A-1-CA-35724 | Omnilex

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Court of Appeals of New Mexico
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Court of Appeals of New Mexico
Filed 7/31/2019 11:45 AM

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXIC
ark Reynolds

STATE OF NEW MEXICO,

Plaintiff-Appellee,
v. No. A-1-CA-35724
JEREMIAH JOHN GURULE,

Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Christina P. Argyres, District Judge

Hector H. Balderas, Attorney General

Emily Tyson-Jorgenson, Assistant Attorney General
Santa Fe, NM

for Appellee

Robert E. Tangora, L.L.C.

Robert E. Tangora

Santa Fe, NM

for Appellant

MEMORANDUM OPINION
VARGAS, Judge.
{1} Defendant Jeremiah Gurule appeals his conviction for second-degree murder
and tampering with evidence. On appeal, Defendant makes the following arguments:

(1) the State violated his right to a speedy trial, (2) the district court erred in admitting

his involuntary statements into evidence, (3) the State failed to produce material
video evidence of Defendant’s arrest and interrogation, (4) the district court erred in
failing to instruct the jury on Defendant’s theory of self-defense, and (5) the State
did not present sufficient evidence to support his conviction for second-degree
murder. We reverse on speedy trial grounds. In light of our holding on Defendant’s
speedy trial claim, we need not reach the remaining issues raised by Defendant on
appeal.

BACKGROUND

23 On April 2, 2010, Elizabeth Brito (Victim) called 911, telling dispatch that
she was bleeding and needed assistance. Police arrived at Victim’s home and found
Victim dead, lying face-down on the kitchen floor, with a large pool of blood
surrounding her head. Police observed stab wounds on Victim’s body, some of
which were located on her neck. Defendant turned himself into the police the
following day, and was charged with one count of murder and two counts of
tampering with evidence. As this is a memorandum opinion and the parties are
familiar with the facts of this case, we reserve further discussion of the procedural

history of Defendant’s case within the context of his speedy trial argument.

DISCUSSION

Speedy Trial

33 Defendant argues that his right to a speedy trial was violated. “In a criminal
prosecution, the accused is constitutionally entitled to a speedy trial.” State v. Castro,
2017-NMSC-027, § 15, 402 P.3d 688. ““Whether a defendant has been deprived of
the right requires a case-by-case analysis.” State v. Dorais, 2016-NMCA-049, ¥ 20,
370 P.3d 771. When analyzing a defendant’s speedy trial claim, we assess “the four
factors presented by the United States Supreme Court in Barker [v. Wingo, 407 US.
514 (1972)] and adopted by New Mexico courts: (1) the length of delay in bringing
the case to trial, (2) the reason for the delay, (3) the defendant’s assertion of the right,
and (4) the prejudice to the defendant.” Castro, 2017-NMSC -027, { 16 (alterations,
internal quotation marks, and citation omitted). “Each of these factors is weighed
either in favor of or against the state or the defendant, and then balanced to determine
if a defendant’s right to a speedy trial was violated.” State v. Brown, 2017-NMCA-
046, J 13, 396 P.3d 171 (alteration, internal quotation marks, and citation omitted).
“The factors have no talismanic qualities, and none of them are a necessary or
sufficient condition to the finding of a violation of the right to a speedy trial.” /d.
(alterations, internal quotation marks, and citation omitted). “Rather they are related
factors and must be considered together with such other circumstances as may be

relevant.” /d. (internal quotation marks and citation omitted). “In our review of a

speedy trial ruling, this Court must give deference to the district court’s factual
findings, but we review the weighing and the balancing of the Barker factors de
novo.” /d. (internal quotation marks and citations omitted).

1. Length of Delay

{43 The “length of delay” factor serves “as a threshold triggering mechanism used
to determine whether the delay is ‘presumptively prejudicial’ so as to continue with
a full speedy trial analysis.” /d. | 14. “If the delay crosses the ‘presumptively
prejudicial’ threshold, a speedy trial analysis is warranted.” /d. “A delay is
presumptively prejudicial if the delay exceeds... eighteen months for a complex
case.” /d. (alterations, internal quotation marks, and citation omitted). “We defer to
the district court’s finding on the question of complexity when it is supported by
substantial evidence.” State v. O’Neal, 2009-NMCA-020, § 16, 145 N.M. 604, 203
P.3d 135 (internal quotation marks and citation omitted). Neither Defendant nor the
State contests the district court’s finding that this was a complex case. Moreover, the
district court’s finding is supported by the complex evidentiary issues, the number
of witnesses, and the issue of Defendant’s competency. See State v. Thomas, 2016-
NMSC-024, 9.11, 376 P.3d 184 (explaining that we defer to the district court’s
finding on the complexity of the case because it is “familiar with the factual
circumstances [and] the contested issues and available evidence”). Accordingly, we

defer to the district court’s finding that this was a complex case, for which a length

of delay in excess of eighteen months is considered presumptively prejudicial. See
Brown, 2017-NMCA-046, § 14.

{5} Defendant was arrested in this case on April 3, 2010, and was brought to trial
on February 8, 2016. As the delay of approximately seventy months exceeded the
presumptively prejudicial threshold by approximately fifty-two months, we weigh
this factor heavily against the State. See id. § 17 (holding that a delay of forty-two
months in a complex case weighs heavily against the state); see also State v. Moore,
2016-NMCA-067, § 11, 378 P.3d 552 (holding that a delay of forty-six months in a
complex case weighs heavily against the state); State v. Flores, 2015-NMCA-081,
{ 7, 355 P.3d 81 (holding that a sixty-two month delay in a complex case weighs
heavily in the defendant’s favor).

2. Reasons for Delay

{6} “Closely related to the length of delay is the reason the [state] assigns to
justify the delay.” Flores, 2015-NMCA-081, § 8 (internal quotation marks and
citation omitted). “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.” State v.
Garza, 2009-NMSC-038, 9 25, 146 N.M. 499, 212 P.3d 387 (internal quotation
marks and citation omitted). Courts in New Mexico recognize four types of delay:
(1) “intentional delay” is the state’s “deliberate attempt to delay prosecution of the

case in order to hamper the defense[,] . . . [which] weighs heavily against the state”;

(2) “negligent or administrative delay,” which “weighs more lightly against the
state” but begins to weigh more heavily against the state as the length of delay
increases; (3) “delay ... justified for valid reasons,” which weighs neutrally; and
(4) “delay caused by the defense[,]” which weighs against the defendant. Brown,
2017-NMCA-046, { 18 (alteration, internal quotation marks, and citation omitted).
“The complicated circumstances of this case require that we analyze each period of
delay separately.” Id.

{7} From Defendant’s arrest on April 3, 2010 to October 20, 2010, the case was
proceeding normally toward trial. During this time, Defendant was arraigned and
filed a demand for the State’s disclosure. The State filed a grand jury indictment, a
demand for Defendant’s disclosure and alibi, a list of witnesses, and a motion for
Defendant’s fingerprint and hand impressions. After defense counsel suspected
Defendant’s competency was an issue, he requested a forensic evaluation.
Defendant’s forensic evaluator found Defendant incompetent to stand trial, and, on
October 14, 2010, Defendant raised competency as an issue in the district court. On
October 20, 2010, the district court ordered a forensic evaluation of Defendant’s
competency and stayed the proceedings pending a judicial determination of
competency. As the case was proceeding normally toward trial until the district
court’s October 20, 2010 order, we weigh this period of six months and seventeen

days neutrally. See id. J 19 (concluding the period in which the case was proceeding

normally toward trial was “appropriate, neutral delay and [does] not weigh against
either party”).

{8} On November 3, 2010, the district court found Defendant was “presently not
competent to proceed in the criminal case” and ordered Defendant’s commitment to
the New Mexico Behavioral Health Institute (NMBHI). In its order, the district court
directed the Bernalillo County Sheriff's Department to transport Defendant to
NMBHI. However, because NMBHI did not have available room, Defendant
remained in custody at the Metropolitan Detention Center (MDC) until February 22,
2011. In the absence of evidence demonstrating that the State failed to bring
Defendant to trial in a timely manner from October 20, 2010 to November 3, 2010,
or that this delay was unreasonable, solely attributable to defense counsel, or
unnecessary, we weigh this period of fourteen days against Defendant. See State v.
Stock, 2006-NMCA-140, f§ 19-22, 29, 140 N.M. 676, 147 P.3d 885 (explaining that,
generally, delays resulting from competency evaluations weigh against the
defendant, not the state, because they are “for the defendant’s benefit,” but declining
to weigh against the defendant the “extraordinary periods of delay” involved in the
defendant’s case, resulting from both defense counsel’s prolonged failure to send the
evaluation report to either the state or the court, and the state’s “failure to monitor
the case and ensure that steps were being taken to bring [the dJefendant to trial in a

timely manner”). We weigh the three months and nineteen days of delay from

November 3, 2010 to February 22, 2011 against the State as administrative delay.
See id. J§ 8, 18 (weighing administrative delay against the state).

9} On August 2, 2011, an examiner at NMBHI submitted a report indicating that
Defendant was competent to stand trial. The district court, on August 9, 2011,
scheduled a competency hearing for August 23, 2011. Defendant filed a motion for
an evidentiary hearing on his competency on August 16, 2011, prompting the district
court to vacate the August 23, 2011 hearing and schedule a competency hearing on
October 11, 2011. The State filed motions for an “order requiring disclosure and
protecting the privacy of records and other health information[,]” and requested a
hearing on its motions, and Defendant filed a stipulated motion for a continuance of
the October 11, 2011 hearing. The district court re-scheduled the competency
hearing for December 6, 2011. Following a status conference, the district court
vacated the December 6, 2011 hearing, and later scheduled the competency hearing
for July 24, 2012.

{10} Defendant does not contend, nor does the record indicate, that the delay from
February 22, 2011 to December 6, 2011 was unreasonable, solely attributable to
defense counsel, or unnecessary, or that the State failed to bring Defendant to trial
in a timely manner. We also note that although the record surrounding the
continuance of the competency hearing from October 11, 2011 to December 6, 2011

is muddled, the district court found that the October 11, 2011 setting “was reset to

December 6, 2011, at the request of Defendant.” See State v. Ochoa, 2017-NMSC-
031, 94, 406 P.3d 505 (explaining that “[w]e defer to the district court’s factual
findings in considering a speedy trial claim”). We therefore weigh the nine months
and fourteen days from February 22, 2011 to December 6, 2011 against Defendant
as the delay was related to his competency evaluation. See Stock, 2006-NMCA-140,
qq 19-22, 29. In the absence of evidence in the record demonstrating the reasons the
district court vacated the December 6, 201 1 competency hearing, we weigh the seven
months and eighteen days until July 24, 2012 against the State. See State v. Marquez,
2001-NMCA-062, { 16, 130 N.M. 651, 29 P.3d 1052 (“As the [s]tate has not met its
burden of showing that this delay was reasonable, we determine this period weighs
against it.”).

(13 On July 5, 2012, the district court, upon the State’s stipulated motion for a
more current evaluation, ordered another evaluation of Defendant’s competence.
The district court granted the State’s stipulated motion to continue the July 24, 2012
competency hearing “to a later date when . . . Defendant has been returned from
NMBHI and another evaluation has been completed.” However, Defendant was not
transported to NMBHI until September 18, 2012. We therefore agree with the district
court that the delay until September 18, 2012, a period of one month and twenty-five
days, weighs against the State as administrative delay. See Brown, 2017-NMCA-

046, 4 18.

4123 On December 10, 2012, another NMBHI evaluator found Defendant
competent to stand trial, at which point the district court scheduled a competency
hearing on January 28, 2013. On January 22, 2013, the State filed a stipulated motion
to continue the competency hearing, citing both parties’ need for additional time to
prepare and explaining that although the State sought Defendant’s position on the
most recent competency evaluation, defense counsel did not respond until January
18, 2013. The district court granted the State’s motion and scheduled a competency
hearing on May 22, 2013.

(133 As the delay from September 18, 2012 to January 28, 2013 was attributable
to the State’s stipulated motion for a competency evaluation, and there is no
indication that the delay was unreasonable, solely attributable to defense counsel, or
unnecessary, or that the State failed to bring Defendant to trial in a timely manner,
we weigh these four months and ten days neutrally. See Stock, 2006-NMCA-140,
{4 19-22, 29 (recognizing that “delays caused by competency evaluations should
generally not count against the state for speedy trial purposes because the state
cannot try an incompetent defendant”). We also weigh the delay of three months and
twenty-four days from January 28, 2013 to May 22, 2013 neutrally as it was the
result of both parties’ need for additional time to prepare, as well as defense

counsel’s failure to respond to the State’s request for information. See id. J] 19-22.

{143 The district court rescheduled the competency hearing to June 26, 2013 after
the New Mexico Department of Health objected to the State’s subpoenas, which
were issued to NMBHI employees shortly before the scheduled May 22, 2013
hearing. We therefore weigh this delay of one month and four days against the State.
See Brown, 2017-NMCA-046, § 18 (weighing “negligent or administrative delay”
against the state). Following the June 26, 2013 competency hearing, the district court
found Defendant competent to stand trial, and scheduled trial on December 2, 2013.
As the case was proceeding normally toward trial, we weigh the five months and six
days between June 26, 2013 and December 2, 2013 neutrally. See id. | 19.

15} Following the State’s stipulated motion to continue the trial setting to pursue
the possibility of a plea deal, the district court scheduled trial on July 7, 2014. We
weigh this delay of seven months and five days against the State. See State v.
Samora, 2016-NMSC-031, J 13, 387 P.3d 230 (recognizing that “it is well settled
that the possibility of a plea agreement does not relieve the [s]tate of its duty to
pursue a timely disposition of the case” and weighing the period of delay caused by
the parties’ pursuit of a plea deal against the state (internal quotation marks and
citation omitted)). The State again filed a stipulated motion to continue the trial
setting, prompting the district court to schedule trial on October 20, 2014. As the
State cited the need for additional time to conduct pre-trial interviews and resolve

discovery issues as the basis for its stipulated motion to continue, we weigh this

delay of three months and thirteen days against the State. See Flores, 2015-NMCA-
081, | 16 (weighing a period of delay caused by the state’s need for more time to
prepare against the state).

416 Defendant later filed a motion to continue the October 20, 2014 trial setting,
citing the need for additional time to interview witnesses and resolve discovery
issues. Although the State objected to Defendant’s motion, the district court granted
Defendant’s motion and scheduled trial on November 17, 2014. We weigh this
period of twenty-eight days against Defendant. See State v. Deans, 2019-NMCA-
015,910, P.3d__ (“[A]ny delay caused by the defendant generally weighs
against the defendant.”), cert. denied, 2019-NMCERT-___ (No. S-1-SC-37473, Feb.
14, 2019). But see Ochoa, 2017-NMSC-031, 4 22 (concluding that a period of delay
caused by defense counsel’s need to interview the state’s witnesses after three
postponements “was a legitimate reason for [the d]efendant to seek to postpone the
second trial setting” and thus does not weigh against the defendant). The district
court granted a subsequent motion for a continuance filed by Defendant, and
scheduled trial on February 2, 2015. Defendant’s motion cited the need for his expert
to conduct additional testing, but did not indicate whether the State stipulated to its
motion. Indeed, Defendant noted that he “underst[ood] that the period of this

requested continuance will count against him for purposes of speedy trial analysis.”

Accordingly, we weigh the two months and sixteen days from November 17, 2014
to February 2, 2015 against Defendant. See Deans, 2019-NMCA-015, § 10.

17; Asa result of a “congested court docket” and “the impending imposition of
LR2-400[,]” NMRA! the district court vacated the February 2, 2015 trial setting and
scheduled trial on February 8, 2016. We therefore weigh this period against the State.
See Garza, 2009-NMSC-038, { 29 (identifying congested court dockets as negligent
delay to be weighed against the state); Brown, 2017-NMCA-046, 4 18 (weighing
“negligent or administrative delay” against the state).

{18} In sum, we conclude approximately thirty-seven months weigh against the
State, over thirteen months weigh against Defendant, and approximately twenty
months weigh neutrally. While we acknowledge that there is no indication the State
intentionally caused any of the delay, and that a significant amount of the delay
weighing against the State was the result of administrative or negligent delay, we
weigh this factor heavily against the State. See Brown, 2017-NMCA-046, 4 18
(explaining that “‘as the length of the delay increases, [negligent or administrative]
delay begins to weigh more heavily against the state”).

3. Assertion of the Right

{193 “The timeliness and vigor with which the right to a speedy trial is asserted

may be considered as an indication of whether a defendant was denied the right to a

' Rule LR2-400 was amended and recompiled at Rule LR2-308 NMRA.

speedy trial over his objection or whether the issue was raised on appeal as an
afterthought.” /d. § 29 (alterations, internal quotation marks, and citation omitted).
“Accordingly, we consider [the d]efendant’s assertion or failure to assert his right to
a speedy trial as a factor in determining whether [the djefendant was deprived of that
right.” Jd. We “assess the timing of the defendant’s assertion and the manner in
which the right was asserted.” Jd. (internal quotation marks and citation omitted).
Furthermore, “[w]e accord weight to the frequency and force of the defendant’s
objections to the delay and analyze the defendant’s actions with regard to the delay.”
Id. (alteration, internal quotation marks, and citation omitted).

20} Defendant made five separate assertions of his right to a speedy trial.
Defendant first asserted his right to a speedy trial as part of an entry of appearance
on April 16, 2010, while the case was in metropolitan court. Defendant next asserted
his right on May 26, 2010, in conjunction with defense counsel’s entry of appearance
in district court. Defendant’s third assertion took place on January 22, 2015, also in
conjunction with defense counsel’s entry of appearance. “Such pro forma motions
are generally afforded relatively little weight in this analysis.” State v. Urban, 2004-
NMSC-007, 916, 135 N.M. 279, 87 P.3d 1061. Defendant’s fourth and fifth
assertions took the form of motions to dismiss on speedy trial grounds, filed on
October 5, 2015, and February 4, 2016. As Defendant filed these motions near the

date of trial, after the vast majority of the delay had already passed, and sought

dismissal rather than a prompt trial, we do not afford much weight to Defendant for
these assertions. See State v. Lujan, 2015-NMCA-032, { 18, 345 P.3d 1103 (“New
Mexico courts, however, have concluded that a motion to dismiss based on speedy
trial grounds is an assertion of the right that is weighed against the [state], although
it is generally not weighed heavily.”); State v. Ortiz-Burciaga, 1999-NMCA-146,
q 35, 128 N.M. 382, 993 P.2d 96 (concluding that “we do not give [the dJefendant
much weight” for a motion to dismiss on speedy trial grounds, filed “just prior to
trial[,]” as “most of the delay had already passed and he moved for dismissal rather
than for a prompt trial”); see also State v. Moreno, 2010-NMCA-044, 433, 148
N.M., 233 P.3d 782 (“We recognize that generally, the closer to trial an assertion is
made, the less weigh it is given.”).

213 In the hearing on Defendant’s motion to dismiss on speedy trial grounds,
Defendant appeared to cite two motions related to his competency determinations as
assertions of his right to a speedy trial. In particular, Defendant cited a motion
requesting the district court grant an order to show cause for the New Mexico
Department of Health’s failure to transport Defendant to NMBHI and a motion
requesting an evidentiary hearing after NMBHI’s examiner released the August 2,
2011 report finding Defendant competent. To the extent that these motions were
efforts to expedite the time in which Defendant was brought to trial, Defendant’s

assertions were mitigated by his multiple motions for continuances and his

acquiescence to the State’s motions for continuances. See State v. Samora, 2016-
NMSC-03 1, § 20, 387 P.3d 230 (“Defendant’s assertions of the right were mitigated
by his acquiescence to, and responsibility for, numerous delays.”); Flores, 2015-
NMCA-081, 4 31 (explaining that “the force of a defendant’s assertions is mitigated
where he filed motions that were bound to slow down the proceedings” (internal
quotation marks and citation omitted)); see also Moreno, 2010-NMCA-044, { 34
(declining to view a defendant’s opposition to motions as assertions of his speedy
trial right as “there [was] no mention of a speedy trial concern as the basis”). But see
Moore, 2016-NMCA-067, § 22 (acknowledging that the defendant concurred with
the state’s continuance and requested a continuance himself, but concluding “that
these actions should not be held against [the d]Jefendant when the [s]tate caused the
delays by its inexcusable late disclosure either mere days or the day before the trial
date”). We therefore weigh this factor only slightly in Defendant’s favor.

4. Prejudice

22} “The heart of the speedy trial right is preventing prejudice to the accused.”
Brown, 2017-NMCA-046, § 33 (internal quotation marks and citation omitted).
“W]e analyze three interests that are affected by the right to a speedy trial: (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.” State v.

Serros, 2016-NMSC-008, J 84, 366 P.3d 1121 (internal quotation marks and citation

omitted). “Generally, the defendant has the burden of proof to show ‘particularized
prejudice.’ ” Brown, 2017-NMCA-046, § 33 (internal quotation marks and citation
omitted).

{23} “Because some degree of oppression and anxiety is inherent for every
defendant who is jailed awaiting trial, the defendant bears the burden to establish
that the pretrial incarceration or the anxiety suffered by the defendant is undue.” /d.
(alteration, internal quotation marks, and citation omitted). “Although a defendant
bears the burden of proving prejudice, this burden varies with the length of pretrial
incarceration.” Ochoa, 2017-NMSC-031, 452. “The oppressive nature of the
pretrial incarceration depends on the length of incarceration, whether the defendant
obtained release prior to trial, and what prejudicial effects the defendant has shown
as a result of the incarceration.” Serros, 2016-NMSC-008, § 89 (internal quotation
marks and citation omitted). “Thus, the length of incarceration is a counterweight to
a defendant’s burden of production.” Ochoa, 2017-NMSC-031, 454. As Defendant
was incarcerated for over five years before he was brought to trial, we presume that
he was prejudiced. See id. 957 (presuming prejudice by a defendant’s two-year
period of pretrial incarceration); Serros, 2016-NMSC-008, 490 (concluding that
four years of pretrial incarceration “is oppressive on its face”).

4243. However, our inquiry does not end with the presumption of prejudice

stemming from a defendant’s lengthy period of pretrial incarceration. See Ochoa,

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2017-NMSC-031, J 60. As our Supreme Court explained, “Though it is obvious that
Defendant was prejudiced by virtue of his continuous incarceration, absent
affirmative proof, we can only speculate as to the specific circumstances of his
incarceration.” Jd. The Court cited Serros, 2016-NMSC-008, 4 88-90, as an
example of where a defendant, through his testimony, presented affirmative proof
supporting the Court’s “determination that the pretrial incarceration resulted in
extreme prejudice.” Ochoa, 2017-NMSC-031, 4 60.

{25} In Serros, the defendant testified that he was placed in segregation from the
time he was first incarcerated, and that he was permitted two twenty-minute periods
outside his private cell during which time he could bathe, clean his cell, and attempt
to speak with his attorneys or family. 2016-NMSC-008, § 88. Because he was in
segregation, the defendant “did not have access to education programs, library time,
or recreational time available to the inmates housed with the jail’s general
population.” /d. The defendant was subjected to sexual, physical, and verbal
harassment, and was attacked by other inmates because of his sexuality. /d. Further,
he requested to be moved out of segregation, but the jail officials refused to do so
because of his sexuality and the charge against him for criminal sexual penetration
of a minor. /d. Our Supreme Court held:

[The d]efendant’s testimony easily establishes that the delay in his case
caused him to suffer oppressive pretrial incarceration. It is undisputed

that, because [the d]efendant could not afford to pay his $150,000 bond,
he was incarcerated for over four years without an adjudication of guilt,

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a length of time that we hold is oppressive on its face. That [the
d]jefendant was held in segregation for all of that time only compounds
the prejudicial effect of his excessive pretrial incarceration.

Id. § 90 (footnote and citation omitted).

426} In reviewing this Court’s conclusion that the defendant’s segregation was not
oppressive, our Supreme Court stated, “To the extent the majority was suggesting
that [the d]efendant was better off in segregation than with the general population,
[the dJefendant’s testimony that he repeatedly requested to be transferred out of
protective custody contradicts that notion.” /d. § 91. Our Supreme Court concluded
the defendant’s testimony sufficiently established that he was prejudiced insofar as
he suffered undue anxiety and concern. /d. (“It does not take much empathy to see
the anxiety and concern that [the dJefendant suffered from being held alone in a cell
for more than 23 hours a day, for over four years.”).

27} On appeal, Defendant asserts he was prejudiced on account of his pretrial
incarceration. In an affidavit he submitted in the district court, Defendant relayed
that he was placed in a “23-hour[-]a[-]day lock-down segregation” for almost the
entirety of his pretrial incarceration. Defendant explained that he was held alone in
a private cell, except for thirty minutes in the morning when he was “able to walk
on the caged tier of [his] pod” and bathe in a “shower cage.” He was also given one
hour of “cage time” in which he was placed in an outdoor cage by himself. Defendant

stated that he was able to communicate with his family and friends though a closed-

circuit video monitor for a maximum of twenty minutes. He explained that this
limited human interaction caused him to suffer from “terrible loneliness.”

28} Lieutenant Abraham Gallardo, an officer from the MDC, testified during the
hearing on Defendant’s motion to dismiss on speedy trial grounds. Lieutenant
Gallardo testified that Defendant was initially placed in segregation because of his
“high-risk status” for assaulting staff. Defendant continued to assault or threaten
staff and inmates during his time in custody. Lieutenant Gallardo described an
incident when Defendant refused to go into his cell, prompting the officers to lock
down the facility and use non-lethal weapons, including “a lot of Mace,” so as to
remove Defendant from the tier of a pod. Despite attempts to move Defendant into
the jail’s general population, Defendant remained in segregation because of these
incidents.

93 Although we acknowledge that Defendant’s initial and continued placement
in segregation was the result of his conduct while in custody, we cannot ignore the
oppressive impact the conditions and duration of his incarceration had on Defendant.
In its discussion of the potential prejudice in Defendant’s case, the district court
found that “any prejudice caused by the length of pretrial incarceration is tempered
by Defendant’s responsibility for more than a year’s worth of delay.” In reaching its
conclusion, the district court relied on Garza, 2009-NMSC-038, { 25 (“The reasons

for a period of the delay may either heighten or temper the prejudice to the defendant

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caused by the length of the delay.” (internal quotation marks and citation omitted)).
While the delays related to Defendant’s competency evaluations comprised nearly
ten months of the total delay in his case, Defendant’s motions for continuances—
unrelated to his competency evaluations—resulted in only a minor delay in his
pretrial incarceration. We therefore conclude that Defendant suffered extreme
prejudice.

5. Balancing the Barker Factors

{30} We conclude that the length of and reasons for delay weigh heavily in
Defendant’s favor, that the assertion of the right weighs slightly in Defendant’s
favor, and that Defendant has suffered extreme prejudice as a result of his lengthy
pre-trial incarceration in segregation. We therefore conclude that the Barker factors
weigh in Defendant’s favor such that his right to a speedy trial was violated.
CONCLUSION

{31} The judgment and sentence are reversed, and we remand to the district court
with instructions to dismiss the charges against Defendant.

32} ITISSO ORDERED. Ny J ij,
Lb Vi

JULIE J. VARGAS/Jldge

I CONCUR:

Lis Pre Gort Hud

KRISTINA BOGARDUS, Judge

LINDA M. VANZI, Judge (dissenting)

VANZI, J. (dissenting).

{33} I respectfully dissent in this case and would affirm the district court’s ruling
that Defendant’s right to a speedy trial was not violated. First, I disagree with the
majority’s conclusion that the reason for delay counts heavily against the State. The
district court entered detailed findings and conclusions in its order denying
Defendant’s motion to dismiss. The court found that there were a variety of factors
that contributed to the overall delay, including Defendant’s actions. Specifically, it
found that the State was not negligent and was making efforts to move forward with
the prosecution of this matter. In deference to the district court’s findings, and absent
any indication to the contrary, I determine that any delay should weigh only slightly
against the State. In addition, while I agree with the majority that the weight given
to Defendant’s assertion of his speedy trial right is slight, I disagree that that
Defendant suffered “extreme prejudice” as a result of his pretrial incarceration. |
explain.

Length of Delay

34) The majority determines a seventy month length of delay and I agree. The
length of the delay, even for this complex case, is presumptively prejudicial and,

therefore, triggers the balancing requirement.

Reason for Delay

{35} The reason for the delay is apparent from the record and the district court’s
order. The district court appropriately found that Defendant and the State were each
responsible for some of the circumstances that caused the delay, and that twenty
months of the delay did not weigh against either party. To the extent that the district
court weighed thirty-three months of the delay against the State, it nevertheless
found that the bulk of that delay was caused by administrative issues in the district
court. Indeed, the court stated that none of the delay it attributed to the State “was
intentionally caused and there were no unnecessarily prolonged periods of delay, but
rather the parties appear [to] have been moving toward trial.”

{36} In addition, Defendant’s accountability for some part of the delay cannot be
ignored. The district court found that Defendant was engaged in some measure of
gamesmanship insofar as he stipulated to several continuances and then tried to hold
those continuances against the State. And, the court said, “much of the delay in this
case was caused or consented to by Defendant or caused by the need to determine
Defendant’s competency.” In sum, the record establishes that the State continually
tried to move this case along and at no time did it intentionally cause any of the delay
nor was it negligent. Even during the final period of twelve months arising from the
cancellation of the February 2015 trial date due to a congested court docket, the

parties proceeded towards trial, filed motions, and requested settings.

(373, While the State undoubtedly bears some responsibility for the delay in this
case, I see no evidence of any extraordinary or protracted delay attributable to the
State. Moreover, much of the delay was due to competency proceedings and
Defendant’s stipulation to continuances. Thus, on balance, I would agree with the
district court that this factor should be weighed slightly against the State.
Prejudice

38} Defendant argues that the delay itself proves prejudice and that he was
prejudiced by oppressive pretrial incarceration. While I agree with the majority that
we presume prejudice stemming from Defendant’s lengthy incarceration I disagree
that his pretrial incarceration was undue. See Garza, 2009-NMSC-038, § 35 (stating
that we weigh pretrial incarceration in the defendant’s favor “only where the pretrial
incarceration or anxiety suffered is undue”). Here, the majority rejects the district
court’s findings that Defendant’s pretrial confinement did not cause undue anxiety
and concern, and instead concludes that Defendant “suffered extreme prejudice.”
Maj. Op. § 30 (Emphasis added.). The majority’s conclusion is not supported by the

district court’s findings or any evidence in the record.’

?T note that the majority does not discuss—and thus gives no significance to—
the third prejudice factor, that Defendant’s defense was impaired. Of the three kinds
of prejudice, Garza instructs that this is the “most serious” because the fairness of
the entire criminal justice system is distorted when a defendant is unable to
adequately prepare his defense. 2009-NMSC-038, { 36. I assume the majority agrees

39} The district court noted that Defendant’s assertions of prejudice, which were
detailed in an affidavit, focused on Defendant’s daily routine, his general state of
being, and his placement in segregation. While being placed in segregation can
certainly be oppressive, in this case there was testimony that Defendant’s placement
in segregation was necessary for the safety of himself and others. Lieutenant
Gallardo of the MDC testified and described the efforts to place Defendant in general
population. He testified that Defendant was originally placed in segregation because
he assaulted eight staff members when he was being booked into the facility.
Lieutenant Gallardo then went on to describe the numerous times MDC tried to
transition Defendant into general population but was unable to do so because of
Defendant’s behavior. In addition to the many minor infractions he committed,
Defendant repeatedly assaulted or threatened to assault staff members, he hid behind
a closet door with the intent to attack another inmate, he threatened to stab a staff
member, he was in possession of a shank, and he violated numerous institutional
rules including taking the food port “hostage” on two separate occasions, spraying a
liquid-like substance that smelled like feces on an inmate in another cell, and taking

a tier “hostage” requiring a facility-wide lockdown. The district court found that it

with the district court’s findings and conclusion that Defendant failed to establish
that his defense was impaired by any delay.

was Defendant’s own behavior that prevented him from being moved and resulted
in his placement in segregation and there is no evidence to the contrary.

{40} Defendant’s affidavit setting forth his allegations of prejudice is accurately
described by the district court as “including that [Defendant] has been in segregation
for the duration of this case, that [Defendant] suffers from depression and anxiety
attacks, [] he has been unable to maintain a relationship with his family, and he has
lost more than 15 pounds.” The district court was not persuaded that Defendant’s
allegations rose to the level of undue prejudice sufficient to have this factor weigh
in his favor. In particular, the court found that: (1) Defendant failed to allege when
his PTSD and anxiety to the extent he needed medication arose, and the court would
not “speculate that the delay caused these issues”; (2) Defendant’s allegations
concerning lost time with family was not any different “than the prejudice any person
incarcerated would suffer’; and (3) there was no testimony about Defendant’s
relationship with his family prior to his incarceration or how that relationship had
worsened as a result of his continued incarceration. The majority, however, rejects
the district court’s findings and concludes instead that Defendant suffered extreme
prejudice because it “cannot ignore the oppressive impact the conditions and
duration of his incarceration had on Defendant.” Maj. Op. § 29. I would agree with
the district court that Defendant has not demonstrated any particularized or undue

prejudice due to confinement. See State v. Fierro, 2012-NMCA-054, 4 57, 278 P.3d

541 (disagreeing with the defendant that he suffered undue prejudice as a result of
being housed in segregation for the fifty-five month period he was awaiting trial
despite his claims the he suffered from anxiety and concern, and that he had to take
medications to endure the mental and physical toll the ordeal took on him).

413. The majority’s reliance on Serros, 2016-NMSC-008, to establish that
Defendant suffered extreme prejudice is inapposite because the factual
circumstances of that case are different from the circumstances of this case. In
Serros, the defendant was arrested and detained at MDC for allegedly sexually
abusing his four-year-old nephew. Jd. J 6. MDC officials placed the defendant in
protective custody as a result of “the charges against him and because he is
homosexual[.]” /d. With regard to the prejudice prong, the Court began by noting
the defendant’s unchallenged testimony that he had been verbally and physically
harassed by other inmates and by MDC officials, and that he was not allowed to
move out of segregation because of the nature of the charges against him despite his
repeated requests to do so. /d. J 88. On this basis, our Supreme Court agreed with
the district court’s conclusion that the defendant suffered extreme prejudice by being
in custody in segregation for almost four and one-half years. /d. Unlike the defendant
in Serros, the restriction on Defendant here was of his own making. Defendant was
placed in segregation not because of the nature of the charges against him, but

because of his own violent actions and threats against MDC officials and other

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inmates. In addition, MDC repeatedly tried to move Defendant out of segregation
but was unable to do so because Defendant’s behavior prevented him from
transitioning into general population. In my view, Serros is factually distinguishable
and the majority’s reliance on that case is therefore misplaced.

Balancing

{42} To summarize, I agree with the majority that the length of the delay weighs
against the State and the assertion of the right weighs only slightly in Defendant’s
favor. However, I would weigh the reason for the length of delay only slightly
against the State. Further, I agree with the district court’s assessment that Defendant
“failed to meet his burden of establishing undue and particularized prejudice from
his pretrial incarceration” because he did not articulate any “undue” anxiety or
concern as a result of the delay. The majority’s conclusion otherwise, and its
conclusion that Defendant suffered “extreme prejudice,” ignores the district court’s
findings on this issue. Balancing the factors, I would conclude that there was no
speedy trial violation where there was no evidence of actual prejudice and the other

factors are neutral or weigh only slightly in Defendant’s favor at best.

M. VANZI, Judge

July 31, 2019- State of New Mexico v. Jeremiah John Gurule, No. A-1-CA-35724

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