STATE OF NEW MEXICO v. JUDD MOORE
NO. 34,150
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
June 07, 2016
Fernando R. Macias, District Judge
APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
Elizabeth Ashton, Assistant Attorney General
Albuquerque, NM
for Appellee
Lahann Law Firm, LLC
Jeff C. Lahann
Christopher K. P. Cardenas
Las Cruces, NM
for Appellant
VIGIL, Chief Judge.
{1} Dеfendant conditionally pled guilty to two counts of forgery, one count of embezzlement, and one count of attempt to evade or defeat tax, reserving his right to appeal from an order of the district court denying his motion to dismiss the indictment for a violation of his constitutional right to a speedy trial. We reverse the district court.
I. BACKGROUND
{2} Defendant was arrested on July 13, 2010, based on charges filed in the magistrate court consisting of several counts of forgery, embezzlement, and conspiracy to commit forgery. On July 14, 2010, Defendant made his first appearance, and was released from custody subject to conditions three days later. The complaint against Defendant was then dismissed without prejudice after the grand jury indictment was filed on March 24, 2011. The Defendant was arraigned on April 11, 2011, and the State filed a statement of joinder adding three other defendants to the case.
{3} The Honorable Lisa C. Schultz was excused from this case, and the Honorable James T. Martin was assigned on April 27, 2011. The State then exercised its right to excuse Judge Martin, and the case was reassigned to the Honorable Fernando R.
{4} On August 15, 2012, the State filed another motion for continuance on grounds that the three co-defendants were applying to the preprosecution diversion program and the State needed additional time to complete the application process. See
{5} At the status hearing, both parties informed the district court that it would take one week to present their case to the jury. The State requested a time period of two weeks on behalf of both parties, and the district court stated that the trial would nоt occur until the next calendar year—and that it would aim for January 2013. The next trial date was set for June 12, 2013, but the length of the trial was erroneously set for three days. Due to this error, the trial was reset to September 9, 2013.
{7} The State then filed a motion to continue the trial because the sole attorney assigned to this case had resigned. According to the State, no other attorney would be prepared to take this case to trial on the set date based on the complexity of this case. Defendant filed an objection to the continuance, arguing that any further delay violated his right to a speedy trial. The district court granted the motion and the trial was then reset for January 21, 2014.
II. DISCUSSION
{9} “The right to a speedy trial is a fundamental right of the accused that is guaranteed by both the
A. Length of Delay
{10} The first factor has two purposes: it acts as the triggering mechanism to determine whether further inquiry into the Barker factors is warranted, and if the delay is “presumptively prejudicial,” it is a separate factor to consider in our analysis. State v. Serros, 2016-NMSC-008, ¶ 22, 366 P.3d 1121 (internal quotation marks and citation omitted). As a benchmark, a delay is presumptively prejudicial if it exceeds one year in a simple case, fifteen months in an intermediate case, and eighteen months in a complex case. Garza, 2009-NMSC-038, ¶ 48. The district court found, and neither party disputes, that this case was “extremely complex,” and that the delay was forty-six months. Thus, the delay is twenty-eight months beyond the eighteen-month threshold for presumptively prejudicial delay in a complex case.
{11} With regard to the weight given to the length of the delay, “the greater the delay the more heavily it will potentially weigh against the State.” Id. ¶ 24. In the
B. Reasons for Delay
{12} ”Barker identified three types of delay, indicating that different weights should be assigned to different reasons for the delay.” Garza, 2009-NMSC-038, ¶ 25 (internal quotation marks and citation omitted). These three types of delay are:
{13} Deliberate delay “should be weighted heavily against the government“; whereas, a negligent or administrative delay “should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Id. ¶¶ 25-26 (internal quotation marks and citation omitted). “Intermediate categories of delay, such as bureaucratic indifference or failure to take reasonable means to bring a case to trial, are considered more culpable and weigh more heavily against [the government], especially if the defendant has sought to safeguard his rights.” State v. Laney, 2003-NMCA-144, ¶ 17, 134 N.M. 648, 81 P.3d 591. Finally, a delay caused by a valid reason will be considered appropriately justified. Garza, 2009-NMSC-038, ¶ 27.
{14} Approximately eight months passed while the case was in the magistrate court, from Defendant‘s arrest on July 13, 2010, until the indictment was filed in the district court on March 24, 2011. Within this time period, Defendant made his first appearance on July 19, 2010, and filed a demand for discovery, list of witnesses, and pre-trial interviews on August 2, 2010. The record contains no response from the State regarding any disclosure of discovery. See
{15} The next delay involved a period of twenty-six days from April 27, to May 23, 2011, during which two judges were excused from the case. This delay of less than one month does not weigh against either party. See State v. Benavidez, 1999-NMCA-053, ¶ 35, 127 N.M. 189, 979 P.2d 234 (“We hold that the length of delay caused by the recusals, a period that appears to amount to less than one month, should not be allocated to either party but should be excluded from the speedy trial period.“), vacated on other grounds by 1999-NMSC-041, 128 N.M. 261, 992 P.2d 274. Additionally, we defer to the distriсt court finding that during this time “[t]he case proceeded normally” prior to the State‘s March 20, 2012 motion for continuance and
{16} We now analyze the first continuance caused by the State‘s delay in providing discovery. On March 20, 2012, two months beyond the presumptively prejudicial threshold аnd only eight days before the trial date, the State filed its first motion for continuance based on the purported amount of discovery. The State requested additional time in order to prepare for trial and give Defendant adequate discovery. On the same day, the State also filed an untimely notice of disclosure, 344 days after the arraignment. See
{17} The delay from August 22, 2012 to September 9, 2013, also weighs heavily against the State. On August 15, 2012, the State filed a motion for continuance to allow the co-defendants to complete the screening process for the preprosecution diversion program. The State informed the district court that it “cannot imagine . . . that [the defendants] would not be accepted in the program.” The co-defendants were not admitted into the program until September 9, 2013—the trial date. In other words, it took over a year for the co-defendants to be accepted. The district attorney decidеs whether to divert a person into the preprosecution diversion program. See
{19} Finally, there was a delay of approximately six months from November 19, 2013 to May 19, 2014. The State filed a continuance on November 12, 2013, because its assigned counsel had resigned and no other attorney could be prepared to present its case on the trial date. After the district court granted the continuance, the court then also vacated the trial date because he had to attend to other business. Thе new
{20} On balance, over twenty-seven months out of a forty-six-month delay weigh heavily against the State. On this basis, we hold that the reasons for the delay weigh heavily against the State.
C. Assertion of the Right
{21} In examining this third factor under Barker, “we assess the timing of the defendant‘s assertion and the manner in which the right was asserted.” Garza, 2009-NMSC-038, ¶ 32. We therefore “accord weight to the frequency and force of the defendant‘s objections to the delay[,]” and further “analyze the defendant‘s actions with regard to the delay.” Id. (internal quotation marks and citation omitted).
{22} Here, Defendant asserted his right four times in a forty-six-month period. See Flores, 2015-NMCA-081, ¶ 32 (holding that the defendant adequately asserted his right when he gave at least four assertions in a sixty-two-month period). Defendant objected to the State‘s two separate motions for continuances, specifically asserting that the delay would violate the speedy trial right. The other two assertions were in a motion to dismiss for violation of the speedy trial right and an oral assertion at a motion hearing. See Lujan, 2015-NMCA-032, ¶ 18 (“New Mexico courts, however,
D. Prejudice
{23} Under the fourth and final factor, “a defendant must show particularized prejudice of the kind against which the speedy trial right is intended to protect.” Garza, 2009-NMSC-038, ¶ 39. In order to demonstrate a particularized prejudice, the United States Supreme Court has stated that the right to a speedy trial was designed:
{24} Defendant argues only that the particular prejudice he suffered was undue anxiety, relying on his affidavit attached as an exhibit to his second motion to dismiss for speedy trial violation. The district court did not consider the affidavit because it was not admitted into evidence at the hearing. However, we conclude the affidavit—attached to the motion as an exhibit—can properly be considered. See
{25} In his affidavit, Defendant asserted that the unresolved case caused loss of employment, and an inability to work in his field or to obtain other avenues of work, togethеr with severe financial difficulties. Defendant stated that his wife and children were fired from their jobs, which they had held for years; that his clients from
{26} Defendant also asserted thаt many of his family members “ostracized” his family and himself for the past five years and that his brother will not speak with him until this case is resolved due to the brother‘s employer—a large banking institution—advising against any communication to preclude any possible testimony from the brother. Due to these continuances, Defendant stated that he has sought a therapist to cope with the stress and contemplated suicide to end his anxiety.
{27} The State relies on Spearman for the proposition that alleged prejudice must occur from the delay beyond the presumptively prejudicial threshold, and not arise from the original indictment. We rejected this argument in Vigil-Giron:
We do not believe that the Spearman Court‘s statement was intended to espouse a principle that prejudice suffered after the indictment but prior to the speedy trial triggering date has no bearing on our analysis. Rather, insofar as the Spearman Court was focused on the question whether the allegations of prejudice could be substantiated by evidence, we believe the Court‘s statement was intended to convey that the defendant must prove with specificity whether and how he was prejudiced by the pending charges.
Vigil-Giron, 2014-NMCA-069, ¶ 50.
{28} Defendant lost his ability to work in his field or obtain other employment, exhausted his financial resources and lost his home, and was ridiculed by numerous family members. Defendant was also deprived of his association with his brother and Defendant considered suicide as a remedy to his situation. This anxiety was еxactly the type of prejudice that the speedy trial right was designed to prevent. See id. ¶ 56 (“[The d]efendant‘s anxiety, loss of employment, continued inability to find work, and the public humiliation that she suffered as a result of the pending indictment are forms of prejudice that the speedy trial right is intended to curtail.“); Spearman, 2012-NMSC-023, ¶ 37 (recognizing that an “[a]rrest is a public act that may seriously interfere with the defendant‘s liberty . . . and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends” (internal quotation marks and citation omitted)); Salandre v. State, 1991-NMSC-016, ¶ 18, 111 N.M. 422, 806 P.2d 562 (recognizing that the speedy trial right “protects against interference with a
{29} The State argues that other factors in Defendant‘s personal life caused the anxiety, but it neither cites to any evidence in the record to justify its argument, nor did it submit any evidence in response to Defendant‘s renewed motion to dismiss for speedy trial violation. Defendant established particular prejudice, and we weigh this factor in favor of Defendant. Yet, we need not determine the weight to be given in Defendant‘s favor due to our analysis on the other factors. See Garza, 2009-NMSC-038, ¶ 39 (“[I]f the length of delay and the reasons for the delay weigh heavily in defendant‘s favor and defendant has asserted his right and not acquiеsced to the delay, then the defendant need not show prejudice for a court to conclude that the defendant‘s right has been violated.“).
E. Balancing Test
{30} The length of the delay of forty-six months was over double the amount of time necessary to cross the presumptively prejudicial threshold and weighs heavily against the State. The majority of the delay was caused by the State‘s bureaucratic indifference, inexcusably late disclosures, and late acceptance of the co-defendants into the preprosecution diversion program. These reasons for the delay weigh heavily against the State. Defendant also properly asserted his right to speedy trial and did not
III. CONCLUSION
{31} The order of the district court is reversed, we remand the case to the district court to vacate Defendant‘s convictions, and for dismissal of the indictment with prejudice.
{32} IT IS SO ORDERED.
MICHAEL E. VIGIL, Chief Judge
WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge
RODERICK T. KENNEDY, Judge