{ "id": 1571205, "name": "STATE of New Mexico, Plaintiff-Appellant, v. Ricardo TAFOYA, Defendant-Appellee", "name_abbreviation": "State v. Tafoya", "decision_date": "1977-10-11", "docket_number": "No. 2997", "first_page": "121", "last_page": "124", "citations": [ { "type": "official", "cite": "91 N.M. 121" }, { "type": "parallel", "cite": "570 P.2d 1148" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "407 U.S. 514", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9139028 ], "weight": 6, "year": 1972, "opinion_index": 0, "case_paths": [ "/us/407/0514-01" ] }, { "cite": "91 N.M. 26", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571145 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/91/0026-01" ] }, { "cite": "97 S.Ct. 2044", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 2099 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/us/431/0783-01" ] }, { "cite": "429 U.S. 884", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6501, 5638, 7532, 6190, 6639, 5937, 7443, 6579, 6998, 6966, 5919 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/us/429/0884-10", "/us/429/0884-07", "/us/429/0884-06", "/us/429/0884-11", "/us/429/0884-04", "/us/429/0884-01", "/us/429/0884-02", "/us/429/0884-09", "/us/429/0884-03", "/us/429/0884-05", "/us/429/0884-08" ] }, { "cite": "82 N.M. 487", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326487 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0487-01" ] }, { "cite": "89 N.M. 489", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2864423 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/nm/89/0489-01" ] }, { "cite": "404 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172901 ], "weight": 4, "year": 1971, "opinion_index": 0, "case_paths": [ "/us/404/0307-01" ] } ], "analysis": { "cardinality": 376, "char_count": 6504, "ocr_confidence": 0.798, "pagerank": { "raw": 3.250562178809562e-07, "percentile": 0.8688948660713424 }, "sha256": "58a9b7ca359b88c33e898058324ecda8e7be4e576e5fcb0a2b7e245350540abc", "simhash": "1:3ac5bd8225c789a8", "word_count": 1091 }, "last_updated": "2023-07-14T15:07:42.064818+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and LOPEZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellant, v. Ricardo TAFOYA, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nThe trial court granted defendant\u2019s motion to dismiss the indictment because of pre-indictment delay; The State appeals. We discuss three issues: (1) due process; (2) right to a speedy trial; and (3) deciding a speedy trial issue.\nThe grand jury indictment, filed in the district court on February 16, 1977 charged defendant with committing larceny on May 11, 1976. Defendant moved to dismiss alleging both a denial of due process and a denial of the right to a speedy trial. At the hearing on the motion, the following items were not contested by the prosecutor:\n(a) Defendant was arrested on May 11, 1976.\n(b) Defendant was \u201cin town\u201d (Albuquerque) from that date until the indictment. In December, 1976 he was indicted for another offense to which he pled guilty.\n(c) Delay in indicting defendant on the larceny charge was not caused by any conduct on the part of defendant.\nThe trial court took the position that the delay was presumptively prejudicial and called upon the prosecutor to explain the delay. The prosecutor could explain only two months of the delay. Disregarding the prosecutor\u2019s claim that defendant had not been prejudiced by the delay, the motion to dismiss was granted. The ruling was that there could be many reasons \u201cfor a delay in return of indictment. But in the absence of some explanation, the Court will find that it\u2019s presumptively prejudicial to wait nine months to indict a man who was arrested at the time of the incident and who\u2019s been otherwise available in the community for the past nine months. Therefore, I\u2019ll grant the motion to dismiss the indictment.\u201d\nWe do not consider two appellate claims of the State. These are: (1) that defendant failed to show he was arrested on May 11, 1976, or (2) that the prosecutor asked for an evidentiary hearing. Neither claim is supported by the record. The prosecutor did not contest the arrest date in the trial court; the prosecutor did not ask for an evidentiary hearing. N.M.Crim.App. 308 applies to the State as well as to a defendant.\nDue Process\nBoth the offense and the arrest occurred on May 11, 1976. The indictment was filed more than nine months later \u2014 on February 16,1977. This pre-indictment delay involves due process. To obtain a dismissal for pre-indictment delay defendant must show that he has been substantially prejudiced. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).\nThe contentions of prejudice in the trial court were (a) that a nine-month delay was a showing of prejudice and (b) that because defendant was intoxicated at the time of the offense he had a memory problem which had been compounded by the nine-month delay. Neither claim was a showing of substantial prejudice. State v. Jojola, 89 N.M. 489, 553 P.2d 1296 (Ct.App. 1976). The delay was not a violation of due process.\nRight to a Speedy Trial\nThe New Mexico rule is that the period prior to filing the indictment is not to be considered in determining whether there has been a violation of defendant\u2019s right to a speedy trial. State v. Crump, 82 N.M. 487, 484 P.2d 329 (1971). However, United States v. Marion, supra, states:\n\u201c[I]t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.\u201d\nUnited States v. Lovasco, 429 U.S. 884, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977) states that speedy trial right is involved \u201conly\u201d where there is a formal charge or \u201c\u2018actual restraints imposed by arrest and holding to answer a criminal charge\u2019 (Our emphasis.)\nThere was no denial of the right to a speedy trial in this case unless defendant\u2019s arrest on May 11, 1976 resulted in \u201cactual restraints\u201d and unless defendant was held to answer to the larceny charge. Defendant made no showing as to what happened after defendant\u2019s arrest. Was he arrested and then released without charges being filed? Was he charged in magistrate court? We do not know. Defendant\u2019s showing was insufficient to \u201cengage\u201d the right to a speedy trial. On the showing made, the trial court could not properly dismiss on the basis that there had been a denial of the right to a speedy trial.\nDeciding a Speedy Trial Issue\nThere are at least four factors to be considered in determining whether a defendant has been denied a right to a speedy trial \u2014 length of the delay, reason for the delay, defendant\u2019s assertion of the right and prejudice to the defendant. State v. Lucero (Ct.App.), 91 N.M. 26, 569 P.2d 952, decided September 13, 1977. \u201cThe length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.\u201d Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).\n\u201cWe regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.\u201d Barker v. Wingo, supra.\n\u201cA balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis.\u201d Barker v. Wingo, supra.\nIf defendant\u2019s showing had been sufficient to raise a speedy trial issue, the trial court proceeded incorrectly in deciding that issue. The nine-month delay was presumptively prejudicial whether or not there was an explanation for the delay. The delay, and the lack of explanation of the reason for the delay, were two factors to be considered. However, the failure of defendant to show any prejudice was also to be considered. The trial court failed to consider the factors required, to be considered and failed to apply the balancing test required by Barker v. Wingo, supra.\nThe order dismissing the indictment is reversed. The cause is remanded with instructions to reinstate the indictment and proceed consistently with this opinion.\nIT IS SO ORDERED.\nHENDLEY and LOPEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Toney Anaya, Atty. Gen., Suzanne Tanner, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant.", "Leo C. Kelly, Albuquerque, for defendant-appellee." ], "corrections": "", "head_matter": "570 P.2d 1148\nSTATE of New Mexico, Plaintiff-Appellant, v. Ricardo TAFOYA, Defendant-Appellee.\nNo. 2997.\nCourt of Appeals of New Mexico.\nOct. 11, 1977.\nToney Anaya, Atty. Gen., Suzanne Tanner, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant.\nLeo C. Kelly, Albuquerque, for defendant-appellee." }, "file_name": "0121-01", "first_page_order": 157, "last_page_order": 160 }