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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. 29,591

 5 FERNANDA COBRERA,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Kenneth H. Martinez, District Judge


 9 Gary K. King, Attorney General
10 Olga Serafimova, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Jorge A. Alvarado, Chief Public Defender
14 Allison H. Jaramillo, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant


17                                 MEMORANDUM OPINION

18 KENNEDY, Chief Judge.
 1   {1}   In this case, we consider Defendant’s claims of a speedy trial violation based

 2 on a delay of two years and seven months, as well as claims that she was improperly

 3 prevented from introducing evidence that a witness had been convicted of a crime of

 4 dishonesty and that the victim’s ex-husband could have committed the crime.

 5 Defendant also asserts that the district court issued an erroneous shotgun instruction

 6 to the jury. Because less than six months of the delay is attributable to the State, and

 7 Defendant fails to show that she experienced any particularized prejudice as a result

 8 of the delay, we hold that her speedy trial claim fails. We hold that her evidentiary

 9 issues were not properly preserved and do not consider them further, and the district

10 court’s questionable instruction did not rise to the level of fundamental error. We

11 affirm.

12 I.      BACKGROUND

13   {2}   Fernanda Cobrera (Defendant) and her husband, Jose Cobrera, were in the midst

14 of a divorce. Defendant moved out of their house with most of her possessions, and

15 Sandra Hernandez (the victim) moved in with Jose. One week later, Jose’s house was

16 broken into, and the victim’s property was damaged. Defendant was later indicted and

17 charged with various crimes associated with the break-in, although she was acquitted

18 of all charges save the one underlying this appeal. Defendant’s case proceeded to




                                              2
 1 experience various delays, as we outline in detail below. She was eventually

 2 convicted of criminal damage to property.

 3   {3}   Defendant appealed. The New Mexico Supreme Court reversed our previous

 4 holding regarding evidence of the damaged property and remanded with instructions

 5 for this Court to consider Defendant’s remaining issues.

 6 II.     DISCUSSION

 7   {4}   On remand, we consider Defendant’s four remaining claims.

 8 A.      Speedy Trial

 9   {5}   Defendant argues that her right to a speedy trial, under both the United States

10 and New Mexico Constitutions, was violated by the time that elapsed between her first

11 arrest and her first trial. U.S. Const. amends. VI, XIV; N.M. Const. art. II, § 14.
12        We conduct our analysis by balancing four factors: (1) the length of the
13        delay in bringing the defendant to trial, (2) the reasons for the delay, (3)
14        the defendant’s assertion of [her] right to a speedy trial, and (4) the
15        actual prejudice suffered by the defendant as a result of the delay.

16 State v. Parrish, 2011-NMCA-033, ¶ 10, 149 N.M. 506, 252 P.3d 730. “We evaluate

17 speedy trial claims on a case-by-case basis, independently balancing the four factors

18 and considering no individual factor as talismanic.” Id. “In considering each of these

19 factors, we defer to the [district] court’s factual findings[,] but review de novo the

20 question of whether [the d]efendant’s constitutional right [to a speedy trial] was

21 violated.” State v. Brown, 2003-NMCA-110, ¶ 11, 134 N.M. 356, 76 P.3d 1113.



                                              3
 1 1.      Length of the Delay

 2   {6}   The delay in Defendant’s trial is calculated beginning from when she was first

 3 accused. Defendant contends that she was first accused when the initial indictment

 4 was filed on May 13, 2005. However, Defendant did not receive notice of this

 5 indictment or the arraignment set for June 14, 2005, until she was arrested on a bench

 6 warrant on December 3, 2005, for failing to appear. Neither party cites authority to

 7 support their arguments for when the clock should start. However, the right to a

 8 speedy trial attached when the defendant became an accused by way of either a formal

 9 indictment or information. State v. Manzanares, 1996-NMSC-028, ¶ 8, 121 N.M.

10 798, 918 P.2d 714. In the present case, the indictment preceded her arrest and,

11 although Defendant was not aware of the charges against her until her arrest, the clock

12 had already started for purposes of a speedy trial analysis. Even if we began counting

13 from the later arrest, a speedy trial analysis would still be triggered as over two years

14 passed between the arrest and Defendant’s first trial on December 18-20, 2007.

15   {7}   This delay exceeds the amount of time deemed “presumptively prejudicial” in

16 order to trigger further analysis of the merits of Defendant’s claim of a violation of her

17 speedy trial rights. See State v. Garza, 2009-NMSC-038, ¶¶ 42, 47, 146 N.M. 499,

18 212 P.3d 387. The State concedes that this case may be characterized as simple. For

19 a simple case, the amount is one year. Id. ¶ 47. As the delay of two years and seven



                                               4
 1 months is well beyond the threshold of one year for being considered presumptively

 2 prejudicial in a simple case, we therefore turn to the merits of Defendant’s claim of

 3 a speedy trial violation. State v. Stock, 2006-NMCA-140, ¶ 12, 140 N.M. 676, 147

 4 P.3d 885 (“When a speedy trial claim is made, the defendant must make a threshold

 5 showing that the length of delay is presumptively prejudicial. Once that showing has

 6 been made, the burden of persuasion shifts to the [s]tate to show, on balance, that the

 7 four factors do not weigh in favor of dismissal.” (internal quotation marks and

 8 citation omitted)).

 9 2.      Reason for the Delay

10   {8}   The appellate courts have recognized three different reasons for delay and have

11 explained that “different weights should be assigned to different reasons for the

12 delay.”    Garza, 2009-NMSC-038, ¶ 25 (internal quotation marks and citation

13 omitted). The three reasons for the delay are (1) intentional delay, which is weighed

14 heavily against the state; (2) negligent or administrative delay, which is weighed

15 against the state but less heavily; and (3) a valid reason related to preparing for trial,

16 which does not count against the state. Id. ¶¶ 25-27. Here, the district court found

17 that the reasons for the delay were, on balance, Defendant’s unreadiness for trial. The

18 first period of time in question is the seven months between the indictment and

19 Defendant’s arrest when she first became aware of the charges against her. Defendant



                                               5
 1 argues that delay should be attributable to the State for failing to properly serve her.

 2 As the State argues that the time from the indictment until Defendant’s arrest should

 3 not even count for speedy trial analysis, the State does not provide an alternative

 4 explanation for that time. As the State did not rebut the presumption that this time

 5 counts against it, we conclude that these seven months after the indictment weigh

 6 against it.

 7   {9}    The delay from Defendant’s arrest on December 3, 2005, until the first trial date

 8 that was set on August 14, 2006, is attributable to Defendant. Defendant’s counsel

 9 was replaced by a different attorney from the public defender’s office about three

10 weeks before trial was scheduled, and the new counsel asked for a continuance due

11 to unfamiliarity with the case. The district court found that delay should not count

12 against the State, as it was due to Defendant’s counsel being unable to move the case

13 forward. A delay due to Defendant’s new counsel being unready for trial is

14 attributable to Defendant. State v. Johnson, 2007-NMCA-107, ¶ 16, 142 N.M. 377,

15 165 P.3d 1153 (holding that the delay from a new trial setting at the request of a new

16 counsel representing the defendant was attributable to the defendant).

17   {10}   The defense then moved three subsequent times to continue the trial. This delay

18 is also attributable to Defendant. Defendant first moved to continue the trial based on

19 her counsel’s “unfamiliarity with the case and lack of pretrial interviews.” The trial



                                                6
 1 was reset from August 2006 to October 2006, but was then continued for two more

 2 weeks at the request of Defendant. Next, Defendant requested a third continuance

 3 based on her claim that she had failed to receive the transcripts of the pretrial

 4 interviews she had conducted. The trial was eventually reset for late November 2006.

 5 This delay, from August 2006 until November 2006, is attributable to Defendant. We

 6 recognize cases holding that, when defense counsel is solely responsible for a delay

 7 that does not benefit the defendant, that delay may count toward finding a speedy trial

 8 violation. Stock, 2006-NMCA-140, ¶ 21. However, this issue has not been raised in

 9 this case and is noted only as a cautionary reference.

10   {11}   The district court then reset the trial from November 2006 for late January

11 2007, based on other trial settings and a curtailed holiday schedule. The district court

12 then reset the trial a final time due to other trial settings for April 2007. This delay

13 from November 2006 until April 2007, a period of roughly five months, is attributable

14 to the State. State v. Palacio, 2009-NMCA-074, ¶ 18, 146 N.M. 594, 212 P.3d 1148

15 (stating that, “for purposes of speedy trial analysis, the fact that the delay was caused

16 by a governmental entity other than the prosecutor’s office does not protect the state,

17 because the government as an institution is charged with assuring a defendant a

18 speedy trial”).




                                               7
 1   {12}   At the time scheduled for the trial in April 2007, the district court instead held

 2 a two-day hearing on a motion in limine that revealed defects with the indictment. The

 3 district court dismissed the indictment based on false testimony having been presented

 4 to the grand jury. Although this hearing is not in the record before us, it was

 5 discussed at the later speedy trial hearing. The indictment was found to have been

 6 based on false testimony by a police officer regarding the existence of a taped

 7 confession by Defendant, which did not exist.            The State quickly re-indicted

 8 Defendant. No one disputes that the time used for the speedy trial calculations did not

 9 restart, but continued to accrue from the first indictment.

10   {13}   Defendant argues that because the two-week delay between dismissal and re-

11 indictment was due to the faulty indictment, it should count against the State. The

12 State does not argue on appeal that any more of the delay than those two weeks is

13 attributable to the State’s faulty indictment. The district court did not designate that

14 delay as the fault of either party. Because Defendant did not fulfill her burden to

15 include the first indictment in the record on appeal, we assume that, for the sake of

16 argument and due to the lack of a clear finding by the district court, those two weeks

17 are attributable to the State. See State v. Padilla, 1980-NMCA-141, ¶ 7, 95 N.M. 86,

18 619 P.2d 190.




                                                8
 1   {14}   After the re-indictment, the trial was scheduled to begin in five months in

 2 September 2007. The State moved for a definite trial setting in late August. At the

 3 hearing on that motion, Defendant’s counsel “indicated that he did not think he could

 4 be ready” by the scheduled trial. The State noted that, despite the case’s presence on

 5 the district court’s docket since December 2005, pretrial interviews had not been

 6 completed, but would be completed soon. Defendant consented to the State filing a

 7 Rule 5-604 NMRA petition to extend the time for commencement of trial in order to

 8 reschedule trial for December 2007. See Rule 5-604. The delay between September

 9 and December is therefore attributable to Defendant and her unreadiness as the district

10 court recognized.

11   {15}   Ten days before trial was scheduled, Defendant filed a motion to dismiss based

12 on a violation of her speedy trial rights under the New Mexico and United States

13 Constitutions. The district court held a hearing on the matter at the beginning of the

14 time scheduled for trial. The district court found that the majority of the delay was

15 attributable to Defendant and thus denied her motion and proceeded with the trial. The

16 district court found that, while “at first blush it would seem that it would be an

17 appropriate motion that would be well taken, . . . I do find that [although] there has

18 been [a] delay, . . . the majority of the delay is attributed to . . . Defendant.” The

19 December 2007 trial resulted in a hung jury, and the district court declared a mistrial.


                                               9
 1   {16}   Although Defendant mentions in her brief that we should consider the time after

 2 the mistrial until her second trial as part of the delay, she provides no further support

 3 for that argument. After the mistrial was declared, the State moved for a trial to be set

 4 within the six months allowed at the time under Rule 5-604 for Defendant to be re-

 5 tried. See State v. Reyes-Arreola, 1999-NMCA-086, ¶ 20, 127 N.M. 528, 984 P.2d

 6 775 (referring to the old six-month rule, but which reasoning remains relevant, “[t]he

 7 rule clearly contemplates permitting an additional six months to try a case after

 8 declaration of a mistrial”). The retrial in this case took place in July 2008, after an

 9 extension of time granted by the Supreme Court. This seven-month delay, not

10 discussed by Defendant on appeal, is not attributable to the State because it had

11 previously moved for a definite trial setting and requested the extension. The State

12 asked for the extension because the length of time from the December 17, 2007

13 declaration of a mistrial until the June 30, 2008 date scheduled for retrial would

14 slightly exceed the six months mandated by Rule 5-604 at the time. The time between

15 the declaration of a mistrial and Defendant’s retrial does not trigger our speedy trial

16 analysis.

17   {17}   In the two years and eighteen days between Defendant’s arrest and her first

18 trial, one year and two weeks weigh against the State. Several months of that was

19 administrative delay caused by overcrowded courts, which weighs against the State,



                                              10
 1 but not heavily. Garza, 2009-NMSC-038, ¶¶ 29-30. Because the parties agree that

 2 this was a simple case, under our Barker analysis we weigh the reasons for the delay

 3 factor slightly in favor of Defendant. Even though much of the delay can be

 4 attributable to Defendant, over twelve months is properly attributed to the State in this

 5 simple case.

 6 3.       Assertion of the Right

 7   {18}   Defendant asserted her right to a speedy trial in a demand for a speedy trial in

 8 May 2007, at the time of her re-indictment and in her motion to dismiss based on a

 9 speedy trial violation at her first trial in December 2007. We analyze the assertion of

10 the right on a case-by-case basis. Garza, ¶¶ 32-33.

11   {19}   Even though Defendant asserted her right to a speedy trial in May, she was later

12 unprepared for trial in the following September as discussed above. The motion was

13 filed only days before the trial scheduled in December 2007, thus not allowing the

14 State time to file a response. “[W]e assess the timing of the defendant’s assertion and

15 the manner in which the right was asserted. Thus, we accord weight to the frequency

16 and force of the defendant’s objections to the delay. We also analyze the defendant’s

17 actions with regard to the delay.” Id. ¶ 32 (internal quotation marks and citations

18 omitted). Assertion at a late date is timely, but it is not entitled to much weight. State

19 v. White, 1994-NMCA-084, ¶ 6, 118 N.M. 225, 880 P.2d 322 (giving little weight to



                                               11
 1 an assertion of the right two days before trial). Here, Defendant asserted her right, but

 2 it was only ten days before trial. We accord the previous pro forma motion she filed

 3 little weight. See State v. Wilson, 2010-NMCA-018, ¶ 46, 147 N.M. 706, 228 P.3d

 4 490. This factor therefore weighs in Defendant’s favor, but only slightly.

 5 4.       Prejudice to Defendant

 6   {20}   “When the state has delayed long past the time considered presumptively

 7 prejudicial, its burden to show on the record that [the] defendant’s right to a speedy

 8 trial was not violated becomes correspondingly heavier.” Salandre v. State, 1991-

 9 NMSC-016, ¶ 27, 111 N.M. 422, 806 P.2d 562, holding modified by Garza, 2009-

10 NMSC-038, ¶ 22. “[W]e weigh this factor in the defendant’s favor only where the

11 pretrial incarceration or the anxiety suffered is undue.” Garza, 2009-NMSC-038,

12 ¶ 35. “The oppressive nature of the pretrial incarceration depends on the length of

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

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

15   {21}   Defendant argues that she suffered undue anxiety in the form of sleepless

16 nights, decreased work performance resulting in economic hardship, and an inability

17 to travel outside the area. Non-particularized prejudice “is not the type of prejudice

18 against which the speedy trial right protects.” Id. ¶ 37 (holding that non-particularized

19 prejudice is not cognizable under this factor). In Garza, the defendant was held two



                                              12
 1 hours in jail and then released on a standard bond, and our Supreme Court did not find

 2 that he suffered adequately particularized prejudice. Id. Defendant cites Salandre that

 3 deals with a situation where evidence was destroyed and, therefore, a defendant’s

 4 ability to put on his case was impaired. 1991-NMSC-016, ¶ 6. Here, Defendant does

 5 not claim that her ability to put on her case was compromised by the delay, only that

 6 she suffered anxiety.       Defendant’s general claims of anxiety do not show

 7 particularized prejudice beyond what any accused suffers. Parrish, 2011-NMCA-033,

 8 ¶ 33 (stating that this Court was unconvinced by the defendant’s allegations that he

 9 suffered “unduly harsh conditions of release and undue anxiety due to his travel

10 restrictions, restrictions on handling firearms, and concerns that his job or professional

11 membership might be affected by a conviction” because the prejudice was similar to

12 that which any accused might suffer).

13   {22}   A defendant must show particularized prejudice in order for this Court to

14 determine that his or her right to a speedy trial was violated. Id. ¶ 35. The exception

15 to this showing of prejudice is when “both the length and reasons for the delay weigh

16 heavily in the defendant’s favor and the defendant has asserted his speedy trial right

17 and not acquiesced to the delay[.]” Id. (alterations, internal quotation marks, and

18 citation omitted). Here, the year of delay attributable to the State, much of which was

19 administrative delay, coupled with Defendant’s numerous continuances and her last



                                               13
 1 minute assertion of the right, do not weigh heavily in Defendant’s favor. Therefore,

 2 because she does not show particularized prejudice, her speedy trial violation claim

 3 fails.

 4 B.       The Victim’s Conviction for a Crime of Dishonesty

 5   {23}   Defendant next argues that the district court erroneously denied her motion in

 6 limine to allow evidence of the victim’s previous conviction for a crime involving

 7 dishonesty, pursuant to Rule 11-609(A)(2) NMRA. However, Defendant only cites

 8 to the pretrial motion filed in Defendant’s first trial. There is no record that Defendant

 9 attempted to introduce that evidence or otherwise obtained a ruling on the issue at

10 either trial. Defendant has not provided a complete record of the first trial, and it is

11 clear from the record that the issue was not raised at the second trial from which this

12 appeal stems. On appeal, the reviewing court will not consider issues not raised in the

13 trial court unless the issues involve matters of jurisdictional or fundamental error. In

14 re Aaron L., 2000-NMCA-024, ¶ 10, 128 N.M. 641, 996 P.2d 431. Without

15 provoking a ruling from the district court, Defendant has not preserved the issue for

16 appeal. State v. Silva, 2008-NMSC-051, ¶ 9, 144 N.M. 815, 192 P.3d 1192.




                                               14
 1 C.       Exclusion of Evidence of Alternate Perpetrator

 2   {24}   The district court did not allow defense counsel to question the victim regarding

 3 a restraining order the victim obtained against her now ex-husband, Martin Maes, to

 4 whom she was married when she was living with Jose. Defense counsel attempted to

 5 refer to the victim’s testimony from the first trial, in which she stated Maes had

 6 entered her apartment without permission, and she had obtained a restraining order

 7 against him. Defense counsel stated that he was attempting to refresh the victim’s

 8 recollection.     The district court sustained the State’s objection to the line of

 9 questioning, but issued a curative instruction after a bench conference, telling the jury

10 that previously the victim had stated under oath that three weeks prior to the crime

11 Maes had entered her apartment without permission. Defense counsel conceded that

12 “[a] curative instruction sounds fine with me” because all she was trying to do was

13 refresh the victim’s memory.

14   {25}   “A defendant seeking relief because an avenue for his defense was foreclosed

15 by an evidentiary ruling must show that he was prejudiced by the ruling. However,

16 no more prejudice need be shown than that the [district] court’s order may have made

17 a potential avenue of defense unavailable to the defendant.” State v. Campbell, 2007-

18 NMCA-051, ¶ 14, 141 N.M. 543, 157 P.3d 722 (alteration, internal quotation marks,

19 and citations omitted). In Campbell, we reversed a district court’s decision to exclude


                                               15
 1 expert testimony on reliability of child allegations of sexual abuse because we

 2 determined it impaired the defendant’s ability to question the veracity of his accuser

 3 and, in that case, there was no other evidence offered on that theory of defense. Id.

 4 ¶¶ 1, 17.

 5   {26}   In the case at hand, Defendant had the opportunity to introduce evidence of an

 6 alternative perpetrator of the crimes of which she was accused. The district court

 7 issued an instruction to the jury, stating that the victim had previously testified that her

 8 ex-husband had entered her home without permission. Defense counsel was permitted

 9 to question her about a fight between the victim’s ex-husband and current husband.

10 Defendant argues on appeal that her ability to put on a defense was impaired because

11 she could not introduce evidence of a temporary restraining order that the victim

12 obtained against her ex-husband. However, during the bench conference regarding

13 the State’s objection to this line of questioning, defense counsel stated that he was

14 “not going to get into an argument about the restraining order” and later stated that the

15 court’s instruction “sounds fine with me[, t]hat’s all I was trying to do.” Because

16 Defendant was able to introduce other evidence regarding an alternate perpetrator and

17 did not desire to pursue the introduction of the restraining order at trial, we conclude

18 that she was not prejudiced by the court’s evidentiary rulings in this matter.

19 D.       Shotgun Instruction



                                                16
 1   {27}   Defendant’s final claim on appeal is that the judge gave an impermissible

 2 shotgun instruction to the jury. In this case, the jury sent the court a note that stated

 3 “we have two guilty, two undecided, [and] eight guilty. We have people who have

 4 immediate evening commitments.           What do you want us to do?”           The court

 5 determined that the jury would recess for the evening, but be instructed to return in the

 6 morning because the court thought that it was not a situation where he may be giving

 7 a shotgun instruction because “it’s obvious that they would like to continue to

 8 deliberate.” Defendant neither objected to nor indicated that the district court was

 9 misinterpreting the note from the jury regarding a desire to recess deliberations for the

10 evening and continue the next day. Because the issue was not preserved, we review

11 for fundamental error.

12          Error that is fundamental must be such error as goes to the foundation or
13          basis of a defendant’s rights or must go to the foundation of the case or
14          take from the defendant a right which was essential to his defense and
15          which no court could or ought to permit him to waive.

16 State v. Cunningham, 2000-NMSC-009, ¶ 13, 128 N.M. 711, 998 P.2d 176 (internal

17 quotation marks and citation omitted).

18   {28}   A shotgun instruction is one in which the court, upon hearing the numerical

19 breakdown of an undecided jury that also appears to be deadlocked or unable to arrive

20 at a verdict, “instructs the jury that it must deliberate further[.]” State v. Juan, 2010-

21 NMSC-041, ¶ 17, 148 N.M. 747, 242 P.3d 314. However, “the [district] court is

                                               17
 1 permitted to inform the jury that it may consider further deliberations[.]” Id. (internal

 2 quotation marks and citation omitted). We have stated that, if the “instruction in

 3 question tended to coerce and unduly hasten the jury’s consideration of the case,” we

 4 may reverse if the error was properly preserved, but that even a coercive instruction

 5 was not enough to rise to the standard required to show fundamental error. State v.

 6 Travis, 1968-NMCA-036, ¶ 8, 79 N.M. 307, 442 P.2d 797. Here, we note that the

 7 instruction given was not clearly coercive.         Because an unpreserved shotgun

 8 instruction cannot constitute fundamental error, we do not need to analyze the issue

 9 further.

10 III.     CONCLUSION

11   {29}   We conclude that because Defendant did not demonstrate particularized

12 prejudice resulting from the delay of her trial, and the State was only responsible for

13 less than six months of the delay, her right to a speedy trial was not violated. Because

14 Defendant did not preserve her evidentiary claims and an unpreserved claim of a

15 shotgun instruction can never constitute fundamental error, we affirm the district

16 court.




                                              18
1   {30}   IT IS SO ORDERED.



2                               ____________________________________
3                               RODERICK T. KENNEDY, Chief Judge


4 WE CONCUR:



5 ___________________________
6 JONATHAN B. SUTIN, Judge



7 ___________________________
8 TIMOTHY L. GARCIA, Judge




                                 19
