                                                              I attest to the accuracy and
                                                               integrity of this document
                                                                 New Mexico Compilation
                                                               Commission, Santa Fe, NM
                                                              '00'04- 15:26:12 2016.08.19

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMCA-067

Filing Date: June 7, 2016

Docket No. 34,150

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

JUDD MOORE,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF DONA AÑA COUNTY
Fernando R. Macias, District Judge

Hector H. Balderas, Attorney General
Elizabeth Ashton, Assistant Attorney General
Albuquerque, NM

for Appellee

Lahann Law Firm, LLC
Jeff C. Lahann
Christopher K. P. Cardenas
Las Cruces, NM

for Appellant

                                        OPINION

VIGIL, Chief Judge.

{1}     Defendant conditionally pled guilty to two counts of forgery, one count of
embezzlement, and one count of attempt to evade or defeat tax, reserving his right to appeal
from an order of the district court denying his motion to dismiss the indictment for a
violation of his constitutional right to a speedy trial. We reverse the district court.

I.     BACKGROUND

                                             1
{2}    Defendant was arrested on July 13, 2010, based on charges filed in the magistrate
court consisting of several counts of forgery, embezzlement, and conspiracy to commit
forgery. On July 14, 2010, Defendant made his first appearance, and was released from
custody subject to conditions three days later. The complaint against Defendant was then
dismissed without prejudice after the grand jury indictment was filed on March 24, 2011.
The Defendant was arraigned on April 11, 2011, and the State filed a statement of joinder
adding three other defendants to the case.

{3}    The Honorable Lisa C. Schultz was excused from this case, and the Honorable James
T. Martin was assigned on April 27, 2011. The State then exercised its right to excuse Judge
Martin, and the case was reassigned to the Honorable Fernando R. Macias on May 23, 2011.
The case was set for trial on March 28, 2012, but the State filed a motion for continuance on
March 20, 2012, stating that the amount of discovery was significant and additional time was
needed to prepare for trial and provide defense counsel with the necessary documents.
Defendant concurred, and the motion was granted. The trial was reset for August 22, 2012.

{4}     On August 15, 2012, the State filed another motion for continuance on grounds that
the three co-defendants were applying to the preprosecution diversion program and the State
needed additional time to complete the application process. See NMSA 1978, §§ 31-16A-1
to -8 (1981, as amended through 1984). Defendant opposed this motion, asserting in his
response that any further delay would violate his right to a speedy trial. The district court
granted the motion and a status hearing was scheduled for September 10, 2012. The three
co-defendants were not accepted into the program until September 9, 2013.

{5}     At the status hearing, both parties informed the district court that it would take one
week to present their case to the jury. The State requested a time period of two weeks on
behalf of both parties, and the district court stated that the trial would not occur until the next
calendar year—and that it would aim for January 2013. The next trial date was set for June
12, 2013, but the length of the trial was erroneously set for three days. Due to this error, the
trial was reset to September 9, 2013.

{6}     On August 19, 2013, Defendant filed a motion to dismiss alleging a speedy trial
violation. Defendant also filed a motion to exclude witnesses and evidence. The district court
scheduled a motion hearing on September 9, 2013, and reset the trial to begin the next day.
At the hearing, the district court denied the motion to dismiss. With regard to the motion to
exclude witnesses and evidence, Defendant informed the district court that he had just
received a witness statement the prior week and obtained three other witness statements that
very day, September 9, 2013. The State conceded that the late disclosure was due to
negligence in reviewing its files. Based on the late disclosures, defense counsel requested
a continuance of the trial asserting that his assistance would be ineffective at the trial as
scheduled because the late disclosures required interviews of these witnesses. The district
court granted the continuance, and the trial was reset for November 19, 2013.

{7}     The State then filed a motion to continue the trial because the sole attorney assigned

                                                2
to this case had resigned. According to the State, no other attorney would be prepared to take
this case to trial on the set date based on the complexity of this case. Defendant filed an
objection to the continuance, arguing that any further delay violated his right to a speedy
trial. The district court granted the motion and the trial was then reset for January 21, 2014.

{8}      However, this trial date was vacated because the district court judge was unavailable
due to other responsibilities. The trial was reset for May 19, 2014. At a motion hearing on
May 15, 2014, the parties agreed to a plea contingent upon Defendant’s renewed motion to
dismiss for a speedy trial violation. The parties agreed that if the district court denied the
motion, Defendant would enter into a conditional plea agreement, reserving his right to
appeal the district court’s ruling. The parties stipulated that the delay for a speedy trial
violation ended on May 19, 2014. Defendant filed an unopposed motion for continuance in
order to draft a renewed motion to dismiss, and filed the motion after the stipulated date. The
district court denied the motion to dismiss and Defendant entered into the conditional plea
agreement. Defendant appeals.

II.     DISCUSSION

{9}      “The right to a speedy trial is a fundamental right of the accused that is guaranteed
by both the Sixth Amendment of the United States Constitution and Article II, Section 14
of the New Mexico Constitution.” State v. Taylor, 2015-NMCA-012, ¶ 6, 343 P.3d 199
(alterations, internal quotation marks, and citations omitted). To determine whether a
defendant’s right to a speedy trial was violated, our Supreme Court has adopted the
balancing test of Barker v. Wingo, 407 U.S. 514, 530 (1972). See State v. Garza, 2009-
NMSC-038, ¶ 13, 146 N.M. 499, 212 P.3d 387. Under this balancing test, four factors are
weighed: (1) the length of delay; (2) the reasons for the delay; (3) the defendant’s assertion
of his right; and (4) the actual prejudice to the defendant. Id. On appeal, we defer to the
district court’s factual findings but “review the weighing and the balancing of the Barker
factors de novo.” State v. Spearman, 2012-NMSC-023, ¶ 19, 283 P.3d 272 (internal
quotation marks and citation omitted).

A.      Length of Delay

{10} The first factor has two purposes: it acts as the triggering mechanism to determine
whether further inquiry into the Barker factors is warranted, and if the delay is
“presumptively prejudicial,” it is a separate factor to consider in our analysis. State v. Serros,
2016-NMSC-008, ¶ 22, 366 P.3d 1121 (internal quotation marks and citation omitted). As
a benchmark, a delay is presumptively prejudicial if it exceeds one year in a simple case,
fifteen months in an intermediate case, and eighteen months in a complex case. Garza, 2009-
NMSC-038, ¶ 48. The district court found, and neither party disputes, that this case was
“extremely complex,” and that the delay was forty-six months. Thus, the delay is twenty-
eight months beyond the eighteen-month threshold for presumptively prejudicial delay in
a complex case.


                                                3
{11} With regard to the weight given to the length of the delay, “the greater the delay the
more heavily it will potentially weigh against the State.” Id. ¶ 24. In the present case, the
district court found that the delay weighs heavily against the State, which the State disputes.
Although the State argues that the length of delay should only weigh moderately against the
State, State v. Steinmetz, 2014-NMCA-070, ¶¶ 5-6, 327 P.3d 1145 (holding that a delay of
forty-three months weighs moderately against the State), our Supreme Court has recently
recognized that a “delay of over [fifty-one] months is extraordinary, and therefore it weighs
heavily in [the d]efendant’s favor.” Serros, 2016-NMSC-008, ¶ 24. Moreover, we have
stated that a delay approximately twice as long as the threshold weighs heavily against the
State. See Taylor, 2015-NMCA-012, ¶ 9 (holding that a delay nearly twice as long as the
twelve-month threshold for simple cases weighs heavily against the State); State v. Vigil-
Giron, 2014-NMCA-069, ¶¶ 19-20, 327 P.3d 1129 (holding that the delay of an additional
eighteen months beyond the triggering date for a complex case weighs heavily against the
State). We therefore weigh the delay of forty-six months—over twice as long as the
presumptively prejudicial threshold—heavily against the State.

B.     Reasons for Delay

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

{13} Deliberate delay “should be weighted heavily against the government”; whereas, a
negligent or administrative delay “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. ¶¶ 25-26 (internal quotation marks and
citation omitted). “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 government], especially if the defendant has sought to
safeguard his rights.” State v. Laney, 2003-NMCA-144, ¶ 17, 134 N.M. 648, 81 P.3d 591.
Finally, a delay caused by a valid reason will be considered appropriately justified. Garza,
2009-NMSC-038, ¶ 27.

{14} Approximately eight months passed while the case was in the magistrate court, from
Defendant’s arrest on July 13, 2010, until the indictment was filed in the district court on
March 24, 2011. Within this time period, Defendant made his first appearance on July 19,
2010, and filed a demand for discovery, list of witnesses, and pre-trial interviews on August
2, 2010. The record contains no response from the State regarding any disclosure of
discovery. See Rule 6-504(A) NMRA (stating that the State must provide discovery within
forty-five days after arraignment or the waiver of arraignment unless the district court orders
a different period). The record also fails to provide evidence that the State took any action
to move the case toward trial. See Rule 6-506(B)(1) NMRA (stating that trial shall
commence approximately six months after the arraignment or waiver of arraignment). The

                                              4
State’s excuse is that it brought the indictment in district court with additional charges,
which caused the delay. This does not justify not taking steps to bring the case to trial. See
Barker, 407 U.S. at 527 (stating that the state has the duty to bring a defendant to trial). The
State’s actions, or lack thereof, qualify as bureaucratic indifference, and this delay weighs
heavily against the State.

{15} The next delay involved a period of twenty-six days from April 27, to May 23, 2011,
during which two judges were excused from the case. This delay of less than one month does
not weigh against either party. See State v. Benavidez, 1999-NMCA-053, ¶ 35, 127 N.M.
189, 979 P.2d 234 (“We hold that the length of delay caused by the recusals, a period that
appears to amount to less than one month, should not be allocated to either party but should
be excluded from the speedy trial period.”), vacated on other grounds by 1999-NMSC-041,
128 N.M. 261, 992 P.2d 274. Additionally, we defer to the district court finding that during
this time “[t]he case proceeded normally” prior to the State’s March 20, 2012 motion for
continuance and therefore weigh the delay neutrally. State v. Valencia, 2010-NMCA-005,
¶ 18, 147 N.M. 432, 224 P.3d 659 (“[W]here a case moves toward trial with customary
promptness, the period of time is to be weighed neutrally between the parties.” (internal
quotation marks and citation omitted)).

{16} We now analyze the first continuance caused by the State’s delay in providing
discovery. On March 20, 2012, two months beyond the presumptively prejudicial threshold
and only eight days before the trial date, the State filed its first motion for continuance based
on the purported amount of discovery. The State requested additional time in order to
prepare for trial and give Defendant adequate discovery. On the same day, the State also
filed an untimely notice of disclosure, 344 days after the arraignment. See Rule 5-501(A)
NMRA (stating that, unless a shorter time period is ordered by the court, the state shall
provide discovery within ten days after arraignment or the date of filing a waiver of
arraignment). Prior to this filing, the State did not provide any other notice of disclosure to
Defendant. While the State argues that Defendant concurred with this continuance and thus
cannot complain of this delay, State v. McCrary, 1984-NMSC-005, ¶ 18, 100 N.M. 671, 675
P.2d 120, Defendant had no choice but to agree with the motion due to the late disclosure.
See Laney, 2003-NMCA-144, ¶¶ 9, 19 (holding that a continuance caused by the state’s
negligence in failing to provide discovery weighs heavily against the state, even though the
continuance was stipulated); see also State v. Flores, 2015-NMCA-081, ¶ 12, 355 P.3d 81
(“The [s]tate’s duties under Rule 5-501(A) are not optional, nor are they triggered by
Defendant’s requests.”). Because the State provided its disclosure eight days before trial and
did not properly disclose or prepare for trial for twenty months from Defendant’s arrest, we
weigh this approximate five-month delay, March 28 to August 22, 2012, heavily against the
State.

{17} The delay from August 22, 2012 to September 9, 2013, also weighs heavily against
the State. On August 15, 2012, the State filed a motion for continuance to allow the co-
defendants to complete the screening process for the preprosecution diversion program. The
State informed the district court that it “cannot imagine . . . that [the defendants] would not

                                               5
be accepted in the program.” The co-defendants were not admitted into the program until
September 9, 2013—the trial date. In other words, it took over a year for the co-defendants
to be accepted. The district attorney decides whether to divert a person into the
preprosecution diversion program. See § 31-16A-7. The State does not even attempt to
provide an excuse to justify the delay in the co-defendants’ acceptance. This delay is beyond
mere negligence and therefore weighs heavily on the State. See Taylor, 2015-NMCA-012,
¶ 25 (recognizing that the delay weighs heavily against the state when the cause of the delay
is more than mere negligence).

{18} The State yet again caused a delay of approximately two months from September 10
to November 19, 2013, because of late disclosure. After the district court reset the trial date
and a motion hearing was held on September 9, 2013, Defendant requested a continuance
because the State disclosed one witness statement the week prior to the trial date and three
witness statements the day before the scheduled trial. At the motion hearing, the State
admitted that the late disclosure resulted from its own negligence. Although Defendant
requested the continuance, it was the State’s inexcusable late disclosure that made it
necessary for Defendant to ask for this continuance. See State v. Ochoa, 2014-NMCA-065,
¶ 11, 327 P.3d 1102 (holding that the delay resulting from defendant’s motion for
continuance weighs against the state because the defendant’s expert had insufficient time to
make their report due to the postponement of the interviews from the state’s witnesses), cert.
granted, 2014-NMCERT-006, 328 P.3d 1188. We also weigh this delay heavily against the
State. See Laney, 2003-NMCA-144, ¶ 19.

{19} Finally, there was a delay of approximately six months from November 19, 2013 to
May 19, 2014. The State filed a continuance on November 12, 2013, because its assigned
counsel had resigned and no other attorney could be prepared to present its case on the trial
date. After the district court granted the continuance, the court then also vacated the trial date
because he had to attend to other business. The new trial was scheduled on May 19, 2014.
These delays are administrative and weigh against the State but not heavily. State v. Lujan,
2015-NMCA-032, ¶ 15, 345 P.3d 1103.

{20} On balance, over twenty-seven months out of a forty-six-month delay weigh heavily
against the State. On this basis, we hold that the reasons for the delay weigh heavily against
the State.

C.      Assertion of the Right

{21} In examining this third factor under Barker, “we assess the timing of the defendant’s
assertion and the manner in which the right was asserted.” Garza, 2009-NMSC-038, ¶ 32.
We therefore “accord weight to the frequency and force of the defendant’s objections to the
delay[,]” and further “analyze the defendant’s actions with regard to the delay.” Id. (internal
quotation marks and citation omitted).

{22}    Here, Defendant asserted his right four times in a forty-six-month period. See Flores,

                                                6
2015-NMCA-081, ¶ 32 (holding that the defendant adequately asserted his right when he
gave at least four assertions in a sixty-two-month period). Defendant objected to the State’s
two separate motions for continuances, specifically asserting that the delay would violate the
speedy trial right. The other two assertions were in a motion to dismiss for violation of the
speedy trial right and an oral assertion at a motion hearing. See Lujan, 2015-NMCA-032, ¶
18 (“New Mexico courts, however, have concluded that a motion to dismiss based on speedy
trial grounds is an assertion of the right that is weighed against the government.”). While the
State argues that Defendant’s first assertion and the assertions regarding the motions to
dismiss were untimely, it concedes—and we agree—that these assertions still weigh in
Defendant’s favor. See Garza, 2009-NMSC-038, ¶ 32 (holding that the right to a speedy trial
is so fundamental in nature that even the failure to assert does not constitute a waiver).
Moreover, we are aware that Defendant concurred with the State’s first continuance and
requested a continuance himself; however, we believe that these actions should not be held
against Defendant when the State caused the delays by its inexcusable late disclosure either
mere days or the day before the trial date. See Taylor, 2015-NMCA-012, ¶¶ 13, 14, 18
(concluding that the defendant did not acquiesce in the delay caused by the state, even
though the defendant filed a motion for continuance). Accordingly, we conclude that
Defendant asserted his right and this further weighs in his favor.

D.      Prejudice

{23} Under the fourth and final factor, “a defendant must show particularized prejudice
of the kind against which the speedy trial right is intended to protect.” Garza, 2009-NMSC-
038, ¶ 39. In order to demonstrate a particularized prejudice, the United States Supreme
Court has stated that the right to a speedy trial was designed: “(i) to prevent oppressive
pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit
the possibility that the defense will be impaired.” Id. ¶ 35 (internal quotation marks and
citation omitted). In regards to the first and second types of prejudice, “we weigh this factor
in the defendant’s favor only where the pretrial incarceration or the anxiety suffered is
undue.” Id. “[W]ithout a particularized showing of prejudice, we will not speculate as to the
impact of pretrial incarceration on a defendant or the degree of anxiety a defendant suffers.”
Id.

{24} Defendant argues only that the particular prejudice he suffered was undue anxiety,
relying on his affidavit attached as an exhibit to his second motion to dismiss for speedy trial
violation. The district court did not consider the affidavit because it was not admitted into
evidence at the hearing. However, we conclude the affidavit—attached to the motion as an
exhibit—can properly be considered. See Rule 5-120(D) NMRA (“Affidavits, statements,
depositions[,] or other documentary evidence in support of the motion may be filed with the
motion.”). We therefore examine the affidavit to determine whether Defendant has
established prejudice.

{25} In his affidavit, Defendant asserted that the unresolved case caused loss of
employment, and an inability to work in his field or to obtain other avenues of work,

                                               7
together with severe financial difficulties. Defendant stated that his wife and children were
fired from their jobs, which they had held for years; that his clients from previous years had
taken their business to other companies because the case had taken so long to reach an
outcome; that the restrictions imposed during this case prevented him from working in his
field; that no company he applied to would hire him while the case was pending, including
fast-food restaurants; that he was denied unemployment benefits due to the pending case,
culminating in $26,000 in lost benefits; that the New Mexico government would not process
his yearly tax refunds as a result of the on-going case; that he had to sell his families’ cars,
furniture, jewelry, and sentimental possessions to survive; that his house was repossessed
and his savings and retirement accounts depleted; and that he had been evicted from a place
that he was renting.

{26} Defendant also asserted that many of his family members “ostracized” his family and
himself for the past five years and that his brother will not speak with him until this case is
resolved due to the brother’s employer—a large banking institution—advising against any
communication to preclude any possible testimony from the brother. Due to these
continuances, Defendant stated that he has sought a therapist to cope with the stress and
contemplated suicide to end his anxiety.

{27} The State relies on Spearman for the proposition that alleged prejudice must occur
from the delay beyond the presumptively prejudicial threshold, and not arise from the
original indictment. We rejected this argument in Vigil-Giron:

       We do not believe that the Spearman Court’s statement was intended to
       espouse a principle that prejudice suffered after the indictment but prior to
       the speedy trial triggering date has no bearing on our analysis. Rather, insofar
       as the Spearman Court was focused on the question whether the allegations
       of prejudice could be substantiated by evidence, we believe the Court’s
       statement was intended to convey that the defendant must prove with
       specificity whether and how he was prejudiced by the pending charges.

Vigil-Giron, 2014-NMCA-069, ¶ 50.

{28} Defendant lost his ability to work in his field or obtain other employment, exhausted
his financial resources and lost his home, and was ridiculed by numerous family members.
Defendant was also deprived of his association with his brother and Defendant considered
suicide as a remedy to his situation. This anxiety was exactly the type of prejudice that the
speedy trial right was designed to prevent. See id. ¶ 56 (“[The d]efendant’s anxiety, loss of
employment, continued inability to find work, and the public humiliation that she suffered
as a result of the pending indictment are forms of prejudice that the speedy trial right is
intended to curtail.”); Spearman, 2012-NMSC-023, ¶ 37 (recognizing that an “[a]rrest is a
public act that may seriously interfere with the defendant’s liberty . . . and that may disrupt
his employment, drain his financial resources, curtail his associations, subject him to public
obloquy, and create anxiety in him, his family and his friends” (internal quotation marks and

                                               8
citation omitted)); Salandre v. State, 1991-NMSC-016, ¶ 18, 111 N.M. 422, 806 P.2d 562
(recognizing that the speedy trial right “protects against interference with a defendant’s
liberty, disruption of employment, curtailment of associations, subjection to obloquy, and
creation of undue anxiety”).

{29} The State argues that other factors in Defendant’s personal life caused the anxiety,
but it neither cites to any evidence in the record to justify its argument, nor did it submit any
evidence in response to Defendant’s renewed motion to dismiss for speedy trial violation.
Defendant established particular prejudice, and we weigh this factor in favor of Defendant.
Yet, we need not determine the weight to be given in Defendant’s favor due to our analysis
on the other factors. See Garza, 2009-NMSC-038, ¶ 39 (“[I]f the length of delay and the
reasons for the delay weigh heavily in defendant’s favor and defendant has asserted his right
and 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.”).

E.      Balancing Test

{30} The length of the delay of forty-six months was over double the amount of time
necessary to cross the presumptively prejudicial threshold and weighs heavily against the
State. The majority of the delay was caused by the State’s bureaucratic indifference,
inexcusably late disclosures, and late acceptance of the co-defendants into the preprosecution
diversion program. These reasons for the delay weigh heavily against the State. Defendant
also properly asserted his right to speedy trial and did not acquiesce in the delay. Even
without the prejudice factor weighing in favor of Defendant, as it does here, the weight of
the first three factors in Barker demonstrate that Defendant’s constitutional right to a speedy
trial has been violated.

III.    CONCLUSION

{31} The order of the district court is reversed, we remand the case to the district court to
vacate Defendant’s convictions, and for dismissal of the indictment with prejudice.

{32}    IT IS SO ORDERED.

                                                ____________________________________
                                                MICHAEL E. VIGIL, Chief Judge

WE CONCUR:

____________________________________
MICHAEL D. BUSTAMANTE, Judge

____________________________________
RODERICK T. KENNEDY, Judge

                                               9
