{1} This is а speedy trial case under the Sixth Amendment to the U.S. Constitution in which we are required to determine the applicable length of delay where there are successive indictments charging identical offenses. The first indictment was filed on March 25, 1999, and dismissed without prejudice on May 5, 2000. That same day, a second indictment was returned, charging the same offenses. On October 23, 2001, Defendant conditionally pleaded no contest to reduced charges, reserving his right to appeal the denial of his motion to dismiss the indictment on speedy trial grounds. We hold that from the time the first indictment was filed on March 25, 1999, until Defendant conditionally pled no contest on October 23, 2001, (a period of 942 days or 31.40 months), Defendant was an “accused” for purposes of the right to a speedy trial under the Sixth Amendment to the U.S. Constitution. We reverse the orders of the trial court denying Defendant’s motion to dismiss the indictment.
{2} Two different judges presided over this ease. Judge Jewell was the first. After hearing the evidence and considering legal argumеnts of the parties, Judge Jewell concluded that since Defendant was not formally arrested when the first indictment was filed, and he was released on his own recognizance subject to conditions, Defendant’s speedy trial rights did not commence until the second indictment was returned on May 5, 2000. Judge Jewell further concluded that from May 5, 2000, the length of the delay was not presumptively prejudicial, and while the reasons for the delay weighed against the State, they did not heavily weigh against the State. Judge Jewell found that Defendant always asserted his speedy trial rights, but concluded he suffered no prejudice. Accordingly, Judge Jewell denied the motion to dismiss in an order filed on March 1, 2001. Judge Sitterly was assigned to the ease the same day Judge Jewell’s order was filed, on March 1, 2001. Defendant subsequently filed a second motion to dismiss on May 22, 2001. After conducting a second evidentiary hearing and receiving written arguments from the parties, Judge Sitterly denied the motion on June 28, 2001. She did not reexamine Judge Jewell’s order and concludеd that the additional delay after March 1, 2001, due to a reassignment of judges, was not sufficient prejudice to violate Defendant’s constitutional right to a speedy trial.
ANALYSIS
{3} The Sixth Amendment to the U.S. Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” U.S. Const, amend. VI. We weigh four fаctors in analyzing Defendant’s claim that the State violated his Sixth Amendment right to a speedy trial: (1) length of the delay, (2) reasons for the delay, (3) the defendant’s assertion of the right to a speedy trial, and (4) prejudice to the defendant. Barker v. Wingo,
1. Length of the Delay
{4} On March 25, 1999, the State filed the first indictment. The right to a speedy trial attached at that time. Lujan,
{5} On February 21, 2000, the Supreme Court decided State v. Ulibarri,
{6} The State subsequently filed several more Rule 5-604 petitions in the Supreme Court to extend the time to commence trial and one motion to reconsider, resulting in a trial deadline of September 27, 2001. The last trial setting of September 4, 2001, was vacated by agreement of the parties. However, the case could not be reset for trial until October 23, 2001. Defendant subsequently filed a Rule 5-604 petition in the Supreme Court seeking an extension of time until October 27, 2001, to commence trial, advising it that the parties had agreed to count the period from September 4, 2001, until October 23, 2001, as delay attributable to Defendant. The petition was granted.
{7} On October 23, 2001, Defendant conditionally pleaded no contest to reduced charges, reserving his right to appeal the denial of his motion to dismiss the indictment on speedy trial grounds.
{8} Defendant was clearly an “accused” from March 25, 1999, until October 23, 2001, when he conditionally pleaded no contest. During this continuous period of time, a formal indictment was pending against him. The fact that the first indictment was dismissed is of no consequence because the second indictment was returned on the same day charging the identical offenses set forth in the first indictment. See Klopfer v. North Carolina,
{9} In addition, numerous factors supрort the conclusion that both the State and the trial court treated the two indictments as the same case: (1) the first indictment was dismissed, and the second indictment was returned on the same day with the conditions of release on the first indictment intact; (2) both indictments charge the same offenses; (3) both indictments were assigned to the same judge; (4) the same prosecutor handled both indictments; (5) orders filed under the first indictment to interview witnesses were deemed applicable to the second indictment; (6) the prosecutor treated both indictments as a single case for purposes of Rule 5-604 because the second indictment was returned on May 5, 2000, and the Rule 5-604 petitiоn filed on July 11, 2000, was unnecessary unless both indictments were considered as the same case; (7) the first Rule 5-604 petition filed by the State in the Supreme Court after the second indictment recites the extensions and deadlines obtained under the first indictment as the deadline to commence trial; (8) the Rule 5-604 petitions filed in the Supreme Court by the State after
{10} Furthermore, New Mexico courts look past the form to the substance when considering the effects of a prosecutorial dismissal and refiling of criminal charges. See State ex rel. Delgado v. Stanley,
{11} The parties dispute whether this is a complex ease or one of intermediate complexity. However, it is unnecessary for us to resolve that argument in this case. “The State bears the primary responsibility of bringing cases to trial within a reasonable time.” State v. LeFebre,
2. Reasons for the Delay
{12} The primary cause of the delay in this case is attributable to the State for its failure to produce witnesses for interviews despite court orders to do so. On April 29, 1999, Defendant filed a motion to compel the State to produce all of its witnesses for interviews, and on August 9, 1999, he filed a motion to cоmpel the State to provide discovery and produce its witnesses for interviews. Judge Jewell initially ordered that the State’s witnesses be produced for interviews on or before November 30, 1999, and the deadline to produce witnesses was subsequently extended at least twice. At least three of the Rule 5-604 petitions filed by the State seeking an extension of time to commence trial were required because the State had not produced its witnesses for interviews. Interviews of the State’s witnesses were not completed until October 11, 2000.
{13} Defendant was accused of having sexual intercourse with his stepsister in a bedroom of his father’s home while his father and the victim’s mother were sleeping in an adjacent bedroom, and Defendant’s sister was watching television in an adjacent living room. We agree with the prosecutor’s statement during a hearing in December 1999 that, “[i]t’s a two witnesses [sic] case. There’s no one else in that room, other than the alleged victim and the Defendant and he’s already interviewed [with] the lead detective. So, it shouldn’t be a complicated ease .... ” The State’s delay in producing its witnesses for defense interviews was unreasonable and cannot be condoned.
{14} After independently examining the record, we conclude that the following delays are attributable to Defendant: (1) from April 5, 1999, until Aрril 12, 1999, when he failed to appear for arraignment on the first indictment; (2) from May 5, 2000, until June 12, 2000, when he failed to appear for
3. Defendant’s Assertion of the Right to a Speedy Trial
{15} Judge Jewell found that Defendant always asserted his speedy trial rights and weighed this factor in Defendant’s favor, although not heavily so because of delays in the trial proceedings that he аgreed to. Defendant asserted his right to speedy trial when his counsel entered his appearance in April 1999. Defendant subsequently filed two motions to compel the State to produce its witnesses, objected to several of the State’s Rule 5-604 petitions, and filed a motion to dismiss based on a violation of his right to speedy triаl. We agree with Judge Jewell’s findings on this factor.
4. Prejudice to Defendant
{16} Judge Jewell weighed this factor in favor of the State because she found no prejudice to Defendant in terms of the delay. We disagree.
{17} Our Supreme Court has stated that the Sixth Amendment was not intended, as commonly believed, solely to limit possibilities that delay would prevent, impair, or prejudice a defendant’s ability to present a defense.
Rather, major evils intended to be protected by the Sixth Amendment were to minimize interference that public arrest may cause with the defendant’s liberty, whether he is free on bail or not, and to avoid disruption of his employment, curtailment of his associations, subjection of defendant to obloquy, and creation of anxiety in him, his family and his friends.
Kilpatrick v. State,
{18} Defendant presented evidence of the stress he endured because of the pending charges. He testified, “I can’t put my mind straight},]” and he testified he was unable to sleep at times. Furthermore, he lived in the Bloomfield areа, and traveling back and forth to the court in Albuquerque also caused him stress and anxiety.
{19} Defendant also suffered prejudice due to constraints on his liberty. When Defendant was first arraigned in April 12,1999, he was booked into the Bernalillo County Detention Center and then released on his own recognizance, subject to conditions of releаse that: he was not allowed to leave Bernalillo County, he was required to make weekly contact with his attorney, he was required to keep his attorney informed of his whereabouts, he was required to keep his attorney informed of any changes in his home or work address, and he was prohibited from having any contact with any witnеsses in the case. When Defendant was arraigned on the second indictment on June 12, 2000, he was ordered released to pretrial services supervision and the prior conditions of release were kept in effect. Conditions of release were again amended on May 22, 2001, when Defendant was ordered released tо the third-party custody of an individual with the remaining conditions of release intact.
{20} Defendant clearly suffered the type of prejudice which the Sixth Amendment protects against. However, we need not decide in this case the degree of that prejudice because the first three factors, length of the delay, reasons fоr the delay,
CONCLUSION
{21} The length of the delay in this case weighs heavily in favor of Defendant. The balance of the factors, reasons for the delay, Defendant’s assertion of the right to a speedy trial, and prejudice to Defendant also weigh in Defendant’s favor. The State has failed to overcome the presumption of prejudice which resulted from the unreasonable delay. Having independently evaluated the factors applicable to a Sixth Amendment speedy trial claim, we conclude that Defendant’s constitutional right to a speedy trial was violated. We therefore reverse Defendant’s conviction and remand the case with instructions to discharge Defendant.
{22} IT IS SO ORDERED.