1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
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6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. No. 28,953
10 EDWARD GARCIA,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
13 James Waylon Counts, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 Jacqueline R. Medina, Assistant Attorney General
17 Albuquerque, NM
18 for Appellee
19 Hugh W. Dangler, Chief Public Defender
20 Nancy M. Hewitt, Assistant Appellate Defender
21 Santa Fe, NM
22 for Appellant
23 MEMORANDUM OPINION
24 SUTIN, Judge.
1 Defendant Edward Garcia appeals convictions of battery of a household
2 member and negligent use of a deadly weapon. The victim and complaining witness
3 was his mother, who told the police a short time after the incident that Defendant
4 grabbed her by the throat, pushed her, then he fired a shotgun down the hall after first
5 pointing it at her throat. During the first trial, the witness testified that Defendant had
6 grabbed her throat and that after he let go, she felt dizzy and fell to the floor. She
7 further testified that Defendant left the bedroom, returned with a shotgun and put it
8 on her chest. The witness also testified that Defendant then turned around and while
9 standing in the doorway to her bedroom, he fired the gun at a closet. Shortly after the
10 incident, Defendant told the investigating officers that he was very angry with his
11 mother and admitted grabbing her on the throat. He further admitted that he pushed
12 her into a house heater. He also admitted to the officers that he had fired a shotgun
13 in the house.
14 Defendant complains on appeal that he was denied the right to confront the
15 complaining witness by calling two doctors to show that the witness suffered from
16 dementia, and thus her testimony was not credible. In addition, he asserts that he was
17 denied his rights to a speedy trial, to speedy sentencing, to effective assistance of
18 counsel, and to not to be subjected to double jeopardy. We affirm.
19 Exclusion of Evidence
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1 Defendant sought to present the testimony of a physician and psychotherapist
2 (the doctors) who had examined his mother, to show that she could confabulate and
3 mistake facts due to the dementia diagnosed by the doctors. Defendant argued that
4 the testimony should be allowed because competency of a witness was a matter for the
5 jury and that Rule 11-601 NMRA on competency of a witness allowed a wide range
6 of impeachment. The district court excluded the testimony based on the ground of
7 physician and psychotherapist privileges under Rule 11-504 NMRA. On appeal,
8 Defendant argues only one point of error in regard to the exclusion of evidence—that
9 his confrontation rights under the Sixth Amendment to the United States Constitution
10 and Article II, Section 24 of the New Mexico Constitution cannot be trumped by an
11 evidentiary privilege. Cf. State v. Johnson, 1997-NMSC-036, ¶ 24, 123 N.M. 640,
12 944 P.2d 869 (“If application of the rape shield law or rule would conflict with the
13 accused’s confrontation right, if it operates to preclude the defendant from presenting
14 a full and fair defense, the statute and rule must yield.”). We review the exclusion of
15 evidence for abuse of discretion. See State v. Sarracino, 1998-NMSC-022, ¶ 20, 125
16 N.M. 511, 964 P.2d 72.
17 The issue of confrontation was not raised in the district court, and it was
18 therefore not preserved. In order to have preserved this issue for appeal, Defendant
19 must have made a timely objection that specifically apprised the district court of the
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1 nature of the claimed error and must have invoked an intelligent ruling thereon. State
2 v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280. Thus, we will not
3 address this issue.
4 Speedy Trial and Speedy Sentencing
5 We review speedy trial and speedy sentencing violation issues de novo. See
6 State v. Brown, 2003-NMCA-110, ¶ 11, 134 N.M. 356, 76 P.3d 1113. Defendant
7 complains that he was denied his speedy trial and speedy sentencing rights.
8 Defendant was arrested on May 28, 2006. He remained in jail thereafter. Trial
9 originally set for November 1, 2006, was continued on a defense motion, was reset for
10 February 28, 2007, and again was continued on a defense motion, was then reset for
11 May 17, 2007, and once again was continued on a defense motion. The district court
12 as well as our Supreme Court granted extensions of the six-month rule, and Defendant
13 stipulated to these extensions. Following his August 6, 2007, trial, Defendant was
14 found guilty of battery of a household member and negligent use (discharge) of a
15 deadly weapon, but a mistrial was declared because the jury was unable to agree on
16 count one, aggravated assault with a deadly weapon. Re-trial on that charge was set
17 for November 21, 2007, but was extended until November 30, 2007, at the State’s
18 request. On November 30, 2007, before trial began, Defendant unsuccessfully moved
19 to dismiss on speedy trial grounds.
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1 Under the test set out in State v. Garza, 2009-NMSC-038, ¶ 13, 146 N.M. 499,
2 212 P.3d 387, we hold that Defendant was not denied a speedy trial right or a speedy
3 sentencing right. Defendant contends that the length of delay was eighteen months;
4 the State contended it was fourteen months, counting only up to the first trial. The
5 State’s count is the correct one, and under that count, the period was only
6 approximately two months beyond the year allowed for a simple case. See id. ¶¶ 44,
7 48, 50 (establishing the guideline for presumption of prejudice as one year). The
8 reasons for that delay were not attributable to the State; instead, they were attributable
9 to defense motions and to the mistrial, which are acceptable reasons for delaying the
10 prosecution. See id. ¶¶ 26-27 (recognizing that “pretrial delay is often both inevitable
11 and wholly justifiable”). Defendant did not assert the right to a speedy trial before the
12 trial. See id. ¶ 32 (stating that the appellate court will “assess the timing of the
13 defendant’s assertion and the manner in which the right was asserted”). Defendant’s
14 assertions of prejudice from being incarcerated and anxious because of the pending
15 charges are insufficient to support his motions to dismiss on speedy trial grounds. See
16 id. ¶ 35 (stating that “some degree of oppression and anxiety is inherent for every
17 defendant who is jailed while awaiting trial” (alterations omitted) (internal quotation
18 marks and citation omitted)). Defendant made no particularized showing of prejudice,
19 and we will not speculate as to the impact of the pretrial incarceration or degree of
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1 anxiety claimed. See id. He has not claimed or demonstrated any impairment to his
2 defense. See id. ¶ 36. There exists no basis on which to hold that the fourteen-month
3 lapse from arrest to trial violated Defendant’s speedy trial right.
4 In regard to the sentencing issue, the delay between Defendant’s convictions
5 on August 7, 2007, and his sentencing on March 10, 2008, was seven months. We
6 employ the speedy trial four-factor test as a guide in addressing an alleged speedy
7 sentencing violation. See Brown, 2003-NMCA-110, ¶ 11 (applying the four-factor
8 balancing test for a speedy trial violation to a speedy sentencing violation). In doing
9 so, we hold that the delay was not sufficient to trigger further inquiry. Were we to
10 hold otherwise, the reason for the delay in sentencing was the mistrial and retrial on
11 the aggravated assault charge. After a second mistrial and a dismissal of the charge,
12 Defendant failed to appear for his May 10, 2008, sentencing hearing. Defendant did
13 not assert his right to speedy sentencing until the day he was sentenced, which was
14 August 5, 2008.
15 Ineffective Assistance
16 Defendant complains that his counsel failed to file timely speedy trial motions.
17 We see no basis for this complaint, given the defense motions for continuances of trial
18 and the mistrial. The continuances were not attributable to the State, and we see no
6
1 basis on which Defendant could have prevailed on a motion to dismiss at any time
2 prior to November 30, 2007, the day of his motion to dismiss on speedy trial grounds.
3 Defendant also complains that his counsel failed to file motions in limine.
4 Defendant does not set out any particular subject on which any such motions should
5 have been filed, and he cites State v. Franklin, 78 N.M. 127, 129, 428 P.2d 982, 984
6 (1967), and State v. Boyer, 103 N.M. 655, 659, 712 P.2d 1, 5 (Ct. App. 1985), in
7 relation to this contention. This contention fails for lack of any support.
8 Double Jeopardy
9 Defendant claims that the court erred in denying his motion to dismiss the
10 aggravated assault with a deadly weapon charge on double jeopardy grounds because
11 he had been convicted at the first trial of a separate count of negligent use of a deadly
12 weapon. Defendant asserts that the conduct in question on which each charge was
13 based was unitary, meaning that he is being subjected to multiple punishments for a
14 single offense, and that the charges must merge to avoid violation of double jeopardy.
15 We hold that double jeopardy is not implicated here. The facts presented to
16 support the two charges are different, the conduct was not unitary, and Defendant was
17 not charged with two crimes based on the same conduct. For the aggravated assault
18 charge, Defendant’s mother testified that Defendant held the shotgun to her chest. The
19 jury instruction required the jury to consider whether Defendant held the shotgun to
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1 his mother’s body causing her to believe that he was about to intrude on her bodily
2 integrity and that a reasonable person would have the same belief. See UJI 14-305
3 NMRA. For the negligent use charge, there was evidence that Defendant fired the
4 shotgun in the hall of the house hitting a closet door. The jury instruction required the
5 jury to consider whether Defendant discharged the firearm knowing that he was
6 endangering a person or property. See UJI 14-703 NMRA.
7 CONCLUSION
8 For the foregoing reasons, we affirm Defendant’s convictions.
9 IT IS SO ORDERED.
10 __________________________________
11 JONATHAN B. SUTIN, Judge
12 WE CONCUR:
13 _________________________________
14 CYNTHIA A. FRY, Chief Judge
15 _________________________________
16 RODERICK T. KENNEDY, Judge
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