       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: ___________

Filing Date: April 17, 2014

Docket No. 32,732

STATE OF NEW MEXICO,

       Plaintiff-Appellant,

v.

BRYAN JAMES STEINMETZ,

       Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Reed S. Sheppard, District Judge

Gary K. King, Attorney General
Santa Fe, NM
M. Anne Kelly, Assistant Attorney General
Albuquerque, NM

for Appellant

L. Helen Bennett, P.C.
L. Helen Bennett
Albuquerque, NM

for Appellee

                                        OPINION

SUTIN, Judge.

{1}     On April 30, 2009, Defendant Bryan James Steinmetz was indicted on counts of
criminal sexual penetration of a child, criminal sexual contact of a minor, kidnapping,
bribery, and child abuse relating to allegations that he sexually abused his daughter during
the period of November 2006 through November 2008 when she was six to seven years old.
On January 4, 2013, following a hearing on Defendant’s motion to dismiss for a violation
of his right to a speedy trial, the court entered an order of dismissal of the case on speedy

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trial grounds. The State appeals from the order of dismissal. We conclude Defendant’s right
to a speedy trial was not violated, and we reverse the district court’s order of dismissal.

BACKGROUND

{2}    Necessary and relevant factual and procedural details are provided throughout the
discussion.

Standard of Review

{3}      Under the Sixth Amendment to the United States Constitution, a person who is
accused of a crime has a fundamental right to a speedy trial. State v. Garza, 2009-NMSC-
038, ¶ 10, 146 N.M. 499, 212 P.3d 387. At the heart of this right is “preventing prejudice
to the accused.” Id. ¶ 12. In effect, the right is intended “to prevent oppressive pretrial
incarceration[,] . . . to minimize anxiety . . . of the accused[,] and . . . to limit the possibility
that the defense will be impaired.” State v. Spearman, 2012-NMSC-023, ¶ 34, 283 P.3d 272
(internal quotation marks and citation omitted); Garza, 2009-NMSC-038, ¶ 12.

{4}     Determining whether a defendant’s speedy trial right has been violated requires a
review of the particular circumstances of each case, including consideration of the conduct
of the prosecution, that of the defendant, and “the harm to the defendant from the delay.”
Garza, 2009-NMSC-038, ¶ 13. Our analysis in this regard is guided by considering four
factors: “(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 that, on balance,
determines whether a defendant’s right to a speedy trial has been violated.” Id. (internal
quotation marks and citation omitted)). On appeal from an order of dismissal for a violation
of a defendant’s right to a speedy trial, the appellate courts review the speedy trial factors
de novo. Spearman, 2012-NMSC-023, ¶ 19.

The Length of the Delay

{5}       “The length of delay serves two purposes under the speedy trial analysis.” Id. ¶ 20.
On the one hand, it triggers an analysis of the speedy trial factors; and on the other hand it
is, itself, a speedy trial factor to be weighed in the balance. Id. The speedy trial analysis in
the present case was triggered by the passage of approximately forty-three months from the
date that Defendant was indicted to the date of the evidentiary hearing on his motion to
dismiss for a speedy trial violation. The district court found, and the parties do not disagree,
that the case was of intermediate complexity; we will defer to the court’s determination in
this regard. See State v. Plouse, 2003-NMCA-048, ¶ 42, 133 N.M. 495, 64 P.3d 522 (“We
give due deference to the district court’s findings as to the level of complexity.”); see also
Garza, 2009-NMSC-038, ¶ 2 (updating the “guidelines for determining the length of delay
necessary to trigger the speedy trial inquiry”). Thus, the delay in this case exceeded the
speedy trial analysis triggering time of fifteen months by approximately twenty-eight
months. See Garza, 2009-NMSC-038, ¶ 2 (stating that the length of delay necessary to

                                                 2
trigger a speedy trial inquiry is fifteen months for intermediate cases).

{6}     In terms of the weight given to the length of the delay, “the greater the delay[,] the
more heavily it will potentially weigh against the [prosecution].” Id. ¶ 24. In the present
case, based on the passage of an additional twenty-eight months beyond the triggering date,
the district court found that the length of the delay weighed heavily against the State, but the
State contends that the court erred in this finding. Although we agree with the court’s
determination that the length of the delay weighs against the prosecution, we disagree with
its determination that it does so heavily. See id. (recognizing that a delay beyond the date
of presumptive prejudice weighs against the prosecution, but its weight correlates to its
length). In State v. Montoya, this Court held that a delay of six months beyond the triggering
date in an intermediate case weighed only slightly against the prosecution. 2011-NMCA-
074, ¶ 17, 150 N.M. 415, 259 P.3d 820. In contrast, in Garza, our Supreme Court
recognized that a delay of five or more years weighed heavily in the defendant’s favor.
2009-NMSC-038, ¶ 24. Here, the delay of twenty-eight months beyond the date of
presumptive prejudice, being significantly longer than the six-month delay in Montoya, but
significantly shorter than the five to six years discussed in Garza, weighs moderately against
the State and in Defendant’s favor. See Garza, 2009-NMSC-038, ¶ 24 (recognizing that a
delay of three years and nine months “was too short to weigh heavily in the defendant’s
favor”).

The Reasons for the Delay

{7}        “Closely related to [the] length of delay is the reason the government assigns to
justify the delay.” Id. ¶ 25 (internal quotation marks and citation omitted). A deliberate or
bad faith attempt to delay the trial with the goal of hindering the defense will weigh heavily
against the prosecution, whereas delay caused by a valid reason, such as a missing witness
or time spent opposing the defendant’s pretrial motions, is both inevitable and wholly
justifiable. Id. ¶¶ 25, 27. In the middle of this spectrum is “negligent or administrative
delay,” which is delay caused, for example, by overcrowded courts, the reassignment of
judges, or governmental negligence. Id. ¶¶ 26, 29. Negligent or administrative delay is
weighed against the prosecution because “the ultimate responsibility for such circumstances
. . . rest[s] with [the] government rather than with the defendant[.]” Spearman, 2012-NMSC-
023, ¶ 25 (internal quotation marks and citation omitted). “The degree of weight we assign
against the [prosecution] for negligent delay is closely related to the length of [the] delay”;
the longer the delay, or the greater the threat to the fairness to the defendant, the less tolerant
we are of the delay. Garza, 2009-NMSC-038, ¶ 26.

{8}     In analyzing the reasons for the delay in this case, the district court examined the
period from April 30, 2009, the date of Defendant’s indictment, to November 19, 2012, the
date on which the fourth in a series of four assistant district attorneys entered his appearance
on behalf of the State. The district court divided the delay into ten periods of time and
ultimately concluded that twenty-five months of the delay weighed against the State, thirteen
months weighed neutrally, and three months weighed against Defendant. The State argues

                                                3
that Defendant was responsible for thirty-six months of the delay and that the court erred in
ruling otherwise. We review the reasons for the delay in this case using the district court’s
ten time periods as a framework.

1.      April 30, 2009, to June 21, 2009

{9}     The court’s first time frame was the approximate two months between Defendant’s
indictment on April 30, 2009, until the State’s entry of appearance on June 21, 2009.
Without explaining its reasoning for doing so, the court concluded that this time frame
weighed against the State. Although one possible explanation for the court’s weighing
assignment is that it viewed the State as somehow dilatory in entering its appearance, we
note that Defendant’s counsel did not enter his appearance until July 9, 2009, approximately
two weeks after the State’s entry. Because counsel for Defendant entered his appearance
after the State, we conclude that the State’s ostensibly late entry did not cause a delay in the
progress of the case. Rather, we view this series of events—the indictment, followed by the
State’s and then defense counsel’s entries of appearance—to indicate that from April 30,
2009, to July 9, 2009, the case was moving along with customary promptness, to be weighed
neutrally. See State v. Moreno, 2010-NMCA-044, ¶ 13, 148 N.M. 253, 233 P.3d 782 (stating
that when a case proceeds “with customary promptness[, the] delay cannot be held against
either party”).

2.      July 10, 2009, to January 12, 2010

{10} Although the district court did not delineate the exact date on which its second time
frame began, we have concluded that the first time frame may reasonably be viewed as
having ended on July 9, 2009, when Defendant’s first counsel entered his appearance. Thus,
we view the second time frame as extending from July 10, 2009, to January 12, 2010, when
Defendant’s second counsel entered his appearance. Although the district court
characterized this approximate six-month time frame as “negligent delay” and weighed it
against the State, the court’s factual findings are inconsistent with its conclusion.

{11} The court found that between July 2009 and January 12, 2010, “Defendant’s counsel
failed to attend at least three [pretrial] conferences, failed to return Defendant’s calls, and
did not appear for a scheduled meeting with Defendant.” The court also found that
Defendant’s counsel was permitted to withdraw his representation on December 7, 2009, and
as noted, Defendant’s second counsel entered his appearance on January 12, 2010.

{12} The court further found that “[t]he State apparently did nothing to advance the case
against Defendant between August 2009[] and January 12, 2010, except to file a motion to
extend time [on November 2, 2009,] which was granted” on November 4, 2009. See Rule
5-604(B)(1) NMRA (2010, prior to March 23, 2011, amendment) (requiring the
commencement of a trial six months after the waiver of arraignment in district court). Yet
the record reflects that in July and August 2009, the State filed its demand for a notice of
intention to claim alibi and/or entrapment, filed a certificate of disclosure stating that all of

                                               4
the information in the district attorney file was disclosed to the defense, filed a request that
the defense disclose the evidence and witnesses it intended to use at trial, and made two
evidentiary disclosures to the defense.

{13} Based on the foregoing, we disagree with the court’s conclusion that the July 10,
2009, to January 12, 2010, time frame weighed against the State in the speedy trial analysis.
The documents filed by the State in July and August 2009 reflect that it was actively
preparing for trial during those months. Further, we do not conclude that the State’s
November 2, 2009, motion for an extension of time, to which Defendant did not object,
caused a delay in this case. Rather, it appears that the motion and the court’s order granting
it were required to effect technical compliance with the 2009 version of Rule 5-604(B) that
required criminal cases to be tried within six months of arraignment or waiver of
arraignment.

{14} On the other hand, Defendant’s issues with his counsel, which were discussed to
some degree at a November 2, 2009, status conference, his counsel’s failures, recognized by
the court in its speedy trial order, and the process of finding new counsel to represent
Defendant, can reasonably be viewed as causing or contributing to the delay during this
second time frame. To that end, we observe that Defendant filed a pro se motion on October
13, 2009, requesting to withdraw his counsel, attempting to “substitute[] in and enter[] his
appearance [pro se],” and indicating that his counsel had not been “authorized to act on
Defendant’s behalf since September [3], 2009.” The court did not rule on this motion until
December 7, 2009, when it entered an order allowing Defendant’s counsel to withdraw.
And, as we have already noted, substitute defense counsel entered his appearance on January
12, 2010.

{15} In light of the foregoing circumstances, we disagree with the district court’s decision
to weigh the approximate six-month time frame from July 10, 2009, to January 12, 2010,
against the State. The record reflects that although the State appears during this time frame
to have been doing its part to move the case toward trial, the failures of Defendant’s counsel
and issues between Defendant and his counsel delayed that progress. Thus, contrary to the
district court’s order, we weigh this time frame against Defendant. See State v. Fierro, 2012-
NMCA-054, ¶ 40, 278 P.3d 541 (recognizing that delay caused by defense counsel should
be weighed against the defendant).

3.     January 12, 2010, to June 13, 2010

{16} The district court weighed the five months from January 12, 2010, to June 13, 2010,
against the State, reasoning that “[d]uring this period of time, another assistant district
attorney was assigned to the case and, other than filing her appearance, the State failed to
proceed forward except for filing another [p]etition to [e]xtend [t]ime.” The State attacks
the court’s finding, pointing to evidence in the record that, it argues, demonstrates that with
the exception of twenty-seven days that should be characterized as administrative delay, the
State attempted to move the case toward trial.

                                               5
{17} The record does not reflect any activity by either party between January 12, 2010,
when Defendant’s second counsel entered his appearance and February 7, 2010; however,
at a February 11, 2010, hearing, Defendant advised the court that he had spoken with his new
counsel on January 21, 2010. On February 8, 2010, the State filed three documents: a
demand for notice of intention to claim alibi and/or entrapment, a certificate of disclosure
of information, and a request for disclosure. Except for reflecting the name of Defendant’s
new counsel, these documents were identical to those filed by the State in July 2009.

{18} On February 11, 2010, the court held a status hearing at which the State was
represented by counsel, but Defendant appeared without his attorney. At this hearing, the
court confirmed that issues in getting an attorney to represent Defendant had been resolved,
and the court stated that it would set a hearing thirty days later to allow Defendant and his
attorney, who was new to the case, to “have a better understanding and knowledge of the
case.” Defendant told the court that he had received “the basic discovery,” but had yet to
receive any interview tapes. The court indicated that the State had provided a “speed letter
to obtain other discovery that [defense counsel] may request or require”; and that
Defendant’s counsel could discuss the matter of the tapes with the prosecutor. On February
18, 2010, the State filed a stipulated order for the protection of the privacy of child victims
and witnesses.

{19} On March 18, 2010, the court held a status hearing, at which Defendant and his
counsel were present, but the State failed to appear, apparently because the prosecutor who
was assigned to the case had left the division. At this hearing, defense counsel advised the
court that he had received discovery, but that he had yet to do witness interviews because
he had been involved in a time-consuming trial and was “just getting around to” setting up
the interviews, but there was no prosecutor to facilitate the interviews. At this hearing, the
court set a trial date of August 2, 2010. On April 9, 2010, the district court entered a notice
of hearing, pretrial scheduling, and direction order indicating, among other things, that trial
was set for August 2, 2010.

{20} On April 14, 2010, the State filed an entry of appearance by substitute counsel,
indicating that the State was aware of the pending hearings and was “ready to proceed
without delay[.]” On May 10, 2010, the State filed a Rule 5-604 petition stating, in relevant
part, that the then-current Rule 5-604 date in the case was May 11, 2010, and that a Rule 5-
604 extension was required so as to encompass the August 2, 2010, trial date. Defendant’s
opposition to the extension was acknowledged in the State’s motion. On May 13, 2010, the
court entered an order granting the Rule 5-604 extension.

{21} On May 26, 2010, thirteen days after the court granted the Rule 5-604 extension,
Defendant filed a pro se motion entitled “memorandum in opposition to plaintiff’s Rule 5-
604 petition.” Defendant’s memorandum addressed not only his objection to the Rule 5-604
extension, but it also attacked the validity of the grand jury hearing and indictment, among
other things. Although Defendant filed this motion pro se, the record does not reflect that
his counsel had withdrawn from the case or that the court had ordered that it was permissible

                                              6
for Defendant to represent himself in this matter.

{22} Based on the foregoing, we cannot agree with the district court’s decision to weigh
the entire five-month time period against the State. Based on the record, we conclude that
from January 12, 2010, through March 17, 2010, Defendant’s new counsel was familiarizing
himself with the case and receiving discovery from the State. The district court shared this
view, as reflected by its aforementioned comments at the February 11, 2010, status hearing
at which it gave defense counsel an additional thirty days to do so. Throughout this period,
the record reflects that the State was, for a second time, providing discovery to Defendant’s
counsel, thus facilitating movement of the case toward trial.

{23} We conclude that to the extent that there was a delay during this approximate two-
month time frame, it was the result of Defendant having substituted his counsel, thus
requiring time for Defendant’s new counsel to become familiar with the case. This delay
weighs against Defendant accordingly. See Fierro, 2012-NMCA-054, ¶ 40.

{24} The approximate one-month period between March 18, 2010, when the State failed
to appear for a status hearing until April 14, 2010, when a new prosecutor entered her
appearance and indicated that the State was ready to proceed without delay, weighs against
the State, but not heavily. Nothing in the record indicates that the State intended to cause
this delay; rather, the absence of a prosecutor was apparently the result of negligence or
under-staffing at the district attorneys’ office. See Garza, 2009-NMSC-038, ¶ 26 (stating
that negligent or administrative delay should be weighed against the prosecution less heavily
than intentional delay).

{25} The approximate two remaining months from April 14, 2010, to June 13, 2010, does
not reflect any delay-causing activity by either party. We assume that during this period,
each party was preparing for the August 2, 2010, trial date to which both the prosecutor and
defense counsel had acquiesced. Although the State filed and the court granted a Rule 5-604
extension, we do not view this as causing a delay insofar as the extension merely effected
technical compliance with Rule 5-604 by encompassing the August 2010 trial date.
Accordingly, this approximate two-month time frame does not weigh against either party.
 See Moreno, 2010-NMCA-044, ¶ 13 (stating that when a case proceeds “with customary
promptness[, the] delay cannot be held against either party”).

4.     June 14, 2010, to September 14, 2010

{26} The district court weighed the three months between June 14, 2010, and September
14, 2010, against Defendant, reasoning that it stemmed “from Defendant’s notice . . . [that]
he would be undergoing back surgery and his request . . . to proceed pro se.” Neither the
State nor Defendant attack the court’s conclusion in this regard, and therefore the court’s
decision to weigh this three-month period against Defendant is conclusive. See Rule 12-
213(A)(4) NMRA (stating that the appellant’s argument “shall set forth a specific attack on
any finding, or such finding shall be deemed conclusive”). Nevertheless, because it is

                                             7
relevant to our continuing analysis, we set out the following events that occurred during this
time frame.

{27} On June 14, 2010, Defendant filed a motion, pro se, attempting, for a second time,
to “substitute[] in and enter[] his appearance [pro se], and withdraw[]” his appointed counsel
for what Defendant characterized as “ineffective representation” that “bordered on
malpractice.” On June 16, 2010, Defendant’s counsel filed a motion to determine counsel,
requesting that the court hear Defendant’s motion “at the [c]ourt’s earliest convenience
because jury selection is set for August 2, 2010[.]” On July 20, 2010, the State filed a
response to Defendant’s request to appear pro se, stating its opposition thereto.

{28} On July 27, 2010, the court held a hearing on Defendant’s motion to appear pro se,
defense counsel’s motion to determine counsel, and a motion filed pro se by Defendant to
vacate the trial setting. At this hearing, the court granted Defendant’s motion to vacate the
trial setting and stated that the matter of Defendant acting pro se would be “taken under
advisement[.]”

{29} At a hearing on September 14, 2010, the court announced its order allowing
Defendant to represent himself, but with the exception that he would not be permitted to
conduct witness interviews of the mother of the alleged victim, the alleged victim, or child
witnesses. The court further ordered Defendant’s second appointed counsel to remain in the
case as standby counsel for Defendant and to conduct any interviews or examination of the
witnesses that Defendant was prohibited from interviewing. After the court announced its
order, Defendant requested that no hearings be set for at least three months beyond
September 20, 2010, so that he could undergo and recover from a second back surgery1. The
court stated, in response to Defendant’s request, that nothing would be set during the fall of
2010.

5.     September 15, 2010, to December 20, 2010

{30} The court weighed the approximate three-month time period between September 15,
2010, to December 20, 2010, against the State, reasoning that “nothing was filed by the State
after Defendant had been granted the right to represent himself[.]” The court did not explain
what the State was expected to, but failed to file, nor did it explain how that caused any
delay in this case. In light of the court’s September 14, 2010, order that nothing would be
set during the fall, which was in response to Defendant’s advice to the court that from
September 20, 2010, and three months thereafter he would be recovering from back surgery,
we cannot agree with the court’s decision to weigh this time frame against the State.

{31}   The approximate three-month delay from September 15, 2010, to December 20,


       1
        Defendant stated that he had back surgery on June 28, 2010, but he had “over
extenuated” himself during his last court hearing, thereby necessitating a second surgery.

                                              8
2010, almost precisely accounts for the delay in proceedings that Defendant requested for
his recovery and weighs against Defendant accordingly. Additionally within this time frame,
on December 16, 2010, Defendant filed a motion to disqualify his standby counsel because
he was in the process of suing standby counsel and the office of the public defender. By
initiating a lawsuit against his standby counsel and the office of the public defender,
Defendant laid the groundwork for further delay, as will be discussed later in this Opinion.

6.     December 20, 2010, to March 7, 2011

{32} The court weighed the approximate two and one-half months between December 20,
2010, and March 7, 2011, neutrally, reasoning that the case was proceeding naturally during
this period. The State argues that this time frame should, instead, weigh against Defendant
owing to his objection to having standby counsel.

{33} As noted, Defendant filed a motion to disqualify standby counsel on December 16,
2010; his standby counsel filed a response on December 20, 2010, indicating that any lawsuit
by Defendant against the public defender’s office lacked merit and notifying the court that
counsel had so advised Defendant. On January 14, 2011, Defendant filed an emergency
motion to stay the court’s order for standby counsel to conduct pretrial interviews, including
a second motion to disqualify his standby counsel. On February 3, 2011, Defendant’s
standby counsel filed a motion requesting that the court permit him to withdraw as standby
counsel; among other things, counsel stated in the motion that he had conducted pretrial
interviews of the alleged victim and her mother and sister, but that he could not adequately
defend himself in the civil lawsuit that Defendant had filed against him, individually, and
against the office of the public defender while simultaneously counseling Defendant in a
standby capacity. On March 7, 2011, the court held a hearing on this motion. Having heard
from Defendant, standby counsel, and the State, the court granted standby counsel’s motion
to withdraw.

{34} We disagree with the district court’s conclusion that the foregoing reflects that the
case was proceeding naturally. To the contrary, Defendant’s motions to disqualify his
standby counsel, his motion to stay the witness interviews, and his decision to file a lawsuit
against the public defender’s office reflect a contentious relationship between Defendant and
his court-appointed counsel, the resolution of which consumed this two-and-one-half-month
time frame and stalled the progress of the defense’s trial preparation. This delay weighs
against Defendant accordingly. See Fierro, 2012-NMCA-054, ¶ 40 (recognizing that delays
caused by new defense counsel’s need to become familiar with the case weigh against the
defendant).

7.     March 7, 2011, to May 5, 2011

{35} The district court weighed the approximate two-month delay spanning from March
7, 2011, to May 5, 2011, neutrally, reasoning that “[d]uring this period of time, the [c]ourt
vacated a trial setting at the request of both parties because of discovery issues.” The State

                                              9
argues that rather than weighing neutrally, this delay should have weighed against Defendant
due to Defendant’s failure to conduct pretrial witness interviews of the many State witnesses
or any of the defense witnesses.

{36} On April 5, 2011, Defendant filed a notice of non-compliance, alleging, among other
things, that the State was not in compliance with the rules of discovery, having failed to give
him a list of its witnesses and their contact information, thereby precluding him from
contacting the witnesses to arrange pretrial interviews. On April 6, 2011, Defendant filed
a motion to dismiss the case against him on a number of grounds, including a violation of
his right to a speedy trial. Also on April 6, 2011, Defendant filed a motion to vacate the trial
setting of May 16, 2011, and the docket call of May 5, 2011, in which Defendant alleged,
among other things, that the State failed to provide certain discovery and that he had been
unable to conduct pretrial interviews due to the State’s failure to provide contact information
for the witnesses. On April 21, 2011, the court granted Defendant’s motion to vacate the
trial setting, noting in its order that the State had stipulated to the motion via e-mail.

{37} At a hearing on May 2, 2011, the district court heard arguments on the discovery and
witness interview issues raised in Defendant’s April motions. As to the discovery issues
raised by Defendant in his motion to vacate, the State explained that the at-issue discovery
had earlier been provided to the public defender’s office, but that in light of Defendant’s
representation that his former counsel refused to provide Defendant with the discovery, the
State offered to provide it again. As to the witness interview issues, the State argued that
although it had attempted to schedule pretrial interviews with its expert witnesses, Defendant
had declined to interview the witnesses for fewer than eight hours each and had made other
demands that had resulted in a “stalemate” with Defendant. The court resolved the matter
by ordering that Defendant would be permitted to interview the State’s expert witnesses for
two hours each.

{38} Unlike the district court, we conclude that the two-month time frame encompassing
the foregoing events weighs against Defendant. While the district court’s conclusion
focused exclusively on the State’s acquiescence in the vacatur of the May 16, 2011, trial
setting, Defendant not only filed the motion to vacate, but he largely created the
circumstances that necessitated it. State v. Grissom, 1987-NMCA-123, ¶ 34, 106 N.M. 555,
746 P.2d 661 (recognizing that “[d]elay arising from hearing [the] defendants’ motions, not
caused by the prosecution” is not weighed against the prosecution in a speedy trial analysis),
disagreed with on other grounds by Salandre v. State, 1991-NMSC-016, 111 N.M. 422, 806
P.2d 562. To the extent that Defendant’s motion to vacate was premised on the fact that he
was missing discovery that his former counsel had refused to turn over to him, we see no
reason, nor did Defendant provide a reason for Defendant having waited until April 5, 2011,
to advise the court of the matter. Had Defendant been interested in moving his case toward
trial promptly, it is reasonable to assume that when he was formally permitted to represent
himself on March 7, 2011, he would immediately have started to prepare for the May 16,
2011, trial by gathering and reviewing the necessary discovery. To the extent that
Defendant’s former counsel refused to provide him with that discovery, Defendant was free

                                              10
to request additional copies from the State or, alternatively, to request the court’s
intervention in the matter. To the extent that Defendant complained of his inability to
interview the State’s witnesses, the record shows that the witness interviews were delayed
by Defendant’s demands to have the interviews proceed under the peculiar circumstances
that he dictated. In sum, the witness interview and discovery issues that arose between
March 7, 2011, to May 5, 2011, were caused by Defendant’s own actions and failures. This
two-month delay weighs against Defendant accordingly. See Fierro, 2012-NMCA-054,
¶ 40.

8.      May 5, 2011, to February 10, 2012

{39} The district court weighed the approximate nine months between May 5, 2011, and
February 10, 2012, against the State, reasoning that during this time frame, the State failed
to respond, until ordered to do so, to various motions filed by Defendant in June and July
2011. The State argues that the court erred in weighing this time frame against the State
because Defendant’s failure to interview a number of State witnesses or any of his seventy-
three defense witnesses was the true cause of this delay, not the State’s lack of responses to
Defendant’s motions.

{40} The record reflects that between May 16, 2011, and June 24, 2011, Defendant filed
six substantive motions, none of which requested dismissal of the case on speedy trial
grounds and the contents of which are not relevant here. The State did not file written
responses to these motions, nor did the court order the State to do so, and the State was not
required by the Rules of Criminal Procedure to respond to Defendant’s pretrial motions. Cf.
Rule 5-601 NMRA (governing pretrial motions, but not stating any requirement that the non-
movant file a written response).

{41} On May 27, 2011, the court filed a scheduling order and notice of hearing setting trial
to commence between the weeks of September 6, 2011, and September 12, 2011. On July
1, 2011, Defendant filed a second motion to dismiss. This motion was not premised on a
deprivation of Defendant’s right to a speedy trial; rather, it attacked the merits of the charges
against him and included as attachments a number of documents filed in connection with a
Children, Youth, and Families Department abuse and neglect case against Defendant and the
alleged victim’s mother.

{42} On July 7, 2011, the court held a hearing at which the court had apparently intended
to consider the merits of Defendant’s first motion to dismiss, but, in light of Defendant’s
then-recently filed second motion to dismiss, the court declined to hear arguments pertaining
to the first dismissal motion. Rather, the court heard and granted a motion filed by
Defendant on June 24, 2011, to amend the conditions of release. In concluding the hearing,
the court declined to address further motions filed by Defendant, and it advised the State to
be prepared, at a future hearing, to address all of the motions that Defendant had filed
through July 1, 2011; but the court did not comment upon the State’s failure to file written
responses to Defendant’s various motions filed during the months of May and June, nor,

                                               11
again, did it order the State to respond in writing to those motions.

{43} On July 13, 2011, the district court filed a notice of a motion hearing to be held on
August 22, 2011, at which the court intended to hear all pending motions that had been filed
through July 1, 2011. On July 21, 2011, Defendant requested that the August 22, 2011,
motions hearing be reset because Defendant intended to be out of town on that date; the State
concurred in the request. The order also included a handwritten clause vacating the
September 2011 trial date; however, no reason for the vacation of the trial date was included
in the record. The court approved of and filed this order on August 3, 2011.

{44} On November 15, 2011, the State filed a notice of substitution of counsel. On
December 28, 2011, the district court held a status conference. The prosecutor advised the
court that Defendant had yet to conduct four pretrial interviews of State witnesses; the State
also requested a definite trial setting. The court stated that it would not “set anything more
until [the prosecutor] and probably a supervisor” reviewed the Children, Youth, and Families
Department case against Defendant and the alleged victim’s mother and “decide[d] whether
or not this matter’s going to proceed to trial.” The court further instructed the prosecutor
that once the prosecution “had a chance to review the contents of the [Children, Youth, and
Families Department case], contact my office if there’s going to be any further settings, and
I will take [Defendant’s] [m]otion to [d]ismiss up at that time[.]”

{45} On February 10, 2012, the State filed a response to Defendant’s second motion to
dismiss, the contents of which pertained to the factual underpinnings of the charges against
Defendant. The State’s response to Defendant’s motion once again sought a definite trial
date for the resolution of this case.

{46} We are unable to conclude that the approximate nine-month time frame from May
5, 2011, to February 10, 2012, weighs against the State. The sole reason stated by the court
for weighing this delay against the State was the State’s failure to respond to “any of
Defendant’s motions until being ordered to respond” by the court. Given that the February
10, 2012, end-date of this time frame was the day on which the State filed its response to
Defendant’s second motion to dismiss, and given that the State did not respond in writing
to any other of Defendant’s June and July 2011 motions, we assume that the court’s concern
as to the State’s lack of response to Defendant’s motions was in regard to Defendant’s
second motion to dismiss. The record reflects that the court intended to hear Defendant’s
second motion to dismiss and all other pending motions at the August 22, 2011, hearing;
however, the August 22, 2011, hearing was vacated at Defendant’s request.

{47} The delay caused by the necessity of resolving Defendant’s motions and the further
delay caused by Defendant’s request to vacate the hearing date weighs against Defendant.
Grissom, 1987-NMCA-123, ¶ 34. Thus, the approximate seven and one-half months from
May 16, 2011, the date of Defendant’s first motion within this time frame through December
28, 2011, when the court held a status conference, weighs against Defendant. Having filed
a motion to vacate the August 2011 hearing, Defendant did not attempt to reschedule a

                                             12
hearing on his outstanding motions.

{48} At the December 28, 2011, status conference, the district court stated that it would
delay further action in this case until the prosecutor and a supervisor considered the contents
of Defendant’s second motion to dismiss. In response to the court’s order to do so, the State
responded to the merits of Defendant’s motion on February 10, 2012. Because this
approximate six-week delay from December 28, 2011, to February 10, 2012, was essentially
court-ordered, it weighs against the State. Cf. Garza, 2009-NMSC-038, ¶ 26 (stating that
administrative delay caused by the court weighs against the prosecution).

9.     February 11, 2012, to June 26, 2012

{49} The district court weighed the four-month period of delay from February 11, 2012,
to June 26, 2012, neutrally because during this time frame, the court disposed of Defendant’s
various motions and granted the State’s motion to appoint Defendant counsel. The State
disagrees with the court’s decision to weigh this time frame neutrally, arguing that it should,
instead, be weighed against Defendant due to Defendant’s failure to prepare for trial.

{50} The district court held a motions hearing on February 14, 2012. Following that
hearing, in a letter to counsel and Defendant dated February 28, 2012, the district court
stated that it would take under advisement a motion filed by Defendant on June 24, 2011,
requesting that his expert psychologist be allowed to examine the alleged victim and her
mother and sister. The district court’s letter instructed Defendant “to provide a copy of the
[proposed expert’s] CV. . . to the [c]ourt and the State ASAP.” The court denied
Defendant’s remaining outstanding motions. On April 24, 2012, the district court issued a
pretrial scheduling order reflecting a trial setting of August 13, 2012.

{51} On April 24, 2012, the district court held a hearing at which, among other things, it
addressed issues surrounding Defendant’s acquisition of an expert psychologist to examine
the alleged victim and her mother and sister. At this hearing, Defendant advised the court
that his proposed expert had advised him that she was not qualified to perform the interviews
of the alleged victim and her mother and sister that Defendant requested. Defendant
acknowledged that he should have advised the court of his expert witness issue earlier and
excused his failure to do so on the basis that he had had “too many stressors[.]” Defendant
also advised the court that he had been unable to issue necessary subpoenas because he did
not know the procedure for doing so and that he had missed scheduled interviews with the
State’s witnesses because he had become ill, thus necessitating an extension of the deadline
for completing witness interviews. The district court responded to Defendant’s
representations by stating that it had “grave concerns” about Defendant proceeding pro se
in light of Defendant’s apparent limitations in adequately preparing a defense.

{52} On May 1, 2012, the State filed a motion to compel the appointment of counsel for
Defendant. Separately on May 1, 2012, the State filed a motion to vacate the August 13,
2012, trial date because it conflicted with another trial date to which the prosecutor was

                                              13
previously committed. On June 16, 2012, before the court ruled on the State’s motion to
vacate the August 13, 2012, trial date, Defendant filed his own motion to vacate that trial
date. Also on June 16, 2012, Defendant filed a motion to dismiss on speedy trial grounds,
as well as a response to the State’s motion to compel appointment of defense counsel stating,
among other things, that he lacked “the experience or the knowledge that it would take to
properly present his innocence defense to a jury[,]” and requesting the court to appoint
defense counsel. On June 25, 2012, the district court vacated the August 13, 2012, trial
setting. On June 26, 2012, the district court entered an order appointing the public defender
to represent Defendant.

{53} Notwithstanding the district court’s having disposed of Defendant’s outstanding
motions, and notwithstanding the State’s request for a continuance of the August 13, 2012,
trial setting—facts which, under different circumstances, might cause the reasons for this
delay to weigh against the State—under the circumstances of this case, we weigh this time
frame against Defendant. While Defendant formally acknowledged that he could not
proceed without counsel by virtue of his June 16, 2012, motion, it is obvious from the
transcript of the April 24, 2012, hearing that Defendant was incapable of preparing for trial
due to his lack of counsel and that he was aware of his limitations, but failed to advise the
court of the issue until the State moved the court to appoint counsel for Defendant. Owing
to this and to the other delay-causing factors that occurred during this February through June
2012 time frame, including Defendant’s illness and his expert witness issue about which he
failed to promptly advise the court, we weigh this approximate four-month time frame
against Defendant.

10.    June 27, 2012, to November 19, 2012

{54} The district court weighed the approximate four-month delay between June 27, 2012,
to November 19, 2012, neutrally, reasoning that during this time frame, Defendant filed and
the State responded to a motion to dismiss based on speedy trial grounds. The State argues
that this period of delay weighs against Defendant because it was caused by Defendant’s
then-newly appointed counsel having to familiarize himself with the case.

{55} Defendant’s fourth counsel entered his appearance on June 29, 2012. On July 19,
2012, the State filed a response to Defendant’s June 16, 2012, motion to dismiss on speedy
trial grounds. On September 5, 2012, the district court held a status conference. At this
hearing, the court addressed the issue of Defendant’s pro se speedy trial motion, which, by
defense counsel’s own admission, failed to establish prejudice to Defendant or State-caused
delay. Defense counsel stated that he intended to write an addendum to the speedy trial
motion and stated his further intention to request a speedy trial hearing. Rather than an
addendum, the district court ordered that defense counsel should file an entirely new speedy
trial motion.

{56} Defense counsel also moved at the September 5, 2012, hearing for permission to file
a demand for a statement of facts. Although the State opposed this request on the ground

                                             14
that such a demand would be time-consuming and that the request was being made late in
the case, and although the court noted that it was “very late in the game” to be making such
a motion, the court granted defense counsel’s request. Following the September 5, 2012,
status conference, the district court entered an order setting motions deadlines, the latest of
which was an October 19, 2012, deadline applicable to Defendant’s reply to the State’s
response to Defendant’s demand for a bill of particulars or statement of facts.

{57} On September 18, 2012, Defendant, through his counsel, filed a motion to dismiss
on speedy trial grounds. The State filed its response on October 2, 2012. On October 24,
2012, the court held a status conference at which defense counsel requested and the district
court granted a “one-month motion filing period” for defense counsel to review the case to
“make sure there are no other issues” as to which defense motions should be filed. On
November 19, 2012, the date on which the district court’s tenth period of delay ended, the
State filed a notice of substitution of counsel.

{58} We disagree with the district court’s determination that the approximate four months
between June 27, 2012, and November 19, 2012, weighs neutrally. During this time frame,
Defendant’s newly appointed counsel was familiarizing himself with this case, was caused
to redraft Defendant’s pro se motion to dismiss on speedy trial grounds, and was permitted
by the court to file a demand for a bill of particulars or statement of facts that effectively
resulted in a six-week delay from the time of the September 5, 2012, status conference—at
which the court announced that it would permit such a demand through October 19,
2012—the final deadline applicable thereto. Additionally, at the October 24, 2012, status
conference, defense counsel requested, and was granted, a one-month motions filing period
to accommodate the possibility that in his continuing review of the case, he came across
issues that required defense motions. This approximate four-month period weighs against
Defendant accordingly. See Fierro, 2012-NMCA-054, ¶ 40.

Reasons for the Delay Summary

{59} In sum, having examined the reasons for the delay using the district court’s
framework, we conclude that the delay in this case was largely attributable to Defendant,
who was responsible for a total of thirty-four months of the forty-three-month delay. Of the
remaining months that were considered by the district court in its speedy trial analysis, we
conclude that four weigh neutrally and two and one-half weigh against the State. Even
assuming that the approximate two and one-half months that were omitted from the district
court’s reasons for the delay analysis weighed against the State, the reasons for the delay
factor would nevertheless, on balance, weigh heavily against Defendant.

The Assertion of the Right

{60} The district court weighed the assertion of the right factor heavily in Defendant’s
favor. In support of that conclusion, the court observed that Defendant “filed seven separate
speedy trial motions.” The State argues that the court’s conclusion failed to consider the

                                              15
context of Defendant’s assertion of the right, which, in the State’s view, should lead this
Court to weigh the assertion of the right factor against Defendant.

{61} The first of Defendant’s assertions of his right to a speedy trial was contained within
his second counsel’s entry of appearance on July 9, 2009. Defendant next asserted his right
to a speedy trial on October 13, 2009, in his pro se motion requesting to withdraw his
counsel and attempting to “substitute[] in and enter[] his appearance [pro se.]” Defendant
asserted his right to a speedy trial for the third time in his June 14, 2010, motion in which
he attempted, for a second time, to “substitute[] in and enter[] his appearance [pro se], and
withdraw[]” his third appointed counsel. Defendant asserted his right to a speedy trial for the
fourth time on April 6, 2011, in his motion to dismiss the case against him on a number of
grounds, including a violation of his right to a speedy trial; however, simultaneously with
that motion, he filed a motion to vacate the May 16, 2011, trial setting. On June 16, 2012,
Defendant filed a motion to dismiss on speedy trial grounds simultaneously with a motion
to vacate the August 13, 2012, trial setting. Defendant’s fourth counsel’s entry of
appearance, filed June 29, 2012, included a perfunctory demand for a speedy trial.
Defendant asserted his right to a speedy trial for the seventh time on September 18, 2012,
when, through counsel, he filed a motion to dismiss on speedy trial grounds.

{62} Defendant’s perfunctory assertions of the right contained in his own and his various
counsel’s entries of appearance and his further assertions of his right to a speedy trial in
motions that were filed simultaneously with his own delay-causing actions lead to the
conclusion that Defendant did not truly want to be tried speedily. On the contrary,
Defendant’s actions suggest that he intended to cause a delay in bringing his case to trial.
That Defendant invoked his right to a speedy trial in words while simultaneously operating
in a dilatory manner leads us to conclude that Defendant’s assertions of the right were at best
nominal and at worst an act of gamesmanship. The assertion of the right factor does not
weigh in Defendant’s favor.

The Prejudice to Defendant

{63} The district court found that Defendant suffered prejudice in the form of undue
anxiety, stress, and oppressive conditions of release as a result of the delay in bringing his
case to trial. The court’s conclusion was supported by testimony presented at the December
18, 2012, speedy trial hearing by Defendant, Defendant’s pastor who had also acted as his
counselor, and a member of Defendant’s church. Among other things, the court found that
Defendant’s conditions of release, which barred Defendant from contact with children,
precluded him from obtaining employment in food service or retail. Additionally, the court
found that Defendant “suffer[ed] from severe anxiety resulting from the on-going delay in
this case” and because of that anxiety, Defendant was “increasingly withdrawn, [had] lost
friends, [had] ceased participating in his normal activities, [felt] hopeless, suffer[ed] from
increased physical pain related to his disability, and [had] been suicidal, requiring in-patient
treatment.”


                                              16
{64} Notably, Defendant did not produce medical records or affidavits to support his claim
of increased physical pain related to his disability. And, although the court faulted the State
for its failure to subpoena Defendant’s medical records, the burden of proof rested with
Defendant, not with the State. See Spearman, 2012-NMSC-023, ¶ 39 (requiring the
defendant to offer evidence to support his claims of prejudice). Without medical records to
support his claims that the delay in this case caused physical ailments, the district court had
no basis upon which to conclude that there existed a causal relationship between them.

{65} As to the anxiety, stress, and oppressive conditions that the court found Defendant
had suffered as a result of the delay, we disregard the State’s sufficiency of the evidence
argument, and we assume, without deciding, that the court’s findings were adequately
supported by witness testimony. Nevertheless, owing to Defendant’s innumerable delay-
causing activities in this case, we cannot conclude that the prejudice factor weighs strongly
in his favor. See Garza, 2009-NMSC-038, ¶ 25 (“The reasons for a period of the delay may
either heighten or temper the prejudice to the defendant caused by the length of the delay.”
(internal quotation marks and citation omitted)). Throughout the proceedings in the district
court, Defendant either intentionally or inadvertently, or both, caused thirty-four months of
the forty-three-month delay. Thus, to the extent that Defendant suffered prejudice as a result
of the delay, the delay and therefore the prejudice that resulted therefrom was largely of his
own making. Under these circumstances, we cannot conclude that the prejudice factor
weighs more than slightly in Defendant’s favor.

Balancing the Factors

{66} On balance, no factor weighs heavily against the State. In that almost all of the delay
was attributable to Defendant, we see no reason to attribute fault to the State, except
technically to conclude that the length of the delay weighs just moderately, at most, against
the State, and the prejudice factor weighs just slightly, at best, against the State. The reasons
for the delay weighs heavily against Defendant. The assertion of the right is given no
weight. With no one factor weighing heavily in Defendant’s favor or against the State, and
due to Defendant’s having largely caused or contributed to almost all of the delay, we cannot
conclude that Defendant’s right to a speedy trial was violated.

CONCLUSION

{67} We reverse the district court’s order dismissing the case against Defendant on speedy
trial grounds. We remand to the district court for further proceedings.

{68}    IT IS SO ORDERED.

                                                ____________________________________
                                                JONATHAN B. SUTIN, Judge

WE CONCUR:

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____________________________________
CYNTHIA A. FRY, Judge


____________________________________
J. MILES HANISEE, Judge




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