STATE V. TARANGO, 1987-NMCA-027, 105
N.M. 592, 734 P.2d 1275 (Ct. App. 1987)
CASE HISTORY ALERT: affected by
1990-NMSC-011
State of New Mexico, Plaintiff-Appellee,
vs.
Rogelio Tarango, Defendant-Appellant
COURT OF APPEALS OF NEW MEXICO
1987-NMCA-027, 105 N.M. 592, 734 P.2d 1275
APPEAL FROM THE DISTRICT COURT OF
CHAVES COUNTY, WILLIAM J. SCHNEDAR, District Judge.
Petition for Writ of Certiorari denied
March 26, 1987
Jacquelyn Robins, Chief Public Defender,
Deborah A. Moll, Assistant Appellate Defender, Santa Fe, Attorneys for
Defendant-Appellant.
Hal Stratton, Attorney General, Charles
H. Rennick, Assistant Attorney General, Santa Fe, Attorneys for
Plaintiff-Appellee.
{1} Defendant appeals his
conviction for escape from an inmate-release program under NMSA 1978, Section
33-2-46 (Repl. Pamp.1983). Following a trial by jury, defendant was sentenced
to three years imprisonment. One year was suspended and the sentence was
enhanced by one year under the habitual offender statute, for a total of three
years imprisonment plus two years of parole.
{3} On June 30, 1983,
defendant began serving a sentence of three years for forgery and probation
violation. He was incarcerated at the New Mexico Penitentiary and later
transferred to the Roswell Correctional Center (RCC). On April 30, 1984,
defendant left RCC on a sixty-six-hour furlough, being scheduled to return at
8:30 a.m. on May 3, 1984. Defendant failed to return to RCC. On May 3, the
deputy warden swore out a complaint and an affidavit for arrest warrant, and
the warden of RCC issued a fugitive writ that same day. All of these events
occurred in Chaves County.
{4} The record reflects that
defendant was subsequently incarcerated in federal correctional institutions in
El Reno, Oklahoma, and Bastrop, Texas. The parties agree that a detainer was
sent by New Mexico to federal officials. While imprisoned, defendant sent
various documents, pro se, to courts and agencies in New Mexico.
{5} On December 5, 1985,
defendant was released from federal prison and transferred to New Mexico. A
criminal information was filed February 3, 1986, charging defendant with escape
under the inmate-release program. On March 6, 1986, defendant, represented by
counsel, filed a motion to dismiss for lack of a speedy trial. After a hearing,
the motion was denied. Defendant was tried on June 4, 1986, and convicted by a
jury.
{6} Defendant raises two
issues on appeal: (1) whether the trial court erred in failing to grant
defendant's motion to dismiss for lack of a speedy trial; and (2) whether the
trial court erred in failing to submit to the jury defendant's requested
instruction on general criminal intent.
{7} The first issue has two
parts: whether New Mexico violated the provisions of the Interstate Agreement
on Detainers, and whether defendant was denied his constitutional right to a
speedy trial. We discuss each issue separately.
1. WHETHER NEW MEXICO VIOLATED THE PROVISIONS OF THE
INTERSTATE AGREEMENT ON DETAINERS
{8} New Mexico has adopted
the Interstate Agreement on Detainers (IAD). NMSA 1978, §
31-5-12 (Repl.
Pamp.1984). The speedy trial provisions of the IAD may be activated by either
the defendant (under Article 3) or by the prosecutor in the state that issued
the detainer (under Article 4). In this case, it is defendant who is alleging
the IAD applies because of his actions; therefore Article 3 applies.
{9} Article 3 states in part:
A. Whenever a person has entered upon a term of imprisonment
in a penal or correctional institution of a party state, and whenever during
the continuance of the term of imprisonment there is pending in any other party
state any untried indictment, information or complaint on the basis of which a
detainer has been lodged against the prisoner, he shall be brought to trial
within one hundred eighty days after he has caused to be delivered to the
prosecuting officer and the appropriate court of the prosecuting officer's
jurisdiction written notice of the place of his imprisonment and his request
for a final disposition to be made {*595} of
the indictment, information or complaint, but for good cause shown in open
court, the prisoner or his counsel being present, the court having jurisdiction
of the matter may grant any necessary or reasonable continuance. The request
of the prisoner shall be accompanied by a certificate of the appropriate
official having custody of the prisoner, stating the term of commitment
under which the prisoner is being held, the time already served, the time
remaining to be served on the sentence, the amount of good time earned, the
time of parole eligibility of the prisoner and any decisions of the state
parole agency relating to the prisoner.
B. The written notice and request for final disposition
referred to in Subarticle A shall be given or sent by the prisoner to the
warden, commissioner of corrections or other official having custody of him
who shall promptly forward it together with the certificate to the appropriate
prosecuting official and court by registered or certified mail, return receipt
requested. [Emphasis added.]
{10} Defendant alleges he
substantially complied with these provisions, thereby triggering the 180-day
limit for being tried in New Mexico and, since he was not tried within that
period, the charges must be dismissed. The state contends defendant's actions
were insufficient to trigger the IAD, at least prior to October 1985, and, even
if the notice defendant sent in October 1985 did substantially comply with the
IAD requirements, New Mexico was not bound by the 180-day requirement because
defendant was released from prison in Texas before 180 days had elapsed.
{11} When a defendant is
discharged by a sending state, the purpose of the IAD loses significance and
defendant can no longer rely on its provisions.
State v. Quiroz,
94 N.M.
517,
612 P.2d 1328 (Ct. App.1980). The IAD only applies to individuals while
they are serving a prison term.
State v. Thompson, 19 Ohio App.3d 261,
483 N.E.2d 1207 (1984);
see State v. Duncan,
95 N.M. 215,
619 P.2d 1259
(Ct. App.1980). Once the prisoner is released, his rights regarding a speedy
trial are the same as those of any other individual.
Thompson; see State v.
Smith, 353 N.W.2d 338 (S.D.1984) (where prisoner's term of imprisonment in
another jurisdiction ended within the IAD's speedy trial time period, the IAD
was not applicable to him and the trial court did not err in failing to
dismiss);
see also Annot., 98 A.L.R.3d 160, 185-6 (1980). Therefore, even
if defendant activated the IAD in October or November 1985, the trial court
correctly denied his motion to dismiss, as defendant was released from the
federal prison on December 5, 1985.
{12} The question then
becomes whether defendant did anything earlier than 180 days before his
release, i.e., before June 5, 1985, that would trigger the IAD provisions. The
only exhibit in the record dated prior to June 1985 is a "DEMAND FOR
SPEEDY TRIAL" dated January 25, 1985. The document is addressed to
"UNITED STATES COURT DISTRICT OF NEW MEXICO, SANTA FE, COUNTY." The
record includes a return receipt for certified mail, presumably for this
document. The receipt, however, does not list the addressee. It is simply
checked "Certified," date stamped Albuquerque, N.M., February 8,
1985, and signed on the line for "Agent." The signature is illegible.
It seems likely, however, that the document was delivered to the United States
District Court in Santa Fe.
{13} The demand for a speedy
trial does not mention the IAD, detainer, or New Mexico law. The document was
not addressed to the prosecuting officer or to the appropriate court. It does
indicate that defendant is a prisoner at the El Reno, Oklahoma, correctional
institution, and mentions trial "within the statutory time" citing to
a nonexistent statute. Even if it can be inferred that defendant was requesting
a speedy trial under the IAD, the document refers to matters pending in the
"City/County of New Mexico, Santa Fe District Court."
{*596} Defendant alleges the New Mexico
authorities were notified that he was requesting to be tried within 180 days.
However, even if the request was delivered to the state district court in Santa
Fe, which defendant has not established, there is no reference to any case
pending in Chaves County.
{14} New Mexico courts have
not determined what action on the part of a prisoner is necessary to trigger
the provisions of the IAD. Although a few cases from other jurisdictions have
required strict compliance with the requirements of the Act,
see, e.g.,
Whitley v. State, 392 So.2d 1220 (Ala.Cr. App.1980), the majority of
jurisdictions addressing the issue found substantial compliance sufficient.
State
v. Roberts, 427 So.2d 787 (Fla. App.1983). The jurisdictions have not,
however, agreed on what constitutes "substantial compliance."
Id.
One court held that the question should turn on whether the defendant has done
everything the jurisdiction could reasonably expect, given its own degree of
compliance with a scheme that the jurisdiction has the principal responsibility
to implement.
McBride v. United States, 393 A.2d 123 (D.C. App.1978).
{15} Several states held that
the only requirement for a prisoner to activate the IAD is for him to send a
request to the prison official who has custody over him.
See, e.g., McCallum
v. State, 407 So.2d 865 (Ala.Cr. App.1981);
Rockmore v. State, 21
Ariz. App. 388, 519 P.2d 877 (1974);
Pittman v. State, 301 A.2d 509
(Del.1973);
People v. Daily, 46 Ill. App.3d 195, 4 Ill. Dec. 756, 360
N.E.2d 1131 (1977). We believe these jurisdictions are correct.
See State v.
Alderete, 95 N.M. 691,
625 P.2d 1208 (Ct. App.1980) (Lopez, J.,
dissenting). "Other than providing prison officials with the required
notice,
which the defendant must undertake to do, the duty of carrying
out the statutory provisions belongs entirely to the authorities
involved."
People v. Diaz, 94 Misc.2d 1010, 1012, 406 N.Y.S.2d 239,
241 (1978) (emphasis added).
{16} Cases holding that the
IAD provisions were activated even though there was something less than strict
compliance have involved mistakes by state officials that were outside a
defendant's control.
See, e.g., Rockmore; Pittman; Daily; State v. Seadin,
181 Mont. 294, 593 P.2d 451 (1979). Where a prisoner attempts to communicate
directly with the requesting state and there has been no mistake by state
officials, defendants have generally been held to a high standard of
compliance.
See Beebe v. State, 346 A.2d 169 (Del.1975);
State v.
Savage, 522 S.W.2d 144 (Mo. App.1975).
{17} If a defendant, acting
pro se, elects to bypass the custodial official and send a request for a speedy
trial directly to the receiving state, most states hold him to the same
standard of compliance required of state officials.
See McCallum; Daily;
State v. Grizzell, 584 S.W.2d 678 (Tenn.Cr. App.1979). But if the proper
officials had actual notice, at least one state has held that a "technical
deficiency" will not prevent defendant from benefiting under the Act.
Wise
v. State, 30 Md. App. 207, 351 A.2d 160 (1976). Many states, however, deem
the certificate from the custodial official mandatory and, if it is not sent,
generally because the prisoner bypassed the custodian, the IAD is not invoked.
See
People v. Jacobs, 198 Colo. 75, 596 P.2d 1187 (1979) (en banc);
Greathouse
v. State, 156 Ga. App. 491, 274 S.E.2d 835 (1980);
People v. Collins,
85 Ill. App.3d 1056, 41 Ill. Dec. 373, 407 N.E.2d 871 (1980);
State v.
Thomas, 275 N.W.2d 211 (Iowa 1979);
Hines v. State, 58 Md. App. 637,
473 A.2d 1335 (1984);
State v. Cox, 12 Or. App. 215, 505 P.2d 360
(1973).
{18} After reviewing the
various approaches in other jurisdictions, we conclude the following. We agree
that a prisoner need only transmit the written notice and request for final
disposition to the appropriate custodial officials to complete his or her
responsibility under the agreement.
See Commonwealth v. Martens, 398
Mass. 674, 500 N.E.2d 282, 284 (1986), and cited cases. We agree also that if
custodial officials of the sending state fail or refuse to forward the
prisoner's request to the receiving
{*597} state,
the receiving state, not the prisoner, is bound by the failure.
Id. at
284-5. The prisoner must prove that the proper request was filed. Where a
prisoner bypasses the statutory procedure and attempts to communicate directly
with the receiving state, we hold that, absent actual notice by the receiving
state, he or she has the burden of complying substantially with the
requirements of the IAD.
{19} Substantial compliance for
purposes of the IAD means the prisoner must file the proper documents,
including the certificate of status, with the proper prosecuting office and the
appropriate court of the prosecuting officer's jurisdiction, using registered
or certified mail, return receipt requested. While we are not requiring
absolute, strict compliance, we will not tolerate more than minor technical
violations. Courts must analyze violations on a case-by-case basis. The purpose
of the statutory requirements is to ensure clear official notice that the
prisoner is proceeding under the IAD.
Martens. Absent such notice, the
receiving state cannot make a rational decision regarding the disposition of
the case.
Daily. When a prisoner, acting pro se, fails to comply
substantially with the requirements of the IAD, he or she cannot invoke its
protections.
{20} We understand that many
prisoners lack the sophistication and expertise to achieve substantial
compliance with the IAD. That is why a prisoner should utilize the procedures
set out in Section 31-5-12, Article 3. The warden, commissioner of corrections
or other official having custody of the prisoner has a duty to promptly inform
the prisoner of the source and contents of any detainer lodged against him or
her. Article 3(C). The prisoner should then file a written request with that
official, retaining a copy stamped with the date of receipt.
{21} We now apply the
substantial compliance standard to the facts in our case and conclude that
defendant failed to meet the statutory requirements. There is no indication
that defendant notified a custodial official at either federal prison where he
was incarcerated or that the certificate required by Article 3(A) was ever
sent. Further, there is no evidence that any request was ever sent to the appropriate
prosecutor or court as required. While copies of two documents, dated November
18, 1985, were sent to the district attorney and district court in Chaves
County, there is no evidence that copies of the January 25 speedy trial demand
were sent. Thus, not only did defendant fail to comply with procedures, but the
prosecuting officer and court had no actual notice of any request by defendant.
{22} Under the substantial
compliance standard, the document sent by defendant on January 25 is not
sufficient.
Cf. Beebe (letter addressed to "Clerk of Circuit
Courthouse" did not comply with requirement that request be sent to the
custodial official);
Rhodes v. Commonwealth, 622 S.W.2d 677 (Ky.
App.1981) (no record that pro se request to "Jefferson County, Frankfort,
Kentucky," ever received by Jefferson Circuit Court, Louisville,
Kentucky). Defendant has the burden of providing a sufficient record to
establish claims of violation of the agreement on detainers.
Alderete.
In this case, defendant has not established that he met any of the requirements
to trigger the IAD provisions.
See McCallum (defendant failed to notify
proper officials or to send certificate of status; IAD not applicable).
2. WHETHER DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT
TO A SPEEDY TRIAL
{23} Defendant argues that he
was denied his right to a speedy trial because he was not tried until
twenty-five months after the criminal complaint was filed against him. He
alleges this is presumptively prejudicial and, therefore, the balancing factors
set out in
Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d
101 (1972) must be considered.
State v. Kilpatrick,
104 N.M. 441,
722
P.2d 692 (Ct. App.1986).
{24} Unless the length of the
delay is presumptively prejudicial, inquiry into the
{*598}
other balancing factors is unnecessary.
State v. Santillanes,
98
N.M. 448,
649 P.2d 516 (Ct. App.1982). Speedy trial rights apply to the period
after a defendant becomes an accused.
Kilpatrick v. State,
103 N.M. 52,
702 P.2d 997 (1985).
{25} Defendant alleges he
became accused of escape when the deputy warden filed the complaint on May 3,
1984. Even if the speedy trial period could be found to run from this date, and
were determined to be presumptively prejudicial so that the four factors set
out in
Barker must be considered, the record does not support a finding
that defendant was denied his right to a speedy trial. The four-part test
requires that the following factors be balanced: (1) the length of the delay;
(2) the reason for the delay; (3) the defendant's assertion of the right; and
(4) the prejudice to the defendant.
Santillanes.
{26} Assuming the delay was
as long as twenty-five months (from date of arrest in Texas to trial), since
defendant was a fugitive and then imprisoned in another state, most, if not
all, of the delay was attributable to him. Where defendant causes or
contributes to a delay, he cannot complain of the denial of a speedy trial.
State
v. Mascarenas, 84 N.M. 153,
500 P.2d 438 (Ct. App.1972);
see State v.
Harvey, 85 N.M. 214,
510 P.2d 1085 (Ct. App.1973).
{27} The state cannot be held
responsible for any delay prior to the point where it was notified of
defendant's whereabouts. While this could arguably have been in August 1985,
when a detainer action letter was sent to the department of corrections
indicating the date of defendant's anticipated release in Texas, any benefit to
defendant of being tried immediately instead of after his release is
speculative.
{28} Defendant's motion to
dismiss for lack of a speedy trial satisfies the third requirement. Defendant
argues that he was prejudiced because his sentence in Texas was to run
concurrently with any sentence in New Mexico. As evidence to support this
contention, defendant refers to his demand for a speedy trial sent to Santa Fe
in January 1985. There is no supporting evidence from the federal courts. The
possibility of serving a sentence concurrently is not a right and cannot be
construed as actual prejudice.
State v. Powers,
97 N.M. 32,
636 P.2d 303
(Ct. App. 1981). Even if defendant were to serve concurrent sentences, the New
Mexico sentence would be for the underlying felony, and not for the escape
charges, which is the subject of this appeal. The escape sentence cannot be
served concurrently with the original sentence. NMSA 1978, §
31-18-21 (Repl.
Pamp.1981).
{29} Finally, the interests
to be protected by a speedy trial are not present under the facts of this case.
The speedy trial guarantee is designed to minimize the
possibility of lengthy incarceration prior to trial, to reduce the lesser, but
nevertheless substantial, impairment of liberty imposed on an accused while
released on bail, and to shorten the disruption of life caused by arrest and
the presence of unresolved criminal charges.
United States v. MacDonald, 456 U.S. 1, 8, 102 S. Ct.
1497, 1502, 71 L. Ed. 2d 696 (1982); see also Kilpatrick, 103 N.M. 52,
702 P.2d 997. Since defendant was incarcerated in Texas, and still had time to
serve on his sentence in New Mexico, these interests are not involved.
{30} Defendant has not
established a violation of his right to a speedy trial.
3. WHETHER THE TRIAL COURT ERRED IN FAILING TO SUBMIT TO
THE JURY DEFENDANT'S REQUESTED INSTRUCTIONS OF GENERAL CRIMINAL INTENT
{31} Defendant alleges that
the trial court's refusal to give the general criminal intent instruction, NMSA
1978, UJI Crim. 1.50 (Cum. Supp.1985), was reversible error. He argues that
because the instruction was not given, there was a failure to instruct on an
essential element of the crime.
{*599} {32} New Mexico case law has distinguished between
jury instructions on an essential element of a crime, and those that are merely
definitional. See, e.g., State v. Stephens, 93 N.M. 458, 601 P.2d 428
(1979); State v. Gunzelman, 85 N.M. 295, 512 P.2d 55 (1973); State v.
Padilla, 90 N.M. 481, 565 P.2d 352 (Ct. App.1977). Failure to instruct on
an essential element of an offense is jurisdictional error and requires
reversal. State v. Otto, 98 N.M. 734, 652 P.2d 756 (Ct. App.1982).
{33} However, failure to give
a definitional instruction is not failure to instruct on an essential element, Padilla,
and such error is not jurisdictional; the issue must be preserved for review by
tendering an instruction or by objecting to the failure of the court to give an
instruction. State v. Doe, 100 N.M. 481, 672 P.2d 654 (1983). In this
case, defendant tendered UJI Crim. 1.50 and it was refused by the trial court.
Thus, the question of whether the trial court erred in failing to give the
instruction is properly before this court.
{34} The Use Note to UJI
Crim. 1.50 was amended in 1985 to make the instruction mandatory for all crimes
except no intent crimes "or those crimes in which the intent is specified
in the statute or instruction." Thus, under the 1985 amendments, UJI Crim.
1.50 is not required for specific intent crimes.
{35} The 1985 amendments to
the Criminal Uniform Jury Instructions became effective October 1, 1985.
Supreme Court Order of July 2, 1985, NMSA 1978, UJI Crim. (Cum. Supp.1985). Since
the criminal information in this case was filed in 1986, the new Use Note for
UJI Crim. 1.50 applies.
{36} Defendant cites State
v. Norush, 97 N.M. 660, 642 P.2d 1119 (Ct. App.1982), for the proposition
that the applicable Use Note was the one in effect at the time of the offense.
However, in Norush, use of an amended Uniform Jury Instruction deprived
the defendant of a defense that was available to him at the time he committed
the offense. This court held that the effect, under those circumstances, was of
an ex post facto law. A change in a definitional instruction does not rise to
the level of an ex post facto law. It did not modify a substantial right of
defendant vested in him at the time of the offense upon which he had a right to
rely. See State v. Kavanaugh, 32 N.M. 404, 258 P. 209 (1927).
{37} Under the current Use
Note, the instruction is not mandatory if the crime involved is a specific
intent crime. The crime with which defendant is charged, escape from work
release, is such a crime. Defendant admits this. A specific intent crime
involves some intent beyond the intent to commit the act of the crime. See
generally R. Perkins & R. Boyce, Criminal Law, ch. 7, § 3 (3d
ed.1982).
{38} Defendant was charged
under Section 33-2-46, which states: "Any prisoner whose limits of
confinement have been extended, or who has been granted a visitation privilege
under the inmate-release program, who willfully fails to return to the
designated place of confinement within the time prescribed, with the intent
not to return, is guilty of an escape." (Emphasis added.) The statute
thus requires not only that the defendant willfully fail to return, but that he
intend not to return. Thus, this is a specific intent crime, or, as the current
Use Note for UJI Crim. 1.50 states, it is a crime "in which the intent is
specified in the statute or instruction." It is, in fact, specified not
only in the statute but also in NMSA 1978, UJI Crim. 22.28 (Repl. Pamp.1982),
which was given in this case. Therefore, UJI Crim. 1.50 was not mandatory.
{39} Defendant did not
fulfill any of the requirements for activating the IAD. Therefore, New Mexico
was not bound by the speedy trial provisions of that Act. Defendant's
constitutional right to a speedy trial was not violated. UJI Crim. 1.50 was not
required and, therefore, the trial court did not err in refusing to give it.
Defendant's conviction is affirmed.
GARCIA, and APODACA, JJ., concur.