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Date: 10-02-2018
Case Style:
STATE OF NEW MEXICO v. JAMES EDWARD BARELA
Case Number: A-1-CA-35790
Judge: Daniel Gallegos
Court: COURT OF APPEALS OF THE STATE OF NEW MEXICO
Plaintiff's Attorney: Hector H. Balderas, Attorney General
Charles J. Gutierrez, Assistant Attorney General
Defendant's Attorney: Bennett J. Baur, Chief Public Defender
Will O’Connell, Assistant Appellate Defender
Description:
Following a physical altercation between Defendant and Ms. Rebecka Gray 11
(Victim), the mother of his son, the State indicted Defendant for one count of child 12
abuse, one count of false imprisonment, and one count of battery against a 13
household member. Immediately prior to trial, Defendant pleaded no contest to a 14
count of felony battery against a household member. Following trial, a jury 15
convicted Defendant of false imprisonment but acquitted him of the child abuse 16
count. The district court sentenced him to one and a half years incarceration for 17
each count. Further, based on a prior felony conviction, the district court imposed a 18
one-year habitual offender enhancement for each count, resulting in a five-year 19
sentence. Defendant then appealed to this Court. 20
2
DISCUSSION 1
A. Habitual Offender Enhancement 2
{3} Defendant, a three-time domestic violence offender, pleaded no contest to, 3
and was convicted of, felony battery against a household member, contrary to 4
Section 30-3-17(A), which provides, “[w]hoever commits three offenses of battery 5
against a household member . . . when the household member is a spouse, a former 6
spouse, a co-parent of a child or a person with whom the offender has had a 7
continuing personal relationship is guilty of a fourth degree felony.” Based on a 8
prior felony conviction for false imprisonment, Defendant’s sentence was 9
subsequently enhanced by one year, pursuant to Section 31-18-17(A), which 10
provides that a person convicted of a noncapital felony “who has incurred one prior 11
felony conviction . . . is a habitual offender and his basic sentence shall be 12
increased by one year.” Defendant argues that under the reasoning set forth in State 13
v. Anaya, 1997-NMSC-010, 123 N.M. 14, 933 P.2d 223, the district court erred in 14
applying the habitual offender enhancement to his conviction because the felony 15
battery against a household member statute is self-enhancing. To resolve this issue, 16
we must engage in statutory interpretation. 17
{4} Statutory interpretation is a matter of law that is reviewed de novo. State v. 18
Rapchack, 2011-NMCA-116, ¶ 8, 150 N.M. 716, 265 P.3d 1289. Our goal when 19
interpreting statutes is to give effect to the intent of the Legislature by applying the 20
3
plain meaning of the words in the statute unless doing so would lead to an absurd 1
or unreasonable result. Id. 2
{5} We thus begin with the plain meaning of the statutes at issue. Section 30-3-3
17(A) provides that a defendant who commits three offenses of battery against a 4
specific subset of household members “is guilty of a fourth degree felony.” Section 5
31-18-17(A) provides for a one-year enhanced sentence when a person with one 6
prior felony conviction is subsequently convicted of a noncapital felony. Based on 7
the language in these statutes, there does not appear to be any basis for concluding 8
that the district court erred in enhancing Defendant’s fourth-degree felony battery 9
on a household member conviction by one year based on his prior felony 10
conviction for false imprisonment. 11
{6} As stated above, however, Defendant argues that the district court’s 12
imposition of the habitual offender enhancement was improper under Anaya. In 13
Anaya, our Supreme Court addressed whether a felony driving while intoxicated 14
(DWI) conviction was subject to the habitual offender enhancement. 1997-NMSC-15
010, ¶¶ 26-36. The Court ultimately concluded that it was not, reasoning that the 16
“insurmountable ambiguity” as to whether the Legislature intended for the habitual 17
offender enhancement to apply to fourth-time or more DWI offenders required 18
application of the rule of lenity. Id. ¶¶ 32, 35. 19
4
{7} Anaya was context-specific and much of our Supreme Court’s analysis with 1
respect to “insurmountable ambiguity” was based on the language of the DWI 2
statute at issue in that case, NMSA 1978, Section 66-8-102(G) (1994). We are not 3
convinced that the DWI statute’s ambiguity should be automatically imported to 4
the domestic violence statute at issue here. Instead, we must construe Section 30-3-5
17(A) on its own terms. And in so doing, we do not see the same sort of ambiguity 6
that was present in Anaya that would lead us to apply the rule of lenity. 7
{8} Of particular note, in State v. Begay, our Supreme Court clarified that “[its] 8
holding in Anaya rested not on a concern that the Legislature did not intend to 9
create two enhancements for the same crime, but rather a concern that the 10
Legislature did not intend to have a fourth or subsequent DWI offense considered a 11
felony for purposes of the habitual offender statute.” 2001-NMSC-002, ¶ 9, 130 12
N.M. 61, 17 P.3d 434. Our Supreme Court also stressed its continued belief “that 13
the Legislature did not intend to punish fourth-time or more DWI offenders in the 14
same manner as other fourth-degree felons.” Id. ¶ 10 (alteration, internal quotation 15
marks, and citation omitted). The question for us, then, is whether, given the plain 16
language of Section 30-3-17(A) and Section 31-18-17(A), there is a countervailing 17
basis for concluding that the Legislature did not intend to punish someone who 18
repeatedly (three times) battered an intimate household member in the same 19
5
manner as other fourth-degree felons. For the following reasons, we answer the 1
question in the negative. 2
{9} First, our Supreme Court’s analysis in Anaya largely turned on the fact that 3
both the DWI statute, which falls within the Motor Vehicle Code and has its own 4
separate, intricate sentencing scheme, see § 66-8-102(E)-(L), and the habitual 5
offender statute were silent as to the applicability of the habitual offender 6
enhancement on felony DWI offenses. See Anaya, 1997-NMSC-010, ¶ 31 (“The 7
[L]egislature’s silence in both Section 31-18-17 and Section 66-8-102(G), is the 8
strongest evidence that the [L]egislature did not intend the habitual offender 9
sentences in Section 31-18-17 to apply to felony DWI.”). In contrast, the felony 10
battery against a household member statute at issue in this case falls within the 11
Criminal Code. And it is clear that the habitual offender statute is specifically 12
applicable to persons convicted of noncapital felony offenses within the Criminal 13
Code. See § 31-18-17(A) (indicating that the habitual offender enhancement 14
applies to “[a] person convicted of a noncapital felony in this state whether within 15
the Criminal Code . . . or the Controlled Substances Act . . . or not[.]”). Therefore, 16
not only are we not dealing with legislative silence, as the Court was in Anaya, but 17
we are instead dealing with express statutory language indicating a legislative 18
intent that the habitual offender enhancement apply to felonies under the Criminal 19
Code. 20
6
{10} Second, the Court in Anaya concluded that there was ambiguity with respect 1
to whether the Legislature intended to punish fourth-time or more DWI offenders 2
in the same manner as other fourth-degree felons, based in part on the fact that (1) 3
the DWI offenses were non-violent offenses, and (2) Section 66-8-102(G) used the 4
word “jail” instead of “prison.” Anaya, 1997-NMSC-010, ¶¶ 29, 33, 34. According 5
to Anaya, these facts evinced—at least somewhat—that the Legislature intended to 6
treat a DWI felon differently than a typical felon. Id. ¶ 33. We have neither of 7
those concerns here. There is no mention of “jail” within Section 30-3-17, nor are 8
we dealing with a nonviolent offense. 9
{11} Thus, given the explicit application of the habitual offender enhancement to 10
convicted felons under the Criminal Code, as well as the lack of countervailing 11
indicia within either statute at issue, we do not see any ambiguity with respect to 12
whether the Legislature intended to treat a serial domestic batterer (of a particular 13
subset of close, intimate individuals) as a typical fourth-degree felon. In the 14
absence of ambiguity, applying the rule of lenity is inappropriate. See State v. 15
Edmondson, 1991-NMCA-069, ¶ 12, 112 N.M. 654, 818 P.2d 855 (stating that the 16
rule of lenity is reserved “for those situations in which a reasonable doubt persists 17
about a statute’s intended scope even after resort to the language and structure, 18
legislative history, and motivating policies of the statute” (emphasis, internal 19
quotation marks, and citation omitted)). Consequently, based on the plain language 20
7
of the statutes at issue, we conclude that the one-year habitual offender 1
enhancement of Defendant’s fourth-degree felony battery on a household member 2
sentence was proper as a matter of law. 3
B. Speedy Trial 4
{12} Defendant was arrested on February 20, 2014, indicted on March 12, 2014, 5
and scheduled to stand trial on August 21, 2014. On August 20, 2014, Defendant 6
filed a motion to continue his trial. The motion was granted, and nine days later, 7
Defendant made a pro forma demand for speedy trial. Defendant’s trial was 8
scheduled and rescheduled on the court’s trailing docket three times; first in 9
November 2014 when it came up ninth on the docket, then in February 2015 when 10
it came up fifth on the trailing docket, and again in May 2015 when it came up 11
fifth on the docket. Then on August 13, 2015, the day trial was scheduled to begin, 12
the State filed a motion to continue the trial because it was unable to locate Victim, 13
a key witness in the case. Defense counsel concurred with the motion, and the 14
district court granted the continuance. On October 2, 2015, Defendant filed a 15
motion to dismiss the case for violation of his speedy trial rights. The district court 16
denied Defendant’s motion to dismiss, finding that the case was of intermediate 17
complexity; that the delay was caused by Defendant’s delay, the State’s delay, and 18
the court’s schedule; and that the prejudice to Defendant was not so great as to 19
require dismissal. Defendant’s trial commenced on November 23, 2015. On the 20
8
second day of trial, defense counsel renewed her motion to dismiss on speedy trial 1
grounds, but the district court declined to revisit its prior ruling on the matter. 2
{13} Both the Federal Constitution and the New Mexico Constitution guarantee 3
an accused the right to a speedy trial, recognizing “a societal interest in bringing an 4
accused to trial and . . . [in] preventing prejudice to the accused.” State v. Brown, 5
2017-NMCA-046, ¶ 12, 396 P.3d 171 (alteration, internal quotation marks, and 6
citation omitted). When reviewing a district court’s speedy trial decision, we weigh 7
and balance de novo four factors, derived from Barker v. Wingo, 407 U.S. 514, 8
529-30 (1972): “(1) the length of delay, (2) the reasons for the delay, (3) the 9
defendant’s assertion of his right, and (4) the actual prejudice to the defendant that, 10
on balance, determines whether a defendant’s right to a speedy trial has been 11
violated.” State v. Garza, 2009-NMSC-038, ¶ 13, 146 N.M. 499, 212 P.3d 387 12
(internal quotation marks and citation omitted). In doing so, “[w]e defer to the 13
district court’s factual findings.” State v. Ochoa, 2017-NMSC-031, ¶ 4, 406 P.3d 14
505. 15
1. Length of Delay 16
{14} We begin by determining whether the length of delay is presumptively 17
prejudicial—if it is, a speedy trial analysis is warranted. State v. Serros, 2016-18
NMSC-008, ¶ 22, 366 P.3d 1121 (noting that the length of delay, the first factor in 19
speedy trial analysis, “acts as a triggering mechanism for considering the four 20
9
Barker factors if the delay crosses the threshold of being ‘presumptively 1
prejudicial,’ and it is an independent factor to consider in evaluating whether a 2
speedy trial violation has occurred”). A delay is presumptively prejudicial if it 3
extends beyond one year for a simple case, fifteen months for an intermediate case, 4
and eighteen months for a complex case. Garza, 2009-NMSC-038, ¶ 2. “In 5
determining what weight to give the length of any delay, we consider the extent to 6
which the delay stretched beyond the presumptively prejudicial period.” State v. 7
Lujan, 2015-NMCA-032, ¶ 11, 345 P.3d 1103. Greater delays will potentially 8
weigh more heavily against the state, and delay amounting to little more than the 9
minimum needed to trigger a speedy trial analysis will not weigh heavily in a 10
defendant’s favor. Id. 11
{15} We defer to the district court’s finding that the case was of intermediate 12
complexity and should have been brought to trial within fifteen months. See 13
Ochoa, 2017-NMSC-031, ¶ 15 (deferring to district court’s complexity finding and 14
parenthetically noting that “the complexity of the case is best determined by the 15
district court, which must consider both the nature and complexity of the crime”). 16
We also note that Defendant’s appellate argument that the case should have been 17
considered simple is undeveloped, and we decline to address it. See State v. 18
Fuentes, 2010-NMCA-027, ¶ 29, 147 N.M. 761, 228 P.3d 1181 (noting that this 19
Court does not review unclear or undeveloped arguments). 20
10
{16} Defendant was arrested on February 20, 2014, and his trial began on 1
November 23, 2015, resulting in a delay of twenty one months and three days. 2
Because the allowable fifteen month period for cases of intermediate complexity 3
was exceeded by six months, the delay was presumptively prejudicial and weighs 4
slightly against the State. See State v. Montoya, 2011-NMCA-074, ¶ 17, 150 N.M. 5
415, 259 P.3d 820 (concluding that a six month delay beyond the presumptive 6
threshold weighed slightly against the state in a case of intermediate complexity). 7
2. Reason for Delay 8
{17} The next consideration, the reason for the delay, “may either heighten or 9
temper the prejudice to the defendant caused by the length of the delay.” Garza, 10
2009-NMSC-038, ¶ 25 (internal quotation marks and citation omitted). There are 11
three types of delay attributable to the state, each carrying varying weight in a 12
reviewing court’s analysis. Serros, 2016-NMSC-008, ¶ 29. The first type is “a 13
deliberate attempt to delay the trial in order to hamper the defense,” which is 14
weighed heavily against the state. Id. (alteration, internal quotation marks, and 15
citation omitted). The amount of weight we assign against the state for the second 16
type of delay—“negligent or administrative delay”—is “closely related to the 17
length of delay[.]” Garza, 2009-NMSC-038, ¶ 26; see id. ¶ 29 (identifying 18
“burdens on the criminal justice system, such as overcrowded courts, congested 19
dockets or the unavailability of judges” as negligent or administrative delay 20
11
(citation omitted)). Finally, where the delay is due to “a valid reason, such as a 1
missing witness,” it is often “inevitable and wholly justifiable[,]” and we therefore 2
balance the reasonableness of the state’s efforts to move a case toward trial against 3
the perils of conducting a trial “whose probative accuracy the passage of time has 4
begun by degrees to throw into question.” Id. ¶ 27 (internal quotation marks and 5
citations omitted). 6
{18} There were four discernable periods of delay in this case: the delay between 7
arrest and the first trial setting, the delay that occurred between Defendant’s 8
continuance and the next scheduled trial date, the delays that occurred as a result of 9
the court’s busy docket, and the delay that occurred as a result of the State’s 10
continuance. The initial delay from February 20, 2014 to August 20, 2014, 11
occurred as the case was proceeding normally toward trial, and as such, amounts to 12
a neutral delay that does not weigh against either party. See Brown, 2017-NMCA-13
046, ¶ 19 (concluding that the amount of time a case “was proceeding normally 14
toward trial” does not weigh against either party). Defense counsel’s request for a 15
continuance on August 20, 2014, pushed the trial setting back to November 3, 16
2014, and this seventy-five day delay, being the result of Defendant’s motion, is 17
weighed slightly against Defendant. See Serros, 2016-NMSC-008, ¶ 29 18
(acknowledging that delay caused by the defense is weighed against the 19
defendant). The delay between November 3, 2014 and August 13, 2015, was 20
12
caused by the district court’s trailing docket, and was consequently the result of 1
administrative or negligent delay that weighs slightly to moderately against the 2
State. See Garza, 2009-NMSC-038, ¶ 29 (identifying “congested dockets or the 3
unavailability of judges” and “administrative burdens on the criminal justice 4
system” as negligent delay weighed against the state). The delay between August 5
13, 2015 and November 23, 2015, was due to the State’s request for a continuance. 6
However, because defense counsel concurred with the motion and because 7
continuances caused by the unavailability of a witness are considered valid reasons 8
for delay, the delay is neutral and does not weigh against either party. See id.¶ 27; 9
see also Serros, 2016-NMSC-008, ¶ 29. 10
{19} In summary, Defendant was subjected to approximately nine months of 11
neutral delay, two and a half months of delay attributable to himself, and 12
approximately nine months of delay weighed against the State. The delay that 13
occurred outside the fifteen month deadline for cases of intermediate complexity 14
stemmed from administrative delay in the form of an overburdened court docket 15
and valid delay in the form of a missing witness. On balance, this factor weighs 16
slightly against the State. 17
3. Defendant’s Assertion of His Speedy Trial Rights 18
{20} In assessing whether Defendant asserted his right to a speedy trial, we look 19
to the timing of the assertion and the manner in which the right was asserted, 20
13
according weight to the “frequency and force of the defendant’s objections to the 1
delay.” Garza, 2009-NMSC-038, ¶ 32 (internal quotation marks and citation 2
omitted). While a failure to assert the right does not amount to waiver, we may 3
consider “the timeliness and vigor with which the right is asserted.” Id. “Pro forma 4
assertions are sufficient to assert the right, but are given little weight in a 5
defendant’s favor[,]” and a defendant’s assertion of the right can be weakened by 6
acquiescence to the delay. Ochoa, 2017-NMSC-031, ¶¶ 41-42. 7
{21} Defendant submitted two pro forma assertions of his right—each through 8
different attorneys—at the beginning of his case. Defendant also asserted his right 9
through a motion to dismiss one month before trial, almost five months after the 10
presumptively prejudicial period had begun, and again during trial. While these 11
facts would normally be sufficient to weigh this factor at least slightly in 12
Defendant’s favor, we also note that his assertions of his right were somewhat 13
mitigated by his “acquiescence to, and responsibility for,” some periods of delay. 14
State v. Samora, 2016-NMSC-031, ¶ 20, 387 P.3d 230. However, because 15
Defendant’s requested continuance occurred at the beginning of the case, and 16
given the single instance of Defendant’s concurrence with the State’s continuance 17
request, we conclude that this prong indeed weighs slightly in Defendant’s favor. 18
4. Prejudice 19
14
{22} We analyze prejudice according to three overarching interests: (1) 1
preventing oppressive pretrial incarceration, (2) minimizing anxiety and concern of 2
the accused, and (3) limiting the possibility that the defense will be impaired. 3
Garza, 2009-NMSC-038, ¶ 35. “[A] defendant must show particularized prejudice 4
of the kind against which the speedy trial right is intended to protect.” Id. ¶ 39. 5
“[W]e recognize that the criminal process inevitably causes anxiety for defendants, 6
but we focus only on undue prejudice.” State v. Castro, 2017-NMSC-027, ¶ 27, 7
402 P.3d 688. 8
{23} Defendant argues that because his case was delayed beyond the fifteen 9
month period allowable for cases of intermediate complexity, prejudice may be 10
presumed under Garza. We disagree. Though Garza did acknowledge that, “if the 11
length of delay and the reasons for the delay weigh heavily in [the] defendant’s 12
favor and [the] defendant has asserted his right and not acquiesced to the delay,” a 13
court may conclude the defendant’s right have been violated without a showing of 14
prejudice, Garza’s holding remains clear—a defendant must make a showing of 15
“particularized prejudice” to succeed on speedy trial grounds. 2009-NMSC-038, ¶ 16
39. 17
{24} The length of, and reasons for, delay do not weigh so heavily in Defendant’s 18
favor as to allow for the presumption of prejudice that he seeks. Defendant’s trial 19
took place only six months past the fifteen months allowed, and the majority of the 20
15
delay was either valid, due to a missing witness, or negligent, due to administrative 1
difficulties in scheduling. Defendant’s general assertion that he was prejudiced by 2
his inability to “work or live his daily life” is insufficient to establish the 3
“particularized prejudice” required under this factor. Aside from this assertion, 4
Defendant has put forth no further argument or evidence to demonstrate he 5
suffered prejudice as a result of the six month delay, and we therefore cannot 6
conclude that Defendant’s right to a speedy trial was violated. We affirm the 7
district court’s denial of Defendant’s motion to dismiss for violating his speedy 8
trial rights. 9
C. Admission of Victim’s Letters 10
{25} Defendant argues that the district court erred in refusing to admit letters 11
written by Victim as prior inconsistent statements at trial, contending that the 12
letters were admissible for impeachment purposes under Rule 11-613(B) NMRA. 13
“We examine the admission or exclusion of evidence for abuse of discretion, and 14
the trial court’s determination will not be disturbed absent a clear abuse of that 15
discretion.” State v. Stanley, 2001-NMSC-037, ¶ 5, 131 N.M. 368, 37 P.3d 85. “An 16
abuse of discretion occurs when the ruling is clearly against the logic and effect of 17
the facts and circumstances of the case. We cannot say the [district] court abused 18
its discretion by its ruling unless we can characterize it as clearly untenable or not 19
justified by reason.” Id. (internal quotation marks and citation omitted). 20
16
{26} Rule 11-613(B) governs the admissibility of extrinsic evidence of a prior 1
inconsistent statement. “Extrinsic evidence of a witness’s prior inconsistent 2
statement is admissible only if the witness is given an opportunity to explain or 3
deny the statement and an adverse party is given an opportunity to examine the 4
witness about it, or if justice so requires.” Rule 11-613(B). Clarifying the proper 5
application of this rule, our Supreme Court in State v. Astorga explained the 6
meaning of inconsistency as used to describe a prior statement: “the question is not 7
whether the witness denies—or even recalls—having made the prior 8
statement. . . . The question, instead, is simply whether the substance of the 9
witness’s trial testimony is inconsistent with the prior statement.” 2015-NMSC-10
007, ¶¶ 39-40, 343 P.3d 1245 (citations omitted). Astorga also clarified, however, 11
that the admission of impeachment evidence under Rule 11-613(B) is “subject to 12
the district court’s broad discretion under Rule 11-403 [NMRA].” Astorga, 2015-13
NMSC-007, ¶ 40. Rule 11-403 provides the court with authority to “exclude 14
relevant evidence if its probative value is substantially outweighed by a danger 15
of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, 16
wasting time, or needlessly presenting cumulative evidence.” 17
{27} The district court allowed defense counsel to use the content of the letters 18
Victim wrote to impeach her if she presented inconsistent testimony but not as 19
substantive evidence, and allowed defense counsel to question her regarding her 20
17
motivations for testifying, particularly with regard to any perceived pressure from 1
the State, reasoning that both were relevant to her credibility. Because it allowed 2
defense counsel to explore the content of the letters through cross-examination, the 3
district court ruled that the letters would not be admitted into evidence. During 4
cross-examination, Victim admitted that she wrote the letters and testified at length 5
about their content and her reasons for writing them. Defense counsel was able to 6
quote portions of the letters verbatim and emphasize inconsistencies between her 7
trial testimony and statements made in the letters. 8
{28} Though the letters apparently did contain information that contradicted 9
Victim’s testimony at trial, Defendant’s cross-examination of Victim revealed 10
those contradictions and inconsistencies. As such, admission of the letters 11
themselves would be cumulative, and it was within the district court’s discretion to 12
refuse to admit them. See Rule 11-403 (allowing exclusion of evidence that 13
needlessly presents cumulative evidence); State v. Gallegos, 2007-NMSC-007, 14
¶ 26, 141 N.M. 185, 152 P.3d 828 (holding that an appellate court will affirm the 15
district court’s decision if it is right for any reason and does not prejudice the 16
parties); see also Astorga, 2015-NMSC-007, ¶ 44 (noting, after conducting 17
harmless error analysis, affirmance based on Rule 11-403 would also be proper 18
under the right for any reason doctrine). 19
18
{29} Alternatively, even if the district court erred in refusing to admit the letters, 1
such error was harmless. In assessing harmless error, “we look to whether there is 2
a reasonable probability that the error affected the verdict[,]” and the defendant 3
bears the burden of demonstrating that he or she was prejudiced by the error. 4
Astorga, 2015-NMSC-007, ¶ 43. Because the letters and their contents, including 5
contradictions with Victim’s testimony, were thoroughly explored by defense 6
counsel during cross-examination, and Defendant does not point with any 7
particularity to information contained in the letters that was not revealed through 8
cross-examination, Defendant has failed to demonstrate the prejudice necessary for 9
reversal under a harmless error analysis.
Outcome: For the foregoing reasons, we affirm.
Plaintiff's Experts:
Defendant's Experts:
Comments: