State v. Tapia

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. A-1-CA-34739
5 MARC ANTHONY TAPIA,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Jacqueline Flores, District Judge
9 Hector H. Balderas, Attorney General
10 Maris Veidemanis, Assistant Attorney General
11 Santa Fe, NM
12 for Appellee
13 Rozan Cruz & Associates, P.C.
14 Rozan Cruz
15 Corrales, NM
16 for Appellant
17 MEMORANDUM OPINION
18 SUTIN, Judge.
1 {1} Defendant Marc Anthony Tapia was convicted of promoting prostitution in
2 violation of NMSA 1978, Section 30-9-4 (1981), accepting the earnings of a prostitute
3 in violation of NMSA 1978, Section 30-9-4.1 (1981), possession of a stolen vehicle
4 in violation of NMSA 1978, Section 30-16D-4(A) (2009), possession of a controlled
5 substance in violation of NMSA 1978, Section 30-31-23(E) (2011), and aggravated
6 fleeing a law enforcement officer in violation of NMSA 1978, Section 30-22-1.1
7 (2003). On appeal, Defendant argues that the district court erred in: (1) denying his
8 motion to dismiss for violation of his speedy trial right; (2) denying his motion for a
9 more definite statement, which violated his due process and protection against double
10 jeopardy rights; and (3) admitting hearsay evidence in violation of his right to
11 confront his accuser. We affirm.
12 BACKGROUND
13 {2} Defendant was arrested on April 11, 2012 and on June 12, 2012 and was
14 indicted on July 26, 2012 for prostitution-related charges and for charges connected
15 to Defendant’s alleged possession of a stolen vehicle and a controlled substance. On
16 August 7, 2012, Defendant filed a notice of assertion of his speedy trial right,1 and on
1
16 There is a second speedy trial demand dated August 30, 2012 in the record.
17 That demand was filed by an attorney who did not enter an appearance in this case and
18 who did not represent Defendant. We do not consider the August 30, 2012 demand as
19 a speedy trial demand made by Defendant.
2
1 November 14, 2012, the first notice of jury trial was filed, indicating that trial was to
2 begin on March 4, 2013.
3 {3} One month before trial was set to begin, Defendant filed a motion for a more
4 definite statement in which he alleged that the indictment was not specific enough for
5 Defendant to appropriately defend himself. Defendant argued that the indictment,
6 which referenced events that occurred sometime between “January 2012 and June
7 2012” did not provide proper notice. In response to Defendant’s motion, the State
8 argued that the only charges in the indictment that included a date range spanning five
9 months were the human trafficking, promoting prostitution, and accepting earnings
10 of a prostitute charges, which were all offenses that implicated a continuing course of
11 conduct rather than isolated incidents. The State also referenced pretrial interviews
12 and pointed to specific items provided as discovery that would support the charges
13 and that gave Defendant proper notice in order to prepare his defense.
14 {4} Following Defendant’s motion for a more definite statement, the State filed a
15 motion for a finding of forfeiture by wrongdoing on February 22, 2013, after the State
16 had been unable to schedule an interview with M.L., who was to be a witness for the
17 prosecution, and was also Defendant’s then-girlfriend and alleged victim to the
18 prostitution-related charges. In its motion, the State alleged that Defendant engaged
19 in wrongdoing that was intended to and likely did procure the unavailability of M.L.,
3
1 who had demonstrated an unwillingness to participate in a pretrial interview. The State
2 asserted that it intended to secure M.L.’s availability at trial, but requested that if it
3 was unable to do so, the State be permitted to admit M.L.’s testimonial and non-
4 testimonial statements at trial regardless of whether they fell within a hearsay
5 exception. A hearing on the State’s motion was set for April 25, 2013.
6 {5} The parties filed a number of additional motions, including Defendant’s motion
7 to suppress, Defendant’s motion in limine, and the State’s motion to amend the grand
8 jury indictment to expand the time frame for the prostitution-related charges.
9 {6} The hearing on the State’s motion for a finding of forfeiture by wrongdoing was
10 not completed on April 25, 2013, and a second hearing was set for May 6, 2013, at
11 which time the district court planned to continue hearing arguments on the forfeiture
12 motion and to hear Defendant’s motion in limine and motion to suppress. A hearing
13 on these matters and on Defendant’s motion for a more definite statement was re-set
14 for June 4, 2013. At the hearing, the district court granted the parties four weeks to
15 submit proposed findings of fact and conclusions of law regarding the motion for a
16 finding of forfeiture by wrongdoing. The parties submitted their proposals on July 9,
17 2013.
18 {7} All other pending motions that had not been resolved to date were set to be
19 heard on October 9, 2013. During the hearing on that date, Defendant withdrew his
4
1 motion to suppress, and the district court granted the State’s motion to amend the
2 grand jury indictment, effectively denying Defendant’s motion for a more definite
3 statement. Trial was set for February 17, 2014. On November 14, 2013, the State filed
4 its notice of withdrawal of its motion for a finding of forfeiture by wrongdoing
5 because it was no longer concerned that M.L. would fail to appear to testify at trial.
6 The indictment was amended on December 3, 2013.
7 {8} One month before trial was to begin, the State filed a motion to remove defense
8 counsel and a motion to seal the pleadings regarding the motion to remove. The
9 district court held a hearing on the motion on March 13, 2014 and entered an order
10 denying the motion on April 29, 2014. Meanwhile, the court re-set Defendant’s trial
11 for May 19, 2014. Defendant filed a motion to dismiss for violation of his speedy trial
12 right and supporting memorandum on May 8, 2014. The motion was denied, and the
13 district court entered the following general findings in support of its order: (1) “[o]n
14 balance[,] the delay in this matter has not been unduly long[,]” (2) “[d]elays were the
15 result of discovery and ongoing matters demonstrating that the case was not prepared
16 for trial[,]” and (3) “Defendant’s speedy trial rights have not been violated.”
17 {9} Trial commenced on May 19, 2014. At trial, testimony was elicited from eight
18 witnesses, including, in relevant part to this appeal, testimony from Damian Lujan, an
19 officer with the Albuquerque Police Department. Officer Lujan testified that on April
5
1 2, 2012 he was dispatched after a woman named Margaret Hill reported that her
2 vehicle had been stolen. He testified that the stolen vehicle was a beige Toyota Avalon
3 and testified as to its license plate and VIN numbers. The State also elicited testimony
4 from Detective Gonterman, also with the Albuquerque Police Department, who
5 testified that she came into contact with M.L. and Defendant in June 2012 when she
6 was running license plates at hotels that were known to have crime problems.
7 According to Detective Gonterman, in the process of running plate numbers, she ran
8 the plate number of a beige Toyota, and the plate came back as not being registered
9 with the Motor Vehicle Division. She testified that when she ran the vehicle’s VIN
10 number through the National Crime Information Center and the Motor Vehicle
11 Division, she discovered that the vehicle belonged to Margaret Hill and had been
12 reported stolen. She also testified that the VIN number of the Toyota she investigated
13 matched the VIN number listed on Officer Lujan’s report. She identified the
14 individual driving the at-issue vehicle on the date of her investigation as Defendant
15 and testified that M.L. was a passenger in the vehicle.
16 {10} The jury found Defendant guilty of promoting prostitution, accepting earnings
17 of a prostitute, possession of a stolen vehicle, possession of a controlled substance,
18 and aggravated fleeing a law enforcement officer. After the conclusion of the jury
19 trial, but before sentencing, the district court judge assigned to the case left the bench.
6
1 The case was twice reassigned and sentencing was set for September 11, 2014.
2 Sentencing was re-set a number of times, including at least once at the request of
3 Defendant, and the judgment, sentence, and order partially suspending sentence was
4 entered April 30, 2015.
5 {11} Defendant timely appealed on May 11, 2015. This Court reviewed the record
6 and Defendant’s arguments on appeal and noted that the district court’s order denying
7 Defendant’s motion to dismiss for violation of his right to a speedy trial did not
8 include the requisite specific findings needed in order for this Court to meaningfully
9 review the merits of Defendant’s appeal. We therefore remanded the case for entry of
10 written findings and conclusions on the various speedy trial factors. On remand, the
11 district court entered an order with thorough findings of fact and conclusions of law.
12 DISCUSSION
13 I. Speedy Trial
14 {12} “The Sixth Amendment of the United States Constitution, as applied to the
15 states by the Fourteenth Amendment, provides that in all criminal prosecutions, the
16 accused shall enjoy the right to a speedy and public trial.” State v. Brown, 2017-
17 NMCA-046, ¶ 12, 396 P.3d 171 (alterations, internal quotation marks, and citation
18 omitted), cert. denied, 2017-NMCERT-___ (No. S-1-SC-36385, Apr. 26, 2017). In
19 evaluating whether there has been a violation of a defendant’s right to a speedy trial,
7
1 our Supreme Court has adopted the United States Supreme Court’s balancing test
2 articulated in Barker v. Wingo, 407 U.S. 514, 530 (1972). See State v. Garza, 2009-
3 NMSC-038, ¶ 13, 146 N.M. 499, 212 P.3d 387. The four factors to analyze are: (1)
4 the length of delay, (2) the reasons for delay, (3) the defendant’s assertion of his
5 speedy trial right, and (4) the actual prejudice to the defendant caused by the delay.
6 Id. “Each of these factors is weighed either in favor of or against the [prosecution] or
7 the defendant, and then balanced to determine if a defendant’s right to a speedy trial
8 was violated.” State v. Spearman, 2012-NMSC-023, ¶ 17, 283 P.3d 272. “In our
9 review of a speedy trial ruling, this Court must give deference to the district court’s
10 factual findings, but we review the weighing and balancing of the Barker factors de
11 novo.” Brown, 2017-NMCA-046, ¶ 13 (internal quotation marks and citation omitted).
12 {13} On appeal, Defendant argues, per the Barker factors, that his speedy trial right
13 was violated because: (1) the delay was 25 to 36 months, that his case was simple, and
14 that this delay is presumptively prejudicial; (2) “[t]he State, including the court, is
15 responsible for all the delay in this case[,]” although he argues that certain periods of
16 time weigh more heavily against the State than others; (3) he demanded a speedy trial
17 three times—on August 7, 2012, on August 30, 2012, and on May 8, 2014—and that
18 he made several attempts to move his case forward as evidenced by his requests for
19 interviews, motion for a more definite statement, discovery demand, and motion in
8
1 limine; and (4) he was prejudiced because he remained incarcerated for 23 months and
2 seven days before the commencement of his trial, his child was placed in the custody
3 of the Children, Youth & Families Department (CYFD) while he was in jail, and the
4 delay impacted other cases in which he was involved. Defendant also argues that he
5 was prejudiced by his sentencing delay, which did not occur for 11 months after the
6 verdict.
7 {14} In response, the State argues that (1) the case was of intermediate complexity,
8 and that although the length of delay of 25 months exceeded the 15-month
9 presumptively prejudicial threshold, the delay was not extensive; (2) the record
10 supports the district court’s conclusion that approximately 24 months of the pretrial
11 period weigh neutrally, and one month weighs slightly against the State as
12 administrative delay; (3) the August 7, 2012 assertion was pro forma and should be
13 afforded little weight, the August 30, 2012 assertion was invalid because it was filed
14 by an attorney that was later found to have not entered an appearance in the case and
15 did not represent Defendant, and the May 8, 2014 assertion was late and should not
16 weigh significantly in Defendant’s favor; and (4) Defendant failed to prove some
17 actual evidence of prejudice and failed to prove how any anxiety suffered by
18 Defendant was undue. The State argues that the balance of the factors does not support
19 dismissal. Additionally, the State argues that the sentencing delays did not violate his
9
1 speedy trial right because the delays weighed neutrally, Defendant did not prove that
2 he was prejudiced, and because “the United States Supreme Court recently held that
3 a defendant’s right to a speedy trial under the Sixth Amendment does not extend
4 beyond the time of conviction.” State v. Lopez, 2017-NMCA-___, ¶ 12, __ P.3d __
5 (No. A-1-CA-34615, July 28, 2017).2
6 {15} Here, the district court entered, in relevant part, the following findings of fact
7 in support of its order denying Defendant’s motion to dismiss: (1) the case was one
8 of intermediate complexity, the length of the delay was presumptively prejudicial, and
9 the length of the delay therefore weighed against the State; (2) 24 months of the delay
10 weighed neutrally, and one month weighed lightly against the State; (3) while
11 Defendant asserted his speedy trial right on August 7, 2012 and May 8, 2014, the first
12 was a pro forma assertion, which weighed only slightly in Defendant’s favor; and
13 (4) “Defendant failed to provide some actual evidence of prejudice, and as a result,
14 this factor does not weigh in his favor.” The district court concluded that because
15 “[t]he length of delay and assertion of the right weigh[ed] only lightly in Defendant’s
16 favor, the reasons for delay [did] not weigh in his favor, and the prejudice prong
17 weigh[ed] against Defendant[, there was] no violation of the right to a speedy trial.”
2
17 The focus of the inquiry in Lopez was whether the defendant’s due process
18 rights were violated as a result of sentencing delays. 2017-NMCA-___, ¶¶ 1, 14-16.
19 That issue was not raised in the present appeal.
10
1 {16} We address each Barker factor in turn.
2 A. Length of Delay
3 {17} “The length of the delay is a two-fold inquiry. Initially, we determine whether
4 the delay is presumptively prejudicial. If it is presumptively prejudicial, we balance
5 the length of the delay against the remaining three factors to assess whether the
6 constitution has been violated.” State v. Laney, 2003-NMCA-144, ¶ 11, 134 N.M. 648,
7 81 P.3d 591. A delay is presumptively prejudicial if the delay exceeds “one year for
8 a simple case, 15 months for a case of intermediate complexity, and 18 months for a
9 complex case.” State v. Serros, 2016-NMSC-008, ¶ 22, 366 P.3d 1121. “In terms of
10 the weight given to the length of the delay, the greater the delay, the more heavily it
11 will potentially weigh against the prosecution.” State v. Steinmetz, 2014-NMCA-070,
12 ¶ 6, 327 P.3d 1145 (alterations, internal quotation marks, and citation omitted).
13 {18} As indicated earlier, the parties dispute the actual length of delay. Defendant
14 argues there was a 25- to 36-month delay, while the State argues there was a 25-month
15 delay. It appears from Defendant’s argument that he calculates a 36-month delay by
16 including the time between trial and sentencing. However, the United States Supreme
17 Court has held and this Court has recognized that a defendant’s right to a speedy trial
18 under the Sixth Amendment does not extend beyond the time of conviction. See
19 Betterman v. Montana, ___ U.S. ___, 136 S. Ct. 1609, 1612 (2016) (“We hold that the
11
1 [Sixth Amendment’s speedy trial] guarantee protects the accused from arrest or
2 indictment through trial, but does not apply once a defendant has been found guilty
3 at trial or has pleaded guilty to criminal charges.”); Lopez, 2017-NMCA-___, ¶ 12.
4 Because Defendant was first arrested for the crimes charged in this case on April 11,
5 2012 and his trial began on May 19, 2014, the time between his arrest and trial was
6 approximately 25 months.
7 {19} The parties also dispute the level of complexity in this case. Defendant urges
8 this Court to depart from the district court’s finding that the case was intermediately
9 complex, arguing that the case is simple because the evidence consisted of testimony
10 from four officers and three civilian witnesses, and the evidence was in the form of
11 testimony that had been available for some time. Defendant also asserts that we should
12 not defer to the district court’s finding as to complexity because the district court
13 judge that entered the order on limited remand was a different judge than the judge
14 that initially denied the motion.
15 {20} We see no reason to depart from the district court’s finding that this case was
16 intermediately complex. First, “[w]e give due deference to the district court’s findings
17 as to the level of complexity[,]” State v. Plouse, 2003-NMCA-048, ¶ 42, 133 N.M.
18 495, 64 P.3d 522, abrogated on other grounds by Garza, 2009-NMSC-038, ¶¶ 47-48,
19 and in this case deference is due because, as noted by the district court, this case
12
1 involved several pretrial motions, an amended indictment, and the trial took seven
2 days to complete. Second, Defendant offers no support for his proposition that
3 findings of fact as to the complexity of a case are not supported by substantial
4 evidence when the district court judge that enters findings of fact is a different judge
5 than the district court judge who presided over the trial. See State v. Vigil-Giron,
6 2014-NMCA-069, ¶ 60, 327 P.3d 1129 (“[A]ppellate courts will not consider an issue
7 if no authority is cited in support of the issue and that, given no cited authority, we
8 assume no such authority exists[.]”); see also State v. Clifford, 1994-NMSC-048, ¶ 19,
9 117 N.M. 508, 873 P.2d 254 (reminding counsel that the appellate courts “are not
10 required to do their research” and holding that “conclusory statement[s] will not
11 suffice and [are] in violation of our [R]ules of [A]ppellate [P]rocedure”). Absent such
12 support, we are not convinced that we should depart from the district court’s finding
13 that the case is intermediately complex.
14 {21} In sum, the 25-month delay is beyond the 15-month presumptively prejudicial
15 threshold for intermediately complex cases. This delay weighs moderately against the
16 State. See State v. Suskiewich, 2016-NMCA-004, ¶¶ 6-8, 363 P.3d 1247 (holding that
17 a 24-month delay in a case of intermediate complexity weighed moderately against
18 the prosecution).
19 B. Reasons for Delay
13
1 {22} “Closely related to the length of delay is the reason the government assigns to
2 justify the delay.” State v. Castro, 2017-NMSC-027, ¶ 22, __ P.3d. __ (No. S-1-SC-
3 36062, Aug. 24, 2017) (internal quotation marks and citation omitted). “These reasons
4 may either less[e]n or increase the prejudice to the defendant caused by the delay.”
5 Brown, 2017-NMCA-046, ¶ 18. Our Supreme Court has “recognized three types of
6 delay that may be attributed to the [prosecution] and weighted against it at varying
7 levels[: (1)] a deliberate attempt to delay the trial in order to hamper the defense
8 should be weighted heavily against the government[; (2)] negligent or administrative
9 delay . . . should be weighted less heavily but nevertheless should be considered since
10 the ultimate responsibility for such circumstances must rest with the government
11 rather than with the defendant . . . [; and (3)] appropriate delay, justified for a valid
12 reason, such as a missing witness, is neutral and does not weigh against the
13 [prosecution].” Serros, 2016-NMSC-008, ¶ 29 (first omission in original) (alteration,
14 internal quotation marks, and citations omitted). When a case “progresse[s] with
15 customary promptness” the delay is weighed neutrally. State v. Parrish, 2011-NMCA-
16 033, ¶ 25, 149 N.M. 506, 252 P.3d 730.
17 {23} Defendant argues that all the delay in this case is attributable to the State, but
18 focuses on the period from November 2, 2012 to January 6, 2014, arguing that during
19 this 13-month period, the State intentionally delayed and filed frivolous motions,
14
1 weighing heavily against the State. Conversely, the State mirrors the analysis in the
2 district court’s order, arguing that the case proceeded normally and with customary
3 promptness for the entirety of the case, with the exception of February 2014 to March
4 2014, which the State concedes was an administrative delay that weighs lightly against
5 the State. We address each time period in turn.
6 1. April 11, 2012 to February 4, 2013
7 {24} Between April 11, 2012 and February 4, 2013, the case proceeded with
8 customary promptness. During this time, Defendant was arraigned, the court set
9 scheduling and pretrial conferences, and trial was set for March 4, 2013. Although
10 Defendant alleges that the State caused delay, there is nothing in the record to indicate
11 that either party delayed during this 10-month period. We therefore weigh this delay
12 neutrally.
13 2. February 4, 2013 to October 16, 2013
14 {25} Between February 4, 2013 and October 16, 2013, the parties were litigating
15 various motions, including a motion for a more definite statement filed by Defendant,
16 a motion for a finding of forfeiture by wrongdoing filed by the State, a motion to
17 suppress filed by Defendant, a motion in limine filed by Defendant, and a motion to
18 amend the grand jury indictment filed by the State. Evidentiary hearings were required
19 that had to be continued over several months. Both parties submitted proposed
15
1 findings of fact and conclusions of law on the forfeiture-by-wrongdoing issue.
2 Although Defendant argues that the State’s motion for a finding of forfeiture by
3 wrongdoing was frivolous, we see nothing in the record supporting Defendant’s
4 position, and instead, we view that motion, along with the other motions filed in this
5 period, as demonstrating that both parties were moving forward with customary
6 promptness. See State v. Valencia, 2010-NMCA-005, ¶ 18, 147 N.M. 432, 224 P.3d
7 659 (“[P]eriods of time considered inevitable and periods during which the case is
8 moved toward trial with customary promptness are not to be weighed against the
9 [prosecution].” (internal quotation marks omitted)). Trial did not occur on March 4,
10 2013, and a new trial date of February 17, 2014 was set on October 16, 2013. There
11 is nothing in the record to indicate that either party caused delay during this eight-
12 month period.
13 3. October 16, 2013 to January 17, 2014
14 {26} Between October 16, 2013 and January 17, 2014, the case was again proceeding
15 with customary promptness. During this period, the State withdrew its motion for a
16 finding of forfeiture by wrongdoing because it was apparently no longer concerned
17 that its witness, M.L., would be unavailable, the indictment was amended, and the
18 case was moving forward. This three-month period weighs neutrally. See id.
19 4. January 17, 2014 to March 13, 2014
16
1 {27} On January 17, 2014, one month before the case was set for trial, the State filed
2 a motion to remove defense counsel. The district court held a hearing on that motion
3 on March 13, 2014 and that same day re-set the trial for May 19, 2014. Although trial
4 did not occur on February 17, 2014, presumably because the State’s motion needed
5 to be addressed prior to trial and the court did not set the March 13 hearing until
6 March 4, 2014, this two-month delay, at most, constitutes administrative delay that
7 weighs slightly against the State. See Garza, 2009-NMSC-038, ¶ 26 (“ ‘[A] more
8 neutral reason such as negligence or overcrowded courts should be weighted less
9 heavily but nevertheless should be considered since the ultimate responsibility for
10 such circumstances must rest with the government rather than with the defendant.’ ”
11 (quoting Barker, 407 U.S. at 531)).
12 5. March 13, 2014 to May 19, 2014
13 {28} Once the trial was re-set, from March 13, 2014 to May 19, 2014, the case
14 proceeded with customary promptness. This two-month period weighs neutrally.
15 6. Overall Reasons for Delay
16 {29} We conclude that of the approximate 25-month delay in this case, all but two
17 months of the delay weigh neutrally. However, we acknowledge that those two
18 months weigh slightly against the State as administrative delay. Overall, the reasons
19 for delay weigh only slightly against the State.
17
1 C. Assertion of the Right
2 {30} When considering whether Defendant asserted his right to a speedy trial, we
3 “accord weight to the frequency and force of [a] defendant’s objections to the delay[]
4 and . . . analyze [a] defendant’s actions with regard to the delay.” Serros, 2016-
5 NMSC-008, ¶ 76 (internal quotation marks and citation omitted). “[T]he timeliness
6 and vigor with which the right is asserted may be considered as an indication of
7 whether a defendant was denied needed access to [a] speedy trial over his objection
8 or whether the issue was raised on appeal as afterthought.” Garza, 2009-NMSC-038,
9 ¶ 32. “[P]ro forma motions are generally afforded relatively little weight in this
10 analysis.” State v. Maddox, 2008-NMSC-062, ¶ 29, 145 N.M. 242, 195 P.3d 1254
11 (internal quotation marks and citation omitted), abrogated on other grounds by Garza,
12 2009-NMSC-038 ¶¶ 47-48. Additionally, assertions that are made in “the eleventh
13 hour” are weighed only slightly in a defendant’s favor. Id. ¶ 31 (internal quotation
14 marks and citation omitted); see State v. Ortiz-Burciaga, 1999-NMCA-146, ¶ 35, 128
15 N.M. 382, 993 P.2d 96 (“[The d]efendant invoked his speedy trial right[] just prior to
16 trial. Consequently, we do not give [the d]efendant much weight for this assertion
17 because most of the delay had already passed and he moved for dismissal rather than
18 for a prompt trial.”).
18
1 {31} Here, Defendant asserted his right pro forma on August 7, 2012 and again in
2 a motion to dismiss filed on May 8, 2014. These assertions weigh against the State but
3 only slightly because the first demand was pro forma, and the motion to dismiss was
4 filed less than two weeks before the start of trial. Under these circumstances,
5 Defendant’s assertion was not particularly timely or forceful, and thus this factor
6 weighs only slightly in Defendant’s favor.
7 D. Prejudice
8 {32} There are three interests under which we analyze prejudice to Defendant: “(i) to
9 prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the
10 accused; and (iii) to limit the possibility that the defense will be impaired.” Garza,
11 2009-NMSC-038, ¶ 35 (internal quotation marks and citation omitted). “As to the first
12 two types of prejudice, some degree of oppression and anxiety is inherent for every
13 defendant who is jailed while awaiting trial[,]” and therefore “we weigh this factor in
14 the defendant’s favor only where the pretrial incarceration or the anxiety suffered is
15 undue.” Id. (alterations, internal quotation marks, and citation omitted). “[W]ithout
16 a particularized showing of prejudice, we will not speculate as to the impact of pretrial
17 incarceration on a defendant or the degree of anxiety a defendant suffers[,]” and
18 Defendant bears the burden of showing particularized prejudice. Id.; State v. Urban,
19 2004-NMSC-007, ¶ 18, 135 N.M. 279, 87 P.3d 1061 (holding that “[a]lthough the
19
1 [prosecution] bears the ultimate burden of persuasion, [the d]efendant does bear the
2 burden of production [as to prejudice], and his failure to do so greatly reduces the
3 [prosecution’s] burden”). “However, if the length of delay and the reasons for the
4 delay weigh heavily in the defendant’s favor and the defendant has asserted his right
5 and not acquiesced to the delay, then the defendant need not show prejudice for a
6 court to conclude that the defendant’s right has been violated.” Brown, 2017-NMCA-
7 046, ¶ 33 (internal quotation marks and citation omitted).
8 {33} Defendant argues on appeal that he was prejudiced as a result of his pretrial
9 incarceration and asserts that he suffered anxiety, concern, stigma, and economic
10 hardship as a result of being arrested and charged. He argues that while he was
11 incarcerated, his child was removed from the child’s mother’s care by CYFD, and
12 Defendant was unable to see his family members. He asserts that, based on the
13 circumstances, this Court may presume prejudice.
14 {34} We begin by rejecting Defendant’s argument that we can presume prejudice.
15 “To find a speedy trial violation where [the d]efendant has failed to show actual
16 prejudice, . . . the three other Barker factors must weigh heavily against the
17 [prosecution].” Castro, 2017-NMSC-027, ¶ 32 (omission in original) (alterations,
18 internal quotation marks, and citation omitted). Because none of the other Barker
19 factors weigh heavily in Defendant’s favor, we cannot presume prejudice. We
20
1 therefore must consider whether Defendant demonstrated that he was actually
2 prejudiced by the delay. Defendant fails to demonstrate actual prejudice for two
3 reasons.
4 {35} First, his assertions of prejudice are not supported by any citations to the record.
5 Without citations to the record, we presume that those arguments were not made to the
6 district court and thus not preserved, and we do not consider unpreserved arguments.
7 See Rule 12-321(A) NMRA (“To preserve an issue for review, it must appear that a
8 ruling or decision by the trial court was fairly invoked.”); State v. Leon,
9 2013-NMCA-011, ¶ 33, 292 P.3d 493 (“We generally do not consider issues on appeal
10 that are not preserved below.” (internal quotation marks and citation omitted)).
11 Indeed, as noted by the district court, Defendant did not request an evidentiary hearing
12 at which he could present evidence regarding the prejudice he allegedly suffered.
13 Without proof of such prejudice, Defendant’s assertions amount to mere argument of
14 counsel, and we are left to speculate as to the impact of pretrial incarceration on
15 Defendant and on the degree of anxiety Defendant suffered, which we will not do. See
16 Garza, 2009-NMSC-038, ¶ 35.
17 {36} Second, Defendant has failed to demonstrate that if he did suffer prejudice, that
18 prejudice was undue. See Brown, 2017-NMCA-046, ¶ 33 (“Because some degree of
19 oppression and anxiety is inherent for every defendant who is jailed awaiting trial, the
21
1 defendant bears the burden to establish that the pretrial incarceration or the anxiety
2 suffered by the defendant is undue.” (alteration, internal quotation marks, and citation
3 omitted)). Because Defendant failed to demonstrate particularized, undue prejudice,
4 this factor does not weigh in his favor.3
5 E. Balancing the Barker Factors
6 {37} The length of delay, reasons for delay, and assertion of the right to speedy trial
7 factors weigh against the State but not heavily. The length of delay weighed
8 moderately against the State, while the reasons for delay and assertions of the right to
9 speedy trial weigh only slightly against the State. Because Defendant failed to
10 demonstrate particularized prejudice and the other factors do not weigh heavily in
11 Defendant’s favor, we hold that there was no violation of Defendant’s right to a
12 speedy trial. See Garza, 2009-NMSC-038, ¶ 40.
13 II. Motion for a More Definite Statement
3
15 We note that the Supreme Court issued its opinion in State v. Ochoa, No. S-1-
16 SC-34360, 2017 WL 361661, ____-NMSC-___, ¶ 54, ___ P.3d ___ (Oct. 23, 2017),
17 just days before we filed this memorandum opinion. Although our Supreme Court in
18 Ochoa presumed that two years of pretrial incarceration was prejudicial, the Court
19 ultimately held that the prejudice did not result in a speedy trial violation because (1)
20 based on the record, the Court could only speculate as to particularized, undue
21 prejudice; and (2) the remaining Barker factors did not weigh in Defendant’s favor.
22 Id. ¶¶ 57, 60-66. In our view, although our analysis here differs slightly from the
23 analysis in Ochoa, the holdings are congruous.
22
1 {38} Defendant’s second argument on appeal is that the district court erred in
2 denying his motion for a more definite statement. Defendant’s argument is based on
3 the Due Process and Double Jeopardy Clauses and thus poses constitutional questions
4 that we review de novo. See Los Chavez Cmty. Ass’n v. Valencia Cty., 2012-NMCA-
5 044, ¶ 12, 277 P.3d 475 (“We review questions of constitutional law and
6 constitutional rights, such as due process protections, de novo.” (internal quotation
7 marks and citation omitted)); State v. Andazola, 2003-NMCA-146, ¶ 14, 134 N.M.
8 710, 82 P.3d 77 (“[O]ur review of [the defendant’s] double jeopardy claim is de
9 novo.”).
10 {39} Under the Sixth and Fourteenth Amendments to the United States Constitution,
11 “[f]ailure to charge [a] defendant with a specific act or specific acts violates his right
12 to be informed of the charges against him and denies him due process of law.” State
13 v. Foster, 1974-NMCA-150, ¶ 8, 87 N.M. 155, 530 P.2d 949; see U.S. Const. amends.
14 VI, XIV. Additionally, the Fifth Amendment to the United States Constitution and
15 “[p]rocedural due process . . . requires that criminal charges provide criminal
16 defendants with the ability to protect themselves from double jeopardy.” State v.
17 Dominguez, 2008-NMCA-029, ¶ 5, 143 N.M. 549, 178 P.3d 834 (internal quotation
18 marks and citation omitted); see U.S. Const. amend. V.
23
1 {40} Defendant argues that the charging document in this case alleged four incidents
2 occurring over a five- to six-month period without providing needed detail. Defendant
3 notes that he requested that the dates be narrowed to allow adequate investigation for
4 his defense, but instead, the district court allowed the time frame to be expanded in
5 an amended indictment. Defendant argues that in addition to impacting his due
6 process rights, the vagueness in the indictment does not protect Defendant against
7 double jeopardy.
8 {41} Although Defendant asserts that the delay violated his rights under the Fifth,
9 Sixth, and Fourteenth Amendments to the United States Constitution, Defendant’s
10 arguments on appeal are legally and factually undeveloped and amount to little more
11 than assertions of counsel that Defendant’s rights were violated. See Muse v. Muse,
12 2009-NMCA-003, ¶ 51, 145 N.M. 451, 200 P.3d 104 (“It is not our practice to rely
13 on assertions of counsel unaccompanied by support in the record. The mere assertions
14 and arguments of counsel are not evidence.”); see also State v. Ortiz, 2009-NMCA-
15 092, ¶ 32, 146 N.M. 873, 215 P.3d 811 (reasoning that “[a] party cannot throw out
16 legal theories without connecting them to any elements and any factual support for the
17 elements” (internal quotation marks and citation omitted)). Defendant does not
18 analyze or provide any evidentiary support for his reasonable-notice argument under
19 the two-part test that this Court has adopted for determining whether a charging period
24
1 is overly broad, i.e. “(1) whether the [prosecution] could reasonably have provided
2 greater specificity of the times of the alleged offenses and (2) if so, whether the
3 [prosecution’s] failure to do so prejudiced the defendant.” State v. Ervin, 2002-
4 NMCA-012, ¶ 6, 131 N.M. 640, 41 P.3d 908. And Defendant makes no real double
5 jeopardy argument outside of his due process argument. We are not inclined to make
6 Defendant’s arguments for him. See State v. Fuentes, 2010-NMCA-027, ¶ 29, 147
7 N.M. 761, 228 P.3d 1181 (noting that we will not review arguments that “require us
8 to guess at what [a party’s] arguments might be”).
9 {42} That said, to the extent Defendant does assert that he was prejudiced, we note
10 that Defendant failed to prove, as he was required, that any prejudice suffered was
11 “both actual, not based on pure conjecture, and substantial in its impact on the
12 defense.” Ervin, 2002-NMCA-012, ¶ 17. “[W]ithout prejudice, there is no reversible
13 error.” Id. And, as stated in our case law, “a long charging period does not itself
14 constitute prejudice.” State v. Tafoya, 2010-NMCA-010, ¶ 17, 147 N.M. 602, 227
15 P.3d 92.
16 III. Hearsay and Confrontation Clause
17 {43} Defendant’s final argument on appeal is that the district court erred in
18 permitting hearsay evidence in violation of his right to confront his accuser.
19 Defendant’s argument is based on the Confrontation Clause of the Sixth Amendment.
25
1 “Questions of admissibility under the Confrontation Clause are questions of law,
2 which [the appellate courts] review de novo.” State v. Aragon, 2010-NMSC-008, ¶ 6,
3 147 N.M. 474, 225 P.3d 1280, overruled on other grounds by State v. Tollardo, 2012-
4 NMSC-008, 275 P.3d 110. We review the district court’s decision to admit evidence
5 for abuse of discretion. See State v. Romero, 2006-NMCA-045, ¶ 12, 139 N.M. 386,
6 133 P.3d 842.
7 {44} The Confrontation Clause provides that “[i]n all criminal prosecutions, the
8 accused shall enjoy the right . . . to be confronted with the witnesses against him[.]”
9 U.S. Const. amend. VI. In New Mexico, “the Confrontation Clause permits admission
10 of a non-available declarant’s hearsay statement if it falls within a firmly rooted
11 exception to the hearsay rule. If the disputed statement does not fall within a firmly
12 rooted hearsay exception, then there must be particularized guarantees of
13 trustworthiness equivalent to those associated with a firmly rooted exception.” State
14 v. Lopez, 2000-NMSC-003, ¶ 15, 128 N.M. 410, 993 P.2d 727 (internal quotation
15 marks and citation omitted). Even when testimony runs afoul of the Confrontation
16 Clause, however, a defendant’s conviction may not be reversible on that basis if the
17 prosecution demonstrates “that the error is harmless beyond a reasonable doubt.” State
18 v. Moncayo, 2012-NMCA-066, ¶ 15, 284 P.3d 423 (alteration, internal quotation
19 marks, and citation omitted). “A reviewing court should only conclude that a
26
1 constitutional error is harmless when there is no reasonable probability that it affected
2 the verdict.” Id.
3 {45} Here, Officer Lujan testified that he was dispatched after a woman named
4 Margaret Hill reported that her vehicle had been stolen. He testified that the stolen
5 vehicle was a beige Toyota Avalon and testified as to its license plate and VIN
6 numbers. Defendant argues on appeal that this testimony violated his rights under the
7 Confrontation Clause because Ms. Hill was available, Officer Lujan’s testimony was
8 testimonial, and Defendant did not have an opportunity to cross-examine Ms. Hill. In
9 response, the State essentially argues harmless error. Specifically, the State argues that
10 there was other testimony and documentary evidence that was offered, without
11 objection, that was cumulative of Officer Lujan’s testimony. The State cites to
12 testimony from Detective Gonterman and another officer who was working with
13 Detective Gonterman, both of whom testified that the car in Defendant’s possession
14 had been reported stolen. The State also notes that documents showing that the car
15 was sold and registered to Ms. Hill were admitted without objection.
16 {46} Assuming without deciding that Officer Lujan’s testimony was violative of the
17 Confrontation Clause, we nevertheless hold that Defendant’s convictions need not be
18 reversed because the admission of his testimony constituted harmless error. In
19 conducting a harmless error analysis, we are guided by the following factors: “(1) the
27
1 importance of the witness’ testimony in the prosecution’s case; (2) whether the
2 testimony was cumulative; (3) the presence or absence of evidence corroborating or
3 contradicting the testimony of the witness on material points; (4) the extent of
4 cross-examination otherwise permitted; and (5) the overall strength of the
5 prosecution’s case.” State v. Zamarripa, 2009-NMSC-001, ¶ 53, 145 N.M. 402, 199
6 P.3d 846. Here, Officer Lujan’s testimony was brief and was simply cumulative of the
7 testimony and documentary evidence already presented. There was no evidence
8 contradicting Officer Lujan’s testimony that the vehicle was stolen. And given the
9 other evidence provided, his testimony as to this topic was not important to the
10 prosecution’s case. In light of these factors, we conclude that there is no reasonable
11 probability that his testimony affected the verdict, and therefore, we conclude that any
12 error in admitting Officer Lujan’s testimony was harmless.
13 CONCLUSION
14 {47} For the reasons set forth in this opinion, we affirm.
15 {48} IT IS SO ORDERED.
16 __________________________________
17 JONATHAN B. SUTIN, Judge
18 WE CONCUR:
28
1 _______________________________
2 J. MILES HANISEE, Judge
3 _______________________________
4 JULIE J. VARGAS, Judge
29