November 18, 2014 – State v. Taylor, No. 31,998

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	_______________
Filing Date: 	November 18, 2014
NO. 31,998
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
LARRY B. TAYLOR,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
Stephen K. Quinn, District Judge
Gary K. King, Attorney General
Santa Fe, NM
M. Anne Kelly, Assistant Attorney General
Albuquerque, NM
for Appellant
Jorge A. Alvarado, Chief Public Defender
J.K. Theodosia Johnson, Assistant Appellate Defender
Santa Fe, NM
for Appellee

OPINION
VIGIL, Judge.
{1} 	This is another Sixth Amendment speedy trial case. 	The central question
presented is whether a defendant permanently waives his constitutional right to a
speedy trial because his attorney moves for a trial setting to be vacated due to a
scheduling conflict with another trial setting and stipulates that the resulting delay will
not be attributable to the State. The district court concluded, “it is not reasonable to
say that this ‘waiver’ would allow a one (1) year, three (3) months and six (6) days
delay” and dismissed the criminal information with prejudice on grounds that
Defendant’s constitutional right to a speedy trial was violated. We agree and affirm.
BACKGROUND
{2} 	On January 25, 2010, police responded to a domestic abuse call, which resulted
in Defendant’s arrest. The following day two separate criminal complaints were filed
in the magistrate court. The first charged Defendant with criminal sexual penetration
in the third degree, and the second alleged misdemeanor battery with respect to the
same victim. 	After posting bond, Defendant was released on February 2, 2010.
Defendant filed a written demand for a speedy trial in the felony case on February 11,
2010, and a written demand for a speedy trial in the misdemeanor case on February
16, 2010. 	A waiver of preliminary hearing and presentation to the grand jury was

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filed on February 17, 2010, and the case was bound over to the district court. 	On
March 5, 2010, a criminal information was filed in the district court charging both
criminal sexual penetration in the third degree and misdemeanor battery on a
household member.
{3} 	On June 15, 2010, a jury trial was scheduled to commence before Judge Tatum
on July 27, 2010. However, on July 6, 2010, Judge Tatum voluntarily recused himself
from the case, and it was assigned to Judge Hartley. 	On July 12, 2010, the State
recused Judge Hartley from hearing the case, and on July 26, 2010, Judge Orlik was
assigned to the case. On September 17, 2010, trial was set to commence on October
6, 2010 before Judge Orlik. On October 5, 2010, Defendant filed a motion to vacate
the trial on grounds that Defendant’s attorney had another jury trial set on the same
date and time. The State concurred in the motion with Defendant’s stipulation that
“any delay resulting from a continuance will not count against the State in speedy trial
determinations.” 	However, at no time after this motion was granted, did the State
request a new trial setting.
{4} 	Judge Orlik passed away on May 28, 2011, and Judge Mowrer was appointed
to replace him. The case was then erroneously assigned to Judge Quinn on June 6,
2011, and when the mistake was discovered, the case was re-assigned to Judge
Mowrer on July 19, 2011. Judge Mowrer voluntarily recused herself from the case

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on September 5, 2011, because as the prior Deputy District Attorney, she had
appeared on behalf of the State in the case at a prior hearing. 	Ten days later, on
September 15, the case was re-assigned to Judge Quinn. On his own motion, Judge
Quinn held a pretrial conference on December 13, 2011, and set the case to commence
trial on January 11, 2012. At the pretrial conference, defense counsel alerted the court
that there were speedy trial problems, and the day before trial, Defendant filed a
motion to dismiss on speedy trial grounds, which Judge Quinn granted on January 12,
2012. The State appeals.
STANDARD OF REVIEW
{5} 	On appeal from an order of dismissal for a violation of a defendant’s right to
a speedy trial, we give deference to the district court’s factual findings but review the
speedy trial factors de novo. 	State v. Spearman, 2012-NMSC-023, ¶ 19, 283 P.3d
272. The speedy trial factors we consider are those set forth 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). 	“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.” Spearman, 2012-NMSC-023, ¶ 17.

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No single Barker factor is “either a necessary or sufficient condition to the finding of
a deprivation of the right of speedy trial. Rather, they are related factors and must be
considered together with such other circumstances as may be relevant.” Barker, 407
U.S. at 533. Thus, in applying the Barker factors, we reject a bright-line analysis and
analyze each case on an ad hoc basis in light of its own unique factual circumstances.
State v. Garza, 2009-NMSC-038, ¶ 14, 146 N.M. 499, 212 P.3d 387.
SPEEDY TRIAL ANALYSIS
{6} 	The Sixth Amendment directs that “[i]n all criminal prosecutions, the accused
shall enjoy the right to a speedy . . . trial[.]” Id. ¶ 10 (internal quotation marks and
citation omitted). 	In a similar vein, Article II, Section 14 of the New Mexico
Constitution guarantees to an accused “a speedy public trial[.]” Garza, 2009-NMSC-
038, ¶ 10 n.1. Thus, in our analysis, we are mindful that “[t]he right to a speedy trial
is a fundamental right of the accused[,]” id., that is “guaranteed by both the Sixth
Amendment of the United States Constitution and Article II, Section 14 of the New
Mexico Constitution.” Spearman, 2012-NMSC-023, ¶ 16. See Barker, 407 U.S. at
533 (stating that “because we are dealing with a fundamental right of the accused,” the
balancing process of the Barker factors “must be carried out with full recognition that
the accused’s interest in a speedy trial is specifically affirmed in the Constitution”).
The first step in our analysis is to determine whether the length of pretrial delay is

5
“‘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 all of the Barker factors. See Garza, 2009-NMSC-038,
¶ 21 (stating that a “presumptively prejudicial” length of delay is “simply a triggering
mechanism, requiring further inquiry into the Barker factors”).
{7} 	The district court found, and the State does not dispute, that this is a simple
case. See State v. Plouse, 2003-NMCA-048, ¶ 42, 133 N.M. 495, 64 P.3d 522 (“We
give due deference to the district court’s findings as to the level of complexity.”). In
Garza, our Supreme Court adopted “one year as a benchmark for determining when
a simple case may become presumptively prejudicial.” 2009-NMSC-038, ¶ 48. Here,
Defendant’s right to a speedy trial attached upon his arrest. See State v. Laney, 2003-
NMCA-144, ¶ 10, 134 N.M. 648, 81 P.3d 591 (“The right [to a speedy trial] attaches
when the defendant becomes an accused, either at the time of arrest or upon the
issuance of an indictment or information.”). 	Thus, the almost twenty-four-month
delay between Defendant’s arrest on January 25, 2010, and his January 11, 2012 trial
date surpasses the twelve-month threshold for simple cases. We therefore proceed to
analyze and weigh the four Barker factors.
A. 	Length of Delay

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{8} 	“Considering the length of delay as one of the four Barker factors, the greater
the delay the more heavily it will potentially weigh against the State.” Garza, 2009-
NMSC-038, ¶ 24; see also Doggett v. United States, 505 U.S. 647, 652 (1992) (noting
that, once a defendant establishes that delay was presumptively prejudicial, “the court
must then consider, as one factor among several, the extent to which the delay
stretches beyond the bare minimum needed to trigger judicial examination of the
claim”).
{9} 	Here, the delay was almost two years, nearly twice as long as the twelve-month
threshold for simple cases. We therefore weigh this factor heavily against the State.
See State v. Vigil-Giron, 2014-NMCA-069, ¶¶ 19, 65, 327 P.3d 1129 (concluding that
the length of delay, which was twice as long as the length of delay considered to be
presumptively prejudicial, weighed heavily against the State), cert. denied, 2014-
NMCERT-006, 328 P.3d 1188; State v. Marquez, 2001-NMCA-062, ¶ 12, 130 N.M.
651, 29 P.3d 1052 (holding that a nine-month delay that extended beyond the then-
nine-month threshold for simple cases weighed heavily against the State).
B. 	Reasons for Delay
{10} 	Analysis of this Barker factor requires us to address the central question posed
in this case: whether the reasons for the almost two-year delay should be weighed
against the State, and to what extent. 	Garza, 2009-NMSC-038, ¶ 25. 	“Barker

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identified three types of delay, indicating that ‘different weights should be assigned
to different reasons’ for the delay.” Garza, 2009-NMSC-038, ¶ 25. At one end of the
spectrum, “a valid reason, such as a missing witness, should serve to justify
appropriate delay.” Id. ¶ 27 (internal quotation marks and citation omitted). At the
other end of the spectrum, “‘official bad faith in causing delay will be weighed heavily
against the government,’ and excessive bad-faith delay may present an overwhelming
case for dismissal.’” Id. ¶ 25 (quoting Doggett, 505 U.S. at 656). In the middle lies
negligent or administrative delay. 	Although “negligent,” the delay is nonetheless
weighed against the State, “‘since the ultimate responsibility for such circumstances
must rest with the government rather than with the defendant,’” but such a reason is
not weighed heavily. 	Garza, 2009-NMSC-038, ¶ 26 (quoting Barker, 407 U.S. at
531).
{11} 	The State acknowledges that the thirty-nine day delay between Defendant’s
arrest on January 25, 2010, and the filing of the criminal information in the district
court on March 5, 2010, weighs slightly against the State. We agree. 	See State v.
Parrish, 2011-NMCA-033, ¶ 24, 149 N.M. 506, 252 P.3d 730 (stating that the two-
month delay due to the State’s dismissal of charges in magistrate court and refiling the
same charges in the district court was negligent delay that weighed slightly against the
State). We also agree with the State that during the four-month period from March

8
5, 2010, when the criminal information was filed in the district court, until July 6,
2010, when Judge Tatum voluntarily recused himself on July 6, 2010, the case was
progressing in a normal fashion, with the result that this period is to be weighed
neutrally. See id. ¶ 25 (stating that four and one-half month delay should be weighed
neutrally because “the case progressed with customary promptness during this
period”). This was followed by a delay of approximately three months, from July 6,
2010, until October 5, 2010, during which the case was assigned to Judge Hartley, and
then reassigned to Judge Orlik, who set the case for trial to commence on October 5,
2010. Again, we agree with the State that this reassignment of judges “falls within the
administrative burdens on the criminal justice system” and is weighed as negligent
delay against the State. Garza, 2009-NMSC-038, ¶ 29.
{12} 	This brings us to the pivotal period of delay in this case. 	That period spans
from the October 6, 2010 trial setting before Judge Orlik, which was vacated on
Defendant’s motion, to the January 11, 2012 trial setting made by Judge Quinn. This
period was calculated by the district court to be “four hundred sixty-three (463) days,
or one (1) year, three (3) months and six (6) days.”
{13} 	We begin our analysis with Defendant’s October 5, 2010 motion to vacate the
October 6, 2010 trial setting. The State acknowledges in its brief “that this long of a
delay was probably not contemplated by Defendant in his motion for continuance.”

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We agree. 	Defendant asked that the trial setting be vacated on grounds that
Defendant’s counsel had another trial scheduled on the same date at the same time
before another judge. 	The motion added that “the parties stipulate that any delay
resulting from a continuance will not count against the State in speedy trial
determinations.” With this agreement, the State concurred in the motion. By its own
terms, the motion only stipulated that delay resulting from the continuance would not
count against the State in a speedy trial determination; it did not permanently waive
Defendant’s constitutional right to a speedy trial. 	Thus, Defendant’s concession
anticipated a reasonable delay for the State to bring the case to trial rather than a grant
to the State of an unlimited time to do so.
{14} 	In assessing how this period of delay is to be considered, we remain mindful
that our Supreme Court has rejected bright-line rules in speedy trial analyses, opting
instead for an evaluation of the circumstances in each individual case. Garza, 2009-
NMSC-038, ¶ 13 (noting that the Barker factors analysis “specifically rejects
inflexible, bright-line approaches to analyzing a speedy trial claim”). 	Defendant
accurately portrays the circumstances of this case in stating that after his motion to
continue was granted, “[o]ne month passed and the State did nothing. Six months
passed and the State did nothing. A year passed and the State did nothing. After 15
months, the trial court sua sponte ordered a status conference and set a date for trial.”

10
The district court made the same assessment and concluded that the long delay after
Defendant’s continuance motion “was caused by the State during which time the State
took no steps to obtain a trial setting.”
{15} 	In Vigil-Giron, we examined the administrative delay in a case that was delayed
for thirty-six months and concluded that the State “did not go far enough in providing
evidence or explanation showing that this case was properly and efficiently managed
or showing that the case could not have been managed considerably better for societal
purposes and to protect [the d]efendant’s right to a speedy trial.” 2014-NMCA-069,
¶ 66. Yet, in that case the state had actually taken action to move the case forward,
filing motions requesting the court to clarify the status of the case and requesting the
court to address the outstanding motions as soon as possible. Id. ¶¶ 4, 6. In this case,
on the other hand, the State did nothing to bring the case to trial after the continuance
motion, and offers no explanation for its inaction. We therefore agree with the district
court and conclude that this entire period of delay is attributable to the State. 	See
Marquez, 2001-NMCA-062, ¶ 15 (“The State has a constitutional duty to make a
diligent, good-faith effort to bring [a d]efendant to trial.”).
{16} 	We are therefore left to consider what weight to assign to this period of delay.
Negligent 	delay 	is 	not 	ordinarily 	weighed 	heavily 	against 	the 	state, 	Garza,
2009-NMSC-038, ¶ 26, but this is not a case of mere negligence. Instead, this is a

11
case in which the State was inexcusably indifferent to its affirmative obligation to
bring a simple case to trial. See State v. Gallegos, 2010-NMCA-032, ¶ 21, 148 N.M.
182, 231 P.3d 1124 (noting our concern for the States’s “lack of progress” in moving
the case forward and holding that the elapsed time weighed heavily against the State
(internal quotation marks omitted)); Cf. Spearman, 2012-NMSC-023, ¶ 30 (agreeing
with the district court’s conclusion that the State’s extremely dilatory conduct
warranted weighing the reason for the delay heavily against the state); State v. Lucero,
1999-NMCA-102, ¶ 25, 127 N.M. 672, 986 P.2d 468 (noting that the prosecutor
candidly acknowledged that his negligence in failing to know the contents of the
prosecution file could possibly rise to bad faith). We recognize that various judge
reassignments were made after Judge Orlik passed away and that we would ordinarily
weigh such a delay neutrally. However, because the State did nothing to obtain a trial
setting between the time that the continuance motion was granted and the time that
Judge Orlik passed away (a span of 235 days), or at any time after that, we do not do
so in this case.
{17} 	We therefore hold that the delay which the State allowed to elapse after
Defendant’s motion to vacate should be weighed heavily against the State. See State
v. Urban, 2004-NMSC-007, ¶ 20, 135 N.M. 279, 87 P.3d 1061 (considering the
State’s “complete lack of an acceptable reason for fourteen months” of delay between

12
the defendant’s arrest and his indictment as significant in its determination that the
defendant’s speedy trial right was violated); Ruffin v. State, 663 S.E.2d 189, 199 (Ga.
2008) (“[T]he weight we assign to official negligence compounds over time as the
presumption of evidentiary prejudice grows. Thus, our toleration of such negligence
varies inversely with its protractedness.”).
C. 	Assertion of the Right
{18} 	The right to a speedy trial is fundamental and is not waived even if never
asserted. 	See Garza, 2009-NMSC-038, ¶ 32 (“Rights under this amendment are
fundamental in nature so that a failure to assert them does not constitute waiver, but
the timeliness and vigor with which the right is asserted may be considered as an
indication of whether a defendant was denied needed access to speedy trial over his
objection or whether the issue was raised on appeal as afterthought.”). Defendant did
not raise the claim as an afterthought. He asserted his right to a speedy trial in the
magistrate court, and clearly still had speedy trial considerations on his mind when he
stipulated that the delay caused by his motion to continue would not count against the
State, before ultimately filing his motion to dismiss on speedy trial grounds. These
actions are sufficient to support the conclusion that Defendant adequately asserted his
right and did not acquiesce in the delay. 	We give no consideration to the State’s
assertion that “[a]lthough it is not Defendant’s responsibility to take himself to trial,

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Defendant did have the responsibility to explicitly reassert his right when the delay
became unacceptable to him.” The State cites no authority for this proposition so we
assume there is none. In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764,
676 P.2d 1329 (“We assume where arguments in briefs are unsupported by cited
authority, counsel after diligent search, was unable to find any supporting authority.”).
D. 	Prejudice
{19} 	Our Supreme Court in Garza explained how the prejudice factor is to be
examined as follows:
The United States Supreme Court has identified three interests under
which we analyze prejudice to the defendant: (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. 	As to the first two types of prejudice, some degree of
oppression and anxiety is inherent for every defendant who is jailed
while awaiting trial. Therefore, we weigh this factor in the defendant’s
favor only where the pretrial incarceration or the anxiety suffered is
undue. 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. . . . However, without 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.
Garza, 2009-NMSC-038, ¶ 35 (alterations, internal quotation marks, and citations
omitted).

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{20} 	Here, Defendant was released on bond nine days after being arrested and was
therefore exposed to minimal pretrial incarceration. Defendant’s counsel argued, and
the district court accepted, the traditional prejudicial concerns such as “restriction on
his movement, restrictions on his liberty, excessive worrying about the charges against
him,” and concern that the delay could have caused the defense to be impaired.
However, this is not sufficient by itself to demonstrate particularized prejudice caused
by the delay. 	See id. ¶ 37 (noting that the district court had found “some actual
prejudice in the form of restrictions imposed by pre-trial conditions of release and
stress” but holding that “some non-particularized prejudice is not the type of prejudice
against which the speedy trial right protects” (alteration and internal quotation marks
omitted)); Gallegos, 2010-NMCA-032, ¶ 27 (holding that the defendant’s loss of his
job, and his assertions of sleeplessness and nervousness did “not constitute the
particularized prejudice required for dismissal under a speedy trial violation”). No
testimony or documentary evidence was offered or admitted into evidence in support
of counsel’s assertion that Defendant was prejudiced. Spearman, 2012-NMSC-023,
¶ 39 (“[T]he claimed showing of prejudice came in the form of allegations of counsel,
both in the written motion to dismiss and at the hearing. Allegations of counsel are
not generally considered evidence. [The d]efendant should have offered some actual

15
evidence in the form of affidavits, testimony, or documentation in support of the
allegations of lost employment and bankruptcy.” (citation omitted)).
{21} 	Likewise, Defendant presented no evidence that his defense was actually
impaired by the delay. Although this last type of prejudice is the “most serious,” our
Supreme Court emphasized that a defendant must “substantiate this type of prejudice.”
Garza, 2009-NMSC-038, ¶ 36 (internal quotation marks and citation omitted).
Nevertheless, our Supreme Court also acknowledged that while prejudice is obvious
if a witness dies or disappears during the delay, “[t]here is also prejudice if defense
witnesses are unable to recall accurately events of the distant past[,]” and this type of
prejudice “is not always reflected in the record because what has been forgotten can
rarely be shown.” 	Id. 	(internal quotation marks and citation omitted). 	We
acknowledge that such may be the case, but here we have nothing more than
allegations of counsel, and we will not speculate that important witness testimony was
lost due to impaired memories caused by the delay.
{22} 	We therefore conclude that the arguments of counsel concerning Defendant’s
worry, anxiety, and the possibility that his defense could have been impaired failed
to establish the particularized showing of prejudice as required by Garza. Cf. Vigil-
Giron, 2014-NMCA-069, ¶¶ 51-53, 57 (citing the defendant’s testimony regarding her
increased anxiety, insomnia, and development of an autoimmune disease related to the

16
stress—which was supported by medical records—as well as her loss of employment
and inability to find employment as a result of the indictment, and actual impairment
to her defense due to the death of a witness).
E. 	Balancing Test
{23} 	As in Garza, “[t]he primary issue raised by the facts of [the] case is whether a
court can find a violation of a defendant’s speedy trial right without a particularized
showing of prejudice.” 	2009-NMSC-038, ¶ 38. 	In Garza, the Court noted that a
showing of actual prejudice may not always be possible and adopted the position of
the United States Supreme Court in Doggett, 505 U.S. 647, and many other lower
courts that a showing of particularized prejudice is not necessary in cases in which the
other Barker factors weigh heavily in the defendant’s favor and the defendant has not
acquiesced in the delay. Garza states:
We similarly hold [as in Doggett and many other lower courts] that
generally a defendant must show particularized prejudice of the kind
against which the speedy trial right is intended to protect. However, if
the length of delay and the reasons for the delay weigh heavily in [the]
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.
2009-NMSC-038, ¶ 39.
{24} 	This holding in Garza reiterates that we are engaged in balancing the Barker
factors, none of which is itself dispositive, to determine whether the constitutional

17
right to a speedy trial has been violated. See Cantu v. State, 253 S.W.3d 273, 280-81
(Tx. Crim. App. 2008) (“Thus, the greater the [s]tate’s bad faith or official negligence
and the longer its actions delay a trial, the less [a] defendant must show actual
prejudice or prove diligence in asserting his right to a speedy trial.”); State v. Farrell,
727 A.2d 501, 518 (N.J. Super. Ct. App. Div. 1999) (“As a matter of logic and
decency, given that the four factors of Barker call for a balancing of considerations,
when the delay in concluding a trial is excessively long by any measure, as here, the
burden upon a defendant to satisfy the other factors is correspondingly diminished.”).
{25} 	The length of the delay here was excessively long. All parties agree that this
is a simple case, and almost two years elapsed from Defendant’s arrest on January 25,
2010, to the trial setting of January 11, 2012. 	This is twice the amount of time to
presume prejudice in a simple case. 	The State is responsible for 463 days of this
delay, and because the delay resulted from the State’s inexcusable neglect and
complete lack of diligence in seeking a trial setting, the period of delay weighs heavily
against the State. 	Defendant adequately asserted his right to a speedy trial, and in
moving to vacate the initial trial setting, Defendant did not permanently waive or
abandon that right. 	We therefore hold that notwithstanding Defendant’s failure to
make a particularized showing of prejudice resulting from the delay, he is entitled to
relief. 	See Farrell, 727 A.2d at 518 (concluding that because the delay was far

18
beyond what was reasonable, and the reasons for the delay were the prosecutions
“clear inattention to its responsibilities” together with the court’s failure to prepare
itself to try the matter, no showing of prejudice was required for the defendant to
succeed on his argument that he was denied his adequately asserted right to a speedy
trial). We therefore affirm.
CONCLUSION
{26} 	The order of the district court dismissing this case on speedy trial grounds is
affirmed.
{27} 	IT IS SO ORDERED.
______________________________
MICHAEL E. VIGIL, Judge
WE CONCUR:
___________________________________
MICHAEL D. BUSTAMANTE, Judge
___________________________________
J. MILES HANISEE, Judge