State v. Gallegos

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMSC-017

Filing Date: April 21, 2009

Docket No. 30,453

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

ERNEST JOSE GALLEGOS,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Neil C. Candelaria, District Judge

Hugh W. Dangler, Chief Public Defender
Karl Erich Martell, Assistant Appellate Defender
Santa Fe, NM

for Appellant

Gary K. King, Attorney General
Andrew S. Montgomery, Assistant Attorney General
Santa Fe, NM

for Appellee

OPINION

BOSSON, Justice.

{1} The decision filed on March 23, 2009, in this case is withdrawn and the following
substituted therefor.

{2} Jim Hogan was brutally killed by an armed burglar in the garage of his home on a
Tuesday night in August, 2004. His wife, Carole Hogan, sat bound and blindfolded inside
the home after succumbing to the intruder and waited helplessly while her husband was
beaten to death in their garage. Nine months later, Defendant was indicted for various

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crimes in connection with the attack on the Hogans and later convicted on all counts.

{3} Defendant raises several claims of error on direct appeal and requests various
remedies. For the reasons stated, we conclude that Defendant’s claims are without merit and
affirm the district court on all counts.

BACKGROUND

{4} Jim and Carole Hogan spent the summer of 2004 remodeling their home located in
a gated community in northeast Albuquerque. Defendant worked as a contractor in the
Hogan’s home and installed new bathroom mirrors and shower doors. During the
construction, Jim could not find his wristwatch and confronted Defendant and his partner
about it, asking if they had been in his bedroom drawers. Jim later found the watch and
called Defendant’s employer to apologize for the misunderstanding. However, Defendant
and his partner refused to return to the house after the accusation.

{5} Work on the house was completed in mid-August 2004, about six weeks after
Defendant last worked in the home. On August 24, 2004, after returning home from dinner,
Jim and Carole were enjoying a quiet evening when Carole was suddenly confronted by a
masked man in a hallway inside the home. The intruder held a gun in one hand and a table
leg in the other.

{6} Jim and Carole submitted to the intruder and the man bound their wrists and ankles
with zip ties, blindfolded them with duct tape, and taped their mouths shut. The man stated
that he was there to kill Jim and demanded access to the safe in the garage where the Hogans
kept guns, papers, and jewelry. Carole did not know the combination so Jim gave it to him.
When the man could not open the safe on his own, he picked Jim up and hauled him into the
garage so that Jim could open the safe. Carole heard the safe open, and then listened as the
man beat her husband to death.

{7} The man returned to Carole and asked where her jewelry was. After collecting the
jewelry from a drawer upstairs, he took Carole to a closet in the bathroom, closed the door,
and threatened to kill her if she tried to escape. Once Carole believed that the intruder had
left the home, she broke her wrist restraints and called 911. Police arrived quickly on the
scene and saw a man climbing over the wall around the Hogan’s neighborhood. The police
saw the man jog over to a truck parked nearby and stopped him as he tried to drive away.
When police confronted him, he was sweating profusely and was bleeding from a fresh cut
on his cheek. The man produced a driver’s license with the name “Jose Gallegos.” Four
police officers who observed Defendant at the scene later testified at trial and identified
Defendant as the man they saw in the pickup.

{8} After initially cooperating, the man ran from the truck when the police tried to
handcuff him and climbed back over the wall into the gated community, escaping arrest.
Two duffel bags were found on top of the wall around the neighborhood in the location

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where the man was first seen by officers, which contained personal items belonging to the
Hogans and items used in the attack and robbery. Defendant was apprehended nine months
later in Mexico and turned over to U.S. custody. Following an eight-day trial, Defendant
was sentenced to life imprisonment plus sixty-three and one half years for first-degree
murder, kidnapping, aggravated burglary, armed robbery, aggravated battery, and tampering
with evidence.

DISCUSSION

Grand Jury Evidence and Indictment

A. Hearsay Evidence

{9} Defendant contends that the indictment issued against him was based wholly upon
hearsay evidence presented by the lead detective in the case to the grand jury, and should
therefore be dismissed. NMSA 1978, Section 31-6-11(A) (2003) states that “[e]vidence
before the grand jury upon which it may find an indictment is that which is lawful,
competent and relevant” and that “[t]he Rules of Evidence shall not apply.”

{10} While Defendant’s case was pending, the Court of Appeals addressed the issue of
whether hearsay evidence could provide the foundation for a lawful indictment in State v.
Romero, 2006-NMCA-105, 140 N.M. 281, 142 P.3d 362. In Romero, the Court of Appeals
stated that “the Legislature has not authorized judicial review of the evidence presented to
a grand jury except for its sufficiency and then only upon a showing of prosecutorial bad
faith.” Id. ¶ 5; see also § 31-6-11(A) (“The sufficiency of the evidence upon which an
indictment is returned shall not be subject to review absent a showing of bad faith on the part
of the prosecuting attorney assisting the grand jury.”); Jones v. Murdoch, 2009-NMSC-002,
¶ 19, 145 N.M.473, 200 P.3d 523 (“[A] request for post-indictment relief would necessarily
challenge the sufficiency of the evidence upon which the grand jury’s indictment is based.
As such, the target-turned-defendant must establish bad faith on the part of the prosecutor
as a prerequisite to obtaining a dismissal of the indictment.”); Buzbee v. Donnelly, 96 N.M.
692, 706-07, 634 P.2d 1244, 1258-59 (1981) (stating under former law that appellate courts
will not review challenges to the kind and degree of evidence presented to a grand jury
without an allegation of prosecutorial misconduct).

{11} Like the defendant in Romero, Defendant has not argued that his indictment was the
result of prosecutorial bad faith. Accordingly, we follow Romero and hold that “[i]n the
absence of prosecutorial bad faith, there is no clear statutory authority for judicial review .
. . [and] in the absence of clear statutory authority for judicial review, . . . the grand jury's
determination of probable cause is conclusive.” Romero, 2006-NMCA-105, ¶ 8.

B. Instruction on first-degree kidnapping

{12} Defendant also contends that the prosecutor did not properly instruct the grand jury

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on the necessary elements of first-degree kidnapping and argues that the resulting charge
should be dismissed. It is undisputed that a prosecutor has a duty to advise the grand jury
of the essential elements of the charges presented. See State v. Augustin M., 2003-NMCA-
065, ¶ 52, 133 N.M. 636, 68 P.3d 182. At issue in this appeal is what elements are
“essential” and must be presented to the grand jury when the State seeks an indictment for
first-degree kidnapping.

{13} Kidnapping is defined by NMSA 1978, Section 30-4-1(A) and (B) (2003).1 The
elements of Section 30-4-1(A) are set forth in UJI 14-403 NMRA and establish the offense
of second-degree kidnapping. See UJI 14-403 committee commentary (“This instruction is
for the crime of second degree felony kidnapping where the victim is freed without great
bodily harm having been inflicted.”). In a criminal trial, if the petit jury finds a defendant
guilty of kidnapping based on the elements in Subsection (A) as contained in UJI 14-403,
the jurors are then directed to use a special verdict form which asks them to consider the
elements contained in Subsection (B): (1) whether the Defendant voluntarily freed the
victim in a safe place, and (2) whether the defendant released the victim without physical
injury. See UJI 14-6018 NMRA. If the State meets its burden with regard to both
Subsections (A) and (B), then the accused may be convicted of first-degree kidnapping. If
the State meets its burden with regard to Subsection (A) but fails to establish the elements
contained in Subsection (B), then the accused may only be convicted of second-degree
kidnapping.

{14} In this case, the prosecutor’s instructions to the grand jury conformed with UJI 14-
403 and contained the elements found in Subsection (A). However, Defendant argues that
the prosecutor, in addition to presenting the essential elements of kidnapping found in UJI
14-403, was also required to present the special verdict form which contains the elements
in Subsection (B) in order to indict Defendant for first-degree kidnapping. UJI 14-6018.
Thus, Defendant suggests that the instructions found in the special verdict form are essential
elements that must be presented to the grand jury.

{15} The State raises two points in support of its position that the questions contained in
the special verdict form are not “essential elements” of first-degree kidnapping. First, the

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30-4-1. Kidnapping.
A. Kidnapping is the unlawful taking, restraining, transporting or confining of a person,
by force, intimidation or deception, with intent:
(1) that the victim be held for ransom;
(2) that the victim be held as a hostage or shield and confined against his will;
(3) that the victim be held to service against the victim’s will; or
(4) to inflict death, physical injury or a sexual offense on the victim.
B. Whoever commits kidnapping is guilty of a first degree felony, except that he is
guilty of a second degree felony when he voluntarily frees the victim in a safe place and does
not inflict physical injury or a sexual offense upon the victim.

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State contends that the inquiries set forth in the special verdict form are merely mitigating,
rather than essential, factors that reduce a charge of first-degree kidnapping to second-degree
kidnapping. We are inclined to disagree with this assessment.

{16} The elements in Subsection (A), found in UJI 14-403, if established, only support a
charge of second-degree kidnapping. If the State wishes to convict an accused of first-degree
kidnapping, it must also establish the elements in Subsection (B), contained in the special
verdict form. It follows that a prosecutor seeking to indict an accused for first-degree
kidnapping should also be required to present both the primary elements found in UJI 14-403
as well as the additional elements found in the special verdict form to the grand jury.

{17} The State’s second argument is that the special verdict form is used only if first-
degree kidnapping is “in issue” and states that first-degree kidnapping is not “in issue” until
different theories and divergent evidence is presented in an adversarial forum. See UJI 14-
6018 use note; State v. Barber, 2004-NMSC-019, ¶ 12, 135 N.M. 621, 92 P.3d 633. The
State’s position is premised on the idea that the special verdict form would ask the grand jury
to make a factual determination as to the Defendant’s conduct. The Court of Appeals stated
in Augustin M. that such determinations “are reserved for conviction or acquittal by a trial
jury after argument of counsel. We do not see the desirability, much less the necessity, of
requiring the grand jury to engage in the fine factual distinctions and evaluation of conduct
and causation . . . when it does not have the benefit of argument as to the significance of the
distinctions.” Augustin M., 2003-NMCA-065, ¶ 58. Therefore, the State argues that it was
unnecessary to present the elements in Subsection (B) at the grand jury stage because those
proceedings are not adversarial. See id. ¶ 59; see also Buzbee, 96 N.M. at 696, 634 P.2d at
1248 (stating that the grand jury “does not hear both sides but only the prosecution's
evidence, and does not [make] a choice between two adversaries” (internal quotation marks
and citation omitted)).

{18} This assessment appears to misapprehend the State’s burden with regard to
kidnapping. The elements set forth in the special verdict form are not affirmative defenses
that must be raised by a defendant at trial. Rather, it is the State’s burden to prove the
elements contained in the special verdict form in order to obtain a conviction for first-degree,
rather than second-degree, kidnapping. Therefore, it is not unreasonable to expect the State
to establish probable cause for the same elements at the grand jury stage.

{19} Although we appreciate the seriousness of this issue and believe that Defendant has
presented an actual controversy, we must decide this issue on another basis due to the fact
that the petit jury has already rendered its verdict. As we stated in State v. Ulibarri,

[t]he grand jury only makes a finding of probable cause. A defendant should
not be required to face a trial in the absence of probable cause. But at a trial
on the merits, the State has the obligation to prove not just probable cause but
guilt beyond a reasonable doubt. Like difficulties with the quality or type of
evidence relied upon by the grand jury in returning an indictment, any

5
 question of probable cause is necessarily obviated by a finding of guilt.

2000-NMSC-007, ¶ 2, 128 N.M. 686, 997 P.2d 818 (citation omitted and emphasis added).
Had Defendant filed a timely petition for an extraordinary writ after the district court denied
his motion to dismiss the indictment, we would have had the opportunity to reach the merits
of this claim. See Davis v. Traub, 90 N.M. 498, 499, 565 P.2d 1015, 1016 (1977); In re
Grand Jury Sandoval County, 106 N.M. 764, 767, 750 P.2d 464, 467 (Ct. App. 1988)
(“where an irregularity prejudices the grand jury proceedings, as alleged here, a writ of
prohibition dismissing indictment may properly issue.”). However, because the petit jury
was properly instructed on all of the elements of first-degree kidnapping and found
Defendant guilty, then “any question of probable cause is necessarily obviated” by the jury’s
finding of guilt. Id. It is too late now to inquire into the evidence presented to the grand jury
or the finding of probable cause by the grand jury.

Juror Interruption During Opening Statement

{20} During the State’s opening argument, the trial judge stopped the proceedings after
a juror signaled for his attention and appeared as if she was getting ready to leave the jury
box. The judge conducted an individual voir dire of the juror in chambers where the juror
stated that she was physically affected by the opening statements and felt she was unable to
continue sitting through the trial. The trial judge excused the juror for cause, and Defendant
requested a mistrial based on the juror’s “highly unusual interruption and high-profile
replacement.”

{21} “‘We review a trial court’s denial of a motion for mistrial under an abuse of
discretion standard.’” State v. Fry, 2006-NMSC-001, ¶ 52, 138 N.M. 700, 126 P.3d 516
(quoting State v. Gonzales, 2000-NMSC-028, ¶ 35, 129 N.M. 556, 11 P.3d 131). “An
‘[a]buse of discretion exists when the trial court acted in an obviously erroneous, arbitrary,
or unwarranted manner.’” Id. ¶ 50 (quoting State v. Stills, 1998-NMSC-009, ¶ 33, 125 N.M.
66, 957 P.2d 51 (alteration in original)).

{22} It is not contested that the trial court properly excused the affected juror. Instead,
Defendant argues that the dismissal of one juror may have tainted the remaining jurors,
thereby implicating his right to a fair trial by an unbiased jury. Cf. State v. Gardner, 2003-
NMCA-107, ¶12 , 134 N.M. 294, 76 P.3d 47 (holding that trial court did not abuse its
discretion by declining to grant mistrial after dismissing one juror for cause in absence of
evidence of bias among remaining jurors). We recognize that “a lone biased juror
undermines the impartiality of an entire jury,” id. ¶ 10, and therefore, a mistrial may be
warranted if the juror’s interruption and dismissal “unfairly affected the jury's deliberative
process and resulted in an unfair jury,” id. ¶ 12 (internal quotation marks and citation
omitted). See also 50A CJS Jury § 518 (“A mistrial generally should be granted only when
bias is fixed in the minds of the jurors so as to preclude a fair and objective verdict.”).
However, to prevail on his claim, Defendant bears the burden to establish that the jury was
not fair and impartial, and must demonstrate bias or prejudice on the part of the remaining

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jurors. See Gardner, 2003-NMCA-107, ¶¶ 9-10; State v. Price, 104 N.M. 703, 708, 726 P.2d
857, 862 (Ct. App. 1986).

{23} Defendant has not presented any evidence to establish that the dismissal of the
affected juror compromised the remaining jurors’ ability to be fair and impartial. See
Gardner, 2003-NMCA-107, ¶ 10. Here, the trial judge stated that he had watched the jurors
as they listened to the State’s opening argument, but the judge offered no indication that the
remaining members of the panel were impacted by the interruption. Defendant has made no
claim that there were improper communications among the jurors that would tend to indicate
bias. We consider it unlikely that the affected juror’s personal bias infected the remaining
panel “because the trial court excused her from service and replaced her with an alternate,
which is the appropriate remedy when a juror exhibits apparent bias.” Id. ¶ 12. Given the
early stage of the trial, the discreet way the juror signaled the judge, and the judge’s
observation that the other jurors were paying attention, a mistrial was not indicated in this
case. Therefore, we conclude that “the trial court's finding was not against the logic and
effect of the facts and circumstances before the court,” and the trial judge properly rejected
Defendant’s request for a mistrial. Id. (internal quotation marks and citation omitted).

{24} Before resuming with the trial after the juror’s excusal, the judge and counsel
discussed what course of action to take. Defense counsel requested that the trial court
individually voir dire the remaining jurors. The State responded that the jurors should be
presumed to follow the trial court’s instruction, but suggested that the court offer a curative
instruction to explain the juror’s absence. The trial court ultimately declined both
suggestions in an effort to avoid calling additional attention to the matter. Although a voir
dire of the remaining jurors would have produced a helpful record for our review, the trial
judge offered a compelling reason for his decision, fearing that additional instruction might
prove more prejudicial than helpful. We have recognized that

[i]n the case of alleged juror misconduct, a decision of the trial court to voir
dire a jury is a matter of discretion limited only by the essential demands of
fairness. If there is no evidence of probable juror impropriety, the trial court
does not abuse its discretion by refusing to voir dire the jury.

State v. Case, 100 N.M. 714, 719, 676 P.2d 241, 246 (1984). We find no abuse of discretion
in this instance.

Juror Bias

{25} Defendant contends that the trial court should have sua sponte declared a mistrial
after two jurors approached the bailiff and asked if there was any chance that the case would
be resolved by a plea bargain and not continue into the following week. Defendant argued
at trial that these questions suggested that the jurors had violated their oath to keep an open
mind, and, accordingly, Defendant requested that the court voir dire the two jurors and
reissue its instructions to refrain from discussing the case. The trial judge granted both

7
requests, and after additional voir dire none of the jurors indicated they had made up their
minds about the trial. The trial judge reminded the jurors not to discuss the case with anyone
else, including court staff, and proceeded with the trial.

{26} Defendant never requested a mistrial but, citing State v. Franklin, 78 N.M. 127, 428
P.2d 982 (1967), and State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985), contends
that the trial court nevertheless should have declared a mistrial on its own motion. Because
this issue was not raised with the trial court, we review Defendant’s claim for fundamental
error. See State v. Allen, 2000-NMSC-002, ¶ 95, 128 N.M. 482, 994 P.2d 728 (“When the
trial court had no opportunity to rule on a [claimed error] because the defendant did not
object in a timely manner, we review the claim on appeal for fundamental error.”).

{27} “The doctrine of fundamental error, embodied in Rule 12-216(B)(2)[ NMRA], is an
exception to the general rule requiring preservation of error.” State v. Cunningham, 2000-
NMSC-009, ¶ 10, 128 N.M. 711, 998 P.2d 176. “Error that is fundamental must be such
error as goes to the foundation or basis of a defendant's rights or must go to the foundation
of the case or take from the defendant a right which was essential to his defense and which
no court could or ought to permit him to waive.” State v. Garcia, 46 N.M. 302, 309, 128
P.2d 459, 462 (1942). “Fundamental error only applies in exceptional circumstances when
guilt is so doubtful that it would shock the judicial conscience to allow the conviction to
stand.” State v. Baca, 1997-NMSC-045, ¶ 41, 124 N.M. 55, 946 P.2d 1066 (citing State v.
Aguilar, 117 N.M. 501, 507, 873 P.2d 247, 253 (1994)).

{28} Courts rarely grant a motion for mistrial based on mere equivocal evidence of
possible juror bias or prejudice, even with the potential to negatively impact a trial. See
Case, 100 N.M. at 719-20, 676 P.2d at 246-47 (deciding that trial court did not err in finding
that equivocal evidence was insufficient to justify a mistrial for juror misconduct where third
party allegedly overheard statements by jurors during a recess indicating that the defendant
was going to be found guilty); Price, 104 N.M. at 708, 726 P.2d at 857 (holding that trial
court’s curative instruction was sufficient and mistrial was not indicated after a juror
interrupted the State’s cross-examination of the defendant to ask if it was safe to allow the
defendant to be within proximity of a weapon); Gardner, 2003-NMCA-107, ¶ 9 (trial court
sufficiently protected defendant’s right to fair trial by dismissing a juror for cause after juror
made inappropriate comment about the defendant’s guilt, without conducting voir dire of the
remaining jurors or offering curative instructions).

{29} We recognize that trial courts have considerable discretion and a variety of remedies
to address allegations of juror bias, including individual voir dire, curative instructions, and
if necessary dismissal of an affected juror for cause. As an initial matter, the comments
made by these two jurors are not necessarily indicative of bias or prejudice. Rather than
suggesting an opinion about Defendant’s guilt or innocence, the State proposes that the
inquiry may have been nothing more than an attempt by the jurors to determine their
schedules for the following week. Nevertheless, the trial court correctly undertook the
necessary steps to determine whether bias or prejudice existed in the minds of the jurors by

8
first conducting a voir dire of the entire jury and then by offering a curative instruction.
Because the jurors indicated that they had not formed preconceived ideas about Defendant’s
guilt, the trial judge reasonably declined to take the additional step of dismissing individual
jurors or declaring a mistrial. We think that the trial court’s actions in this case were
measured and appropriate in light of controlling case law. Accordingly, we find no
fundamental error.

Additional Questions

A. Sufficiency of the Evidence to Sustain the Convictions.

{30} Defendant next argues for reversal on the basis that the evidence presented at trial
is insufficient to support his convictions. “In reviewing the sufficiency of the evidence, we
must view the evidence in the light most favorable to the guilty verdict, indulging all
reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.”
State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. “‘The relevant
question is whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’” State v. Garcia, 114 N.M. 269, 274, 837 P.2d 862, 867 (1992) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

{31} In this case, Defendant fails to identify any specific element or offense that is
allegedly unsupported by substantial evidence. Defendant unreasonably asks this Court to
perform a blanket review of each element of every offense for which he was convicted, and
without pointing to evidence on the record, Defendant is essentially asking this Court to re-
weigh the evidence against him. Neither role is appropriate for an appellate court on direct
appeal. See State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789 (“The
reviewing court does not weigh the evidence or substitute its judgment for that of the fact
finder as long as there is sufficient evidence to support the verdict.”).

{32} Moreover, there is substantial evidence in support of the jury’s verdict. At trial, four
police officers positively identified Defendant as the man they observed on the night of the
murder. Additional circumstantial evidence linked Defendant’s presence in the area to the
murder. The officers saw Defendant jump over the wall enclosing the Hogan’s gated
neighborhood and later found two duffel bags near the location where Defendant was first
spotted; the bags contained personal items belonging to the Hogans and items used in the
attack. The officers also observed that Defendant had a fresh cut on his cheek. After
initially cooperating with the police officers, Defendant evaded arrest and fled to Mexico.
The prosecution also established motive, based on Jim Hogan’s false accusation regarding
the missing watch. We conclude that the evidence of record is sufficient to support
Defendant’s convictions.

{33} As additional support for his insufficient evidence claim, Defendant raises allegations
of possible bias and tampering with the evidence against him. However, we recall that

9
“[c]ontrary evidence supporting acquittal does not provide a basis for reversal because the
jury is free to reject Defendant’s version of the facts.” State v. Rojo, 1999-NMSC-001, ¶ 19,
126 N.M. 438, 971 P.2d 829. We conclude that substantial evidence exists to support the
jury’s verdict of guilt beyond a reasonable doubt.

B. Ineffective Assistance of Counsel

{34} To prevail on this claim, “[D]efendant must first demonstrate error on the part of
counsel, and then show that the error resulted in prejudice.” State v. Bernal, 2006-NMSC-
050, ¶ 32, 140 N.M. 644, 146 P.3d 289 (citing Strickland v. Washington, 466 U.S. 668, 690,
692 (1984)). “Although the assistance provided by trial counsel is presumptively adequate,
an attorney's conduct must not fall below that of a reasonably competent attorney.” State v.
Holly, 2009-NMSC-004, ¶ 36, 145N.M. 513, 201 P.3d 844. A defendant must demonstrate
that counsel's errors were so serious that the result of the proceeding would have been
different. State v. Schoonmaker, 2008-NMSC-010, ¶ 32, 143 N.M. 373, 176 P.3d 1105.

{35} Defendant claims that his trial counsel erred by failing to “present a defense by
investigating and challenging evidence and by raising various and sundry issues.” However,
Defendant has not suggested that, but for his attorney’s error, the outcome of his trial would
have been different. Although Defendant has failed to establish a claim of ineffective
assistance of counsel, we reach this conclusion without prejudice to Defendant’s pursuit of
habeas corpus proceedings on this issue and the development of a factual record. See State
v. Gonzales, 2007-NMSC-059, ¶ 16, 143 N.M. 25, 172 P.3d 162.

C. Pro Se Motion to Dismiss

{36} Defendant asks this Court to consider whether the trial court erred in denying his pro
se motion to dismiss for failure to comply with Rule 5-604 NMRA, regarding the time of
commencement of trial. In this case, this Court granted three stipulated extensions pursuant
to Rule 5-604. Defendant argues that he was never made aware of, and had not personally
consented to any extensions. However, both the prosecutor and defense counsel consented
to the extensions in an effort to adequately prepare for trial.

{37} Defense counsel characterized Defendant’s motion as an assertion of his right to a
speedy trial, and the trial court evaluated Defendant’s claim under the four-factor test set
forth in State v. Coffin, 1999-NMSC-038, ¶ 55, 128 N.M. 192, 991 P.2d 477 (citing Barker
v. Wingo, 407 U.S. 514, 530 (1972) (balancing (1) the length of delay, (2) the reason for the
delay, (3) defendant’s assertion of his right, and (4) prejudice to the defendant)). The trial
court ultimately concluded that the Barker factors did not weigh in favor of dismissal and
denied Defendant’s motion.

{38} A district court weighing the four speedy-trial factors must make both factual
determinations and legal conclusions. “When reviewing a district court's denial of a motion
to dismiss on speedy trial grounds, we give deference to the court's factual findings.” State

10
v. Maddox, 2008-NMSC-062, ¶ 8, 145 N.M. 242, 195 P.3d 1254. In this case, Defendant
has not presented any factual evidence or legal authority to contradict the district court’s
denial of his pro se motion to dismiss based upon an alleged violation of his speedy trial
rights. Accordingly, without more, we have no basis to find that Defendant’s right to a
speedy trial was violated, and conclude that the trial court did not err in denying Defendant’s
pro se motion.

D. Actual Innocence

{39} Defendant asks that his convictions be overturned based on a claim of actual
innocence. We have recognized that freestanding claims of actual innocence may be raised
in habeas corpus proceedings based on the discovery or availability of new evidence. See
Montoya v. Ulibarri, 2007-NMSC-035, ¶ 30, 142 N.M. 89, 163 P.3d 476 (“[A] petitioner
asserting a freestanding claim of innocence must convince the court by clear and convincing
evidence that no reasonable juror would have convicted him in light of the new evidence.”).
However, because a claim of actual innocence is predicated on new evidence, and would
therefore ask an appellate court to look beyond the trial record, such claims may not be
appropriate on direct appeal. Without deciding this issue, we decline consideration of
Defendant’s claim because he has not presented any evidence or otherwise demonstrated that
he is actually innocent and that “no reasonable juror would have convicted him.” Id.

CONCLUSION

{40} For the reasons stated in this opinion, we affirm.

{41} IT IS SO ORDERED.

RICHARD C. BOSSON, Justice

WE CONCUR:

EDWARD L. CHÁVEZ, Chief Justice

PATRICIO M. SERNA, Justice

PETRA JIMENEZ MAES, Justice

Topic Index for State v. Gallegos, No. 30,453

Criminal Law

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CL-KP Kidnapping

Criminal Procedure

CA-EO Elements of Offense
CA-GJ Grand Jury
CA-IN Indictment
CA-JI Jury Instructions

Evidence

EV-HR Hearsay Evidence

Juries

JR-IJ Impartial Jury
JR-IC Improper Juror Communication
JR-PJ Propriety of Juror Conduct

Jury Instructions

JI-CJ Criminal Jury Instructions

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