April 15, 2019- State of New Mexico v. Reynaldo Parra, No. A-1-CA-35854

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-35854
5 REYNALDO PARRA,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Jacqueline D. Flores, District Judge
9 Hector H. Balderas, Attorney General
10 Maris V eidemanis, Assistant Attorney General
11 	Santa Fe , NM
12 	for Appellee
13 	L. Helen Bennett, P.C.
14 L. Helen Bennett
15 	Albuquerque, NM
16 for Appellant
17
18 	MEDINA, Judge.
MEMORANDUM OPINION
19 {I} 	Defendant Reynaldo Parra appeals his convictions for five counts of criminal
20 	sexual penetration (CSP), two counts of criminal sexual contact (CSC), and one
21 	count of interference with communications. Defendant raises two issues on appeal:
22 	(1) he asserts that his right to be free from double jeopardy was violated by being
Court of Appeals of New Mexico
Filed 4/15/2019 11:00 AM
Mark Reynolds

1 subject to retrial; and (2) he asserts his constitutional right to a speedy trial was
2 violated. We affirm.
3 BACKGROUND
4 	{2} 	Because this is a memorandum opinion, we set forth only such facts and law
5 as are necessary to decide the merits. On January 13 , 2014, Defendant was charged
6 with six counts of CSP, in violation ofNMSA 1978, Section 30-9-1 l(D)(l) (2009);
7 five counts ofCSC, in violation ofNMSA 1978, Section 30-9-12(C)(l) (1993); two
8 counts ofkidnapping, in violation ofNMSA 1978, Section 30-4-l(A)(4) (2003); one
9 count of interference with communications, in violation ofNMSA 1978, Section 30-
10 	12-l(D) (1979); and one count of incest, in violation of NMSA 1978, Section 30-
11 	10-3 (1963).
12 	{3} 	Defendant' s first trial was conducted in August 2015, in which Defendant
13 	intended to raise an insanity/lack of specific intent defense. On the second day of
14 this trial, the jury was 	shown-over 	Defendant's 	objection-a 	redacted 	lapel
15 	recording taken of Defendant by Officer Fred Duran. During cross-examination,
16 	Officer 	Duran 	testified 	that 	other 	lapel 	recordings 	existed. 	Defense 	counsel
17 	immediately approached the bench and, citing Brady v. 	Maryland, 373 U.S. 83
18 	(1963), moved for a mistrial on the ground that the State failed to disclose the other
19 	recordings to the defense. The State replied that it had provided the defense with all
20 the material in its file and that it had no knowledge of the existence of the other
2

1 recordings. The district court released the jury for the day, providing the State with
2 an opportunity to look into the other recordings and to respond to Defendant's
3 motion for a mistrial.
4 	{4} 	The following day, the district court, Defendant, and the State questioned
5 Officer Duran, outside the presence of the jury, about the existence of additional
6 lapel recordings. Officer Duran testified that lapel recordings were taken by other
7 officers, but because they were not tagged properly they never appeared on the
8 evidence 	list 	provided 	to 	the 	prosecutor 	and 	defense 	counsel. 	Because 	lapel
9 recordings that are not properly tagged are deleted after 120 days, the additional
10 	lapel recordings were destroyed.
11 	{5} 	The State suggested alternatives to granting Defendant's motion for a mistrial
12 	such as presenting testimony regarding Defendant's behavior on the day of his arrest
13 	from the other officers and instructing the jury that the missing evidence would have
14 	been favorable to the defense. Defense counsel countered, "I don't believe that any
15 	less drastic a remedy than mistrial is appropriate here." The district court observed
16 that the redacted recording left the jury with an impression of Defendant that cut
17 	against his insanity/lack of specific intent defense and that the alternatives suggested
18 	by the State would not adequately address this concern. The district court noted that
19 Officer Duran's testimony surprised both parties and the court, and neither party was
3

1 at fault. The district court granted Defendant' s motion for a mistrial and announced
2 a finding of manifest necessity, allowing the State to retry Defendant.
3 	{6} 	Two 	months 	later, Defendant moved to bar retrial 	on double jeopardy
4 grounds, asserting that the district court erred in finding manifest necessity. The
5 newly assigned district court judge applied the prosecutorial misconduct standard
6 set forth in State v. Breit, 1996-NMSC-067, ,, 19-24, 122 N.M. 655, 930 P.2d 792,
7 and rejected Defendant's double jeopardy claim. Defendant additionally moved to
8 dismiss on speedy trial grounds. The district court concluded that Defendant's
9 speedy trial right had not been violated.
10 	{7} 	Defendant was retried and, following directed verdicts on certain counts, the
11 	jury convicted Defendant of five counts of CSP, two counts of CSC, and one count
12 	of 	interference 	with 	communications. 	We 	reserve 	further 	discussion 	of 	the
13 	procedural history for our speedy trial analysis.
14 	DISCUSSION
15 	Retrial Is Not Barred by Double Jeopardy
16 	{8} 	Upon Defendant's motion for a mistrial, based on a claim of prosecutorial
17 	misconduct for not disclosing the existence of other lapel recordings, the district
18 	court declared a mistrial on a finding of manifest necessity. The district court
19 	subsequently denied Defendant's motion to bar retrial. Defendant contends that
20 retrial should have been barred because the district court abused its discretion in
4

1 finding a manifest necessity for a mistrial. Defendant limits his double jeopardy
2 argument to an analysis of whether the district court abused its discretion in finding
3 manifest necessity. The State argues that, because Defendant moved for a mistrial,
4 the proper legal standard for addressing Defendant's claim is set forth in Breit and
5 that the prosecutorial misconduct in this case does not rise to the level that would
6 bar retrial. We agree.
7 	{9} 	As we previously have noted, where a mistrial is declared at the defendant's
8 behest, cases "concerning the 'manifest necessity' standard for mistrials declared
9 sua sponte by the [district] court are inapplicable." State v. Lucero, 1999-NMCA-
10 	102, ~ 12, 127 N.M. 672, 986 P.2d 468. Instead, in cases such as this one, "[t]he
11 	general rule is that a motion for mistrial by defendant ordinarily removes the barrier
12 to reprosecution. An exception occurs where the motion is the result of prosecutorial
13 	overreaching." Id. ~ 13 (alteration, internal quotation marks, and citation omitted).
14 To determine whether, under our state constitution, double jeopardy bars retrial after
15 	a defendant successfully moves for mistrial because of prosecutorial misconduct, we
16 apply the three-prong test adopted by our Supreme Court in Breit:
17
18
19
20
21
22
23
Retrial 	is barred under Article II, Section 15, of the New Mexico
Constitution, 	[(l )] 	when 	improper 	official 	conduct 	is 	so 	unfairly
prejudicial to the defendant that it cannot be cured by means short of a
mistrial or a motion for a new trial, [(2)] and if the official knows that
the conduct is improper and prejudicial, and [(3)] if the official either
intends to provoke a mistrial or acts in willful disregard of the resulting
mistrial, retrial, or reversal.
5

l 	Breit, 1996-NMSC-067, ,r 32. This standard "suggests that double jeopardy will
2 rarely bar reprosecution if the misconduct is an isolated instance during the course
3 	of an otherwise fair trial." Id. ,I 33.
4 	{10} 	"[A]ppellate review of a prosecutorial misconduct claim presents a mixed
5 question of law and fact." State v. McClaugherty, 2008-NMSC-044, ,r 39, 144 N.M.
6 483, 188 P.3d 1234. Therefore, "[t]he appellate court will defer to the district court
7 when it has made findings of fact that are supported by substantial evidence and
8 reviews de novo the district court's application 	of the law to the facts." 	Id.
9 Additionally, we apply a de novo standard of review to the constitutional question
10 	of whether there has been a double jeopardy violation. State v. 	Gonzales, 2013-
11 	NMSC-016, ,r 13, 301 P.3d 380. Because we conclude that the third prong of the
l 2 Breit test is not satisfied, we do not address the first or second prongs. See Lucero,
13 	1999-NMCA-102, ,r 23 	(acknowledging that a conclusion that one of the Breit
14 prongs is not satisfied disposes of a defendant's double jeopardy argument).
15 	{11} 	As used in the third prong of the Breit test, "willful disregard" "emphasiz[es]
16 that the prosecutor is actually aware, or is presumed to be aware, of the potential
17 consequences of his or her actions. The term connotes a conscious and purposeful
18 	decision by the prosecutor to dismiss any concern that his or her conduct may lead
19 to a mistrial or reversal." Breit, 1996-NMSC-067, ,r 34. "[D]ouble jeopardy may be
20 triggered by prosecutorial misconduct other than the intentional provocation of a
6

1 mistrial." 	Id. 	~ 36. In McClaugherty 	our Supreme Court clarified, "the 	Breit
2 objective standard is based on the prosecutor' s conduct as it manifests at the trial,
3 not the 	motivation 	for 	that 	conduct." 	McClaugherty, 2008-NMSC-044, 	~ 	27.
4 However, when the intent to provoke a mistrial is absent, "the misconduct necessary
5 to bar a retrial must be extraordinary." Lucero, 1999-NMCA-102, ~ 26 (internal
6 quotation marks and citation omitted).
7 	{12} 	To determine whether the prosecutor's conduct amounts to "willful disregard"
8 of a resulting mistrial, retrial, or reversal, we carefully examine the prosecutor' s
9 conduct in light of the totality of the circumstances of the trial. See Breit, 1996-
10 NMSC-067, ~ 40. The district court found that the prosecutor was unaware, prior to
11 	Officer Duran's testimony, that additional lapel recordings of Defendant had been
12 	made, a finding fully supported by the record. On the second day of trial, after
13 	Officer Duran disclosed that other lapel recordings had been made, the prosecutor
14 	stated that she had no knowledge of the other lapel recordings. Officer Duran
15 	corroborated the prosecutor's statement when he explained that an error in tagging
16 the lapel recording resulted in the exclusion of other recordings on the evidence log
17 provided to the State.
18 	{t3} 	We agree with the district court that there is nothing indicating the prosecutor
19 acted in willful disregard of an impending mistrial by her failure to disclose the prior
20 existence and contents of the other lapel recordings, of which she had no knowledge.
7

1 See Lucero, 1999-NMCA-102, 127 (concluding the prosecutor did not act in willful
2 disregard where mistrial was caused by the prosecutor's disclosure of witness
3 statement on second day of trial and there was no evidence that the prosecutor was
4 aware of the statement earlier). Accordingly, we hold that double jeopardy did not
5 bar Defendant's retrial.
6 Defendant's Constitutional Right to Speedy Trial Was Not Violated
7 	{14} 	Defendant contends his constitutional right to a speedy trial was violated. The
8 Sixth Amendment to the United States Constitution guarantees that "[i]n all criminal
9 prosecutions, the accused shall enjoy the right to a speedy ... trial[.]" U.S. Const.
10 amend. VI; see also N.M. Const. art. II,§ 14 ("[T]he accused shall have the right to
11 	... a speedy ... trial."). Preventing prejudice to the accused is at the heart of the
12 	speedy trial right, which also emanates from "the concomitant 'societal interest in
13 	bringing an accused to trial.'" State v. Serros, 2016-NMSC-008, 14,366 P.3d 1121
14 (quoting State v. Garza, 2009-NMSC-038, 112, 146 N.M. 499,212 P.3d 387).
15 	{15} 	"In determining whether a defendant's speedy trial right was violated, [the
16 appellate courts have] adopted the United States Supreme Court balancing test in
17 Barker v. Wingo, 407 U.S. 514 ... (1972)." State v. Smith, 2016-NMSC-007, 158,
18 	367 P.3d 420. We consider: (1) the length of the delay; (2) the reasons for the delay;
19 	(3) the defendant's assertion of the right; and (4) the prejudice to the defendant. State
20 	v. 	Samora, 	2016-NMSC-03 l, 	1 	9, 	387 P.3d 230. 	We 	"weigh[] 	these 	factors
8

1 according to the unique circumstances of each case in light of the [s]tate and the
2 defendant's conduct and the harm to the defendant from the delay." Id. (internal
3 quotation marks and citation omitted). In reviewing these factors, "we defer to the
4 district court's factual findings that are supported by substantial evidence, but we
5 independently review the record to determine whether a defendant was denied his
6 speedy trial right and we weigh and balance the Barker factors de novo." State v.
7 Flores, 2015-NMCA-081, ~ 4,355 P.3d 81.
8 1.
9
10 	{t6}
The Length of Delay Is Presumptively Prejudicial and Weighs Against
the State
We 	first 	determine 	whether 	the 	length 	of the 	delay 	is 	presumptively
11 	prejudicial. "The first factor, the length of delay, has a dual function: it acts as a
12 	triggering mechanism for considering the four Barker factors if the delay crosses the
13 	threshold of being presumptively prejudicial, and it is an independent factor to
14 consider in evaluating whether a speedy trial violation has occurred." Serros, 2016-
15 	NMSC-008, ~ 22 (internal quotation marks and citation omitted). Our Supreme
16 	Court has established benchmarks for presumptively prejudicial delay according to
17 the complexity of a case: twelve months for a simple case, fifteen months for a case
18 	of intermediate complexity, and eighteen months for a complex case. Garza, 2009-
19 NMSC-038, ~~ 47-48.
20 	{t 7} 	The district court determined and the parties agree that this was a case of
21 	intermediate complexity. " We defer to the district court's finding of complexity"
9

1 when it is supported by the record. State v. Ochoa, 2017-NMSC-031, i-f 15,406 P.3d
2 505. Given the nature of the allegations, Defendant's insanity defense, and the
3 number of charges, we agree that the case is of intermediate complexity. See State
4 v. Laney, 2003-NMCA-144, ,r 14, 134 N.M. 648, 81 P.3d 591 (stating that "[c]ases
5 of intermediate complexity ... seem to involve numerous or relatively difficult
6 criminal charges and evidentiary issues, numerous witnesses, expert testimony, and
7 scientific evidence"). The delay in this case of over fifteen months thus triggers a
8 consideration of the four Barker factors. See Garza, 2009-NMSC-038, ,r 48.
9 	{18} 	Defendant's speedy trial right attached when he was arrested on December
10 	23, 2013. See Laney, 2003-NMCA-144, ,r 10 (stating that the right to a speedy trial
11 	attaches when the defendant becomes an accused, either by arrest, indictment, or
12 	criminal information). Defendant's second jury trial began on April 25, 2016. The
13 	State, therefore, failed to bring the case to trial for twenty-eight months-thirteen
14 months beyond the fifteen-month triggering period for intermediate cases. See
15 	Garza, 2009-NMSC-038, ,r 48. We weigh this delay moderately to heavily against
16 the State. See State v. Montoya, 2015-NMCA-056, ,r 15,348 P.3d 1057 (weighing a
17 total delay of twenty-seven months in a case of intermediate complexity moderately
18 to heavily against the state).
10

1 2. 	The Reasons for the Delay Weigh Against the State
2 {19} 	We next evaluate "the reason the government assigns to justify the delay[,]"
3 which "may either heighten or temper the prejudice to the defendant caused by the
4 length of the delay." Garza, 2009-NMSC-038, 1 25 (internal quotation marks and
5 citation omitted). There are three types of delay attributable to the state, which are
6 weighed against the state in varying ways. See State v. Castro, 2017-NMSC-027,
7 122, 402 P.3d 688. First, deliberate attempts by the state to delay the trial to hamper
8 the defense weigh heavily against the state. Id. Second, "neutral delays, including
9 negligence 	or 	overcrowded 	courts 	that 	should 	be 	weighted 	less 	heavily 	but
10 nevertheless 	should 	be 	considered 	since 	the 	ultimate 	responsibility 	for 	such
11 	circumstances 	must 	rest with the government rather than the 	defendant." 	Id.
12 	(alteration, internal quotation marks, and citation omitted). And third, there are
13 	"appropriate" delays for which there is "a valid reason, such as a missing witness."
14 Id. 	(internal quotation marks and citation omitted). These are delays which are
15 	considered neutral and do not weigh against the state. Id. (internal quotation marks
16 and citation omitted). Finally, delay caused by the defense weighs against the
17 defendant. See Serros, 2016-NMSC-008, 129.
18 	{20} 	We identify three periods of pretrial delay in this case: ( 1) from December 23,
19 	2013, to March 30, 2015; (2) from March 30, 2015, to August 24, 2015; and (3) from
20 August 24, 2015, to April 25, 2016. We address each time period in turn.
11

1 December 23, 2013 to March 30, 2015
2 	{21} 	During the 	first 	time 	period, 	the 	State 	and 	Defendant 	filed 	customary
3 pleadings one expects to see filed in a criminal case. The State filed a certificate of
4 disclosure, a demand for notice 	of alibi or entrapment defense, a request for
5 disclosure, a notice of intent to call witnesses, a motion to compel pretrial interviews,
6 an amended notice of intent to call witnesses, and timely responded to Defendant's
7 motions to review conditions of release and for sanctions for a scheduling order
8 violation. We agree with the district court's conclusion and the parties' concession
9 that the case was progressing normally and weigh this period of delay neutrally. See
10 State v. Parrish, 20 11-NMCA-033 ,, 25, 149 N.M. 506,252 P.3d 730 (weighing the
11 	delay neutrally when "the case progressed with customary promptness").
12 	March 30, 2015 to August 24, 2015
13 	{22} 	The 	second time 	period commences with the 	March 30, 	2015 	date 	of
14 Defendant's first trial setting, which was vacated for unknown reasons. Defendant's
15 	initial jury trial began on August 24, 2015. Because Defendant had no duty to bring
16 himself to trial, see Serros, 2016-NMSC-008,, 42, we agree with the district court
17 that the period from March 30, 2015 , to August 24, 2015, a period of approximately
18 	five months, weighs against the State.
12

1 August 24, 2015 to April 25, 2016
2 	{23} 	The third and final time period under consideration is the period between the
3 district's court's declaration of mistrial to the date of Defendant's second trial, that
4 is from August 24, 2015, to April 25, 2016. The district court weighed this period,
5 approximately eight months, against the State, and the parties do not contest this
6 conclusion. As indicated, the mistrial resulted from the State's failure to preserve
7 and provide potentially exculpatory evidence to the defense. Again, however, it is
8 the State's duty to bring a defendant to trial, see id. ,I 38, and "[o]rdinarily the court
9 should schedule the retrial as soon as its do cket permits unless the parties justifiably
10 require additional pre-trial discovery or motions practice." Castro, 2017-NMSC-
l l 	027, ,I 21.We weigh this period of delay against the State. See Garza, 2009-NMSC-
12 	038, ,I 26 ("Although negligence is obviously to be weighed more lightly than a
13 	deliberate intent to harm the accused's defense, it still falls on the wrong side of the
14 divide 	between 	acceptable 	and 	unacceptable 	reasons 	for 	delaying 	a 	criminal
15 	prosecution once it has begun." (internal quotation marks and citation omitted)).
16 	Sum of Delay
17 {24} 	The total delay in this case was approximately twenty-eight months. Of that,
18 	we weigh fifteen months neutrally, and thirteen months against the State. While we
19 	weigh thirteen months against the State, we do not weigh them heavily because the
20 delay was not intentional. See id. ,I 26.
13

1 3. 	Assertion of the Right
2 	{25} 	In analyzing whether a defendant has asserted his right to a speedy trial, we
3 "accord weight to the frequency and force of the defendant's objections to the delay
4 	... [and] also analyze the defendant's actions with regard to the delay." Id. 1 32.
5 "[P]ro forma motions are generally afforded relatively little weight in this analysis."
6 State v. Urban, 2004-NMSC-007, 116, 135 N.M. 279, 87 P.3d 1061.
7 	{26} 	Here, Defendant asserted his right on four occasions. First, in an entry of
8 appearance that also included a request for discovery and demand for exculpatory
9 evidence. Second, in a motion to compel, filed six months after his arrest. Third, in
10 his notice of intent to claim Rule 5-602 defenses, filed almost a year after his arrest.
11 	And fourth, in a motion to dismiss on speedy trial grounds, filed more than twenty-
12 two months after his arrest.
13 	{27} 	Defendant's demands were sufficient to assert his right. See Garza, 2009-
14 NMSC-038, 1 34 (stating that a single demand is sufficient to assert the right to
15 	speedy trial). However, the first three assertions were included in proforma pretrial
16 	motions, and Defendant did not invoke a ruling until he moved to dismiss the case
17 almost two years after he was arrested. See id. 1 32 (evaluating a defendant's
18 	assertion ofhis right focuses on the frequency and force of the defendant's objections
19 to the delay). 	We 	conclude that Defendant's assertion 	of his right, while not
14

1 particularly vigorous, adequately asserted his right. See State v. Gallegos, 2016-
2 NMCA-076,, 26, 387 P.3d 296
3 	4. 	Prejudice to Defendant
4 	{28} 	Preventing prejudice to those accused is " [t]he heart of the right to a speedy
5 trial[.]" Garza, 2009-NMSC-038, , 	12. The speedy trial right is intended "(i) to
6 prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the
7 accused; and (iii) to limit the possibility that the defense will be impaired." Id. , 35
8 (internal quotation marks and citation omitted). "As to the first two types 	of
9 prejudice, some degree of oppression and anxiety is inherent for every defendant
10 who is jailed while awaiting trial." Id. 	(alteration, internal quotation marks, and
11 	citation omitted). "[W]e weigh this factor in the defendant' s favor only where the
12 pretrial incarceration or the anxiety suffered is undue." Id. "The oppressive nature
13 	of the pretrial incarceration depends on the length of incarceration, whether the
14 defendant obtained release prior to trial, and what prejudicial effects the defendant
15 	has shown as a result of the incarceration." Id. Generally, "a defendant must show
16 particularized prejudice of the kind against which the speedy trial right is intended
17 to protect." Id. 	, 	39. "However, lengthy and onerous pretrial incarceration may
18 	render affirmative proof unnecessary to find that the defendant suffered prejudice."
19 	Ochoa, 2017-NMSC-031 , , 54. "[A] court can under certain circumstances presume
20 that a defendant suffered some degree of prejudice even without affirmative proof."
15

l 	Id. ,r 56. A finding of presumed prejudice, however, does not inherently tip the scales
2 in favor of Defendant's speedy trial claim. See id. ,r 50 (holding that the defendant
3 was prejudiced as a result of extended pretrial incarceration, 	but noting "this
4 presumption does not dispose of the speedy trial claim").
5 	{29} 	On appeal, Defendant focuses on the first type of prejudice--oppressive
6 pretrial incarceration. 1 Defendant was incarcerated for the entire twenty-eight-
7 month period prior to his second trial. "When, as in this case, a defendant was
8 continuously incarcerated for an extended period of time, it requires no speculation
9 to determine that the defendant suffered some prejudice." Id. ,r 57. However, without
10 a particularized showing of prejudice, which Defendant did not provide, we do not
11 	speculate as to the impact pretrial incarceration has on a defendant or the degree of
12 	anxiety a defendants suffers. See Garza, 2009-NMSC-038, ,r 35.
13 	Balancing
14 	{30} 	Upon consideration of all the Barker factors, we conclude that Defendant's
15 	right to a speedy trial was not violated by the delay in this case. See Barker, 407 U.S.
16 at 533 (regarding none of the Barker factors "as either a necessary or sufficient
1 Although Defendant argued below that the destroyed lapel recording served
to establish prejudice through impairment of his defense, he fails to develop this
argument on appeal, and we decline to consider it further. See State v. Fuentes, 201 O-
NMCA-027, ,r 29, 147 N.M. 761, 228 P.3d 1181 (noting that we will "not review
unclear or undeveloped arguments [that] require us to guess at what [a] part[y's]
arguments might be").
16

1 condition to the finding of a deprivation of the right of speedy trial" and, instead,
2 providing that "they are related factors and must be considered together with such
3 	other circumstances as may be relevant").
4 	CONCLUSION
5 	{3t} 	We affirm Defendant's convictions.
6 	{32} 	IT IS SO ORDERED.
7
8 	QUELINE R. MEDINA, Judge
9 WE CONCUR:
12 	~,62x_ 	>
13 	JEN~ ATTREP, Judge
17