{ "id": 1557030, "name": "STATE of New Mexico, Plaintiff-Appellee, v. David BAREFIELD, Defendant-Appellant", "name_abbreviation": "State v. Barefield", "decision_date": "1979-04-24", "docket_number": "No. 3807", "first_page": "768", "last_page": "772", "citations": [ { "type": "official", "cite": "92 N.M. 768" }, { "type": "parallel", "cite": "595 P.2d 406" } ], "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": "294 A.2d 564", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1972, "opinion_index": 0 }, { "cite": "162 Conn. 430", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 670828 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/conn/162/0430-01" ] }, { "cite": "468 P.2d 416", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 5359847 ], "opinion_index": 0, "case_paths": [ "/nm/81/0445-01" ] }, { "cite": "81 N.M. 455", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "81 N.M. 548", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5370863 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0548-01" ] }, { "cite": "83 N.M. 50", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5340885 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0050-01" ] }, { "cite": "87 N.M. 391", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2831716 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/87/0391-01" ] }, { "cite": "91 N.M. 121", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571205 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/91/0121-01" ] }, { "cite": "80 N.M. 788", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5361325 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0788-01" ] }, { "cite": "88 N.M. 198", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2840053 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0198-01" ] }, { "cite": "91 N.M. 721", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571163 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/91/0721-01" ] }, { "cite": "90 N.M. 319", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2869816 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0319-01" ] } ], "analysis": { "cardinality": 569, "char_count": 12344, "ocr_confidence": 0.799, "pagerank": { "raw": 1.97446124366981e-07, "percentile": 0.739710500496361 }, "sha256": "529938626ed109dab9b1fb856b53ffc77fa80e828aa088804855123f5b6c2e08", "simhash": "1:035c9bba312207b4", "word_count": 1991 }, "last_updated": "2023-07-14T17:06:13.817562+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ and LOPEZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. David BAREFIELD, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nDefendant was convicted of aggravated burglary, kidnapping, rape, two sodomies, and robbery while armed with a deadly weapon. These convictions, the subject of this appeal, are referred to hereinafter as Case 3. Only two of the issues listed in the docketing statement were briefed; other issues were abandoned because not briefed. State v. Ortiz, 90 N.M. 319, 563 P.2d 113 (Ct.App.1977). The two issues briefed concern: (1) defendant\u2019s right to a speedy trial; and (2) credit on defendant\u2019s sentence.\nDefendant was committed to the penitentiary in 1966 for second degree murder. This is Case 1. He was paroled in 1973.\nDefendant was indicted for armed robbery in March, 1974. This is Case 2. In June, 1974, he was found incompetent to stand trial in Case 2, and was committed to the State Hospital.\nIn August, 1974, defendant escaped from the State Hospital and committed the crimes involved in Case 3.\nIn September, 1974, defendant\u2019s parole in Case 1 was revoked; he was remanded to the penitentiary.\nIn October, 1974, defendant was indicted for the Case 3 crimes. In November, 1974, defendant was found incompetent to stand trial in Case 3, but was returned to the penitentiary, where he was then confined in connection with Case 1. Although found incompetent, he was returned to the penitentiary because the testimony indicated he was extremely dangerous, a possible homicide or suicide, had escaped from the State Hospital, and psychiatric treatment was available at the penitentiary.\nIn February, 1978, defendant was found competent to stand trial. He was tried and convicted, in Case 3, in April, 1978.\nSpeedy Trial\nA Supreme Court order, entered in April, 1975, extended the time to try defendant pursuant to Rule of Crim.Proc. 37 \u201cto six months from the time Respondent is declared competent to stand trial.\u201d Defendant was tried within this time period. Compliance with the Supreme Court order and with Rule of Crim.Proc. 37 is not an issue in the appeal.\nDefendant\u2019s speedy trial claim is based on the delay by the State in seeking a redetermination of his competency. State v. Santillanes, 91 N.M. 721, 580 P.2d 489 (Ct.App.1978). The factual basis for this contention involves reports which stated defendant was competent to stand trial. References to some of these reports appear in the file in Case 2, rather than Case 3. Both cases involve the same district attorney\u2019s office. We disagree with the State\u2019s contention that the prosecutor in Case 3 is not chargeable with knowledge of the reports in Case 2. Chacon v. State, 88 N.M. 198, 539 P.2d 218 (Ct.App.1975). Defendant seems to argue that the various reports were, in themselves, a determination that defendant was competent to stand trial. We disagree. Competency to stand trial is a matter to be determined either by the court or jury. Rule of Crim.Proc. 35(b); State v. Tartaglia, 80 N.M. 788, 461 P.2d 921 (Ct.App.1969).\nAlthough the claim of denial of a speedy trial is a constitutional claim, see N.M. Const., art. II, \u00a7 14, the claim is based in part on a provision in \u00a7 31 \u2014 9-1, N.M.S.A. 1978, which states:\nDefendants determined to be incompetent under this section shall have the question of their mental capacity to stand trial redetermined * * * whenever the medical authorities of the institution to which the defendant was committed or any medical authority appointed by the court, report to the court that, in their opinion, the defendant is mentally competent to stand trial.\nTechnically, \u00a7 31-9-1, supra, is not applicable. Defendant was not committed to a mental institution after the incompetency determination in Case 3 in November, 1974. Defendant had already been committed to the penitentiary in Case 1, and had been returned to the penitentiary for parole violation. In addition, defendant had also been committed to the State Hospital in Case 2. All the November, 1974 order of incompetency did was direct that defendant be returned to the penitentiary.\nAlthough not technically applicable, \u00a7 31-9-1, supra, supports the speedy trial claim because the statute contemplates a redetermination of competency when medical authorities are of the view that a defendant is competent to be tried.\nThe reports indicate a competency to stand trial. The speedy trial claim is based on the State\u2019s delay in seeking a redetermination of competency. Accordingly, we consider the four factors involved in the question of denial of a speedy trial, and the balancing of those factors. State v. Tafoya, 91 N.M. 121, 570 P.2d 1148 (Ct.App.1977).\n(a) Length of the Delay\nWhen did the delay begin and when did it end? Defendant asserts the delay began in September, 1975 with a Clinic Psychological Report. We disagree. This report went only to the absence of a need for defendant to be hospitalized; it did not discuss competency. Testimony at the competency hearing supports defendant\u2019s claim that there were reports in January, 1976 which indicated defendant was competent to stand trial. We consider the delay period to have begun in January, 1976. By oral motion in late November, 1977, the State requested that defendant be examined on the question of competency to stand trial. The examination was conducted in December, 1977, a competency hearing was held in January, 1978, and the order, declaring defendant competent, was entered in February, 1978. Thus, delay ended in November, 1977. The delay period to be considered is from January, 1976 through November, 1977, a maximum of twenty-three months.\nWhat happened during the twenty-three-month period?\nDefendant refers to the January, 1976 reports as being from the \u201cPsychological Services Unit\u201d at the penitentiary. An April, 1976 motion by the prosecutor referred to the January, 1976 reports and requested a court-ordered psychiatric examination. This motion was granted in April, 1976; however, the examination was not held until September, 1976. The report of the examination states that defendant was competent to stand trial.\nA competency hearing was scheduled in May, 1977. Because \u201cthe evaluation was done back in September [1976],\u201d the hearing. was postponed and another evaluation was ordered by the trial court. The context of the hearing indicates this was agreeable to the attorney who appeared for defendant. Apparently, the examination ordered in May, 1977 was not held.\nIn August, 1977, the trial court again ordered a psychiatric examination; we do not know who sought this examination, but the order was \u201capproved\u201d by counsel for the State and for the defendant. Testimony indicates the examination was conducted in September, 1977; the examiner was of the opinion that defendant was competent to stand trial.\nThereafter, the State\u2019s oral motion in November, 1977 for a competency examination.\n(b) Reason for the Delay\nThe trial court was of the view that part of the delay was due to change of counsel or the physical absence of counsel. We agree. The trial court ordered a psychiatric examination in April, 1976. The examination was in September, 1976; however, defense counsel Ronald T. Taylor moved and was permitted to withdraw in May, 1976. The public defender was appointed to represent defendant. At the competency hearing scheduled in May, 1977, which was postponed by agreement of counsel, attorney Teel appeared on behalf of defendant. Attorney Teel informed the trial court \u201cthis is John Walker\u2019s case, and John is in South America . . . .\u201d Defense approval of the court-ordered examination in August, 1977 was \u201cWoody Smith for John Walker.\u201d On November 9, 1977, defendant filed a motion to dismiss which recites: \u201cPetitioner has on numerous occassions [sic] requested assistance from his Court Appointed Attorney but to no avail, therefore, this Motion is being filed Pro se.\u201d Attorney Bruce Kelly entered his appearance for defendant on December 2, 1977.\nPart of the delay can also be attributed to defense counsel\u2019s agreement to postpone the competency hearing in May, 1977 in order to obtain another psychiatric evaluation.\n(c) Defendant\u2019s Assertion of the Right\nDefendant first asserted his right to a speedy trial by his motion to dismiss filed November 9, 1977.\n(d) Prejudice to the Defendant\nDefendant claims he was prejudiced by the length of time he was incarcerated. The record shows he was incarcerated in connection with his murder conviction.\nDefendant asserts the delay prejudiced his \u201cinterest in maintaining his anxiety at minimum and protecting his psychological well-being.\u201d There is no evidence to support this claim; the competency reports in the file, to the extent they contribute anything, are adverse to this assertion.\nDefendant contends his defense was impaired because, at trial, defendant \u201cwas unable to elicit testimony crucial to his defense because the memory of the . [victim] was greatly impaired.\u201d Defendant does not suggest what that testimony might have been. The victim\u2019s lack of memory would seem to be a benefit to defendant. Defendant presented a full defense, including insanity at the time of commission of the crimes.\n(e) The Balancing Process\nThe above four factors are to be balanced in determining whether there was a denial of a speedy trial because of delay in determining defendant\u2019s competency. State v. Tafoya, supra. The twenty-three-month delay was presumptively prejudicial. State v. Tafoya, supra. Part of the delay is fairly attributable to defense counsel, not the State. Defendant never asserted his right to a speedy trial until November, 1977. Defendant has not shown prejudice.\nApplying the balancing process, defendant was not denied his right to a speedy trial.\nCredit on Defendant\u2019s Sentence\nDefendant contends the trial court erred in failing to give defendant credit on his sentence for presentence confinement. Section 31-20-12, N.M.S.A.1978; State v. La Badie, 87 N.M. 391, 534 P.2d 483 (Ct.App.1975). From the number of days defendant asserts should be credited, we assume the claim is for credit for all confinement from the date in November, 1974, when he was held to be incompetent to stand trial in Case 3, until September 13, 1978, the date sentence was imposed in Case 3.\nSection 31-20-12, supra, provides for credit for presentence confinement against the sentence imposed upon conviction of the offense charged or a lesser included offense. If the confinement was not in connection with the offense charged, \u00a7 31-20-12, supra, does not authorize a credit. State v. Brewton, 83 N.M. 50, 487 P.2d 1355 (Ct.App.1971).\nDefendant\u2019s presentence confinement occurred because his parole in Case 1 had been revoked. To the extent defendant was confined in Case 1, he was not entitled to credit under \u00a7 31-20-12, supra. Anticipating this result, defendant contends his parole was improperly revoked in Case 1. The propriety of the parole revocation involves the parole board, which was not before the trial court in Case 3. Thus, the trial court, in Case 3, could not determine the propriety of the parole revocation in Case 1. State v. Bambrough, 81 N.M. 548, 469 P.2d 527 (Ct.App.1970).\nWe cannot, however, say that defendant was not confined in Case 3. After ruling that defendant was incompetent in Case 3, the trial court ordered defendant returned to the penitentiary because he was dangerous and had escaped from the State Hospital. This seems to indicate that in light of his incompetency, defendant would have been confined at the State Hospital, in Case 3, but for the fact that he was dangerous. The record being ambiguous, defendant may raise the issue of credit on his Case 3 sentences by appropriate motion. See State v. Murray, 81 N.M. 455, 468 P.2d 416 (Ct.App.1970). If defendant, in fact, was confined on.Case 3 charges, he is entitled to credit for that presentence confinement even though he was also confined, at the same time, in Case 1. Mancinone v. Warden, Connecticut State Prison, 162 Conn. 430, 294 A.2d 564 (1972).\nThe judgment and sentences are affirmed.\nIT IS SO ORDERED.\nHERNANDEZ and LOPEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "James L. Porter, Albuquerque, for defendant-appellant.", "Jeff Bingaman, Atty. Gen., Michael E. Sanchez, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "595 P.2d 406\nSTATE of New Mexico, Plaintiff-Appellee, v. David BAREFIELD, Defendant-Appellant.\nNo. 3807.\nCourt of Appeals of New Mexico.\nApril 24, 1979.\nWrit of Certiorari Denied May 25, 1979.\nJames L. Porter, Albuquerque, for defendant-appellant.\nJeff Bingaman, Atty. Gen., Michael E. Sanchez, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0768-01", "first_page_order": 804, "last_page_order": 808 }