March 11, 2014 – State of New Mexico v. John Eric Ochoa, No. 31,243

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	_______________
Filing Date: 	March 11, 2014
NO. 31,243
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JOHN ERIC OCHOA,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Stephen Bridgforth, District Judge
Gary K. King, Attorney General
Santa Fe, NM
Sri Mullis, Assistant Attorney General
Albuquerque, NM
for Appellee
Jorge A. Alvarado, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
VIGIL, Judge.
{1} 	Convicted of two counts of criminal sexual contact of a minor and one count
of interference with communications, Defendant appeals. Because we agree with
Defendant that his constitutional right to a speedy trial was violated, we reverse.
ANALYSIS OF A SPEEDY TRIAL CLAIM
{2} 	“The right to a speedy trial is a fundamental right of the accused,” guaranteed
by the “Sixth Amendment to the United States Constitution, [and] applicable to the
states through the Fourteenth Amendment.” State v. Garza, 2009-NMSC-038, ¶ 10,
146 N.M. 499, 212 P.3d 387; see U.S. Const. amend. VI; N.M. Const. art. II, § 14. To
determine whether this right was violated, we consider the following four factors
discussed in Barker v. Wingo, 407 U.S. 514, 530-32 (1972): “(1) the length of the
delay, (2) the reasons given for the delay, (3) the defendant’s assertion of the right to
a speedy trial, and (4) prejudice to the defendant.” State v. Collier, 2013-NMSC-015,
¶ 39, 301 P.3d 370 (internal quotation marks and citation omitted).
{3} 	We first determine whether the length of pretrial delay is “‘presumptively
prejudicial.’” Garza, 2009-NMSC-038, ¶ 23 (quoting Barker, 407 U.S. at 533). Only
when the length of delay is presumptively prejudicial, do we proceed to consideration
of the Barker factors. See Garza, 2009-NMSC-038, ¶ 21 (“[A] ‘presumptively

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prejudicial’ length of delay is simply a triggering mechanism, requiring further inquiry
into the Barker factors.”).
{4} 	Defendant was arrested on May 12, 2008. His trial occurred just over two years
later, on May 17-20, 2010. The twenty-four-month delay between Defendant’s arrest
and his trial surpasses the eighteen-month threshold for even the most complex cases,
thereby triggering the need to weigh all of the Barker factors. See Garza, 2009-
NMSC-038, ¶ 48 (“[E]ighteen months may be presumptively prejudicial for complex
cases.”).
STANDARD OF REVIEW
{5} 	“In considering each of the factors, we defer to the district court’s factual
findings but review de novo the question of whether [the d]efendant’s constitutional
right to a speedy trial was violated.” State v. Montoya, 2011-NMCA-074, ¶ 9, 150
N.M. 415, 259 P.3d 820. Whether the right to a speedy trial has been violated is
determined by the circumstances of each particular case. State v. Spearman, 2012-
NMSC-023, ¶ 16, 283 P.3d 272. We now turn to the Barker factors.
DISCUSSION
1. 	Length of the Delay
{6} 	“In determining the weight to be given to the length of delay, we consider the

1Defendant argues that the case is of intermediate complexity, which would
make the threshold nine months. See id. ¶ 48 (“Fifteen months may be presumptively
prejudicial for intermediate cases.”). However, “[t]he question of the complexity of
a case is best answered by a trial court familiar with the factual circumstances, the
contested issues and available evidence, the local judicial machinery, and reasonable
expectations for the discharge of law enforcement and prosecutorial responsibilities.”
State v. Plouse, 2003-NMCA-048, ¶ 42, 133 N.M. 495, 64 P.3d 522 (internal
quotation marks and citation omitted). Defendant fails to articulate a reason why we
should disagree with the district court’s determination. We therefore “give due
deference to the district court’s findings as to the level of complexity.” See id.; State
v. Coffin, 1999-NMSC-038, ¶ 57, 128 N.M. 192, 991 P.2d 477; but cf. Wilson, 2010-
NMCA-018, ¶ 24 (choosing not to give deference to the district court’s determination
that a case was intermediate and instead deciding that it was simple).
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extent to which the delay stretches beyond the bare minimum needed to trigger
judicial examination of the [speedy trial] claim.” State v. Wilson, 2010-NMCA-018,
¶ 26, 147 N.M. 706, 228 P.3d 490 (internal quotation marks and citation omitted); see
also Garza, 2009-NMSC-038, ¶ 24 (same). The district court made a finding that this
case is complex, making the threshold eighteen months. 1 See id. ¶ 48.
{7} 	Because the delay between Defendant’s date of arrest and his trial was slightly
over twenty-four months, the delay stretches six months beyond the presumptively
prejudicial threshold for complex cases. See Garza, 2009-NMSC-038, ¶ 48. Although
this delay is not so extraordinary as to weigh heavily in Defendant’s favor, it
nonetheless weighs in his favor; see also id. ¶ 24 (“Considering the length of delay as
one of the four Barker factors, the greater the delay the more heavily it will potentially

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weigh against the [s]tate.”); compare State v. Stock, 2006-NMCA-140, ¶ 18, 140 N.M.
676, 147 P.3d 885 (concluding that the three and one-half years delay was
“particularly egregious” and weighing the factor heavily in the [d]efendant’s favor),
with Garza, 2009-NMSC-038, ¶ 24 (concluding that a delay of one month beyond the
threshold “was not extraordinary and does not weigh heavily in [the d]efendant’s
favor”), and Wilson, 2010-NMCA-018, ¶ 29 (stating that delay of five months beyond
the guideline for a simple case was not so extraordinary or protracted as to compel
weighing the length of delay factor against the state more than slightly).
2. 	Reasons for the Delay
{8} 	“Barker identified three types of delay, indicating that different weights should
be assigned to different reasons for the delay.” Spearman, 2012-NMSC-023, ¶ 25
(internal quotation marks and citation omitted). These are: 	(1) deliberate or
intentional delay; (2) negligent or administrative delay; and (3) delay for which there
is a valid reason. Garza, 2009-NMSC-038, ¶¶ 25-27.
{9} 	Deliberate delay is to be “weighted heavily against the government.” Id. ¶ 25
(internal quotation marks and citation omitted). On the other hand, “‘[a] more neutral
reason such as negligence or overcrowded courts should be weighted less heavily but
nevertheless 	should 	be 	considered 	since 	the 	ultimate 	responsibility 	for 	such

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circumstances must rest with the government rather than with the defendant.’” Id. ¶ 26
(quoting Barker, 407 U.S. at 531). Indeed, “negligence . . . still falls on the wrong side
of the divide between acceptable and unacceptable reasons for delaying a criminal
prosecution once it has begun.” Id. (internal quotation marks and citation omitted).
“The degree of weight we assign against the [s]tate for negligent delay is closely
related to the length of delay[.]” Id. “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 [s]tate, especially
if the defendant has sought to safeguard his rights.” State v. Gallegos, 2010-NMCA-
032, ¶ 22, 148 N.M. 182, 231 P.3d 1124 (alteration in original) (internal quotation
marks and citation omitted).
{10} 	The record reflects that ten months of delay was due to negligence and for
administrative reasons. Defendant’s trial was set and reset eight times before he was
finally tried. Several of the trial settings were vacated because the trial was set for a
three-day period when three days were not actually available. The first trial, which
was set for approximately six months after Defendant had been arrested, was reset due
to one of the days falling on a holiday, causing a delay over one month long. Another
trial setting was vacated because the trial was erroneously set for one day, causing a

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five-month delay. Another trial setting was vacated because the third day fell on a
furlough for state employees ordered by the Governor, which would have left the
defense counsel without any support staff. This caused a two-month delay. The State
argues that this last period should weigh against Defendant because Defendant
requested the continuance and defense counsel, having had notice of the furlough day,
could have made alternate arrangements. However, the district court granted the
continuance, acknowledging that it was necessary “to ensure that [d]efense [c]ounsel
has adequate support staff to prepare a defense.” The district court also stated at the
hearing on Defendant’s motion to continue that it was “aware of the mandatory
furlough” and as a policy had “not been setting public defender trials on that day” but
that it may not have entered its mind when setting Defendant’s trial. Another trial
setting was vacated because of a pending defense motion that had not been heard,
causing a two-month delay. All of this ten-month delay, though negligent and
administrative, weighs against the State. See Gallegos, 2010-NMCA-032, ¶ 23
(“[B]ecause the state has the burden of bringing a case to trial, we weigh unreasonable
periods of delay against the state.” (alterations, internal quotation marks, and citation
omitted)).
{11} 	The State argues that Defendant caused a period of delay by moving to continue

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the second trial date, but we disagree and also weigh this delay against the State.
Defendant’s motion cites to his expert having inadequate time to prepare her report
due to three postponements of interviews with the State’s witnesses. Defense counsel
was supposed to interview the witnesses on August 11, 2008, but did not get to
interview the witnesses until November 10, 2008, which left slightly more than a
month until the scheduled trial. Defendant requested a continuance to ensure adequate
time to prepare and review the expert report in addition to reviewing any other
evidence the State had yet to disclose. The State concurred with the request and did
not file a response opposing Defendant’s stated grounds. The district court granted
Defendant’s request. The State now asserts on appeal that defense counsel had to
cancel the first interviews and the times the State cancelled after that were for good
reasons. The State also alleges that Defendant’s expert was not disclosed until sixteen
days before the scheduled trial, and the expert needed the safehouse interviews to
prepare for trial. We refuse to consider this attempt to attack Defendant’s stated
reasons for requiring a continuance when the State failed to attack them below and,
in fact, concurred. Although Defendant made the request, the three-month delay
caused by the continuance weighs against the State.
{12} 	There are two additional periods of delay that neither party argues should count

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against the other. One trial setting was vacated by the district court due to a death in
the judge’s family, causing a three-month delay. Another delay was caused when trial
was aborted after a prospective juror made inflammatory comments during voir dire
that were heard by the entire jury panel. Fearing that the jury pool was tainted,
Defendant requested that the trial be vacated and reset, which the district court
granted. We do not weigh either of these delays against any party.
{13} 	The State is therefore responsible for most of the twenty-four month delay,
although there is nothing in the record demonstrating that the delay was purposeful.
Because none of the delay in this case is attributable to Defendant, we weigh this
factor in Defendant’s favor.
3. 	Defendant’s Assertion of the Right
{14} 	In considering Defendant’s assertion of his right to a speedy trial, “we assess
the timing of the defendant’s assertion and the manner in which the right was
asserted.” Garza, 2009-NMSC-038, ¶ 32. In doing so, “we accord weight to the
frequency and force of the defendant’s objections to the delay.” Id. (internal quotation
marks and citation omitted). “We also analyze the defendant’s actions with regard to
the delay.” Id.
{15} 	Defendant was arrested on May 12, 2008, and trial commenced on May 17,

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2010. Defendant repeatedly asserted his right to a speedy trial throughout this two-
year delay. He first demanded a speedy trial on January 28, 2009, after eight months
of incarceration. He demanded that this right be recognized again on June 22, 2009,
and again on September 9, 2009, and again on September 17, 2009, and finally once
more on November 23, 2009.
{16} 	Defendant filed a total of four motions to dismiss, asserting his right to a speedy
trial was being violated. The first time Defendant moved to dismiss the case for
speedy trial purposes was approximately two months after the State secured a
Supreme Court order granting a six-month extension pursuant to Rule 5-604 NMRA,
which Defendant had opposed. See Rule 5-604(B)(1) (requiring the commencement
of a trial six months after the waiver of arraignment in district court); see also State
v. Savedra, 2010-NMSC-025, ¶ 9, 148 N.M. 301, 236 P.3d 20 (withdrawing the
six-month rule provisions set forth in Rule 5-604(B)-(E) effective for all cases
pending as of May 12, 2010). The district court denied Defendant’s motion to dismiss.
{17} 	The State then moved the district court to order another six-month extension to
commence trial, and the district court granted the motion over Defendant’s objection.
A few days later, Defendant made one of his speedy trial demands and thereafter filed
his second motion to dismiss asserting a violation of his right to a speedy trial. The

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court denied this motion as well. Defendant ultimately moved to dismiss the cases for
speedy trial violations two more times after further delay. The first was on February
11, 2010, twenty-two months after his arrest. Although the order is not in the record,
the district court apparently denied this motion as well. After the seventh trial setting
was vacated, Defendant filed his final motion to dismiss on April 20, 2010, which the
district court also denied. We accord weight to the frequency and force of these
repeated assertions.
{18} 	In considering Defendant’s actions in relation to the delay, we acknowledge that
some of the delay in this case was at Defendant’s behest, yet we do not view those
occasions as contrary to his repeated assertions. Contra Coffin, 1999-NMSC-038, ¶
67 (observing that the defendant’s assertion of his speedy trial right was not
meaningful when he objected to the rule extension but also represented that he was not
prepared for trial); State v. Fierro, 2012-NMCA-054, ¶ 54, 278 P.3d 541 (giving little
weight to the defendant’s assertions after considering the defendant’s “actions in
contributing to the delay and being unready for trial while simultaneously asserting
his speedy trial right”), cert. denied, 2012-NMCERT-004, 293 P.3d 886. Even though
the trial date was reset at the behest of Defendant more than once, we cannot conclude
that Defendant’s repeated assertions were artificial.

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{19} 	Indeed, the majority of Defendant’s requests to postpone or reset the trial were
the result of legitimate concerns for securing a fair trial. The second continuance
requested by Defendant was to vacate the sixth trial setting due to the last day of trial
falling on a furlough day, which we already noted the district court found necessary
“to ensure the [d]efense [c]ounsel has adequate support staff to prepare a defense.” As
far as Defendant’s request to vacate the seventh trial setting after the juror made
inflammatory comments, although the State insisted that another jury could be
empaneled, the district court found that “the only proper and safe remedy and the one
requested by the defense was to vacate the trial and reset it.” We defer to the district
court’s findings. A defendant should not be required to choose between inadequately
supported counsel or a potentially tainted jury of his peers and his right to a speedy
trial. He must be able to effectively balance his desire for a fair trial and the ability to
present a meaningful defense with his desire to speedily enjoy his day in court.
{20} 	Accordingly, we view Defendant’s repeated assertions as attempts to proceed
to trial as quickly as possible and weigh this factor in Defendant’s favor.

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4. 	Prejudice to Defendant
{21} 	In Garza, our Supreme Court explained the manner in which prejudice affects
how heavily the other Barker factors weigh in a defendant’s favor to find a speedy
trial violation. See Garza, 2009-NMSC-038, ¶ 39. The Court held that “generally a
defendant must show particularized prejudice of the kind against which the speedy
trial right is intended to protect.” Id. The Court went to explain that “if the length of
delay and the reasons for the delay weigh heavily in [a] defendant’s favor and [the]
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.” Id.
{22} 	“The heart of the right to a speedy trial is preventing prejudice to the accused.”
Id. ¶ 12. “Prejudice should be evaluated in light of the interest of the defendant, which
the right was designed to protect.” State v. O’Neal, 2009-NMCA-020, ¶ 27, 145 N.M.
604, 203 P.3d 135. The United States Supreme Court identified three such interests
in Barker: 	(1) “to prevent oppressive pretrial incarceration[,]” (2) “to minimize
anxiety and concern of the accused[,]” and (3) “to limit the possibility that the defense
would be impaired.” 407 U.S. at 532. “As to the first two types of prejudice, some
degree of oppression and anxiety is inherent for every defendant who is jailed while

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awaiting trial.” Garza, 2009-NMSC-038, ¶ 35 (alterations, internal quotation marks,
and citation omitted). “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.” Id.
{23} 	Here, Defendant was prejudiced by being incarcerated for the entire two-year
period between his arrest and trial. See id. (“[I]t cannot be denied that two-and-one-
half years of pretrial incarceration . . . one’s life on indefinite hold, waiting for one’s
trial to commence—is very substantial prejudice, of the precise kind that the Speedy
Trial Clause was meant to avoid.” (alteration and omission in original) (internal
quotation marks and citation omitted)). “‘The time spent in jail awaiting trial has a
detrimental impact on the individual. It often means loss of a job; it disrupts family
life; and it enforces idleness. Most jails offer little or no recreational or rehabilitative
programs. The time spent in jail is simply dead time.’” Id. (quoting Barker, 407 U.S.
at 532-33). “With respect to pretrial incarceration, the question is whether the length
of time was unacceptably long in that it became unduly prejudicial so as to factor into
the analysis.” State v. Laney, 2003-NMCA-144, ¶ 29, 134 N.M. 648, 81 P.3d 591.
This Court previously concluded that a delay of twenty-two months prejudiced a
defendant. See State v. Moreno, 2010-NMCA-044, ¶¶ 36-37, 148 N.M. 253, 233 P.3d

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782 (considering twenty-two months of pretrial incarceration as the main factor in
determining that the defendant was prejudiced). Here, Defendant was incarcerated
even longer. This is the “precise kind” of prejudice the speedy trial right was intended
to prevent.
{24} 	Having determined that Defendant was prejudiced by his lengthy pre-trial
incarceration, per Garza it is not necessary for all of the other factors to weigh heavily
in Defendant’s favor. See 2009-NMSC-038, ¶ 39. Nevertheless, we have concluded
that they all weigh in Defendant’s favor.
5. 	Balancing The Barker Factors
{25} 	The total delay in this matter was slightly over twenty-four months. This
amount of delay was presumptively prejudicial, triggering further analysis of the
Barker factors. For the reasons stated herein, we conclude: (1) the length of delay, (2)
the reason for the delay, (3) Defendant’s assertion of the right to a speedy trial, and
(4) prejudice to Defendant all weigh in Defendant’s favor in this case. Moreover,
because Defendant was prejudiced by his lengthy incarceration, the first three factors
need not weigh heavily in Defendant’s favor. Having examined the case in its entirety,
we conclude that Defendant’s constitutional right to a speedy trial was violated.
CONCLUSION

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{26} 	Defendant’s convictions are reversed. In light of our disposition herein, it is not
necessary to discuss Defendant’s remaining issues on appeal.
{27} 	IT IS SO ORDERED.
_____________________________
MICHAEL E. VIGIL, Judge
WE CONCUR:
_________________________________
TIMOTHY L. GARCIA, Judge
_________________________________
M. MONICA ZAMORA, Judge