June 7, 2016 – State of New Mexico v. Judd Moore, No. 34,150

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	June 07, 2016
NO. 34,150
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JUDD MOORE,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF DONA AÑA COUNTY
Fernando R. Macias, District Judge
Hector H. Balderas, Attorney General
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

OPINION
VIGIL, Chief Judge.
{1} 	Defendant 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.
Macias on May 23, 2011. The case was set for trial on March 28, 2012, but the State

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filed a motion for continuance on March 20, 2012, stating that the amount of
discovery was significant and additional time was needed to prepare for trial and
provide defense counsel with the necessary documents. Defendant concurred, and the
motion was granted. The trial was reset for August 22, 2012.
{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 NMSA
1978, §§ 31-16A-1 to -8 (1981, as amended through 1984). Defendant opposed this
motion, asserting in his response that any further delay would violate his right to a
speedy trial. The district court granted the motion and a status hearing was scheduled
for September 10, 2012. The three co-defendants were not accepted into the program
until September 9, 2013.
{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 not
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.

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{6} 	On August 19, 2013, Defendant filed a motion to dismiss alleging a speedy trial
violation. Defendant also filed a motion to exclude witnesses and evidence. The
district court scheduled a motion hearing on September 9, 2013, and reset the trial to
begin the next day. At the hearing, the district court denied the motion to dismiss.
With regard to the motion to exclude witnesses and evidence, Defendant informed the
district court that he had just received a witness statement the prior week and obtained
three other witness statements that very day, September 9, 2013. The State conceded
that the late disclosure was due to negligence in reviewing its files. Based on the late
disclosures, defense counsel requested a continuance of the trial asserting that his
assistance would be ineffective at the trial as scheduled because the late disclosures
required interviews of these witnesses. The district court granted the continuance, and
the trial was reset for November 19, 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.

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{8} 	However, this trial date was vacated because the district court judge was
unavailable due to other responsibilities. The trial was reset for May 19, 2014. At a
motion hearing on May 15, 2014, the parties agreed to a plea contingent upon
Defendant’s renewed motion to dismiss for a speedy trial violation. The parties agreed
that if the district court denied the motion, Defendant would enter into a conditional
plea agreement, reserving his right to appeal the district court’s ruling. The parties
stipulated that the delay for a speedy trial violation ended on May 19, 2014. Defendant
filed an unopposed motion for continuance in order to draft a renewed motion to
dismiss, and filed the motion after the stipulated date. The district court denied the
motion to dismiss and Defendant entered into the conditional plea agreement.
Defendant appeals.
II. 	DISCUSSION
{9} 	“The right to a speedy trial is a fundamental right of the accused that is
guaranteed by both the Sixth Amendment of the United States Constitution and
Article II, Section 14 of the New Mexico Constitution.” State v. Taylor, 2015-NMCA-
012, ¶ 6, 343 P.3d 199 (alterations, internal quotation marks, and citations omitted).
To determine whether a defendant’s right to a speedy trial was violated, our Supreme
Court has adopted the balancing test of Barker v. Wingo, 407 U.S. 514, 530 (1972).
See State v. Garza, 2009-NMSC-038, ¶ 13, 146 N.M. 499, 212 P.3d 387. Under this

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balancing test, four factors are weighed: (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. Id. On appeal, we defer to the district court’s factual findings but “review
the weighing and the balancing of the Barker factors de novo.” State v. Spearman,
2012-NMSC-023, ¶ 19, 283 P.3d 272 (internal quotation marks and citation omitted).
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 present

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case, the district court found that the delay weighs heavily against the State, which the
State disputes. Although the State argues that the length of delay should only weigh
moderately against the State, State v. Steinmetz, 2014-NMCA-070, ¶¶ 5-6, 327 P.3d
1145 (holding that a delay of forty-three months weighs moderately against the State),
our Supreme Court has recently recognized that a “delay of over [fifty-one] months
is extraordinary, and therefore it weighs heavily in [the d]efendant’s favor.” Serros,
2016-NMSC-008, ¶ 24. Moreover, we have stated that a delay approximately twice
as long as the threshold weighs heavily against the State. See Taylor, 2015-NMCA-
012, ¶ 9 (holding that a delay nearly twice as long as the twelve-month threshold for
simple cases weighs heavily against the State); State v. Vigil-Giron, 2014-NMCA-069,
¶¶ 19-20, 327 P.3d 1129 (holding that the delay of an additional eighteen months
beyond the triggering date for a complex case weighs heavily against the State). We
therefore 	weigh 	the 	delay 	of 	forty-six 	months—over 	twice 	as 	long 	as 	the
presumptively prejudicial threshold—heavily against the State.
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: (1) deliberate

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delay; (2) negligent or administrative delay; and (3) delay justified by a valid reason.
Id. ¶¶ 25-27.
{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 Rule 6-504(A) NMRA (stating that the

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State must provide discovery within forty-five days after arraignment or the waiver
of arraignment unless the district court orders a different period). The record also fails
to provide evidence that the State took any action to move the case toward trial. See
Rule 6-506(B)(1) NMRA (stating that trial shall commence approximately six months
after the arraignment or waiver of arraignment). The State’s excuse is that it brought
the indictment in district court with additional charges, which caused the delay. This
does not justify not taking steps to bring the case to trial. See Barker, 407 U.S. at 527
(stating that the state has the duty to bring a defendant to trial). The State’s actions,
or lack thereof, qualify as bureaucratic indifference, and this delay weighs heavily
against the State.
{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 district court finding that during this time “[t]he case
proceeded normally” prior to the State’s March 20, 2012 motion for continuance and

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therefore weigh the delay neutrally. State v. Valencia, 2010-NMCA-005, ¶ 18, 147
N.M. 432, 224 P.3d 659 (“[W]here a case moves toward trial with customary
promptness, the period of time is to be weighed neutrally between the parties.”
(internal quotation marks and citation omitted)).
{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 and 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 Rule 5-501(A) NMRA (stating that, unless a shorter time period
is ordered by the court, the state shall provide discovery within ten days after
arraignment or the date of filing a waiver of arraignment). Prior to this filing, the State
did not provide any other notice of disclosure to Defendant. While the State argues
that Defendant concurred with this continuance and thus cannot complain of this
delay, State v. McCrary, 1984-NMSC-005, ¶ 18, 100 N.M. 671, 675 P.2d 120,
Defendant had no choice but to agree with the motion due to the late disclosure. See
Laney, 2003-NMCA-144, ¶¶ 9, 19 (holding that a continuance caused by the state’s
negligence in failing to provide discovery weighs heavily against the state, even

10
though the continuance was stipulated); see also State v. Flores, 2015-NMCA-081,
¶ 12, 355 P.3d 81 (“The [s]tate’s duties under Rule 5-501(A) are not optional, nor are
they triggered by Defendant’s requests.”). Because the State provided its disclosure
eight days before trial and did not properly disclose or prepare for trial for twenty
months from Defendant’s arrest, we weigh this approximate five-month delay, March
28 to August 22, 2012, heavily against the State.
{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
decides whether to divert a person into the preprosecution diversion program.
See § 31-16A-7. The State does not even attempt to provide an excuse to justify the
delay in the co-defendants’ acceptance. This delay is beyond mere negligence and
therefore 	weighs 	heavily 	on 	the 	State. 	See 	Taylor, 	2015-NMCA-012, 	¶ 	25
(recognizing that the delay weighs heavily against the state when the cause of the
delay is more than mere negligence).

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{18} 	The State yet again caused a delay of approximately two months from
September 10 to November 19, 2013, because of late disclosure. After the district
court reset the trial date and a motion hearing was held on September 9, 2013,
Defendant requested a continuance because the State disclosed one witness statement
the week prior to the trial date and three witness statements the day before the
scheduled trial. At the motion hearing, the State admitted that the late disclosure
resulted from its own negligence. Although Defendant requested the continuance, it
was the State’s inexcusable late disclosure that made it necessary for Defendant to ask
for this continuance. See State v. Ochoa, 2014-NMCA-065, ¶ 11, 327 P.3d 1102
(holding that the delay resulting from defendant’s motion for continuance weighs
against the state because the defendant’s expert had insufficient time to make their
report due to the postponement of the interviews from the state’s witnesses), cert.
granted, 2014-NMCERT-006, 328 P.3d 1188. We also weigh this delay heavily
against the State. See Laney, 2003-NMCA-144, ¶ 19.
{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. The new trial

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was scheduled on May 19, 2014. These delays are administrative and weigh against
the State but not heavily. State v. Lujan, 2015-NMCA-032, ¶ 15, 345 P.3d 1103.
{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,
have concluded that a motion to dismiss based on speedy trial grounds is an assertion

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of the right that is weighed against the government.”). While the State argues that
Defendant’s first assertion and the assertions regarding the motions to dismiss were
untimely, it concedes—and we agree—that these assertions still weigh in Defendant’s
favor. See Garza, 2009-NMSC-038, ¶ 32 (holding that the right to a speedy trial is so
fundamental in nature that even the failure to assert does not constitute a waiver).
Moreover, we are aware that Defendant concurred with the State’s first continuance
and requested a continuance himself; however, we believe that these actions should
not be held against Defendant when the State caused the delays by its inexcusable late
disclosure either mere days or the day before the trial date. See Taylor, 2015-NMCA-
012, ¶¶ 13, 14, 18 (concluding that the defendant did not acquiesce in the delay caused
by the state, even though the defendant filed a motion for continuance). Accordingly,
we conclude that Defendant asserted his right and this further weighs in his favor.
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:
“(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern
of the accused; and (iii) to limit the possibility that the defense will be impaired.” Id.

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¶ 35 (internal quotation marks and citation omitted). In regards to the first and second
types of prejudice, “we weigh this factor in the defendant’s favor only where the
pretrial incarceration or the anxiety suffered is undue.” Id. “[W]ithout a particularized
showing of prejudice, we will not speculate as to the impact of pretrial incarceration
on a defendant or the degree of anxiety a defendant suffers.” Id.
{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 Rule
5-120(D) NMRA (“Affidavits, statements, depositions[,] or other documentary
evidence in support of the motion may be filed with the motion.”). We therefore
examine the affidavit to determine whether Defendant has established prejudice.
{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,
together 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
previous years had taken their business to other companies because the case had taken
so long to reach an outcome; that the restrictions imposed during this case prevented

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him from working in his field; that no company he applied to would hire him while
the 	case 	was 	pending, 	including 	fast-food 	restaurants; 	that 	he 	was 	denied
unemployment benefits due to the pending case, culminating in $26,000 in lost
benefits; that the New Mexico government would not process his yearly tax refunds
as a result of the on-going case; that he had to sell his families’ cars, furniture,
jewelry, and sentimental possessions to survive; that his house was repossessed and
his savings and retirement accounts depleted; and that he had been evicted from a
place that he was renting.
{26} 	Defendant also asserted that 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

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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 exactly
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
defendant’s liberty, disruption of employment, curtailment of associations, subjection
to obloquy, and creation of undue anxiety”).

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{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 acquiesced 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
acquiesce in the delay. Even without the prejudice factor weighing in favor of

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Defendant, as it does here, the weight of the first three factors in Barker demonstrate
that Defendant’s constitutional right to a speedy trial has been violated.
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