1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _______________
3 Filing Date: May 13, 2016
4 NO. 33,861
5 STATE OF NEW MEXICO,
6 Plaintiff-Appellee,
7 v.
8 MICHAEL A. ESTRADA,
9 Defendant-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
11 Douglas R. Driggers, District Judge
12 Hector H. Balderas, Attorney General
13 Santa Fe, NM
14 Walter Hart, Assistant Attorney General
15 Albuquerque, NM
16 for Appellee
17 Bennett J. Baur, Chief Public Defender
18 Kathleen T. Baldridge, Assistant Appellate Defender
19 Santa Fe, NM
20 for Appellant
1 OPINION
2 HANISEE, Judge.
3 {1} Defendant appeals his conviction for conspiracy to commit forgery, arguing
4 that there was insufficient evidence to support the jury’s verdict and that the district
5 court erred in denying his motion to dismiss the indictment on speedy trial grounds.
6 We affirm.
7 I. BACKGROUND
8 {2} We divide our narrative of the facts into two parts: (A) facts relevant to
9 Defendant’s motion to dismiss on speedy trial grounds, and (B) facts relevant to
10 Defendant’s challenge to the sufficiency of the evidence in support of his conviction
11 for conspiracy to commit forgery. We adopt the district court’s findings of fact with
12 respect to its denial of Defendant’s speedy trial motion to the extent its findings are
13 supported by substantial evidence. State v. Spearman, 2012-NMSC-023, ¶ 19, 283
14 P.3d 272. Similarly, we recite the facts relevant to Defendant’s sufficiency of the
15 evidence challenge to his conviction in the light most favorable to the jury’s guilty
16 verdict. See State v. Chavez, 2009-NMSC-035, ¶ 11, 146 N.M. 434, 211 P.3d 891.
17 A. Facts Relevant to Defendant’s Motion to Dismiss on Speedy Trial Grounds
18 {3} On November 12, 2010, the State filed a criminal complaint in magistrate court
19 charging Defendant with four counts of forgery in violation of NMSA 1978, Section
1 30-16-10(A), (B) (2006). Defendant was arrested on November 19, 2010. On
2 December 9, 2010, Defendant was charged in district court by grand jury indictment
3 of four counts of forgery and one count of conspiracy to commit forgery. The State
4 dismissed the magistrate court case without prejudice the following day.
5 {4} Defendant was arraigned on the district court criminal complaint on December
6 27, 2010. The district court set Defendant’s bond at $15,000. On January 21, 2011,
7 Aric Elsenheimer, Defendant’s public defender, filed an entry of appearance and
8 request for discovery, as well as a demand for speedy trial. On February 21, 2011, Mr.
9 Elsenheimer filed a written motion for a reduction of Defendant’s bond.
10 {5} On February 25, 2011, the State moved to join Defendant’s case with pending
11 cases against his two alleged co-conspirators. The district court entered notices
12 scheduling a hearing on the State’s joinder motion and Defendant’s motion to reduce
13 bond for April 7, 2011. On April 4, 2011, for reasons unexplained in the record, the
14 district court vacated the motion hearing.
15 {6} On May 2, 2011, Pedro Pineda filed an entry of appearance on Defendant’s
16 behalf. (Mr. Elsenheimer did not file a motion to withdraw or substitute, but it
17 appears that this was the effect of Mr. Pineda’s entry of appearance because Mr.
18 Elsenheimer did not participate in the case from this point onward.) On July 25, 2011,
19 Defendant posted bond and was released from incarceration. On August 22, 2011, the
2
1 district court entered a notice scheduling a jury trial for Defendant’s charges on
2 October 4, 2011. On September 29, 2011, the State filed a motion to continue the
3 October 4, 2011, trial referencing its pending motion to join Defendant’s case with
4 one of his alleged co-conspirator’s. The motion stated that “Defense counsel, [Mr.]
5 Pineda, does not oppose this [m]otion.” On September 30, 2011, the district court
6 granted the State’s motion to continue and vacated the October 4, 2011, trial setting.
7 {7} On February 2, 2012, the State filed a request for a hearing on its motion to
8 join. A hearing on the motion was scheduled to take place on February 15, 2012, and
9 on February 16, 2012, the State filed an amended motion to join that sought to join
10 Defendant’s case with the case against only one of Defendant’s alleged co-
11 conspirators, Richard M. Tow.1 Defendant’s attorney did not oppose the motion. On
12 February 17, 2012, the district court entered an order joining Defendant’s case with
13 Mr. Tow’s. On March 13, 2012, the district court entered a notice setting a jury trial
14 for April 26, 2012.
15 {8} On April 11, 2012, Defendant filed a pro se motion to dismiss counsel. In the
16 motion, Defendant asserted that his attorney, Mr. Pineda, had failed to communicate
17 with him and that his right to a speedy trial had been violated. Defendant noted “[m]y
18 1
Although this information is not part of the record, Defendant represents in his
19 brief in chief that the reason the State no longer sought to join his case with the other
20 alleged co-conspirator’s case was because that co-conspirator had pleaded guilty to
21 the charges against her.
3
1 trial is [set for] the 26th of April, and I need an [a]ttorney to prepare for my trial
2 because I am innocent and I am taking this case to trial.” Defendant’s motion was
3 mailed to the district court in an envelope that listed the Luna County Detention
4 Center as a return address. On April 13, 2012, the district court scheduled a hearing
5 on Defendant’s pro se motion to take place on April 19, 2012.
6 {9} On April 18, 2012, Defendant’s attorney filed a motion to withdraw. In it, Mr.
7 Pineda asserted that Defendant’s pro se motion to dismiss him as his attorney had
8 caused “the attorney client relationship [to] deteriorate[] beyond repair[.]” Mr. Pineda
9 argued that Defendant’s assertion that he had never met or communicated with his
10 attorney was refuted by the fact that the arguments in his motion to dismiss counsel
11 were based on information that could only be gleaned from discovery that the State
12 had provided to Mr. Pineda, which Mr. Pineda had in turn provided to Defendant. Mr.
13 Pineda asserted that Defendant had been arrested for a probation violation on
14 September 8, 2011, and again released on October 13, 2011, but had failed to comply
15 with a condition of release requiring him to stay in contact with his attorney. Mr.
16 Pineda also stated that Defendant was arrested for another probation violation on
17 February 14, 2012, and that “he has been incarcerated ever since.” Mr. Pineda
18 explained that Defendant’s dissatisfaction with Mr. Pineda likely stemmed from his
19 being “very unhappy” with the State’s plea offer, which Mr. Pineda had conveyed to
4
1 Defendant. Finally, Mr. Pineda stated that “Defendant . . . [has] consulted with local
2 attorney Mike Lilley, [and] Mr. Lilley told [Defendant] he would sue me and he
3 would take over [Defendant’s] criminal case as well.”
4 {10} On April 19, 2012, Defendant, again pro se, filed a motion for setting and
5 telephonic hearing, in which he asserted that the indictment against him should be
6 dismissed for “due process” and speedy trial violations. The district court held a
7 hearing on April 20, 2012. At the beginning of the hearing, Defendant explained that
8 he had filed a separate motion for a telephonic hearing because he lived in Deming,
9 New Mexico. Defendant also admitted that he had in fact met with Mr. Pineda once.
10 {11} Defendant disputed that he had hired another attorney to replace and sue Mr.
11 Pineda, explaining that Mr. Pineda’s assertion in his motion to withdraw must have
12 been the result of a “misunderstanding.” In response, Mr. Pineda called his assistant
13 to give testimony as a witness. Mr. Pineda’s assistant testified that she had only
14 spoken to Defendant once, when Defendant had called from jail to say that he planned
15 to hire Mr. Lilley to sue Mr. Pineda for unstated reasons and to represent Defendant
16 in his criminal case.
17 {12} The prosecutor explained that the State’s primary concern was how the delay
18 that would result from granting Defendant’s motion to dismiss his attorney would be
19 assigned for speedy trial purposes. Notwithstanding these concerns, the district court
5
1 granted Defendant’s motion to dismiss counsel and Mr. Pineda’s motion to withdraw.
2 The district court stated that “it appears to this court that the parties will not be
3 prepared for trial” and directed Mr. Pineda to prepare form orders granting each
4 motion and continuing the trial. The district court asked Defendant personally
5 whether he approved the “form” of the orders, and Defendant orally did so.
6 {13} On May 11, 2012, the district court entered orders granting Defendant’s oral
7 motion to continue, his motion to dismiss counsel, and Mr. Pineda’s motion to
8 withdraw as counsel. The district court reset Defendant’s jury trial for July 31, 2012.
9 On June 11, 2012, Defendant’s replacement contract defender, Peter Giovannini, filed
10 a notice of appearance, demand for discovery, and a speedy trial demand.
11 {14} On July 23, 2012, Defendant’s attorney filed a motion to vacate the July 31,
12 2012, jury trial. The motion cited Defendant’s confusion as to who in fact was
13 representing him, Defendant’s request to take statements by several witnesses for the
14 State and witnesses that Defendant intended to call to testify in his defense at trial.
15 The motion stated that “[u]ndersigned counsel agrees that any delay arising from this
16 continuance should be attributed to the defense for purposes of any speedy trial
17 analysis.” The district court granted Defendant’s motion to continue and vacated the
18 July 31, 2012 trial setting, which was reset for October 11, 2012.
6
1 {15} On September 25, 2012, Defendant’s attorney filed a motion to vacate the
2 October 11, 2012, trial setting, stating that Defendant had been released from prison
3 to serve the remainder of his sentence at a halfway house, and that “Defendant . . . is
4 unable to communicate with undersigned counsel regarding [this case] because [he]
5 is fearful that the [halfway house] will give him an ‘unsuccessful release’ from the
6 program[,] which will violate his probation.” The motion explained that “if the
7 [halfway house] is aware of pending charges, he will be released from the program.”
8 The motion stated that “[u]ndersigned counsel and Defendant respectfully request that
9 this matter be vacated and rescheduled after April[] 2014 to allow [D]efendant . . . to
10 successfully complete the [halfway house s]ubstance [a]buse [t]reatment
11 [p]rogram[.]” The State opposed the motion.
12 {16} On October 3, 2012, the district court held a hearing on Defendant’s motion to
13 continue. Defendant was not in attendance but his attorney reiterated that Defendant
14 wanted to stay the proceedings until after April 2014 in order to allow him an
15 opportunity to successfully complete the terms of his probation in an unrelated case.
16 The State explained its opposition to the motion, arguing that granting Defendant’s
17 motion to continue would raise speedy trial problems and cause “hardship” to the
18 parties. Finally, the State called a probation officer as a witness, who testified that
19 Defendant had left the halfway house because of a “medical injury.” The witness also
7
1 testified that he had seen text messages Defendant had sent to in September to the
2 mother of Defendant’s son stating that he was “on the run.”
3 {17} The district court recessed the hearing in order for the attorneys for the State
4 and Defendant to attempt to locate Defendant. After the recess, both the State’s
5 attorney and Defendant’s attorney said they were unable to locate Defendant, and that
6 he was not at the Luna County Detention Center. The district court did not rule on
7 Defendant’s motion to continue and issued a bench warrant for Defendant’s arrest.
8 {18} On October 9, 2012, Defendant’s attorney filed another motion to continue.
9 The motion stated that on the same day as the hearing on Defendant’s earlier motion
10 to continue, “Defendant . . . contacted [Mr. Giovannini’s] office stating he was
11 release[d] from the [halfway house] to have surgery but he would return to the
12 program[.]” The motion also stated that “[u]ndersigned counsel agrees that any delay
13 arising from this continuance should be attributed to the defense for purposes of any
14 speedy trial analysis.” The State did not oppose Defendant’s renewed motion to
15 continue. The district court granted the motion.
16 {19} On October 29, 2012, the State filed a request for a jury trial setting, and a few
17 days later the district court entered a notice setting trial for December 17, 2012. On
18 November 9, 2012, the court held a hearing in which it heard from Defendant’s
19 attorney that Defendant had in fact been in custody in another jurisdiction, so the
8
1 bench warrant for failing to appear had been issued in error. On December 13, 2012,
2 the State moved to review Defendant’s conditions of release. The State acknowledged
3 that Defendant was in custody in Deming on October 3, 2012, when the court held its
4 hearing on Defendant’s earlier motion to continue. But the State contended that
5 Defendant’s conditions of release should be reviewed because “Defense
6 counsel . . . has informed the State that . . . Defendant has failed to maintain contact
7 with defense counsel, and there are no assurances that . . . Defendant will appear for
8 trial on the scheduled trial date.” The district court did not hold a hearing or otherwise
9 dispose of the State’s motion to review Defendant’s conditions of release. Instead, it
10 appears to have simply continued the December 2012 trial setting to April 10, 2013.
11 {20} On April 9, 2013, the day before trial, Defendant submitted a pro se motion to
12 investigate and a motion to dismiss. In the motion to dismiss, Defendant made two
13 arguments: (1) his arrest was unlawful, and (2) his right to a speedy trial had been
14 violated. With respect to his speedy trial claim, Defendant argued that his case was
15 simple and that the nearly two-and-one-half-year delay between his arrest and trial
16 violated his right to a speedy trial.
17 {21} The court heard argument on Defendant’s motion to dismiss on the morning
18 of trial on April 10, 2013. The district court denied Defendant’s motion to dismiss
19 based on an unlawful arrest, and Defendant has not appealed that ruling. With respect
9
1 to the claim that his right to a speedy trial had been violated, Defendant argued that
2 his case was simple and that the length of the delay resulted in a violation of his right
3 to a speedy trial. Defendant’s attorney indicated that Defendant’s motion likely did
4 not have any merit because he had “absconded” for a significant period of time
5 between his arrest and the trial and, therefore, was himself responsible for much of
6 the delay. Defendant conceded that he had absconded, saying “[y]eah, my mom was
7 really sick.”
8 {22} After the State’s attorney responded, Defendant’s attorney asked to be allowed
9 to correct statements he had made earlier. Defendant’s attorney stated:
10 [Defendant] felt compelled to leave [the halfway house] because he had
11 to have a surgery. Actually, they asked him to leave because of a
12 medical problem that he had told them about and told them that he
13 needed to get treatment on. So that changes the whole complexion of
14 things.
15 The State responded that the halfway house Defendant was living in was a long-term
16 inpatient program, which requires its patients to stay for a year to eighteen months.
17 The State argued that Defendant “can’t . . . really [have] been planning on going to
18 trial in this case if he . . . [was in] an inpatient program for that length of time. And,
19 again, if he left that program and ended up with a warrant, that still counts against
20 [D]efendant and counts against his vigorous assertion of his right to a speedy trial[.]”
10
1 {23} The district court orally recited the history of the case and made certain
2 findings of fact that we review in greater detail in our discussion of Defendant’s
3 speedy trial argument later in this Opinion. The court found that “most of the delay
4 has been charged to [D]efendant; therefore, [the court] denies your motion to dismiss
5 [on speedy trial grounds].” After trial, the district court entered a written order
6 denying Defendant’s motion to dismiss that again assigned most of the delay to
7 Defendant and additionally found that “Defendant has not vigorously asserted the
8 right to a speedy trial and there is no prejudice to . . . Defendant[.]”
9 B. Facts Relevant to Defendant’s Sufficiency of the Evidence Argument
10 {24} Immediately after denying Defendant’s motion to dismiss, the court convened
11 a jury venire, selected a jury, and proceeded to trial.
12 {25} Clorinda Barela testified that her daughter was living with Defendant in 2010.
13 Defendant and her daughter had a son, and in September 2010, Ms. Barela had
14 written a check for $10 to her grandson in order to purchase candy he was selling for
15 a school fundraiser. Ms. Barela saw that the check she had written was instead cashed
16 for $200 at a Walmart. Ms. Barela obtained copies of receipts for the merchandise
17 that had been purchased with the check and reported the issue to the police. Ms.
18 Barela learned that her daughter had been identified as one of the individuals who had
19 used the check at the Walmart.
11
1 {26} Juliet Barela testified that her mother had given her son a check for a fundraiser
2 and that Defendant had erased the amount for which the check was originally made
3 and replaced it with $200 or $250. Juliet Barela said that Defendant had given her the
4 check, she went into Walmart and purchased items with the check, and then returned
5 the items for cash. Juliet Barela testified that she kept $30 of the proceeds, while
6 Defendant kept the rest.
7 {27} The State presented the testimony of Jack Waggoner. Mr. Waggoner testified
8 that in October 2010, a check he had written to his telephone company was stolen
9 from the mailbox in front of his house. On October 28, 2010, Mr. Waggoner’s wife
10 received a call from a check cashing business asking her whether her husband had
11 hired anyone to perform work around the house for $250. When he went to the check
12 cashing business to investigate, Mr. Waggoner was given a check he recognized to
13 be the check he had written to Qwest, but it was made out to a man named Richard
14 Tow. That check was admitted into evidence.
15 {28} The State also presented the testimony of Velia Hernandez, the clerk at the
16 check cashing business Mr. Waggoner had referenced in his direct testimony. Ms.
17 Hernandez testified that on October 28, 2010, a man had attempted to cash a check
18 that she felt did not look “like . . . a legit check.” Ms. Hernandez called 411 to look
19 up the phone number of Mr. Waggoner, who was identified on the check as the
12
1 check’s owner. When she called Mr. Waggoner, his wife answered, and told her not
2 to cash the check. Ms. Hernandez then called the police, and the man who had come
3 to cash the check fled.
4 {29} The State called Mr. Tow to testify. Mr. Tow testified that Defendant had given
5 him a check for some yard work he had performed for Defendant’s relatives. Mr. Tow
6 testified that he had initially tried to cash the check at a Wells Fargo, but decided to
7 leave because the line for the teller was too long. Mr. Tow testified that he went to
8 a nearby check cashing business to try and cash the check. He testified that the
9 cashier appeared to have “a problem with the check. . . . I asked her if there was a
10 problem, and she nodded to me that there was. So I left, went back and got in the
11 vehicle and left. And [Defendant] was very upset with me. I remember he yelled at
12 me, told me, well, why the hell did I leave the check there[?]”
13 {30} Mr. Tow testified that Defendant was an acquaintance. Mr. Tow said that he
14 had let Defendant borrow his truck, on the condition that Defendant purchase some
15 new tires for the truck. Mr. Tow testified that Defendant had new tires put on the
16 truck at Walmart and gave him a receipt for the $821.78 purchase. Although Mr. Tow
17 recognized the description of his vehicle on the Walmart work order, he did not
18 recognize the name of the person who had ordered the work, identified as “Marcos
19 Silva.”
13
1 {31} Finally, the State presented the testimony of Las Cruces Police Detective Frank
2 Torres. Detective Torres testified that he was contacted by a man named Orton Keats,
3 who had told police that a check he had written to pay a bill had been converted to
4 a higher amount. Detective Torres was able to verify that Mr. Keats’s check had been
5 used to purchase a set of four tires at WalMart for $821.78. Detective Torres also
6 obtained the work order from Walmart, which provided a license plate for the vehicle
7 that the tires were installed on: Mr. Tow’s truck.
8 {32} Detective Torres also testified that he investigated a police report made by
9 Marcey Carter. Detective Torres testified that Ms. Carter had written a check to pay
10 a bill and put it into her mailbox for mailing. Ms. Carter discovered that the check had
11 cleared, but for a different amount, and had been used at Walmart. Detective Torres
12 obtained surveillance footage from Walmart showing a man wearing white cowboy
13 boots and a Dallas Cowboys sweatshirt making a purchase with Ms. Carter’s check.
14 Detective Torres testified that Mr. Tow had identified Defendant as the man in the
15 surveillance video because Defendant always wears white cowboy boots.
16 {33} At the close of the State’s case, Defendant moved for a directed verdict on all
17 of the charges against him, which the district court denied. The jury acquitted
18 Defendant of the four forgery charges but returned a guilty verdict on the conspiracy
19 to commit forgery charge.
14
1 II. DISCUSSION
2 {34} Defendant raises two arguments on appeal: (A) there was insufficient evidence
3 to support the jury’s guilty verdict on the indictment’s conspiracy to commit forgery
4 charge, and (B) the district court erred in denying his motion to dismiss the
5 indictment on speedy trial grounds. We address each argument in turn.
6 A. There Was Sufficient Evidence for a Rational Jury to Conclude That
7 Defendant Had Conspired to Commit Forgery
8 {35} Defendant’s first issue on appeal challenges the sufficiency of the evidence
9 supporting the jury’s guilty verdict on the conspiracy to commit forgery charge. When
10 a defendant challenges the sufficiency of the evidence supporting a criminal
11 conviction, we review the record to determine whether
12 sufficient evidence was adduced to support the underlying charge. The
13 test for sufficiency of the evidence is whether substantial evidence of
14 either a direct or circumstantial nature exists to support a verdict of guilt
15 beyond a reasonable doubt with respect to every element essential to a
16 conviction. When considering the sufficiency of the evidence, [an
17 appellate court] does not evaluate the evidence to determine whether
18 some hypothesis could be designed which is consistent with a finding of
19 innocence. Instead, [the reviewing courts] view the evidence as a whole
20 and indulge all reasonable inferences in favor of the jury’s verdict while
21 at the same time asking whether any rational trier of fact could have
22 found the essential elements of the crime beyond a reasonable doubt[.]
23 State v. Sena, 2008-NMSC-053, ¶ 10, 144 N.M. 821, 192 P.3d 1198 (internal
24 quotation marks and citations omitted).
15
1 {36} Conspiracy consists of “knowingly combining with another for the purpose of
2 committing a felony within or without [New Mexico].” NMSA 1978, § 30-28-2(A)
3 (1979). The jury was given an instruction modeled after UJI 14-2810 NMRA, the
4 pattern jury instruction for conspiracy. That instruction read as follows:
5 For you to find [D]efendant guilty of conspiracy to commit
6 forgery . . ., the [S]tate must prove to your satisfaction beyond a
7 reasonable doubt each of the following elements of the crime:
8 1. [D]efendant and another person by words or acts agreed
9 together to commit forgery;
10 2. [D]efendant and the other person intended to commit
11 forgery;
12 3. This happened in New Mexico on or between July 1, 2010
13 and November 1, 2010.
14 {37} The jury was also given four instructions corresponding to each forgery charge.
15 The instructions stated:
16 For you to find [D]efendant guilty of forgery as charged in
17 Count[s 1, 2, 3, or 4,] the [S]tate must prove to your satisfaction beyond
18 a reasonable doubt each of the following elements of the crime:
19 1. [D]efendant changed a genuine check so that its effect was
20 different from the original;
21 2. At the time, [D]efendant intended to injure, deceive[,] or
22 cheat [Clarinda Barela, Jack Waggoner, Orton Keats, Marcey Carter,] or
23 another;
24 3. This happened in New Mexico on or between July 1, 2010
25 and November 1, 2010.
16
1 Thus, in order for the jury to find Defendant guilty of conspiracy to commit forgery,
2 it needed to conclude beyond a reasonable doubt that between July 1 and November
3 1, 2010, Defendant had by words or acts agreed to change a genuine check so that its
4 effect was different from the original, with intent to injure Clarinda Barela, Jack
5 Waggoner, Orton Keats, Marcey Carter, or another.
6 {38} Defendant concedes that the State established beyond a reasonable doubt that
7 “four personal checks belonging to four different people were washed and passed at
8 four different times[,]” but argues that the “single Walmart image of him leaving the
9 store . . . [at the] time of the passing of one check in question and the self-serving
10 statements of two co-defendants” was insufficient to establish that Defendant washed
11 and passed the checks. But the jury need not have been convinced that Defendant was
12 the one who washed or passed checks; it only needed to conclude that Defendant had
13 entered into an agreement with another (presumably either Mr. Tow or Juliet Barela)
14 to wash and pass the checks. See, e.g., State v. Olguin, 1994-NMCA-050, ¶ 36, 118
15 N.M. 91, 879 P.2d 92 (“[W]e . . . uphold the conviction for conspiracy,
16 notwithstanding that one of the underlying crimes may not have been supported by
17 sufficient evidence.”), aff'd in part, set aside in part by 1995-NMSC-077, 120 N.M.
18 740, 906 P.2d 731.
17
1 {39} Defendant next takes issue with the sufficiency of the State’s proof of an
2 agreement. We note that conspiracies may be (and often are) proven with
3 circumstantial evidence. See State v. Sheets, 1981-NMCA-064, ¶ 13, 96 N.M. 75, 628
4 P.2d 320. Defendant appears to acknowledge that the circumstantial evidence alone
5 is enough to resolve this argument against him because Mr. Tow and Juliet Barela
6 both offered testimony from which a jury could infer the existence of a conspiracy:
7 Mr. Tow’s testimony that Defendant had agreed to obtain a new set of tires for Mr.
8 Tow’s truck in exchange for letting Defendant borrow it; and Juliet Barela’s
9 testimony that she and Defendant had agreed to wash and use her mother’s check at
10 Walmart, sharing the proceeds. By characterizing the testimony of Mr. Tow and Juliet
11 Barela as “self-serving,” Defendant is in essence conceding that his sufficiency of the
12 evidence challenge to his conviction for conspiracy turns on a challenge to the jury’s
13 decision to credit the testimony of Mr. Tow and Juliet Barela, a decision which we
14 are powerless to review on appeal. See State v. Nichols, 2006-NMCA-017, ¶ 9, 139
15 N.M. 72, 128 P.3d 500; see also State v. Hernandez, 1993-NMSC-007, ¶ 69, 115
16 N.M. 6, 846 P.2d 312 (recognizing that the appellate courts’ . . . “duty on appeal is
17 neither to substitute our judgment for that of the jury nor reweigh the evidence”). The
18 fact that the jury acquitted Defendant of the offenses that formed the object of the
19 charged conspiracy is not controlling or determinative. See State v. Armijo, 1931-
18
1 NMSC-008, ¶ 7, 35 N.M. 533, 2 P.2d 1075 (“It is quite possible for [the defendants]
2 to have conspired to commit [larceny], without having committed, the larceny.”); see
3 also State v. Gilbert, 1982-NMCA-081, ¶ 20, 98 N.M. 77, 644 P.2d 1066
4 (recognizing that “the crime of conspiracy is complete when the felonious agreement
5 is reached”).
6 {40} For the foregoing reasons, we reject Defendant’s sufficiency of the evidence
7 challenge to his conviction for conspiracy to commit forgery.
8 B. The District Court Did Not Err in Denying Defendant’s Motion to Dismiss
9 on Speedy Trial Grounds
10 {41} The Speedy Trial Clause of the Sixth Amendment of the United States
11 Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the
12 right to a speedy . . . trial[.]” U.S. Const. amend. VI. “The heart of the right to a
13 speedy trial is preventing prejudice to the accused.” State v. Garza, 2009-NMSC-038,
14 ¶ 12, 146 N.M. 499, 212 P.3d 387. The right to a speedy trial “is unique among the
15 constitutional guarantees afforded a criminal defendant because of the concomitant
16 ‘societal interest in bringing an accused to trial.’ ” State v. Serros, 2016-NMSC-008,
17 ¶ 4, 366 P.3d 1121 (quoting Garza, 2009-NMSC-038, ¶ 12). “As a result, merely
18 showing delay in bringing an accused’s case to trial is not enough to establish a
19 speedy trial violation; rather, [the appellate courts] must scrutinize every claimed
20 violation to determine whether the accused has suffered an actual and articulable
19
1 deprivation of the right to a speedy trial.” Serros, 2016-NMSC-008, ¶ 4 (internal
2 quotation marks and citation omitted).
3 {42} We evaluate Defendant’s claim that his Sixth Amendment right to a speedy
4 trial was violated using the four factors set out in Barker v. Wingo, 407 U.S. 514, 530
5 (1972): “(1) the length of the delay in bringing the case to trial, (2) the reasons for the
6 delay, (3) the defendant’s assertion of the right to a speedy trial; and (4) the prejudice
7 to the defendant caused by the delay.” Id.; see also Serros, 2016-NMSC-008, ¶ 5.
8 1. Length of Delay
9 {43} “The first factor, the length of delay, has a dual function: it acts as a triggering
10 mechanism for considering the four Barker factors if the delay crosses the threshold
11 of being presumptively prejudicial, and it is an independent factor to consider in
12 evaluating whether a speedy trial violation has occurred.” Serros, 2016-NMSC-
13 008,¶ 22. As to the first function, our Supreme Court “[has] established benchmarks
14 for presumptively prejudicial delay according to the complexity of a case: one year
15 for a simple case, 15 months for a case of intermediate complexity, and 18 months for
16 a complex case.” Id. ¶ 22 (citing Garza, 2009-NMSC-038, ¶ 48). In this case, the
17 State concedes (and we agree) that the twenty-nine month, twenty-two day-long delay
18 between Defendant’s arrest and his trial is sufficient to trigger further analysis for a
19 speedy trial violation regardless of the complexity of the case.
20
1 {44} As to the second, “independent” function that the first Barker factor performs,
2 our Supreme Court has stated that “[t]he length of delay is an objective determination
3 that is capable of measurement with some precision, and once established, it colors
4 the rest of the speedy trial analysis. A delay that crosses the threshold for presumptive
5 prejudice necessarily weighs in favor of the accused; the only question is, how
6 heavily?” Serros, 2016-NMSC-008, ¶ 26. Importantly, “the parties’ fault in causing
7 the delay is irrelevant to the analysis” of this factor. Id. “A delay that scarcely crosses
8 the bare minimum needed to trigger judicial examination of the claim is of little help
9 to a defendant claiming a speedy trial violation.” Id. (internal quotation marks and
10 citation omitted). “Conversely, an extraordinary delay . . . weighs heavily in favor of
11 a defendant’s speedy trial claim, bearing in mind that no single factor is dispositive
12 of whether a violation has occurred.” Id.; See Garza, 2009-NMSC-038, ¶ 24.
13 {45} As an initial matter, we note that our Supreme Court in Serros did not explain
14 how to determine the difference between a presumptively prejudicial delay that
15 “scarcely crosses the bare minimum needed” and provides “little help to a defendant”
16 versus the additional length of delay that would be considered “extraordinary” and
17 that “weighs heavily in favor of a defendant’s speedy trial claim.” Id. (internal
18 quotation marks and citation omitted). In Serros, our Supreme Court concluded that
19 weighing the first factor heavily in the defendant’s favor was not a “difficult
21
1 question” because the fifty-one month long delay between the defendant’s arrest and
2 the dismissal of his indictment for speedy trial violations was far in excess of the
3 amount needed to create a presumption of prejudice. Id. ¶ 24.
4 {46} Here, the nearly twenty-nine month delay between Defendant’s arrest and his
5 trial is more than the “bare minimum needed” to show presumptive prejudice, but
6 significantly shorter than the fifty-one month delay that Serros concluded weighed
7 heavily in the defendant’s favor as a matter of course. Id. ¶ 26 (internal quotation
8 marks and citation omitted). Moreover, the district court in this case did not make an
9 express finding as to the complexity of Defendant’s case. The complexity of this case
10 does not matter to our determination of presumptive prejudice because the amount of
11 delay is sufficient to trigger a speedy trial analysis regardless of the case’s
12 complexity. See id. ¶ 23 (concluding the delay presumptively prejudicial without
13 determining the case’s complexity). But with respect to how we are to evaluate this
14 length of delay factor, the complexity of this case takes on considerable importance.
15 If the case is classified as simple, then the delay exceeds the threshold for
16 presumptive prejudice by seventeen months; if intermediate, fourteen; if complex,
17 only eleven. See id. ¶ 22 (recognizing that the amount of time that must elapse for
18 delay to become presumptively prejudicial is “one year for a simple case, 15 months
22
1 for a case of intermediate complexity, and 18 months for a complex case” (citing
2 Garza, 2009-NMSC-038, ¶ 48)).
3 {47} The State argues that this is a case of “intermediate” complexity based on “the
4 number of potential witnesses and scenarios that were involved.” Specifically, the
5 State asserts that it was required to prepare for a trial involving testimony of the
6 checks’ owners, the employees of the businesses where Defendant allegedly passed
7 the checks off, records custodians who could lay the foundation for the admission of
8 surveillance camera footage, and any law enforcement personnel involved in the
9 investigations that led to Defendant’s arrest. We agree that the State’s assessment of
10 this case’s complexity is reasonable, and accordingly, find that the length of the delay
11 in this case was fourteen months in excess of the amount necessary to trigger judicial
12 scrutiny.
13 {48} In Serros, our Supreme Court concluded that a fifty-one month delay between
14 the defendant’s arrest and the dismissal of the indictment against him on speedy trial
15 grounds was “extreme” and therefore justified weighing the first Barker factor
16 heavily in the defendant’s favor. Serros, 2016-NMSC-008, ¶ 24. By contrast, in
17 Garza, our Supreme Court determined that a delay that only exceeded the amount
18 required to trigger further judicial analysis by a month and six days “was not
19 extraordinary and [did] not weigh heavily in [the d]efendant’s favor.” Garza, 2009-
23
1 NMSC-038, ¶ 24. Here, the delay in this case exceeds the amount required to trigger
2 further analysis by fourteen months. This delay is far more than the “bare minimum
3 needed to trigger judicial examination of the claim.” Id. (internal quotation marks and
4 citation omitted). Accordingly, we conclude that this factor weighs heavily in
5 Defendant’s favor.
6 2. The Reasons Behind the Delay
7 {49} The district court found that most of the delay in this case was attributable to
8 Defendant. As we have stated above, we give deference to the district court’s finding
9 of fact that Defendant caused most of the delay in this case, to the extent it is
10 supported by substantial evidence in the record. See Serros, 2016-NMSC-008, ¶ 20.
11 {50} Defendant argues that the State is responsible for twenty-four out of the
12 twenty-nine months of delay in this case. Defendant asserts that the delay between
13 February 2011 and February 2012 was caused by the State’s filing of a motion to join
14 Defendant’s case with that of his alleged co-conspirators’ and the district court’s
15 negligent failure to timely rule on the motion. Defendant argues that the State is
16 responsible for another two months of delay caused by its mistaken belief that
17 Defendant had absconded from custody when he was in fact in prison, thus causing
18 the district court to issue a bench warrant and continue the October 2012 trial setting
19 to December 2012. Finally, Defendant argues that he should not be held responsible
24
1 for the delays between April 2012 and April 2013, which Defendant argues was
2 caused by motions to continue filed by his trial counsel which he did not consent to
3 filing. We assess and assign responsibility for the delays in this case chronologically.
4 {51} We agree with Defendant that the delay caused by the State’s motion to join
5 (and the district court’s failure to rule on the motion) is properly weighed in
6 Defendant’s favor. Accordingly, twelve of the twenty-nine month period of delay in
7 this case weighs in Defendant’s favor. In doing so, we reject the State’s argument that
8 the delay should not be weighed against it because the motion had merit and was
9 ultimately granted as unopposed in modified form. Whatever the merit of the motion,
10 the State’s decision to file it occasioned the district court’s delay until it ruled on the
11 motion. Accordingly, this period of time is appropriately weighed more heavily
12 against the State. See Garza, 2009-NMSC-038, ¶¶ 26-30 (noting that delays caused
13 by administrative burdens on the court system are typically weighed slightly in the
14 defendant’s favor, but the more “protracted” the delay, the more heavily it is weighed
15 in the defendant’s favor).
16 {52} We disagree with Defendant’s assertion that the period of delay from April
17 2012 to April 2013 is the fault of the State. Defendant argues that he asserted his right
18 to a speedy trial by filing a pro se motion to dismiss his attorney in which he also
19 demanded to proceed to trial. We are mindful that the right to a speedy trial and the
25
1 right to effective assistance of counsel are not mutually exclusive. Serros, 2016-
2 NMSC-008, ¶ 81. In this regard, when assessing a period of delay caused by a
3 defendant’s pro se motion to discharge his attorney, our Supreme Court identified the
4 reasonableness of such a request as the relevant inquiry in determining whether to
5 assign the resultant delay to the defendant or the state. Id. ¶¶ 53-54. As we explain
6 below, we think that there is substantial evidence to support the district court’s
7 finding that Defendant, not his counsel, is responsible for this period of delay.
8 {53} In his pro se motion to dismiss his attorney, filed about two weeks before the
9 April 2012 trial setting, Defendant asserted that his attorney was not communicating
10 with him, not preparing his case for trial, and not providing him with discovery. But
11 against these assertions of fact, Defendant’s attorney said that he had communicated
12 with Defendant, was preparing the case for trial, and had provided Defendant with
13 discovery from the State. Although Mr. Pineda did not submit an affidavit or
14 otherwise testify to his assertions of fact, neither did Defendant. Moreover, Mr.
15 Pineda called his administrative assistant to testify that Defendant had called and told
16 her that he had obtained another attorney who would be suing Mr. Pineda and taking
17 over Defendant’s case. Because Defendant had denied making such an assertion, Mr.
18 Pineda’s assistant’s testimony undermined Defendant’s credibility and provided the
19 district court with a substantial basis for concluding that Defendant’s effort to fire his
26
1 attorney was a “last-minute plea[] to change counsel [that] should be []viewed
2 skeptically[,]” not a reasonable invocation of his right to effective trial counsel. Id.
3 ¶ 53. Accordingly, we assign to Defendant the delay caused by the district court’s
4 continuance of the April 26, 2012, trial date to July 31, 2012.
5 {54} Defendant’s replacement counsel moved to continue the July 31, 2012, trial
6 date based on the need to conduct additional investigation. Defendant’s attorney
7 stated that Defendant had been under the mistaken impression that counsel for his co-
8 Defendant, Mr. Tow, was his attorney, and that this caused several weeks of delay.
9 Once this misunderstanding had been cleared up, Defendant requested that his
10 attorney conduct additional investigation and track down additional witnesses who
11 Defendant wanted to call to testify in his defense. Although these requests are hardly
12 unreasonable, it does not follow that any delay that resulted must be weighed against
13 the State. The district court did not err in concluding that Defendant should be
14 assigned responsibility for the delay caused by continuing the July 31, 2012, trial
15 setting to October 11, 2012.
16 {55} We disagree as well with Defendant that the State caused the delay between
17 October 2012 and December 2012. This period of delay was not caused by the district
18 court’s mistaken issuance of a bench warrant for Defendant’s arrest, as defendant
19 argues; rather, it was caused by Defendant’s attorney filing a motion at Defendant’s
27
1 behest that trial be continued until after April 2014 in order to allow Defendant to
2 finish an inpatient treatment program at a halfway house. It is worth noting that the
3 State opposed Defendant’s motion to continue, arguing that granting the motion
4 would create speedy trial concerns. The State also presented evidence at the hearing
5 on the motion that tended to refute Defendant’s claim that he was actually enrolled
6 in an inpatient treatment program. To be sure, confusion over Defendant’s location
7 might have caused the district court to mistakenly issue a bench warrant and may
8 have figured into the district court’s decision to delay the trial. But the occasion for
9 the delay in the first place was Defendant’s request to continue the trial for nearly two
10 years, which the State opposed, and Defendant’s decision to leave the halfway house
11 to seek medical attention, which contributed to the confusion over Defendant’s
12 location. We see no error in the district court’s determination that Defendant should
13 be held responsible for this period of delay.
14 {56} Although the district court did not enter an order or otherwise explain why it
15 was continuing the December 17, 2012, trial setting, it appears that the reason for the
16 continuance was the State’s December 13, 2012, motion to revoke Defendant’s
17 conditions of release. In that motion, the State stated that it had been told by
18 Defendant’s attorney that “Defendant has failed to maintain contact with defense
19 counsel, and there are no assurances that . . . Defendant will appear for trial on the
28
1 scheduled trial date.” Defendant later conceded on the morning of trial that he had
2 failed to stay in contact with his attorney. Although it is not clear whether Defendant
3 failed to stay in contact with his attorney in order to purposefully delay the December
4 17, 2012, trial, this evidence provided a sufficient basis for the district court to find
5 that Defendant “affirmatively cause[d] or acquiesce[d]” in this period of delay.
6 Serros, 2016-NMSC-008, ¶ 74.
7 {57} In sum, twelve months of the delay in this case can be assigned to the State;
8 Defendant caused or acquiesced in the remaining sixteen months’ delay. Since the
9 majority of the delay in this case was caused by Defendant, we conclude that
10 application of the second Barker factor “tip[s] the balance back in favor of the
11 societal interest in bringing [the d]efendant to trial” and ultimately weighs in favor
12 of the State. Serros, 2016-NMSC-008, ¶ 28 (internal quotation marks and citation
13 omitted).
14 3. Defendant’s Assertion of the Right to a Speedy Trial
15 {58} The third Barker factor looks to “the frequency and force of the objections[,]
16 as opposed to attaching significant weight to a purely pro forma objection.” Barker,
17 407 U.S. at 529. The right to a speedy trial is
18 fundamental in nature so that a failure to assert [it] does not constitute
19 waiver, but the timeliness and vigor with which the right is asserted may
20 be considered as an indication of whether a defendant was denied
29
1 needed access to speedy trial over his objection or whether the issue was
2 raised on appeal as [an] afterthought.
3 Garza, 2009-NMSC-038, ¶ 32.
4 {59} Here, Defendant argues that the two speedy trial demands filed by his
5 appointed attorneys and his pro se invocations of the right to a speedy trial in his first
6 motion to dismiss his attorney, his motion for a telephonic setting, and his motion to
7 dismiss the indictment filed on the eve of trial in April 2013 demonstrate that he
8 frequently and forcefully asserted his right to a speedy trial.
9 {60} In Garza, our Supreme Court held that the defendant’s single speedy trial
10 demand, “preceding his motion to dismiss, tucked within the waiver of arraignment
11 and not guilty plea, was sufficient to assert his right.” Id. ¶ 34. The Court noted that
12 although the defendant’s single invocation of his right to a speedy trial “was not
13 especially vigorous[,]” the fact that the defendant had not otherwise acquiesced in the
14 delay required the third Barker factor to be weighed slightly in his favor. Id.
15 {61} Here, Defendant invoked his right to a speedy trial five times—twice through
16 his lawyers, and three times through pro se motions to discharge his attorney, set a
17 telephonic hearing, and to dismiss the indictment. Although Defendant invoked his
18 right to a speedy trial many more times than the defendant did in Garza, this fact is
19 mitigated by the context of Defendant’s invocations of the right to a speedy trial: as
20 we have explained above, Defendant’s first two pro se motions to dismiss were filed
30
1 on the eve of trial and sought a new attorney as the primary relief. Defendant’s pro
2 se motion to dismiss was likewise filed on the eve of his April 2013 trial, which
3 ultimately went forward after it was denied. And against Defendant’s invocations of
4 his right to a speedy trial, Defendant at least once sought to delay his trial by more
5 than two years in order to avoid violating his conditions of release for an unrelated
6 criminal conviction.
7 {62} Under these circumstances, we cannot say that the district court’s finding that
8 Defendant did not frequently or forcefully invoke his right to a speedy trial lacks a
9 substantial basis. See Garza, 2009-NMSC-038, ¶ 32 (quoting Sisneros v. State, 121
10 P.3d 790, 800 (Wyo. 2005), for the proposition that the third Barker factor should be
11 weighed neutrally where the defendant “demanded a speedy trial throughout the
12 proceedings, but ‘also engaged in procedural maneuvers which had the result of
13 delaying the trial’ ”). Accordingly, we cannot reverse the district court’s ultimate
14 finding to weigh the third Barker factor neutrally.
15 4. The Prejudice to Defendant Caused by the Delay
16 {63} The United States Supreme Court in Barker explained the “actual prejudice”
17 prong of the constitutional speedy trial analysis as follows:
18 Prejudice . . . should be assessed in the light of the interests of [the]
19 defendants which the speedy trial right was designed to protect. This
20 Court has identified three such interests: (i) to prevent oppressive
21 pretrial incarceration; (ii) to minimize anxiety and concern of the
31
1 accused; and (iii) to limit the possibility that the defense will be
2 impaired.
3 407 U.S. at 532; see State v. Maddox, 2008-NMSC-062, ¶ 32, 145 N.M. 242, 195
4 P.3d 1254, abrogated on other grounds by Garza, 2009-NMSC-038, ¶¶ 47-48.
5 {64} “Ordinarily, a defendant bears the burden of proof on this factor by showing
6 ‘particularized prejudice’ when claiming a speedy trial violation.” Serros, 2016-
7 NMSC-008, ¶ 86 (quoting Garza, 2009-NMSC-038, ¶ 39). “However, if the length
8 of delay and the reasons for the delay weigh heavily in [the] defendant’s favor and
9 [the] defendant has asserted his right and not acquiesced to the delay, then the
10 defendant need not show prejudice for a court to conclude that the defendant’s right
11 has been violated.” Serros, 2016-NMSC-008, ¶ 86 (internal quotation marks and
12 citation omitted).
13 {65} At the hearing on Defendant’s final motion to dismiss on speedy trial grounds,
14 the district court explained why it concluded Defendant had failed to demonstrate
15 particularized prejudice. The court stated:
16 [W]ithout going through all the dates of when he was arrested, where he
17 was arrested and why he was arrested, [I am] unable to state whether he
18 served any—much, if any, pretrial incarceration time on this case. I
19 know he was brought here from Luna County, so he’s currently in
20 custody in Luna County. So I don’t think there is going to be [any]
21 impressive pretrial incarceration. With regard to it having any impact on
22 his ability to mount a defense, I’ve heard nothing about that today.
32
1 {66} Defendant first argues that the district court erred by assigning the burden of
2 proving prejudice instead of requiring the State to prove the absence of prejudice. But
3 Salandre v. State, 1991-NMSC-016, 111 N.M. 422, 806 P.2d 562, the case that
4 Defendant cites in support of this proposition, was modified by Garza, which
5 expressly held that Salandre should not be read to impose on the State a burden of
6 disproving prejudice. See Garza, 2009-NMSC-038, ¶¶ 15-24 (“In light of the
7 overwhelming consensus among the federal Circuit Courts of Appeals and our policy
8 of providing a functional analysis based on the facts and circumstances of each case,
9 we abolish [Salandre’s] presumption that a defendant’s right to a speedy trial has
10 been violated based solely on the threshold determination that the length of delay is
11 ‘presumptively prejudicial.’ ”). Under Garza, Defendant bears the burden to identify
12 and sufficiently establish particularized prejudice stemming from the presumptively
13 prejudicial delays in this case.
14 {67} In this regard, Defendant argues that his pro se motions to dismiss his attorney
15 and dismiss the indictment on speedy trial grounds “express[] overwhelming concern
16 over the status of his case[.]” Defendant also points out that he was incarcerated for
17 a significant portion of the delays at issue. These facts, Defendant claims, refute the
18 district court’s conclusion that Defendant did not suffer particularized prejudice as
19 a result of the presumptively prejudicial delays in this case.
33
1 {68} The problem with this argument is that it depends on two factual inferences
2 that the district court was free to ignore given evidence tending to refute Defendant’s
3 claim that he had long been asserting his speedy trial rights and had not caused the
4 delays at issue. The first inference is that Defendant’s expressions of “overwhelming
5 concern over the status of his case” in his pro se motions were sincere. See Serros,
6 2016-NMSC-008, ¶ 88 (finding particularized prejudice prejudice based on lengthy
7 pretrial incarceration based on the defendant’s “unchallenged testimony at the hearing
8 on his motion to dismiss, in which he described his living conditions for the previous
9 four years”). Here, Defendant’s attorney provided evidence that Defendant was
10 seeking to fire him not because of a lack of communication but because he was
11 unhappy with the State’s plea offer, and Defendant had deliberately sought to
12 sabotage the attorney-client relationship by seeking out another attorney and
13 threatening to sue him. Given this evidence, the district court could permissibly view
14 Defendant’s speedy trial complaints as part of an effort to derail the case on the eve
15 of trial, not a genuine desire for finality.
16 {69} The second inference is that Defendant’s pretrial incarceration was caused by
17 the delays in this case. As Defendant concedes, he was released on bond roughly six
18 months after his arrest. While this period of incarceration can certainly be considered
19 prejudicial in the present case, it cannot simply be lumped together with the periods
34
1 of incarceration that resulted from Defendant’s parole violations in unrelated cases,
2 as the district court noted in its oral findings on prejudice. Properly assigned, it is
3 clear that Defendant was incarcerated based upon the instant charges for at most six
4 months of the total period of delay at issue in this case. We do not think that the
5 prejudice Defendant suffered as a result of his incarceration after his arrest in the
6 present case is enough to find that Defendant was prejudiced by the entire twenty-
7 nine month delay in this case. Cf. Id., 2016-NMSC-008, ¶ 93 (upholding a district
8 court’s finding of prejudice arising from the defendant’s incarceration in
9 administrative segregation for the entire period of pretrial delay). Indeed, the record
10 indicates Defendant was in and out of jail following his initial satisfaction of bail in
11 this case based upon his own actions before and after the relevant arrest and release
12 from incarceration in the present case.
13 {70} Defendant finally argues that because of the delays in bringing his case to trial,
14 he suffered particularized prejudice because he lost the opportunity to serve his
15 sentence in this case concurrently with his sentences for unrelated criminal
16 convictions. See State v. Zurla, 1990-NMSC-011, ¶ 23, 109 N.M. 640, 789 P.2d 588
17 (“[The appellate courts] believe loss of the possibility of serving concurrent sentences
18 did constitute an aspect of prejudice.”). But Zurla, which Defendant cites in support
19 of his argument, weighed the second Barker factor heavily against the state, finding
35
1 that its negligence was the cause of all of the delays at issue. Zurla, 1990-NMSC-011,
2 ¶¶ 14-17. Here, as we have already explained, a significant amount of the delay in this
3 case was caused by Defendant. Without explaining how the delays caused by the
4 State (rather than those caused by Defendant) resulted in Defendant’s lost opportunity
5 to serve concurrent sentences, we do not think Defendant has demonstrated
6 particularized prejudice on this ground.
7 {71} For the foregoing reasons, we conclude that the district court correctly found
8 that Defendant had failed to demonstrate particularized prejudice arising from the
9 delays in this case.
10 5. Balancing the Factors
11 {72} To recapitulate, the first Barker factor strongly favors Defendant; the nearly
12 twenty-nine month long delay in this case exceeds the amount of time that a criminal
13 case of intermediate complexity is presumed to require. See Serros, 2016-NMSC-008,
14 ¶ 23. However, this is the only Barker factor that ultimately weighs in Defendant’s
15 favor. As for the second Barker factor, Defendant expressed his desire to bring his
16 case to trial but inconsistently interposed numerous delays and requested
17 continuances of scheduled trial dates, all reasons for delay that weigh in the State’s
18 favor. We attach particular importance to Defendant’s repeated efforts to delay trial
19 by more than two years in order to prioritize fulfilling his conditions of probation in
36
1 an unrelated case. Ultimately, the district court accurately weighed this second Barker
2 factor in favor of the State. Defendant’s inconsistent assertions of his speedy trial
3 right while simultaneously requesting continuances of trial settings also supported the
4 district court’s determination regarding the third Barker factor, a reasonably vigorous
5 assertion of one’s right to a speedy trial. We conclude that assigning neutrality to this
6 third Barker factor was not error under the facts presented in this case. Finally,
7 Defendant failed to identify or establish particularized prejudice under the fourth
8 Barker factor. As a result, our de novo review of all four speedy trial factors support
9 the district court’s conclusion that Defendant’s speedy trial rights were not violated.
10 III. CONCLUSION
11 {73} We affirm the district court’s denial of Defendant’s motion to dismiss on
12 speedy trial grounds. We also reject Defendant’s challenge to the sufficiency of the
13 evidence supporting his conviction for conspiracy to commit forgery.
14 {74} Defendant’s conviction is affirmed.
15 {75} IT IS SO ORDERED.
16 _________________________________
17 J. MILES HANISEE, Judge
37
1 WE CONCUR:
2 _________________________________
3 JONATHAN B. SUTIN, Judge
4 _________________________________
5 TIMOTHY L. GARCIA, Judge
38