       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: _______________

Filing Date: March 11, 2014

Docket No. 31,243

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

JOHN ERIC OCHOA,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Stephen Bridgforth, District Judge

Gary K. King, Attorney General
Santa Fe, NM
Sri Mullis, Assistant Attorney General
Albuquerque, NM

for Appellee

Jorge A. Alvarado, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                         OPINION

VIGIL, Judge.

{1}     Convicted of two counts of criminal sexual contact of a minor and one count of
interference with communications, Defendant appeals. Because we agree with Defendant
that his constitutional right to a speedy trial was violated, we reverse.

ANALYSIS OF A SPEEDY TRIAL CLAIM


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{2}     “The right to a speedy trial is a fundamental right of the accused,” guaranteed by the
“Sixth Amendment to the United States Constitution, [and] applicable to the states through
the Fourteenth Amendment.” State v. Garza, 2009-NMSC-038, ¶ 10, 146 N.M. 499, 212
P.3d 387; see U.S. Const. amend. VI; N.M. Const. art. II, § 14. To determine whether this
right was violated, we consider the following four factors discussed in Barker v. Wingo, 407
U.S. 514, 530-32 (1972): “(1) the length of the delay, (2) the reasons given for the delay,
(3) the defendant’s assertion of the right to a speedy trial, and (4) prejudice to the
defendant.” State v. Collier, 2013-NMSC-015, ¶ 39, 301 P.3d 370 (internal quotation marks
and citation omitted).

{3}     We first determine whether the length of pretrial delay is “‘presumptively
prejudicial.’” Garza, 2009-NMSC-038, ¶ 23 (quoting Barker, 407 U.S. at 533). Only when
the length of delay is presumptively prejudicial, do we proceed to consideration of the
Barker factors. See Garza, 2009-NMSC-038, ¶ 21 (“[A] ‘presumptively prejudicial’ length
of delay is simply a triggering mechanism, requiring further inquiry into the Barker
factors.”).

{4}    Defendant was arrested on May 12, 2008. His trial occurred just over two years later,
on May 17-20, 2010. The twenty-four-month delay between Defendant’s arrest and his trial
surpasses the eighteen-month threshold for even the most complex cases, thereby triggering
the need to weigh all of the Barker factors. See Garza, 2009-NMSC-038, ¶ 48 (“[E]ighteen
months may be presumptively prejudicial for complex cases.”).

STANDARD OF REVIEW

{5}     “In considering each of the factors, we defer to the district court’s factual findings
but review de novo the question of whether [the d]efendant’s constitutional right to a speedy
trial was violated.” State v. Montoya, 2011-NMCA-074, ¶ 9, 150 N.M. 415, 259 P.3d 820.
Whether the right to a speedy trial has been violated is determined by the circumstances of
each particular case. State v. Spearman, 2012-NMSC-023, ¶ 16, 283 P.3d 272. We now turn
to the Barker factors.

DISCUSSION

1.     Length of the Delay

{6}      “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 [speedy trial] claim.” State v. Wilson, 2010-NMCA-018, ¶ 26, 147 N.M. 706, 228 P.3d
490 (internal quotation marks and citation omitted); see also Garza, 2009-NMSC-038, ¶ 24
(same). The district court made a finding that this case is complex, making the threshold




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eighteen months.1 See id. ¶ 48.

{7}     Because the delay between Defendant’s date of arrest and his trial was slightly over
twenty-four months, the delay stretches six months beyond the presumptively prejudicial
threshold for complex cases. See Garza, 2009-NMSC-038, ¶ 48. Although this delay is not
so extraordinary as to weigh heavily in Defendant’s favor, it nonetheless weighs in his favor;
see also id. ¶ 24 (“Considering the length of delay as one of the four Barker factors, the
greater the delay the more heavily it will potentially weigh against the [s]tate.”); compare
State v. Stock, 2006-NMCA-140, ¶ 18, 140 N.M. 676, 147 P.3d 885 (concluding that the
three and one-half years delay was “particularly egregious” and weighing the factor heavily
in the [d]efendant’s favor), with Garza, 2009-NMSC-038, ¶ 24 (concluding that a delay of
one month beyond the threshold “was not extraordinary and does not weigh heavily in
[the d]efendant’s favor”), and Wilson, 2010-NMCA-018, ¶ 29 (stating that delay of five
months beyond the guideline for a simple case was not so extraordinary or protracted as to
compel weighing the length of delay factor against the state more than slightly).

2.     Reasons for the Delay

{8}    “Barker identified three types of delay, indicating that different weights should be
assigned to different reasons for the delay.” Spearman, 2012-NMSC-023, ¶ 25 (internal
quotation marks and citation omitted). These are: (1) deliberate or intentional delay; (2)
negligent or administrative delay; and (3) delay for which there is a valid reason. Garza,
2009-NMSC-038, ¶¶ 25-27.

{9}     Deliberate delay is to be “weighted heavily against the government.” Id. ¶ 25
(internal quotation marks and citation omitted). On the other hand, “‘[a] more neutral reason
such as negligence or overcrowded courts should be weighted less heavily but nevertheless
should be considered since the ultimate responsibility for such circumstances must rest with
the government rather than with the defendant.’” Id. ¶ 26 (quoting Barker, 407 U.S. at 531).
Indeed, “negligence . . . still falls on the wrong side of the divide between acceptable and


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         Defendant argues that the case is of intermediate complexity, which would make the
threshold nine months. See id. ¶ 48 (“Fifteen months may be presumptively prejudicial for
intermediate cases.”). However, “[t]he question of the complexity of a case is best answered
by a trial court familiar with the factual circumstances, the contested issues and available
evidence, the local judicial machinery, and reasonable expectations for the discharge of law
enforcement and prosecutorial responsibilities.” State v. Plouse, 2003-NMCA-048, ¶ 42, 133
N.M. 495, 64 P.3d 522 (internal quotation marks and citation omitted). Defendant fails to
articulate a reason why we should disagree with the district court’s determination. We
therefore “give due deference to the district court’s findings as to the level of complexity.”
See id.; State v. Coffin, 1999-NMSC-038, ¶ 57, 128 N.M. 192, 991 P.2d 477; but cf. Wilson,
2010-NMCA-018, ¶ 24 (choosing not to give deference to the district court’s determination
that a case was intermediate and instead deciding that it was simple).

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unacceptable reasons for delaying a criminal prosecution once it has begun.” Id. (internal
quotation marks and citation omitted). “The degree of weight we assign against the [s]tate
for negligent delay is closely related to the length of delay[.]” Id. “Intermediate categories
of delay, such as bureaucratic indifference or failure to take reasonable means to bring a case
to trial, are considered more culpable and weigh more heavily against the [s]tate, especially
if the defendant has sought to safeguard his rights.” State v. Gallegos, 2010-NMCA-032, ¶
22, 148 N.M. 182, 231 P.3d 1124 (alteration in original) (internal quotation marks and
citation omitted).

{10} The record reflects that ten months of delay was due to negligence and for
administrative reasons. Defendant’s trial was set and reset eight times before he was finally
tried. Several of the trial settings were vacated because the trial was set for a three-day
period when three days were not actually available. The first trial, which was set for
approximately six months after Defendant had been arrested, was reset due to one of the
days falling on a holiday, causing a delay over one month long. Another trial setting was
vacated because the trial was erroneously set for one day, causing a five-month delay.
Another trial setting was vacated because the third day fell on a furlough for state employees
ordered by the Governor, which would have left the defense counsel without any support
staff. This caused a two-month delay. The State argues that this last period should weigh
against Defendant because Defendant requested the continuance and defense counsel, having
had notice of the furlough day, could have made alternate arrangements. However, the
district court granted the continuance, acknowledging that it was necessary “to ensure that
[d]efense [c]ounsel has adequate support staff to prepare a defense.” The district court also
stated at the hearing on Defendant’s motion to continue that it was “aware of the mandatory
furlough” and as a policy had “not been setting public defender trials on that day” but that
it may not have entered its mind when setting Defendant’s trial. Another trial setting was
vacated because of a pending defense motion that had not been heard, causing a two-month
delay. All of this ten-month delay, though negligent and administrative, weighs against the
State. See Gallegos, 2010-NMCA-032, ¶ 23 (“[B]ecause the state has the burden of bringing
a case to trial, we weigh unreasonable periods of delay against the state.” (alterations,
internal quotation marks, and citation omitted)).

{11} The State argues that Defendant caused a period of delay by moving to continue the
second trial date, but we disagree and also weigh this delay against the State. Defendant’s
motion cites to his expert having inadequate time to prepare her report due to three
postponements of interviews with the State’s witnesses. Defense counsel was supposed to
interview the witnesses on August 11, 2008, but did not get to interview the witnesses until
November 10, 2008, which left slightly more than a month until the scheduled trial.
Defendant requested a continuance to ensure adequate time to prepare and review the expert
report in addition to reviewing any other evidence the State had yet to disclose. The State
concurred with the request and did not file a response opposing Defendant’s stated grounds.
The district court granted Defendant’s request. The State now asserts on appeal that defense
counsel had to cancel the first interviews and the times the State cancelled after that were for
good reasons. The State also alleges that Defendant’s expert was not disclosed until sixteen

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days before the scheduled trial, and the expert needed the safehouse interviews to prepare
for trial. We refuse to consider this attempt to attack Defendant’s stated reasons for requiring
a continuance when the State failed to attack them below and, in fact, concurred. Although
Defendant made the request, the three-month delay caused by the continuance weighs
against the State.

{12} There are two additional periods of delay that neither party argues should count
against the other. One trial setting was vacated by the district court due to a death in the
judge’s family, causing a three-month delay. Another delay was caused when trial was
aborted after a prospective juror made inflammatory comments during voir dire that were
heard by the entire jury panel. Fearing that the jury pool was tainted, Defendant requested
that the trial be vacated and reset, which the district court granted. We do not weigh either
of these delays against any party.

{13} The State is therefore responsible for most of the twenty-four month delay, although
there is nothing in the record demonstrating that the delay was purposeful. Because none of
the delay in this case is attributable to Defendant, we weigh this factor in Defendant’s favor.

3.     Defendant’s Assertion of the Right

{14} In considering Defendant’s assertion of his right to a speedy trial, “we assess the
timing of the defendant’s assertion and the manner in which the right was asserted.” Garza,
2009-NMSC-038, ¶ 32. In doing so, “we accord weight to the frequency and force of the
defendant’s objections to the delay.” Id. (internal quotation marks and citation omitted). “We
also analyze the defendant’s actions with regard to the delay.” Id.

{15} Defendant was arrested on May 12, 2008, and trial commenced on May 17, 2010.
Defendant repeatedly asserted his right to a speedy trial throughout this two-year delay. He
first demanded a speedy trial on January 28, 2009, after eight months of incarceration. He
demanded that this right be recognized again on June 22, 2009, and again on September 9,
2009, and again on September 17, 2009, and finally once more on November 23, 2009.

{16} Defendant filed a total of four motions to dismiss, asserting his right to a speedy trial
was being violated. The first time Defendant moved to dismiss the case for speedy trial
purposes was approximately two months after the State secured a Supreme Court order
granting a six-month extension pursuant to Rule 5-604 NMRA, which Defendant had
opposed. See Rule 5-604(B)(1) (requiring the commencement of a trial six months after the
waiver of arraignment in district court); see also State v. Savedra, 2010-NMSC-025, ¶ 9, 148
N.M. 301, 236 P.3d 20 (withdrawing the six-month rule provisions set forth in Rule
5-604(B)-(E) effective for all cases pending as of May 12, 2010). The district court denied
Defendant’s motion to dismiss.

{17} The State then moved the district court to order another six-month extension to
commence trial, and the district court granted the motion over Defendant’s objection. A few

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days later, Defendant made one of his speedy trial demands and thereafter filed his second
motion to dismiss asserting a violation of his right to a speedy trial. The court denied this
motion as well. Defendant ultimately moved to dismiss the cases for speedy trial violations
two more times after further delay. The first was on February 11, 2010, twenty-two months
after his arrest. Although the order is not in the record, the district court apparently denied
this motion as well. After the seventh trial setting was vacated, Defendant filed his final
motion to dismiss on April 20, 2010, which the district court also denied. We accord weight
to the frequency and force of these repeated assertions.

{18} In considering Defendant’s actions in relation to the delay, we acknowledge that
some of the delay in this case was at Defendant’s behest, yet we do not view those occasions
as contrary to his repeated assertions. Contra Coffin, 1999-NMSC-038, ¶ 67 (observing that
the defendant’s assertion of his speedy trial right was not meaningful when he objected to
the rule extension but also represented that he was not prepared for trial); State v. Fierro,
2012-NMCA-054, ¶ 54, 278 P.3d 541 (giving little weight to the defendant’s assertions after
considering the defendant’s “actions in contributing to the delay and being unready for trial
while simultaneously asserting his speedy trial right”), cert. denied, 2012-NMCERT-004,
293 P.3d 886. Even though the trial date was reset at the behest of Defendant more than
once, we cannot conclude that Defendant’s repeated assertions were artificial.

{19} Indeed, the majority of Defendant’s requests to postpone or reset the trial were the
result of legitimate concerns for securing a fair trial. The second continuance requested by
Defendant was to vacate the sixth trial setting due to the last day of trial falling on a furlough
day, which we already noted the district court found necessary “to ensure the [d]efense
[c]ounsel has adequate support staff to prepare a defense.” As far as Defendant’s request to
vacate the seventh trial setting after the juror made inflammatory comments, although the
State insisted that another jury could be empaneled, the district court found that “the only
proper and safe remedy and the one requested by the defense was to vacate the trial and reset
it.” We defer to the district court’s findings. A defendant should not be required to choose
between inadequately supported counsel or a potentially tainted jury of his peers and his
right to a speedy trial. He must be able to effectively balance his desire for a fair trial and the
ability to present a meaningful defense with his desire to speedily enjoy his day in court.

{20} Accordingly, we view Defendant’s repeated assertions as attempts to proceed to trial
as quickly as possible and weigh this factor in Defendant’s favor.

4.      Prejudice to Defendant

{21} In Garza, our Supreme Court explained the manner in which prejudice affects how
heavily the other Barker factors weigh in a defendant’s favor to find a speedy trial violation.
See Garza, 2009-NMSC-038, ¶ 39. The Court held that “generally a defendant must show
particularized prejudice of the kind against which the speedy trial right is intended to
protect.” Id. The Court went to explain that “if the length of delay and the reasons for the
delay weigh heavily in [a] defendant’s favor and [the] defendant has asserted his right and

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not acquiesced to the delay, then the defendant need not show prejudice for a court to
conclude that the defendant’s right has been violated.” Id.

{22} “The heart of the right to a speedy trial is preventing prejudice to the accused.” Id.
¶ 12. “Prejudice should be evaluated in light of the interest of the defendant, which the right
was designed to protect.” State v. O’Neal, 2009-NMCA-020, ¶ 27, 145 N.M. 604, 203 P.3d
135. The United States Supreme Court identified three such interests in Barker: (1) “to
prevent oppressive pretrial incarceration[,]” (2) “to minimize anxiety and concern of the
accused[,]” and (3) “to limit the possibility that the defense would be impaired.” 407 U.S.
at 532. “As to the first two types of prejudice, some degree of oppression and anxiety is
inherent for every defendant who is jailed while awaiting trial.” Garza, 2009-NMSC-038,
¶ 35 (alterations, internal quotation marks, and citation omitted). “The oppressive nature of
the pretrial incarceration depends on the length of incarceration, whether the defendant
obtained release prior to trial, and what prejudicial effects the defendant has shown as a
result of the incarceration.” Id.

{23} Here, Defendant was prejudiced by being incarcerated for the entire two-year period
between his arrest and trial. See id. (“[I]t cannot be denied that two-and-one-half years of
pretrial incarceration . . . one’s life on indefinite hold, waiting for one’s trial to
commence—is very substantial prejudice, of the precise kind that the Speedy Trial Clause
was meant to avoid.” (alteration and omission in original) (internal quotation marks and
citation omitted)). “‘The time spent in jail awaiting trial has a detrimental impact on the
individual. It often means loss of a job; it disrupts family life; and it enforces idleness. Most
jails offer little or no recreational or rehabilitative programs. The time spent in jail is simply
dead time.’” Id. (quoting Barker, 407 U.S. at 532-33). “With respect to pretrial incarceration,
the question is whether the length of time was unacceptably long in that it became unduly
prejudicial so as to factor into the analysis.” State v. Laney, 2003-NMCA-144, ¶ 29, 134
N.M. 648, 81 P.3d 591. This Court previously concluded that a delay of twenty-two months
prejudiced a defendant. See State v. Moreno, 2010-NMCA-044, ¶¶ 36-37, 148 N.M. 253, 233
P.3d 782 (considering twenty-two months of pretrial incarceration as the main factor in
determining that the defendant was prejudiced). Here, Defendant was incarcerated even
longer. This is the “precise kind” of prejudice the speedy trial right was intended to prevent.

{24} Having determined that Defendant was prejudiced by his lengthy pre-trial
incarceration, per Garza it is not necessary for all of the other factors to weigh heavily in
Defendant’s favor. See 2009-NMSC-038, ¶ 39. Nevertheless, we have concluded that they
all weigh in Defendant’s favor.

5.      Balancing The Barker Factors

{25} The total delay in this matter was slightly over twenty-four months. This amount of
delay was presumptively prejudicial, triggering further analysis of the Barker factors. For
the reasons stated herein, we conclude: (1) the length of delay, (2) the reason for the delay,
(3) Defendant’s assertion of the right to a speedy trial, and (4) prejudice to Defendant all

                                                7
weigh in Defendant’s favor in this case. Moreover, because Defendant was prejudiced by his
lengthy incarceration, the first three factors need not weigh heavily in Defendant’s favor.
Having examined the case in its entirety, we conclude that Defendant’s constitutional right
to a speedy trial was violated.

CONCLUSION

{26} Defendant’s convictions are reversed. In light of our disposition herein, it is not
necessary to discuss Defendant’s remaining issues on appeal.

{27}   IT IS SO ORDERED.

                                             ____________________________________
                                             MICHAEL E. VIGIL, Judge

WE CONCUR:

_________________________________
TIMOTHY L. GARCIA, Judge

_________________________________
M. MONICA ZAMORA, Judge




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