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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                   NO. 33,320

 5 JAIME GARCIA,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Charles W. Brown, District Judge


 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   Jane A. Bernstein, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14   Jorge A. Alvarado, Chief Public Defender
15   Santa Fe, NM
16   Sergio J. Viscoli, Assistant Appellate Defender
17   Albuquerque, NM

18 for Appellant
 1                    MEMORANDUM OPINION
 2
 3 BUSTAMANTE, Judge.

 4   {1}   Defendant Jaime Garcia appeals the denial of his motion to dismiss based on

 5 a violation of his constitutional right to a speedy trial. Concluding that this right was

 6 not infringed, we affirm.

 7 BACKGROUND

 8   {2}   Because this is a memorandum opinion and the parties are familiar with the

 9 facts, we outline them only briefly. Defendant was arrested on April 6, 2011, and

10 indicted on April 21, 2011, for second degree murder and voluntary manslaughter,

11 two counts of aggravated assault, and four counts of child abuse. In November 2012

12 Defendant moved for dismissal on the ground that his right to a speedy trial had been

13 violated, and a hearing on the motion was held on July 11, 2013, roughly twenty-six

14 months after Defendant was taken into custody. Defendant’s motion was denied.

15 Defendant entered a conditional plea reserving his right to appeal the denial of the

16 motion to dismiss. Additional facts are included as relevant to our discussion of

17 Defendant’s arguments on appeal.

18 DISCUSSION

19   {3}   The right to a speedy trial is derived from the Sixth Amendment to the United

20 States Constitution and Article II, Section Fourteen of the New Mexico Constitution.

21 State v. Garza, 2009-NMSC-038, ¶ 10, 146 N.M. 499, 212 P.3d 387. The purpose of

                                               2
 1 the right to a speedy trial is “(1) to prevent undue and oppressive incarceration prior

 2 to trial, (2) to minimize anxiety and concern accompanying public accusation[,] and

 3 (3) to limit the possibilities that long delay will impair the ability of an accused to

 4 defend himself.” Id. ¶ 12 (internal quotation marks and citation omitted). To determine

 5 whether the right has been violated, we examine four factors: “(1) the length of delay,

 6 (2) the reasons for the delay, (3) the defendant’s assertion of his right, and (4) the

 7 actual prejudice to the defendant.” Id. ¶ 13 (internal quotation marks and citation

 8 omitted). Each of the factors must be assessed case by case, and no single factor is

 9 dispositive. “[T]he factors have no talismanic qualities, and none of them are a

10 necessary or sufficient condition to the finding of a violation of the right of speedy

11 trial.” State v. Spearman, 2012-NMSC-023, ¶ 18, 283 P.3d 272 (alterations, internal

12 quotation marks, and citation omitted). In analyzing the factors, we defer to the district

13 court’s findings of fact but review the weight attributed to each factor de novo. Id. ¶

14 19.

15 1.      Length of Delay

16   {4}   The length of delay is both a “triggering mechanism” that prompts further

17 inquiry into the speedy trial analysis and a factor to be weighed against the others. Id.

18 ¶ 20. In other words, we first assess the length of delay to determine whether it

19 exceeds the threshold established as “presumptively prejudicial” by our Supreme

20 Court. Id. ¶ 21; see Garza, 2009-NMSC-038, ¶ 48 (stating that the speedy trial inquiry

                                               3
 1 is triggered when a given benchmark is exceeded and establishing the benchmarks as

 2 one year for simple cases, fifteen months for intermediate cases, and eighteen months

 3 for complex cases). The district court found that the present case is complex and that

 4 the presumptively prejudicial threshold of eighteen months had been exceeded.

 5 Although Defendant argued in district court that the present matter is an intermediate

 6 case, he does not contest the district court’s finding as to complexity on appeal. Thus,

 7 we accept the district court’s finding that the case is complex and next consider

 8 whether the length of delay weighs in Defendant’s favor. See State v. Coffin, 1999-

 9 NMSC-038, ¶ 56, 128 N.M. 192, 991 P.2d 477 (“The question of the complexity of

10 a case is best answered by a trial court familiar with the factual circumstances, the

11 contested issues and available evidence, the local judicial machinery, and reasonable

12 expectations for the discharge of law enforcement and prosecutorial responsibilities.”

13 (internal quotation marks and citation omitted)).

14   {5}    The twenty-six month delay here exceeds the presumptively prejudicial

15 threshold by eight months. In other cases, we have held that delays exceeding the

16 threshold by seven months, and eleven months weigh in favor of the defendant and

17 against the State. State v. Moreno, 2010-NMCA-044, ¶ 12, 148 N.M. 253, 233 P.3d

18 782 (seven months); State v. Johnson, 2007-NMCA-107, ¶ 8, 142 N.M. 377, 165 P.3d

19 1153 (eleven months). Hence, we conclude that this factor weighs in Defendant’s

20 favor.

                                              4
 1 2.      Reasons for the Delay

 2   {6}   Reasons for delay in bringing a defendant to trial fall within three categories:

 3 “(1) deliberate or intentional delay; (2) negligent or administrative delay; and (3)

 4 delay for which there is a valid reason.” State v. Lujan, 2015-NMCA-032, ¶ 15, 345

 5 P.3d 1103 (internal quotation marks and citation omitted). “We assign different

 6 weight to [these] different types of delay.” Id. Deliberate delay weighs heavily against

 7 the State, negligent or administrative delay weighs “against the State, though not

 8 heavily[,]” and delay for which there is a valid reason does not weigh for or against

 9 the State. Id.

10   {7}   Defendant identifies several reasons for the delay. First, he argues that the case

11 was delayed by “multiple reassignments of the case to new district attorneys.” He

12 characterizes this reason as “negligent or administrative delay.” We agree with this

13 characterization and weigh this element against the State, but not heavily.

14   {8}   Next, Defendant argues that the State failed to respond to his repeated requests

15 for discovery and for evidence testing. The district court found that the delay here

16 “has not been for the State to achieve a tactical advantage.” Defendant does not argue

17 on appeal that the State’s failure to respond was intentional or tactical. Nor does he

18 contest the district court’s finding that the delay was caused at least in part by

19 Defendant’s requests for “evidence that the State did not deem necessary for its case.”

20 Hence, like the district court, we categorize this delay as administrative or negligent

                                               5
 1 and weigh it slightly against the State. Cf. State v. Suskiewich, 2016-NMCA-004, ¶ 17,

 2 363 P.3d 1247 (concluding that “even if the[] continuances [in that case] were the

 3 result of the State’s failure to provide discovery, they fall into the ‘negligent or

 4 administrative’ category of delay, which weighs against the State”).

 5 3.       Assertion of Right

 6   {9}    Under this factor, “we assess the timing of the defendant’s assertion and the

 7 manner in which the right was asserted.” Garza, 2009-NMSC-038, ¶ 32. Here,

 8 Defendant asserted his right to a speedy trial at the arraignment and when defense

 9 counsel entered her appearance. He also filed a motion to dismiss based on speedy

10 trial grounds. Finally, he asserts that “the fact that trial counsel actually tried to move

11 the case along by repeatedly requesting evidence and pre[]trial interviews” indicates

12 that he was motivated to go to trial and adequately asserted his right to a speedy trial.

13 He maintains that this factor should weigh “moderately, if not heavily” in his favor.

14   {10}   As Defendant acknowledges, pro forma assertions of a speedy trial right are

15 generally accorded little weight. See State v. Urban, 2004-NMSC-007, ¶ 16, 135 N.M.

16 279, 87 P.3d 1061 (“[P]ro forma [pretrial] motions are generally afforded relatively

17 little weight in this analysis.”). In addition, we have held that “a motion to dismiss

18 based on speedy trial grounds is an assertion of the right that is weighed against the

19 government, although it is generally not weighed heavily.” Suskiewich, 2016-NMCA-

20 004, ¶ 24 (internal quotation marks and citation omitted).

                                                6
 1   {11}   The district court found that Defendant’s assertion of his right was adequate but

 2 that Defendant also “agreed to all continuances, [did] not . . . request[] any sanctions

 3 against the State,” and did not request a scheduling order or a trial date. Defendant

 4 does not contest these findings. In Suskiewich, this Court held that where the

 5 defendant had repeatedly requested discovery and even moved to compel discovery,

 6 this factor weighed only slightly in the defendant’s favor. Id. ¶ 24. Here, Defendant

 7 did not move to compel discovery by the State. We conclude that, even if we consider

 8 Defendant’s pro forma assertions, motion to dismiss, and requests for discovery, this

 9 factor weighs only slightly in Defendant’s favor.

10 4.       Prejudice to Defendant

11   {12}   “The heart of the right to a speedy trial is preventing prejudice to the accused.”

12 Garza, 2009-NMSC-038, ¶ 12. There are “three sources of prejudice in a delay: (1)

13 oppressive pretrial incarceration, (2) anxiety and concern of the accused, and most

14 importantly, (3) impairment of the defense.” Urban, 2004-NMSC-007, ¶ 17. “As to

15 the first two types of prejudice, some degree of oppression and anxiety is inherent for

16 every defendant who is jailed while awaiting trial. Therefore, we weigh this factor in

17 the defendant’s favor only where the pretrial incarceration or the anxiety suffered is

18 undue.” Garza, 2009-NMSC-038, ¶ 35 (alterations, internal quotation marks, and

19 citation omitted).



                                                7
 1   {13}   Defendant argues that being incarcerated for twenty-six months was oppressive.

 2 “The oppressive nature of the pretrial incarceration depends on the length of

 3 incarceration, whether the defendant obtained release prior to trial, and what

 4 prejudicial effects the defendant has shown as a result of the incarceration.” Id. The

 5 State does not contest that Defendant was incarcerated from the time of his arrest and

 6 was never released on bond. As to prejudice caused by incarceration, Defendant

 7 argues that “the delay prevented [him] from providing for his children . . . and

 8 caus[ed] the children to be separated from each other and potentially sent back to

 9 Mexico, causing significant anxiety and concern to [him].” Defendant did not explain

10 below or on appeal how the delay affected the children’s living arrangements more

11 so than the fact of his initial indictment or that the children’s living arrangements, and

12 his anxiety about them, worsened over time. See Suskiewich, 2016-NMCA-004, ¶ 25

13 (“The evidence must . . . establish that the alleged prejudice occurred as a result of the

14 delay in trial beyond the presumptively prejudicial threshold as opposed to the earlier

15 prejudice arising from the original indictment.” (internal quotation marks and citation

16 omitted)); see also State v. Vigil-Giron, 2014-NMCA-069, ¶ 55, 327 P.3d 1129

17 (noting that the defendant established undue prejudice where she testified that her

18 “medical and employment adversities” and “stress-related maladies” continued past

19 the threshold period and grew over time); Garza, 2009-NMSC-038, ¶ 35 (“[T]his

20 factor [weighs] in the defendant’s favor only where the pretrial incarceration or the

                                               8
 1 anxiety suffered is undue.”). We conclude that Defendant failed to establish that the

 2 period of incarceration was oppressive because he did not demonstrate that he suffered

 3 undue prejudice as a result.

 4   {14}   Defendant also argues that his defense was prejudiced by the delay in two ways.

 5 First, he maintains that because of the delay in trial, a witness was unavailable to

 6 testify since she had since moved out of state. But Defendant made no proffer of what

 7 the witness would say and presented no argument or evidence that her unavailability

 8 was the result of the delay. See id. ¶ 36 (“If the defendant asserts that the delay caused

 9 the unavailability of a witness and impaired the defense, the defendant must state with

10 particularity what exculpatory testimony would have been offered, and the defendant

11 must also present evidence that the delay caused the witness’s unavailability.”

12 (alterations, internal quotation marks and citation omitted)). Second, Defendant asserts

13 that some of the testing of the alleged weapon was “done out of order” which

14 “result[ed] in possible tainted evidence.” Again, Defendant presented no evidence or

15 testimony indicating that the delay in this case caused the weapon testing to be done

16 in an unusual order or that the order of testing actually tainted the results. See State

17 v. Taylor, 2015-NMCA-012, ¶ 20, 343 P.3d 199 (holding that the defendant did not

18 demonstrate particularized prejudice where “[n]o testimony or documentary evidence

19 was offered or admitted into evidence in support of counsel’s assertion that [the

20 d]efendant was prejudiced”). Despite being incarcerated for over twenty-six months

                                               9
 1 awaiting his trial in this complex homicide case, “we hold that Defendant has made

 2 no showing of prejudice that is cognizable under the [prejudice] . . . factor.” Garza,

 3 2009-NMSC-038, ¶ 37.

 4   {15}   We conclude that the first factor weighs at most moderately in Defendant’s

 5 favor, while the second and third factors weigh slightly in his favor. However, because

 6 Defendant did not make a particularized showing of prejudice, his right to a speedy

 7 trial was not violated. Id. ¶ 40 (stating that where “[the d]efendant failed to show

 8 prejudice, and the other factors do not weigh heavily in [the d]efendant’s favor . . .

 9 [the Supreme Court could not] conclude that [the d]efendant’s right to a speedy trial

10 was violated”).

11 CONCLUSION

12   [16}   For the foregoing reasons, we affirm.

13   {17}   IT IS SO ORDERED.



14
15                                         MICHAEL D. BUSTAMANTE, Judge

16 WE CONCUR:


17 __________________________________
18 MICHAEL E. VIGIL, Chief Judge


19 __________________________________

                                             10
1 TIMOTHY L. GARCIA, Judge




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