State v. Wilson

Certiorari Denied, December 23, 2009, No. 32,074
Certiorari Denied, January 6, 2010, No. 32,071

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMCA-018

Filing Date: October 20, 2009

Docket No. 28,138

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

TERRY WILSON,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Denise Barela Shepherd, District Judge

Gary K. King, Attorney General
Santa Fe, NM
Max Shepherd, Assistant Attorney General
Albuquerque, NM

for Appellee

Hugh W. Dangler, Chief Public Defender
Mary A. Barket, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION

SUTIN, Judge.

{1} Defendant appeals his convictions for trafficking a controlled substance (cocaine) and
conspiracy to traffic cocaine within a drug-free school zone. We address whether there was
sufficient evidence to support his conspiracy conviction and whether he was denied his right to a

1
speedy trial. To resolve this appeal, we address a question we declined to reach in State v. Montes,
2007-NMCA-083, 142 N.M. 221, 164 P.3d 102, which is whether the term “knowingly” in NMSA
1978, § 30-31-20(C) (1990) (amended 2006), requires the State to prove knowledge of the drug-free
school zone as an essential element of distributing drugs in a drug-free school zone. We conclude
that knowledge is an essential element and that the evidence was insufficient to support Defendant’s
conspiracy conviction. Accordingly, we remand for entry of judgment and resentencing on the
lesser offense of conspiracy to traffic cocaine. We reject Defendant’s speedy trial claim and affirm
his conviction for trafficking a controlled substance.

BACKGROUND

{2} On March 9, 2006, at 5:40 p.m., Albuquerque Police Department Detectives Sallee and Riley
were patrolling the area near Zuni Road and Louisiana Boulevard seeking to make undercover
street-level drug buys. They saw Defendant walking southbound down Indiana Street, made eye
contact with him, and pulled into the parking lot of an apartment complex at 429 Indiana Street.
Defendant asked them what they wanted, and Detective Sallee asked “Can you get a stone? Or a
[forty] even better.” Defendant said he was on his way to “pick up down the street.” While the
detectives waited, Defendant walked southbound until he met up with another individual, Mr.
Hightower, just north of the intersection of Indiana Street and Bell Avenue. After a conversation,
Defendant and Mr. Hightower returned to the detectives’ car.

{3} Mr. Hightower and Defendant approached the passenger side of the car and Mr. Hightower
negotiated a drug deal with the detectives. He said he had thirty dollars worth of cocaine, but would
sell it to them for twenty if they would let him “pinch a little bit.” Detective Sallee explained during
his testimony that “pinching” means “we’d let him take a little piece off and smoke it together or
take a piece off[] so he could smoke it.” The detectives agreed, and Detective Riley gave Mr.
Hightower and Defendant each a twenty dollar bill. Detective Sallee told Detective Riley he had
given them too much money, whereupon Defendant gave his twenty back. Mr. Hightower gave the
cocaine to Detective Riley, and Defendant and Mr. Hightower got into the back seat. The detectives
gave the arrest signal, and the arrest team arrived and arrested Defendant and Mr. Hightower.

{4} At the time, neither detective realized or knew that the transaction might have occurred in
a drug-free school zone. Defendant was originally charged with trafficking cocaine and conspiracy
to traffic cocaine. It was only later that the investigator at the District Attorney’s Office, utilizing
a computer program designed to determine whether a location falls within one thousand feet of a
school, typed in 429 Indiana Street and realized that the transaction had occurred within a drug-free
school zone. The investigator later conducted measurements establishing that the drug transaction
occurred 893 feet from Emerson Elementary School, which was located at the end of the street.
When Defendant was indicted, he was charged with trafficking cocaine while within a drug-free
school zone and conspiracy to traffic while within a drug-free school zone.

{5} The jury did not convict Defendant of trafficking cocaine within a drug-free school zone.
Instead, the jury selected the lesser, generic offense of trafficking cocaine. It did, however, convict
him of conspiracy to traffic cocaine while within a drug-free school zone.

DISCUSSION

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I. Sufficiency of Evidence

A. Trafficking In a Drug-Free School Zone

{6} Defendant argues that the evidence was insufficient to support his conviction for conspiracy
to traffic drugs within a drug-free school zone because the evidence did not establish that he was
aware of or intended to traffic within a drug-free school zone. Before reviewing the evidence in this
case, we examine the statutory framework to determine the elements that the State must prove.
Trafficking a controlled substance consists of intentionally trafficking. See § 30-31-20(B). In
addition to trafficking a controlled substance, the Legislature also created an additional offense for
trafficking drugs while within a drug-free school zone. See § 30-31-20(C). Section 30-31-20(C)
states: “A person who knowingly violates Subsection [(B)] of this section within a drug-free school
zone excluding private property residentially zoned or used primarily as a residence is guilty of a
first degree felony.” A drug-free school zone was defined in the applicable 2005 version as “a
public school or property that is used for public school purposes and the area within one thousand
feet of the school property line, but it does not mean any post-secondary school.” NMSA 1978, §
30-31-2(Y) (2005) (amended 2006, 2008, and 2009); 2005 N.M. Laws, ch. 152, § 9.

{7} We next examine whether the State must prove knowledge when it seeks a conviction for
selling drugs within a drug-free school zone. In Montes, 2007-NMCA-083, ¶ 34, this Court stated,
“If [the d]efendant intended to argue that knowledge or intent of the location of transfer is an
essential element of principal liability for this enhanced crime and that the jury should have been
instructed accordingly, he has not clearly made that argument on appeal, and he did not make that
argument below.” We recognized that the statute contained the word “knowingly,” but did not reach
the meaning of that term. Id. Consequently, we left “for another day the question whether the crime
of distribution in a drug-free school zone requires a mental state regarding the location of
distribution.” Id. To support the defendant’s conspiracy conviction, we reviewed the evidence to
determine whether there was evidence that the defendant intended that the transfer occur in a drug-
free school zone and found there was sufficient evidence. Id. ¶ 38.

{8} In this case, however, the argument concerning knowledge was preserved. Defendant asked
the court to dismiss the drug-free school zone conspiracy count, arguing that the statutory definition
required that a person must knowingly conspire to act within a drug-free school zone. Defendant
argued that there was no evidence that he knowingly conspired to traffic within the drug-free school
zone and also argued that he had no intent to commit trafficking within a drug-free school zone. In
response, the State relied on Montes to argue that neither knowledge of the drug-free school zone,
nor intent to traffic in the zone, were required. Defendant argued that the issue was not preserved
in Montes, but that he was “raising that issue now.” The court rejected Defendant’s argument,
stating that “there isn’t an intent requirement included in [S]ubsection [(C)] that he or the offender
knowingly or intentionally trafficked in a drug[-]free school zone.” The court expressed that the
intent requirement in Subsection B was only in reference to a person who intentionally traffics.

{9} Because the issue of knowledge is squarely presented here, we now consider the issue we
declined to reach in Montes. The issue concerns statutory construction so our review is de novo.
State v. McClendon, 2001-NMSC-023, ¶ 2, 130 N.M. 551, 28 P.3d 1092. We begin with the
language of the statute to determine legislative intent. See State v. Baca, 2005-NMCA-001, ¶ 9, 136
N.M. 667, 104 P.3d 533 (filed 2004). “If the language of the statute is clear and unambiguous, we

3
must give effect to that language and refrain from further statutory interpretation.” State v.
McWhorter, 2005-NMCA-133, ¶ 5, 138 N.M. 580, 124 P.3d 215. The statute must be read as a
whole, construing each section so as to produce a harmonious whole. See Baca, 2005-NMCA-001,
¶ 9.

{10} In evaluating the element of knowing conduct, the existence of Defendant’s requisite
knowledge is an issue of fact. As with other questions concerning the sufficiency of evidence, we
view evidence of Defendant’s knowledge in the light most favorable to the verdict. See State v.
Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. Then we determine “whether
the evidence viewed in this manner could justify a finding by any rational trier of fact that each
element of the crime charged has been established beyond a reasonable doubt.” State v. Apodaca,
118 N.M. 762, 766, 887 P.2d 756, 760 (1994) (internal quotation marks and citation omitted).

{11} Trafficking a controlled substance, as defined in Subsection (B), only requires that the act
be intentional. Section 30-31-20(B) (stating that “it is unlawful to intentionally traffic”).
“Intentional” refers to general criminal intent, the requirement that a defendant generally intend to
commit the act. See UJI 14-141 NMRA (stating that “[a] person acts intentionally when he
purposely does an act which the law declares to be a crime, even though he may not know that his
act is unlawful” (alteration omitted)). Under Subsection (B), commission of the first offense is a
second degree felony; subsequent offenses are punished as a first degree felony. See § 30-31-20(B).

{12} In Subsection (C), the Legislature created an enhanced offense for trafficking drugs within
a drug-free school zone. Section 30-31-20(C) provides that “[a] person who knowingly violates
Subsection [(B)] of this section within a drug-free school zone excluding private property
residentially zoned or used primarily as a residence is guilty of a first degree felony.” (Emphasis
added.) Comparing the two subsections, Subsection (B) requires intentional conduct.
“Intentionally” is not the same as “knowingly.” See State v. Hargrove, 108 N.M. 233, 236, 771 P.2d
166, 169 (1989) (stating that “intentionally” and “knowingly” are separate concepts). By contrast,
Subsection (C) incorporates Subsection (B)’s requirement of intentional conduct and adds an
additional requirement that the offense be committed “knowingly.” We conclude that the
Legislature’s deliberate selection of the word “knowingly” requires specific knowledge that the
offense will occur within the drug-free school zone. See State v. Baca, 1997-NMSC-018, ¶ 5, 123
N.M. 124, 934 P.2d 1053 (equating “knowingly” in the forgery statute with requiring knowledge);
Hargrove, 108 N.M. at 235-36, 771 P.2d at 168-69 (holding that “knowingly,” as used in the statute
prohibiting incest, includes the requirement that the offender have knowledge that the victim is
within the prohibited degree of consanguinity); Territory v. Cortez, 15 N.M. 92, 94, 103 P. 264, 264
(1909) (holding that the use of the word “knowingly” made knowledge an element of the crime of
knowingly killing or depriving owners of their animals).

{13} We are to construe each section so as to produce a harmonious whole. See Baca, 2005-
NMCA-001, ¶ 9. From reading each part of Section 30-31-20, it is apparent that the Legislature
intended to create a hierarchy of criminal culpability depending on where the drug transaction
occurred and whether the offender had specific knowledge that he was within the zone of increased
culpability. See State v. Padilla, 2008-NMSC-006, ¶ 14, 143 N.M. 310, 176 P.3d 299 (noting that
the statute prohibiting aggravated fleeing from a police officer “suggests a hierarchy of criminal
liability based on the aggravated nature of a defendant’s conduct”). The two subsections are
distinguished by the heightened knowledge requirement in Subsection (C), and by the fact that a

4
conviction under Subsection (C) is punished more harshly than a first offense under Subsection (B).
Cf. Santillanes v. State, 115 N.M. 215, 222, 849 P.2d 358, 365 (1993) (stating that when a crime is
punishable as a felony, a higher mens rea requirement is appropriate). By using the word
“knowingly” the Legislature included an additional knowledge requirement as a prerequisite for
conviction of the more severe offense and the imposition of its harsher punishment. To construe
Subsection (C) otherwise would read the word “knowingly” out of the statute, which we will not do.
See State v. Javier M., 2001-NMSC-030, ¶ 32, 131 N.M. 1, 33 P.3d 1 (stating that the appellate
courts are to construe statutes so that no part is rendered superfluous). Interpreting Subsection (C)
to include a knowledge requirement gives meaning to all of the words in the statute and produces
a sensible and harmonious whole.

B. Conspiracy to Traffic In a Drug-free School Zone

{14} Having defined the meaning of Subsection (C), we next examine the requirements of
conspiracy. “Conspiracy consists of knowingly combining with another for the purpose of
committing a felony.” NMSA 1978, § 30-28-2(A) (1979). The agreement is the gist of conspiracy.
See State v. Baca, 1997-NMSC-059, ¶ 46, 124 N.M. 333, 950 P.2d 776. “[C]ircumstantial evidence
can be used to prove a conspiracy.” State v. Hernandez, 104 N.M. 268, 278, 720 P.2d 303, 313 (Ct.
App. 1986).

{15} To establish conspiracy, the State had to establish beyond a reasonable doubt that Defendant
and another person by words or acts agreed together to commit the crime of trafficking drugs, and
committing that crime while within a drug-free school zone. UJI 14-2810 NMRA. And, as we have
discussed, the State had to prove beyond a reasonable doubt that Defendant, as a conspirator, had
the requisite knowledge.

C. The Evidence

{16} The evidence established that Defendant made an agreement with Mr. Hightower, that he
shared the purpose of trafficking drugs, and that he intended that the drugs be sold. However,
beyond that, one must speculate that Defendant knew that the drugs would be sold in a drug-free
school zone. In contrast to Montes, in which there was evidence that the defendant knew that the
“ultimate purchaser[] . . . was likely waiting at [a] school[,]” there is no evidence that Defendant
knew the drug transaction would occur at or near a school. Montes, 2007-NMCA-083, ¶ 38. Even
the undercover detectives, who were likely aware of the significance of drug-free school zones, did
not realize that the case may have involved a drug-free school zone. There exists no evidence that
Defendant knew the transaction would occur within a drug-free school zone. The lone fact that the
school may have been visible at a distance of 893 feet does not suffice to prove conspiracy to traffic
cocaine within a drug-free school zone beyond a reasonable doubt. See Mariano R., 1997-NMCA-
018, ¶ 5 (holding that the evidence was insufficient to prove that the conspirator knew that anyone
planned to fire a shot from the vehicle and that one would have to impermissibly speculate to uphold
the verdict).

{17} The State does not make any argument that the evidence was sufficient to establish
knowledge that the transaction would occur in a drug-free school zone. The State expressly
concedes that there was insufficient evidence for conviction for conspiring to traffic in a drug-free
school zone, but this concession is made based only on a theory of legal impossibility and not on

5
the basis that the evidence was insufficient to prove knowledge. According to the State, the only
reason why Defendant could not be convicted of conspiring to sell drugs in a drug-free school zone
was that it was legally impossible for Defendant to commit the crime of trafficking in a drug-free
school zone because Defendant conspired to sell drugs in a private parking lot—by definition not
a drug-free school zone. The defense of legal impossibility has “perplexed our courts and has
resulted in many irreconcilable decisions, ” State v. Lopez, 100 N.M. 405, 407, 671 P.2d 653, 655
(Ct. App. 1983), and “the modern trend in most jurisdictions is to severely limit or abolish the
impossibility defense.” 1 Paul H. Robinson, Criminal Law Defenses § 85(a), at 423, (c) (1984)
(“The modern trend, evident in most jurisdictions, is to reject both factual and legal impossibility
as defenses.”). We decline the State’s invitation to follow the road less traveled, especially when
the simpler path we choose leads to the same conclusion that the evidence is insufficient.

{18} We emphasize that we decide this case based on its facts. Where distribution in a drug-free
school zone is charged, different facts could justify a different result. But in this case the sole fact
that the transaction took place 893 feet from a school, with no other evidence, is not sufficient to
establish the knowledge element of the crime beyond a reasonable doubt.

D. Location of Agreement

{19} The jury instruction given in this case suggested that the fact that the agreement between
Defendant and Mr. Hightower was made “while within” a drug-free school zone would support a
conviction for conspiracy to traffic in a school zone. On appeal, Defendant argues and the State
agrees that the location where the agreement is made is not the issue. We accept the State’s
concession. See State v. Trujillo, 2002-NMSC-005, ¶ 33, 131 N.M. 709, 42 P.3d 814; Montes, 2007-
NMCA-083, ¶¶ 29, 38 (focusing on where the transfer of drugs occurred); see also State v. Herrera,
86 N.M. 224, 226, 522 P.2d 76, 78 (1974) (stating that in construing a statute we consider the object
of the statute).

{20} We reverse Defendant’s conspiracy conviction. However, the question remains whether we
should remand for a new trial on this charge or whether we remand for entry of judgment on the
lesser charge of conspiracy to traffic. Under State v. Villa, 2004-NMSC-031, ¶ 9, 136 N.M. 367,
98 P.3d 1017, we may remand for entry of judgment on the lesser charge if the jury was instructed
on it. Because the jury was instructed on conspiracy to traffic, we remand for entry of judgment and
resentencing on conspiracy to traffic.

II. Instructions

{21} Defendant also challenges the relevant elements instruction regarding trafficking while
within a drug-free school zone because it did not contain a knowledge requirement as to location.
Our reversal on sufficiency grounds makes it unnecessary to address this claim, except to note that
the jury instruction lacks any element addressing intent or knowledge as to location and therefore
is fundamentally flawed. See State v. Castro, 2002-NMCA-093, ¶ 2, 132 N.M. 646, 53 P.3d 413
(stating that “[f]undamental rights of an accused . . . are implicated where the jury . . . [has not] been
instructed on an essential element of [the] crime” (second alteration in original) (internal quotation
marks and citation omitted)).

III. Speedy Trial

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{22} To determine whether a defendant’s constitutional right to a speedy trial has been violated,
we apply the four-factor balancing test set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972). State
v. Garza, 2009-NMSC-038, ¶ 13, 146 N.M. 499, 212 P.3d 387. The factors are the length of the
delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.
Barker, 407 U.S. at 530. We give deference to the district court’s factual findings. State v. Maddox,
2008-NMSC-062, ¶ 8, 145 N.M. 242, 195 P.3d 1254. We review de novo the weighing and
balancing of the Barker factors and ultimately whether a defendant’s speedy trial right was violated.
Maddox, 2008-NMSC-062, ¶ 8; State v. O’Neal, 2009-NMCA-020, ¶ 14, 145 N.M. 604, 203 P.3d
135 (filed 2008).

{23} Thus, while deferential to the district court’s fact finding, we independently balance the
Barker factors. Zurla v. State, 109 N.M. 640, 642, 789 P.2d 588, 590 (1990). We analyze right-
violation claims on a case-by-case basis and examine all four factors in order to weigh the conduct
of the prosecution and the defense, with no one factor as talismanic. State v. Urban,
2004-NMSC-007, ¶ 11, 135 N.M. 279, 87 P.3d 1061; see also Garza, 2009-NMSC-038, ¶¶ 11, 13
(stating that “the substance of the speedy trial right is defined only through an analysis of the
peculiar facts and circumstances of each case” and recognizing that “Barker’s formulation
necessarily compels courts to approach speedy trial cases on an ad hoc basis” (internal quotation
marks and citation omitted)).

A. Length of Delay

{24} Under the length-of-delay factor, we first decide whether the delay is presumptively
prejudicial. Garza, 2009-NMSC-038, ¶¶ 21-24. A presumptively prejudicial delay is a triggering
mechanism that requires further inquiry into each of the four Barker factors. Id. ¶ 21. In analyzing
presumptive prejudice, the district court characterized this as a case of intermediate complexity
“based on the facts and circumstances and the fact that there were two codefendants.” Although we
generally give deference to a district court’s characterization of a case’s complexity, see State v.
Plouse, 2003-NMCA-048, ¶ 42, 133 N.M. 495, 64 P.3d 522, we disagree with the court’s
determination here. Simple cases “require less investigation and tend to involve primarily police
officer testimony.” State v. LeFebre, 2001-NMCA-009, ¶ 11, 130 N.M. 130, 19 P.3d 825. “Cases
of intermediate complexity, on the other hand, seem to involve numerous or relatively difficult
criminal charges and evidentiary issues, numerous witnesses, expert testimony, and scientific
evidence.” State v. Laney, 2003-NMCA-144, ¶ 14, 134 N.M. 648, 81 P.3d 591. Although this case
involved a codefendant, nothing in the record indicates that this circumstance caused any significant
complexity. The case involved what appears to have been a not unusual police sting, a discrete
event, and the only witnesses of which we are aware from the record were two detectives and an
investigator from the District Attorney’s Office. In its brief in chief, the State concedes that this was
a simple case. However, after reviewing a late-filed transcript of the hearing on Defendant’s motion
to dismiss, the State argues in a sur-reply that the case was of intermediate complexity, although the
State acknowledges that “[t]his case did not present unusually difficult criminal charges or
evidentiary issues.” We are not persuaded that this is a case of intermediate complexity, and we
conclude that it falls in the simple-case category.

{25} Defendant’s motion to dismiss for a speedy trial violation was filed on July 13, 2007. At that
time, the applicable guideline for a presumption of prejudice in a simple case was nine months. See
Maddox, 2008-NMSC-062, ¶ 9; see also Garza, 2009-NMSC-038, ¶¶ 44, 48, 50 (changing the

7
applicable guideline from nine months to one year for cases in which the defendant’s motion to
dismiss for a speedy trial violation was initiated on or after August 13, 2007). Defendant’s motion
predated August 13, 2007; therefore, in the present case, a nine-month period of delay is
presumptively prejudicial.

{26} “In determining the weight to be given to the length of delay, we consider the extent to which
the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.”
State v. Stock, 2006-NMCA-140, ¶ 13, 140 N.M. 676, 147 P.3d 885 (internal quotation marks and
citation omitted); see also Garza, 2009-NMSC-038, ¶ 24 (considering the extent to which the delay
crossed over the “bare minimum needed to trigger judicial examination of the claim” (internal
quotation marks and citation omitted)).

{27} In this case, Defendant was arrested on March 9, 2006, and he was released on his own
recognizance on March 22, 2006. On April 26, 2006, he was arrested on an outstanding felony
warrant, and on May 9 and May 11, 2006, he was separately indicted on two different residential
burglary/larceny charges. Defendant was indicted in the present case on May 30, 2006, and a
statement of joinder with Mr. Hightower’s case was filed. Defendant was arraigned in this case on
June 9, 2006. In his motion to dismiss for violation of his speedy trial right, filed July 13, 2007,
Defendant measured delay from his indictment on May 30, 2006. Defendant did not argue in the
district court and does not take a definite position on appeal that his right attached when he was
arrested.

{28} We therefore measure the total lapse of time from Defendant’s indictment on May 30, 2006,
to the beginning of his trial on August 6, 2007. See Maddox, 2008-NMSC-062, ¶ 10 (calculating
the length of delay from the point “when the defendant becomes an accused, that is, by a filing of
a formal indictment or information or arrest and holding to answer” (internal quotation marks and
citation omitted)); Urban, 2004-NMSC-007, ¶ 12 (measuring the time from indictment because the
defendant “was not held to answer for [the] charges until the time of his indictment”).1

{29} “[T]he greater the delay the more heavily it will potentially weigh against the State.” Garza,
2009-NMSC-038, ¶ 24. In this case, the extent to which the delay exceeded the bare minimum was
just over five months. We cannot say that the extended time of five months in this case was
extraordinary, protracted, or otherwise a delay that requires us to weigh the length of delay factor
against the State more than slightly. Cf. id. ¶¶ 26-27, 30 (referring in the context of the reasons for
delay that a more neutral reason such as negligence and administrative delay, including overcrowded
dockets, is weighed “less heavily,” and the weight to be assigned depends on the length of delay,
such as whether it is extraordinary or protracted).

B. Reasons for Delay

1
We note that our Supreme Court determined in earlier cases that the right was
triggered by and the length of delay was measured from the defendant’s arrest. See State v.
Coffin, 1999-NMSC-038, ¶ 56, 128 N.M. 192, 991 P.2d 477; Salandre v. State, 111 N.M.
422, 425, 806 P.2d 562, 565 (1991), holding modified on other grounds by Garza, 2009-
NMSC-038; Zurla, 109 N.M. at 642, 789 P.2d at 590.

8
1. Standards to Analyze This Factor

{30} To analyze the Barker reasons-for-delay factor, we first turn to Garza and Maddox. Garza
quotes Barker’s statement that “[c]losely related to length of delay is the reason the government
assigns to justify the delay” and then quotes Maddox’s statement that “[t]he reasons for a period of
the delay may either heighten or temper the prejudice to the defendant caused by the length of the
delay.” Garza, 2009-NMSC-038, ¶ 25 (internal quotation marks and citation omitted). Thus, the
Court in Garza concentrated on assessing the government’s justification for the length of delay. See
id. ¶¶ 25-30 (discussing the weight to be assigned for lapses of time based on the government’s
actions or failures to act toward bringing a defendant to trial).

{31} In its analysis of the reasons for delay, Garza repeats the three different types of delay
identified in Barker and repeats Barker’s view that “different weights should be assigned to different
reasons.” Garza, 2009-NMSC-038, ¶ 25 (internal quotation marks and citation omitted). The types
are (1) deliberate or intentional delay, (2) negligent or administrative delay, and (3) delay for which
there is a valid reason. Id. ¶¶ 25-27. The first type, deliberate delay, is to be “weighted heavily
against the government.” Id. ¶ 25 (internal quotation marks and citation omitted). The second type,
negligent or administrative delay, is to be “weighted less heavily but nevertheless should be
considered” and is assigned a weight based on its protractedness. Id. ¶ 26 (internal quotation marks
and citation omitted). As to the third type, delay for a valid reason, the appellate court is ultimately
to “balance the reasonableness of the manner in which the State has moved a case toward trial
against the costs of going forward with a trial whose probative accuracy the passage of time has
begun by degrees to throw into question.” Id. ¶ 27 (internal quotation marks and citation omitted).

{32} The Court in Garza prescribed the following measuring scale: “Because the delay was
negligent, the extent to which it weighs against the State depends on the length of the delay.” Id.
¶ 30. To evaluate the length of the delay, the Court did not look solely at the full lapse of time from
attachment of the right to a speedy trial it had just evaluated. The Court also looked at the extent
to which the delay extended beyond the threshold to trigger the speedy trial inquiry—whether that
particular delay was extraordinary or protracted. Id. Because the delay extended only slightly
beyond the threshold to trigger the speedy trial inquiry, the Court held that the full amount of delay
due to negligence was “not extraordinary.” Id. Then the Court stated, “[a]ccordingly, because the
delay was negligent but not protracted, this factor weighs only slightly in [the d]efendant’s favor,”
a phrase that we read to also mean slightly against the State. Id.

{33} Because the parties in the present case were involved in plea negotiations during the period
between arraignment and trial, we consider the impact of such negotiations on the delay. Garza
does not specifically address the delay caused by plea negotiations. But Maddox does. In Maddox,
there were intermittent plea negotiations during the total period of delay. 2008-NMSC-062, ¶ 24.
The Court opened its discussion with the statement that “[g]enerally, there is no rule attributing
delay resulting from attempted plea negotiations to a specific party and absent some act of bad faith
or some prejudice to the defendant, plea negotiations are themselves not a factor to be held against
either party.” Id. (internal quotation marks and citation omitted). The Court nevertheless set the
following specific standards: “[P]lea negotiations are not an excuse for a delay in the prosecution
of a case” and “unsuccessful plea negotiations do not constitute a valid reason for suspending the
defendant’s right to a speedy trial.” Id. ¶ 25. The Court further stated that “the State is not excused
in its burden to timely try a defendant while waiting for defense counsel to respond to a plea offer”

9
and that “the State must affirmatively seek to move the case to trial, even while plea negotiations
are pending.” Id. ¶ 26. The Court in Maddox indicated that it would “weigh unreasonable periods
of delay against the State,” but that the time during which a defendant does not timely respond to
plea offers will weigh “only slightly against the State.” Id. Taking these various Maddox standards
into consideration, we read Maddox to require the delay from plea negotiations to be weighed
against the State when there exist measurable periods of negotiation.2 How heavily the delay is to
be weighed depends on the length of that delay and the amount of delay caused by a defendant in
failing to timely respond to a plea offer.

{34} Of course, there may exist periods of time during a case where it moves “toward trial with
customary promptness.” Id. ¶ 27. That period of time is to be weighed “neutrally between the
parties.” Id. Along the same line, Garza quotes Doggett v. United States, 505 U.S. 647, 656-57
(1992), as saying, “Our speedy trial standards recognize that pretrial delay is often both inevitable
and wholly justifiable” and refers to Doggett’s view that there are “acceptable and unacceptable
reasons for delaying a criminal prosecution.” Garza, 2009-NMSC-038, ¶¶ 26-27 (internal quotation
marks and citations omitted). Combining Maddox and Garza, it seems clear that certain periods of
time during a case which the State can demonstrate are “inevitable” or periods during which the case
is moved “toward trial with customary promptness” are not to be weighed against the State.

2. The Time Lapses Segmented

{35} Following Defendant’s June 9, 2006, arraignment, after two pretrial settings in September
and October, the district court set November 6, 2006, for a guilty plea and pretrial conference. It
appears that it was at some point early in this time frame that Mr. Hightower’s and Defendant’s
cases were joined. A stipulated extension of time to March 9, 2007, was filed December 1, 2006,
and was granted on December 4, 2006. On February 6, 2007, the court set a motions deadline for
February 23, 2007, and trial for March 5, 2007. On February 21, 2007, the State requested a
Supreme Court time extension continuing the March 5, 2007, trial date to September 9, 2007.

{36} During the period of May 30, 2006, to about February 21, 2007, the parties were engaged
in plea negotiations on three charges, one related to the present case and two related to other crimes
for which Defendant had been separately indicted. The State’s February 21, 2007, petition to the
Supreme Court for an extension of time appears to have emanated from several circumstances,
namely, while Defendant accepted pleas in his other criminal cases he rejected an offered plea in
the present case, Mr. Hightower was requesting a trial continuance, and a prosecution witness was
unavailable. Defendant objected to this extension request. On February 28, 2007, the Supreme
Court granted an extension to September 9, 2007. Noting that pretrial interviews were “ongoing,”
the district court continued the March 5, 2007, trial setting and noticed trial for April 30, 2007,
preceded by an April 17 docket call and an April 20 motions deadline.

2
We note that in State v. Marquez, 2001-NMCA-062, ¶ 18, 130 N.M. 651, 29 P.3d
1052, this Court stated that we do not weigh the period of plea negotiations against either
party. See State v. Eskridge, 1997-NMCA-106, ¶ 15, 124 N.M. 227, 947 P.2d 502 (stating
that “plea negotiations are themselves not a factor to be held against either party”). To the
extent those holdings are inconsistent with the specific standards set forth in Maddox, the
cases may be marginalized.

10
{37} On April 26, 2007, the court noticed a pretrial conference for May 21, 2007, and, based on
a motion filed by Mr. Hightower, the court on May 22, 2007, noticed trial for August 6, 2007. It
appears that the extensions and the April 30 and August 6, 2007, trial settings were primarily to
accommodate Mr. Hightower. On July 13, 2007, Defendant filed his motion to dismiss for violation
of his speedy trial right. The district court heard this motion on August 2, 2007, and determined that
the cases against Defendant and Mr. Hightower should be severed. A severance order was entered
on August 7, 2007. Defendant was tried and on August 9, 2007, he was convicted.

3. Evaluation of Lapses of Time

{38} The record is not as clear as we would like in regard to the demarcation of the events and
conduct causing or contributing to lapses of time. The period from the May 30, 2006, indictment
to the June 9, 2006, arraignment was negligible. We note that Defendant was released on his own
recognizance on March 22, 2006, and then arrested on an outstanding felony warrant on April 26,
2006. We do not weigh this short period against the State. There was a substantial period at the
beginning that included plea negotiations in this case, as well as in Defendant’s other felony cases.
The negotiations were successful in his other cases, but not in the present case. This was a period
of just over eight months from Defendant’s June 9, 2006, arraignment until February 21, 2007. A
portion of this time was included in the December 1, 2006, stipulated extension of time to March
9, 2007, and appears also to have included some delay based on the joinder of Mr. Hightower’s case.
For want of well-explained, particularized reasons other than plea negotiations behind the almost
six-month lapse of time up to December 1, 2006, we weigh that time slightly against the State. We
do not weigh the over three months of the stipulated extension from December 1, 2006, to March
9, 2007, against the State.

{39} The trial was reset from March 5, 2007, to April 30, 2007, but that setting was continued so
Mr. Hightower could obtain new counsel. The April 30, 2007, setting was vacated, apparently also
due to issues related to Mr. Hightower’s counsel, and on May 22, 2007, trial was reset for August
6, 2007. In the hearing on Defendant’s motion to dismiss, Defendant accused Mr. Hightower of
“playing games with the court system.” On appeal, Defendant refers to Mr. Hightower’s need for
new counsel as “misbehavior” and argues that the delay it caused should count against the State
because the State refused to sever the cases so that Defendant’s case could move forward. The
record, however, does not reflect that Defendant filed any motion to sever. The record reflects only
that on August 2, 2007, during the hearing on Defendant’s motion to dismiss, the court determined
that severance was necessary so that Defendant’s trial could “definitely go one way or the other.”
Trial began on August 7 and concluded on August 9, 2007.

{40} We are faced with a five-month delay from March 9, 2007 (the final date of the stipulated
extension), to August 7, 2007, occasioned principally by Mr. Hightower’s continuance requests.
This Court has not previously had the opportunity to consider how a delay caused by a codefendant
should be evaluated in a speedy trial analysis.

{41} This issue presents a tension between the individuals’ rights to a speedy trial and the
prosecution’s interest in conserving trial resources by avoiding multiple trials. See State v.
Littlefield, 457 So. 2d 558, 559 (Fla. Dist. Ct. App. 1984) (stating that “the trial court can deal with
the specific situation and balance the interests of the state in avoiding multiple trials against the
interest of the defendant in receiving a speedy trial”). Our research indicates different approaches

11
to the problem. Federal cases decided under the Federal Speedy Trial Act of 1974, 18 U.S.C. §§
3161-74 (1975, as amended through 2008), apply the general rule that continuances granted to a
codefendant are attributable to the defendant, as well. See, e.g., United States v. Noriega, 746 F.
Supp. 1548, 1559 (S.D. Fla. 1990) (stating that “whatever stops the [s]peedy [t]rial clock for one
defendant stops the clock for all codefendants, subject . . . to the requirement that the delay be
reasonable”). Federal cases have considered reasonable delays to ensure that a codefendant has
counsel as excludable from the defendant’s period of delay. See United States v. Westbrook, 119
F.3d 1176, 1187-88 (5th Cir. 1997) (holding that an approximate five-month delay caused by the
codefendant’s continuance to allow trial counsel to prepare and for preparation of transcripts from
the first trial was reasonable and did not establish a speedy trial violation); United States v.
Davenport, 935 F.2d 1223, 1236 (11th Cir. 1991) (holding that a seven-month continuance caused
by the codefendants’ need for additional time to prepare for trial and for the unavailability of defense
counsel was a reasonable delay, attributable to the defendant); United States v. Fogarty, 692 F.2d
542, 546 (8th Cir. 1982) (stating that the continuance caused by, in part, one codefendant’s counsel’s
trial conflict was excludable from the period of delay). Our search of the federal approach produced
only one case in which a court, faced with more than one year of delay caused by a continuance for
a codefendant, noted “rather extreme circumstances” and held that the delay was not reasonable and
resulted in a speedy trial violation as to the defendant. United States v. Jones, 56 F.3d 581, 584-85
(5th Cir. 1995).

{42} Another approach, taken in Kentucky, is that where a delay is caused by a codefendant, it
is not the fault of the state or the defendant, and therefore is not weighed against either. See
Bratcher v. Commonwealth, 151 S.W.3d 332, 344 (Ky. 2004) (reasoning that the delay was caused
by the codefendant, not the defendant or the state, and therefore should not be charged to either).
Other authority holds that delays caused by codefendants are weighed against the state, because the
state chose to join the codefendants. See Ruffin v. United States, 524 A.2d 685, 688-89 (D.C. 1987)
(per curiam) (stating that the government bears some burden for the delay caused by a codefendant’s
continuances where the government chose to join defendants, but in light of the policy
considerations favoring joinder, the delay was not weighed heavily against the government); Marks
v. State, 578 A.2d 828, 835 (Md. Ct. Spec. App. 1990) (recognizing that delay caused by
continuance requested by a codefendant was chargeable to the state because the state elected to try
the defendant and codefendant jointly). On the other hand, some cases have held that such
continuances are chargeable to the defendant if he did not object. See Turner v. United States, 443
A.2d 542, 546 (D.C. 1982) (stating that in the absence of an objection to a codefendant’s request for
continuance, the defendant’s assent would be inferred, and the delay would be chargeable to the
defendant); State v. Shelton, 281 S.E.2d 684, 689-90 (N.C. Ct. App. 1981) (stating that the delay
caused by a continuance to allow a codefendant a mental examination was chargeable to the
defendant because he did not object).

{43} We do not select and set in stone any particular approach. For the purposes of our
discussion, we will assume without deciding that reasonable delays caused by codefendants will
weigh against the State. In this case, we see no basis on which to weigh delays caused by Mr.
Hightower heavily against the State. We are not persuaded by Defendant’s argument that the State
should have severed the cases once Mr. Hightower’s continuance requests surfaced. Defendant
places full blame on the State for not severing the cases earlier than August 2, 2007, but Defendant
does not demonstrate that he moved for severance at any point. The district court’s approach, which
was to decide in August to sever when it became apparent that the delay caused by Mr. Hightower

12
would continue, was an appropriate balance of the interests of Defendant and the State. See State
v. White, 83 N.M. 354, 355, 491 P.2d 1165, 1166 (Ct. App. 1971) (determining that whether a
defendant is entitled to a separate trial is a matter to be resolved by the sound discretion of the
court); see also Rule 5-203(C) NMRA (requiring a defendant to demonstrate prejudice to obtain
severance). On this record, we disagree with Defendant’s characterization of the case as one in
which the State refused to sever the cases. Had Defendant actually moved for severance, this
argument might be more persuasive. But with no request by Defendant, the necessity for a
severance did not become apparent until August. Rather, the delay was caused primarily by Mr.
Hightower. We weigh the approximate five-month delay from March 9 to August 7, 2007, only
slightly against the State.

{44} To summarize the lapse of time evaluation, there were three major segments: approximately
six months, from June 9 to December 1, 2006, weighed only slightly against the State;
approximately three months, from December 1, 2006, to March 9, 2007, not weighed against the
State; and approximately five months, from March 9 to August 7, 2007, weighed only slightly
against the State. Eleven of the fourteen months are weighed against the State, albeit only slightly,
primarily because of the absence of well-explained, particularized reasons for delay given by the
State other than plea negotations, and because of the extended time spent attending to Mr.
Hightower’s activities. See Garza, 2009-NMSC-038, ¶¶ 25-30 (indicating that under the reasons
for delay factor the court analyzes “the reason the government assigns to justify the delay” and
concentrating on assessing those justifications). The slightness of weight attributed for these eleven
months is appropriate because there exists nothing to indicate particularized fault on the State’s part,
because some of the delay can be attributed to Defendant’s failure to move for a severance, and
because a portion of the eleven months must presumably be attributed to reasonable lapses of time
inherent in the trial process. See id. ¶ 27 (discussing delay for a valid reason); State v. Valencia,
2010-NMCA-005, ¶¶ 18, 20, 24, __ N.M. __, __ P.3d __ (No. 28,140, Oct. 2, 2009) (discussing
inevitable delay and periods during which a case moves toward trial with customary promptness).
The remaining three months are not weighed against the State because Defendant agreed to the
delay.

C. Assertion of the Right

{45} “Generally, we assess the timing of the defendant’s assertion and the manner in which the
right was asserted. Thus, we accord weight to the ‘frequency and force’ of the defendant’s
objections to the delay.” Garza, 2009-NMSC-038, ¶ 32 (citations omitted). “We also analyze the
defendant’s actions with regard to the delay.” Id. “[T]he timeliness and vigor with which the right
is asserted may be considered as an indication of whether a defendant was denied needed access to
speedy trial over his objection.” Id.

{46} Together with his entry of appearance and request for discovery, Defendant added a pro
forma motion for speedy trial on June 16, 2006, seven days after he was arraigned. This was his
only request for a speedy trial that preceded his motion to dismiss filed July 13, 2007, about three
weeks before the August 6, 2007, trial setting. We weigh this factor slightly in Defendant’s favor.
See id. ¶ 34 (holding that the defendant’s single assertion and motion to dismiss filed shortly before
trial weighed slightly in the defendant’s favor, where it was “tucked within the waiver of
arraignment and not guilty plea . . . [and] was not especially vigorous nor was it mitigated, however,
by any apparent acquiescence [by the defendant] to the delay”); Maddox, 2008-NMSC-062, ¶¶ 29-31

13
(stating that a pro forma demand is generally entitled to relatively little weight, that the defendant’s
assertion under the Interstate Agreement on Detainers weighed minimally in his favor, and the
defendant’s attempt to assert the right by a motion to dismiss filed five days before trial was “not
timely” and weighed slightly in his favor); Coffin, 1999-NMSC-038, ¶ 67 (stating that a second
request for a speedy trial, filed two weeks before trial, was not sufficient to weigh the factor in the
defendant’s favor).

D. Prejudice

{47} We consider three interests relevant to the prejudice-factor analysis: (1) to prevent
oppressive pretrial incarceration, (2) to minimize the accused’s anxiety and concern, and (3) to limit
the possibility of an impairment to the defense. Garza, 2009-NMSC-038, ¶ 35. Defendant has the
burden to demonstrate and substantiate prejudice. Id. ¶¶ 35-37. We weigh the first two interests in
the defendant’s favor only where the incarceration or the anxiety suffered is undue. Id. ¶ 35.

{48} Defendant has made no particularized showing to substantiate prejudice from undue pretrial
incarceration or undue anxiety. We will not speculate as to the impact of his pretrial incarceration
or the degree of anxiety he suffered. Id. Some degree of oppression and anxiety is inherent for
every defendant who is jailed while awaiting trial. Id. Defendant has not demonstrated that any
anxiety and concern he suffered was at all different from the anxiety and concern inherent in being
incarcerated, or having been in considerable contact with the criminal justice system over several
years.

{49} Further, Defendant offered no reason why or how his defense was impaired, except to argue
that he lost the opportunity to serve concurrent sentences and that he experienced anxiety and
concern. See Urban, 2004-NMSC-007, ¶ 19 (stating that the loss of the opportunity to serve
concurrent sentences can be cognizable prejudice). We are not persuaded that Defendant was
prejudiced to any degree sufficient to give this interest any weight in his favor. Whether his defense
might have been impaired to any degree is speculative. See Maddox, 2008-NMSC-062, ¶ 35
(determining that the defendant did not suffer undue prejudice from a claimed lost opportunity to
serve his sentences concurrently “because it is speculative as to how the district court may choose
to exercise its discretion in sentencing”). We do not weigh this factor in Defendant’s favor.

E. Balancing the Four Factors

{50} The approximate five-month delay beyond the presumptive nine-month period is not
compelling and weighs only slightly against the State. The reasons-for-the-delay factor weighs only
slightly against the State. Defendant’s assertion of the right is entitled to relatively little weight
favoring Defendant, and he has not shown tangible or particularized prejudice cognizable under the
prejudice factor. There exists no evidence of deliberate, extraordinary, or protracted delay on the
part of the State. See Garza, 2009-NMCA-038, ¶¶ 24, 26, 30 (discussing the consequences of
extraordinary or protracted delay). Defendant’s failure to make an affirmative showing of
particularized prejudice precludes any chance of success on his speedy trial motion where, as here,
the first and second factors weigh only slightly against the State and the assertion-of-right factor
weighs only slightly in Defendant’s favor. Thus, when we balance all of the required factors, we
conclude that Defendant’s right to a speedy trial has not been violated.

14
CONCLUSION

{51} We affirm Defendant’s conviction for trafficking a controlled substance. We reverse his
conviction for conspiracy to traffic within a drug-free school zone and remand for entry of judgment
on conspiracy to traffic cocaine and resentencing.

{52} IT IS SO ORDERED.

____________________________________
JONATHAN B. SUTIN, Judge

WE CONCUR:

____________________________________
CYNTHIA A. FRY, Chief Judge

____________________________________
RODERICK T. KENNEDY, Judge

Topic Index for State v. Wilson, No. 28,138

AE APPEAL AND ERROR
AE-PE Plain Error
AE-PA Preservation of Issues for Appeal
AE-PR Pro Se Representation on Appeal
AE-RA Record on Appeal
AE-SR Standard of Review
AE-SB Substantial or Sufficient Evidence

CT CONSTITUTIONAL LAW
CT-DP Due Process
CT-ST Speedy Trial

CL CRIMINAL LAW
CL-CL Controlled Substances
CL-CS Conspiracy
CA-DZ Drug-Free School Zone
CL-EL Elements of Offense

CA CRIMINAL PROCEDURE
CA-JI Jury Instructions
CA-LO Lesser Included Offense
CA-SE Substantial or Sufficient Evidence
CA-SP Speedy Trial
CA-SY Stay of Proceedings

15
GV GOVERNMENT
GV-ES Education and Schools

16