 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
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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. 28,865 (consolidated
10                                                                           with NO. 28,864)

11 DANIEL HERRERA,

12          Defendant-Appellant.

13 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
14 John M. Pasternoster, District Judge

15 Gary K. King, Attorney General
16 Anita Carlson, Assistant Attorney General
17 Santa Fe, NM

18 for Appellee

19 Chief Public Defender
20 Kathleen T. Baldridge, Assistant Appellate Defender
21 Santa Fe, NM

22 for Appellant

23                                 MEMORANDUM OPINION

24 WECHSLER, Judge.
 1            Defendant appeals from a judgment and sentence entered after Defendant

 2 entered into two underlying conditional plea agreements, reserving the right to

 3 challenge his motions to dismiss the charges based on alleged speedy trial violations.

 4 We conclude that the amount of delay in these consolidated cases was insufficient to

 5 overcome the lack of a showing of particularized prejudice. Accordingly, we affirm

 6 the district court’s ruling that Defendant’s right to a speedy trial was not violated in

 7 either proceeding.

 8 BACKGROUND

 9            On March 29, 2007, in two separate grand jury indictments, Defendant was

10 charged with eight felonies. In CR 2007-045, Defendant was charged with aggravated

11 battery on a household member, aggravated assault with a deadly weapon against a

12 household member, bribery or intimidation of a witness, two counts of child abuse,

13 and false imprisonment. In the other indictment, CR 2007-046, Defendant was

14 charged with kidnaping and aggravated battery on a household member. With the

15 exception of the child abuse charge, all of the charges involved the same victim.

16 Accordingly, the indictments proceeded along the same path for purposes of setting

17 a trial.

18            Defense counsel filed an entry of appearance on April 6, 2007, including a pro

19 forma demand for speedy trial. As addressed below, the proceedings were thereafter



                                                 2
 1 delayed by a series of continuances and vacated trial settings. On July 8, 2008,

 2 Defendant filed a motion to dismiss on speedy trial grounds in CR 2007-046.

 3 Defendant filed a similar motion in CR 2007-045 on July 18, 2008. Both motions

 4 were addressed in a single hearing with the district court ruling against Defendant.

 5 The proceedings for both cases were then addressed in the same conditional plea

 6 agreement with Defendant reserving the right to appeal the speedy trial rulings, and

 7 a single judgment and sentence was issued. Defendant filed separate appeals, which

 8 this Court consolidated.

 9 SPEEDY TRIAL ANALYSIS

10         In addressing the speedy trial issue, we review the facts and circumstances

11 particular to this case to determine whether “actual and articulable deprivation” of

12 Defendant’s right to a speedy trial existed. State v. Garza, 2009-NMSC-038, ¶¶ 11-

13 12, 146 N.M. 499, 212 P.3d 387. We conduct our analysis by balancing four factors:

14 (1) the length of the delay in bringing the defendant to trial, (2) the reasons for that

15 delay, (3) the defendant’s assertion of his right to speedy trial, and (4) the actual

16 prejudice suffered by the defendant as a result of the delay. Id. ¶ 13 (relying on

17 Barker v. Wingo, 407 U.S. 514 (1972)) . We adopt this balancing test to the varying

18 circumstances presented in each case involving a claim of speedy trial violation. See

19 Garza, 2009-NMSC-038, ¶ 14. However, as noted by our Supreme Court in Garza,



                                              3
 1 our focus remains on the underlying purposes of the balancing test in analyzing the

 2 right to a speedy trial. Id. While we give deference to findings made by the district

 3 court that are supported by substantial evidence, we must conduct an independent

 4 examination of the record before concluding that a speedy trial violation has or has not

 5 occurred. See State v. Plouse, 2003-NMCA-048, ¶ 34, 133 N.M. 495, 64 P.3d 522;

 6 see also State v. Manzanares, 1996-NMSC-028, ¶¶ 1, 10, 121 N.M. 798, 918 P.2d 714

 7 (explaining that, in speedy trial cases, when the findings of the district court are

 8 supported by substantial evidence, we weigh the findings de novo).

 9 Length of the Delay

10        We first determine whether the entire length of the delay is “presumptively

11 prejudicial.” Our Supreme Court has recently adopted new guidelines for determining

12 when delay is “presumptively prejudicial.” Garza, 2009-NMSC-038, ¶¶ 48-50. The

13 new guidelines are applicable in cases, such as these, where a motion to dismiss based

14 on speedy trial is “initiated on or after August 13, 2007.” Id. ¶ 50. Under the new

15 guidelines, a delay of one year in a simple case, fifteen months in an intermediate

16 case, and eighteen months in a complicated case is considered “presumptively

17 prejudicial.” Id. ¶ 48. We note that a “presumptively prejudicial” delay is merely a

18 triggering mechanism for applying the balancing test and does not lead to a




                                              4
 1 presumption that Defendant’s right to speedy trial has been violated. Id. ¶ 21 (internal

 2 quotation marks omitted).

 3        Defendant’s right to a speedy trial attached on March 29, 2007, when Defendant

 4 was indicted. State v. Maddox, 2008-NMSC-062, ¶ 10, 145 N.M. 242, 195 P.3d 1254

 5 (stating that “[w]e calculate the length of delay from the date the Sixth Amendment

 6 right to a speedy trial attached when the defendant becomes an accused, that is, by a

 7 filing of a formal indictment or information or arrest and holding to answer” (internal

 8 quotation marks and citation omitted)). Defendant pled guilty on August 4, 2008,

 9 with a resultant delay between his indictment and plea of a few days more than sixteen

10 months.

11        We address first the district court’s determination of the relative difficulty of

12 the two cases set against the length of the sixteen-month delay. See State v. Coffin,

13 1999-NMSC-038, ¶ 57, 128 N.M. 192, 991 P.2d 477 (holding that the trial court is in

14 the best position to assess the complexity of a case). The district court only issued a

15 written order in CR-2007-46, where it stated that “this case verges on the high end of

16 a simple case to the low end of an intermediate case due to the fact that this case is

17 inextricably tied to [CR-2007-45] and involved [the] need to release CYFD records

18 regulated by statute and regulations.” As indicated, the district court did not enter

19 written findings with respect to CR-2007-45, but concluded at the motion hearing that



                                              5
 1 “[t]his is a case of intermediate complexity and not on the low end.” In reaching its

 2 conclusion, the district court noted that the case involved six felony counts, one of

 3 which was witness intimidation of the alleged victim, and the “unusual aspect of

 4 disclosure of the CYFD records.”

 5        Defendant argues that both cases are of simple complexity because all of the

 6 evidence other than CYFD records was testimonial. “The question of the complexity

 7 of a case, however, is best answered by a trial court familiar with the factual

 8 circumstances, the contested issues and available evidence, the local judicial

 9 machinery, and reasonable expectations for the discharge of law enforcement and

10 prosecutorial responsibilities.” State v. Rojo, 1999-NMSC-001, ¶ 52, 126 N.M. 438,

11 971 P.2d 829 (internal quotation marks and citation omitted). As Defendant points

12 out, CR-2007-046 involved CYFD records that added to the complexity of the case.

13 CR-2007-045 involved the same records and six felony counts. Both cases had

14 several potential witnesses. We will defer to the district court’s conclusions and use

15 the 15-month period for intermediate cases as a benchmark for our analysis. Because

16 the delay extended more than a month beyond that considered presumptively

17 prejudicial for these two cases, Defendant met his initial burden of showing that the

18 threshold length of delay was exceeded. Garza, 2009-NMSC-038, ¶ 21. Accordingly,

19 we proceed to a full analysis of the Barker factors. Id.



                                             6
 1          As we have stated, the delay was a little over a month. We believe that this

 2 factor weighs against the State, but only slightly. Cf. Zurla v. State, 109 N.M. 640,

 3 642, 789 P.2d 588, 590 (1990) (weighing a seventeen-month delay in a simple

 4 shoplifting case somewhat heavily against the state), modified on other grounds by

 5 Garza, 2009- NMSC-038; State v. Talamante, 2003-NMCA-135, ¶¶ 1, 21, 134 N.M.

 6 539, 80 P.3d 476 (holding that a delay of thirty-one months in an intermediate or

 7 complex case weighed heavily in favor of the defendant); State v. Marquez,

 8 2001-NMCA-062, ¶ 12, 130 N.M. 651, 29 P.3d 1052 (weighing heavily against the

 9 state a delay of nine months beyond the presumptively prejudicial period for a simple

10 case).

11 Reasons for the Delay

12          The first trial setting, October 1, 2007, nearly six months after the indictments,

13 was vacated on Defendant’s motion, so that he could compel disclosure of background

14 (NCIC) checks on three witnesses and certain records of the Children, Youth, and

15 Families Department (CYFD).           Defendant argues that he should not be held

16 responsible for this delay because the State bears the burden to timely bring him to

17 trial, and he is entitled to present a defense. Although the State bears the ultimate

18 burden to timely bring Defendant to trial, we do not weigh this initial delay against it,




                                                7
 1 particularly in light of Defendant’s delay in requesting this discovery until so close to

 2 the first trial date.

 3         The remaining delay can be broken down into three time periods. The first

 4 delay consisted of the period between the original trial setting, October 1, 2007, and

 5 the next available trial setting, February 4, 2008. The district court determined that

 6 this delay was caused “by the need for the Court to do an in camera review of CYFD

 7 documents in [one of these two cases. D]efendant sought out these records in a

 8 request for additional discovery and chose to delay the initial trial as a tactical

 9 decision.” In addition, Defendant did not request the documents until one month prior

10 to the trial setting. We defer to the district court’s factual interpretation of this delay,

11 Plouse, 2003-NMCA-048, ¶ 34, and we therefore agree with its conclusion that this

12 period of delay does not weigh against the State.

13         The October trial was vacated, and trial was reset for February 4, 2008. That

14 trial setting had to be vacated because of a snowstorm. We do not weigh this period

15 against the State. The district court addressed the snowstorm and the remaining delay

16 as follows:

17         The Court finds that the remaining delays regarding this case was
18         primarily caused by crowded dockets, court administration, judge
19         scheduling and an act of nature. [D]efendant was aware of the docket
20         issues when [he] chose to disqualify the assigned judge and seek the
21         judge in the other division of the District. These delays do not weigh
22         against the State or . . . Defendant. The State requested re-settings and

                                                8
 1        extension of time immediately as required upon the occasion of each
 2        delay. The court does not find any bad faith on the part of the State in
 3        this regard.

 4        The trial delay was caused by the district court’s crowded docket and resulted

 5 in postponement of the trial setting. We defer to the district court’s determination that

 6 the State did not intentionally seek the delay or otherwise act in bad faith. See Garza,

 7 2009-NMSC-038, ¶ 28; cf. Maddox, 2008-NMSC-062, ¶ 27 (weighing as neutral

 8 period of time during which case moved toward trial “with customary promptness”).

 9 We do, however, weigh this period of delay against the State because, by the court’s

10 own admission, the crowded docket was the primary reason for the delay. Garza,

11 2009-NMSC-038, ¶ 29 (“For purposes of analyzing a speedy trial claim, this type of

12 delay [crowded dockets] is considered negligent delay and is weighed against the

13 State accordingly.”).

14        In summary, we weigh the reason for the delay factor against the State, but only

15 slightly.

16 Assertion of Defendant’s Right

17        The assertion of the right to a speedy trial, we look at the timing of the assertion

18 and the manner in which the right was asserted. Id. ¶ 32 (stating that an appellate

19 court gives weight on assertion of the right factor based on frequency and force of a

20 defendant’s objections to delay). Here, the district court observed that Defendant had



                                               9
 1 properly asserted his right, presumably a reference to Defendant’s filing of a pro

 2 forma demand for speedy trial when counsel first entered an appearance on April 6,

 3 2007. However, pro forma pretrial motions are usually given relatively little weight

 4 in a speedy trial analysis. See State v. Urban, 2004-NMSC-007, ¶ 16, 135 N.M. 279,

 5 87 P.3d 1061. In both cases, Defendant did not file a motion to dismiss until late in

 6 the proceedings, on July 8 and July 18, 2008. In addition, the district court noted that

 7 Defendant did not appear to even be ready for trial, since he was still filing late

 8 motions.

 9        We agree with the district court’s finding that Defendant asserted his right to

10 a speedy trial. However, based on the timing of the assertions filed in this case, we

11 conclude that this factor weighs only slightly in Defendant’s favor. See Maddox,

12 2008-NMSC-062, ¶ 28 (reviewing assertion of right to speedy trial based on adequacy

13 and timeliness of the assertion); see also Marquez, 2001-NMCA-062, ¶ 22 (holding

14 that motion to dismiss on speedy trial grounds six days prior to trial justified weighing

15 assertion of right factor slightly in favor of the defendant).

16 Prejudice

17        We consider three interests when analyzing the prejudice factor of the balancing

18 test. Those interests include (1) preventing oppressive pretrial incarceration, (2)

19 minimizing anxiety and concern to the defendant, and (3) limiting the possibility that



                                              10
 1 the defense will be impaired. Garza, 2009-NMSC-038, ¶ 35. Defendant had the

 2 burden to prove that he suffered from a level of anxiety and concern that resulted in

 3 the violation of his speedy trial right, and a mere possibility of prejudice would not

 4 serve to meet that burden. Id. It was Defendant’s burden to prove actual prejudice,

 5 after which the burden would shift to the State to persuade the district court “on the

 6 ultimate question of whether [D]efendant’s right to a speedy trial has been violated.”

 7 Id. ¶ 22.

 8        Our Supreme Court in Garza held that, unless the length of and reasons for

 9 delay weigh heavily in favor of the defendant, the defendant is required to show

10 “particularized prejudice of the kind against which the speedy trial right is intended

11 to protect.” Id. ¶ 39. A particularized showing of prejudice is not one based on

12 speculation or on the possibility of prejudice. Id. ¶ 35; cf. Maddox, 2008-NMSC-062,

13 ¶ 35. In addition, Defendant must show a nexus between the claimed prejudice and

14 undue delay. See Salandre v. State, 111 N.M. 422, 431, 806 P.2d 562, 571 (1991),

15 modified on other grounds by Garza, 2009-NMSC-038.

16        Defendant is essentially relying on three assertions of prejudice: the “potential”

17 witness recollection problems, anxiety and concern, and the restrictions placed on him

18 by being subject to electronic monitoring. With regard to the “potential” witness

19 recollection problems, Defendant fails to make a particularized assertion as to how his



                                              11
 1 defense would be impaired. See Garza, 2009-NMSC-038, ¶ 37 (holding that non-

 2 particularized assertions of prejudice are not the kind of prejudice that the fourth

 3 Barker factor is designed to address).

 4        Because some level of concern accompanies charges pending in a criminal case,

 5 we look for a showing of undue concern or a showing that the concern has continued

 6 for a period of time that is unacceptably long. See Coffin, 1999-NMSC–038, ¶ 69; see

 7 also Garza, 2009-NMSC-038, ¶ 37 (holding that a non-particularized showing of

 8 prejudice is not the kind of prejudice contemplated in a speedy trial analysis). We are

 9 not convinced that Defendant’s level of concern went beyond that of any other person

10 facing charges in a criminal matter. See State v. Hayes, 2009-NMCA-008, ¶ 14, 145

11 N.M. 446, 200 P.3d 99 (determining that the defendant did not show prejudice based

12 on claims of anxiety because some amount of anxiety is inherent for persons jailed

13 while awaiting trial and the defendant was not in custody for the charges).

14        With respect to the ankle bracelet, Defendant concedes that he had been on

15 electronic monitoring since November 2006 in an unrelated case. As such, there was

16 no showing of actual prejudice. In sum, we conclude that Defendant did not make a

17 showing of actual or particularized prejudice. See Garza, 2009-NMSC-038, ¶ 37. We

18 do not weigh this factor in favor of Defendant.

19 Balancing the Factors



                                             12
 1        The total delay in this case was sixteen months, just one month over the

 2 applicable trigger date for a case of intermediate complexity. The period of delay

 3 weighs slightly against the State. Defendant caused the initial delay. The cases were

 4 then delayed due to the snowstorm on the February trial date. The district court

 5 determined that the remaining delay was caused by the court’s crowded docket. There

 6 was no indication that the State acted in bad faith, or even that any of the delay was

 7 attributable to its negligence. The assertion of the right factor weighs slightly in favor

 8 of Defendant. Finally, Defendant failed to meet his burden to show “particularized

 9 prejudice of the kind against which the speedy trial right is intended to protect” as

10 required by Garza. 2009-NMSC-038, ¶ 39. On balance, we conclude that there was

11 no violation of Defendant’s speedy trial right in this case.

12 CONCLUSION

13        We affirm the denial of Defendant’s motions to dismiss the charges based on

14 speedy trial grounds.

15        IT IS SO ORDERED.



16                                                  _______________________________
17                                                  JAMES J. WECHSLER, Judge

18 WE CONCUR:




                                               13
1 __________________________________
2 CELIA FOY CASTILLO, Chief Judge



3 __________________________________
4 LINDA M. VANZI, Judge




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