right to a speedy trial was violated.” State v. Spearman , 2012–NMSC–023, ¶ 17, 283 P.3d 272. While we give deference to the factual findings of a trial court in performing this analysis, we review the application of the factors de novo. Id . ¶ 19.

{11} The district court found that this was a complex case due to the required DNA analysis and the average time required to process a...