State v. Garza

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMSC-038

Filing Date: June 25, 2009

Docket No. 30,715

STATE OF NEW MEXICO,

Plaintiff-Petitioner,

v.

FRANK O. GARZA,

Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Stephen Bridgforth, District Court Judge

Gary K. King, Attorney General
Anita Carlson, Assistant Attorney General
Santa Fe, NM

for Petitioner

Pickett Law Firm, L.L.C.
Mark L. Pickett
Mollie C. McGraw
Las Cruces, NM

for Respondent

Hugh W. Dangler, Chief Public Defender
Nancy M. Hewitt, Appellate Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM

for Amicus Curiae
New Mexico Public Defender
OPINION

MAES, Justice.

{1} In this Opinion we review our speedy trial jurisprudence and abolish the presumption
that a defendant’s right to a speedy trial has been violated based solely on the threshold
determination that the length of delay is “presumptively prejudicial.” Because Defendant
has not shown any particularized prejudice that is cognizable under the constitutional right
to a speedy trial and the weight of the other factors in the analysis do not overcome

1
Defendant’s failure to show prejudice, we reverse the judgment of the Court of Appeals and
affirm Defendant’s conviction and sentence.

{2} Though inapplicable in the present case, we also update our guidelines for
determining the length of delay necessary to trigger the speedy trial inquiry to twelve months
for simple cases, fifteen months for cases of intermediate complexity, and eighteen months
for complex cases. We emphasize that these guidelines are merely thresholds that warrant
further inquiry into a defendant’s claimed speedy trial violation and should not be construed
as bright-line tests dispositive of the claim itself.
I. FACTS AND PROCEDURAL HISTORY

{3} Frank O. Garza (Defendant) was arrested late on June 28, 2006 for aggravated DWI
and failure to maintain a traffic lane. The State filed a criminal complaint in magistrate court
on June 29, 2006, and Defendant was released on the same day. The total amount of time
Defendant spent in jail was two hours, from 2:35 a.m. to 4:24 a.m.
{4} The case remained in magistrate court, without apparent progress toward a trial, for
four months. On November 2, 2006, the State refiled the charges in the Third Judicial
District Court and the following day dismissed the case without prejudice. Defendant made
his first and only speedy trial demand on November 13, 2006 as part of his waiver of
arraignment and plea of not guilty.

{5} In the Third Judicial District Court, the case initially was assigned to Judge
Bridgforth, but the case was reassigned and the trial date set and reset several times. The
case was reassigned to Judge Murphy on January 19, 2007 and trial was set for March 8,
2007. Judge Murphy recused himself on February 8, 2007 and the case was reassigned to
Judge Driggers. The trial was reset for April 27, 2007 before Judge Driggers. That trial date
was vacated because the case was reassigned, once again to Judge Bridgforth, on February
22, 2007. Finally, the trial was set for May 4, 2007 before Judge Bridgforth.

{6} Defendant filed a motion to dismiss on April 26, 2007, claiming that his right to a
speedy trial had been violated. The district court denied the motion, finding, in pertinent
part,

that a four month delay in Magistrate Court before removal to District Court
weighs against the State. This is a simple case and the additional delay, even
if it is sometimes the Courts’ own heavy trial docket, weighs slightly against
the State. The case is now just past nine months which triggers the
presumption of prejudice. Defendant has asserted his right to speedy trial.
Defendant has suffered some actual prejudice in the form of restrictions
imposed by pre-trial conditions of release and stress, but the Court feels this
is not unusually great and weighs slightly against the State.

Defendant entered a conditional guilty plea on May 4, 2007 to aggravated DWI, contrary to
NMSA 1978, Section 66-8-102(D)(1) (2005, prior to amendments through 2008), and failure
to maintain a traffic lane, contrary to NMSA 1978, Section 66-7-317, reserving the right to
appeal the district court’s denial of his motion to dismiss based on a violation of his
constitutional right to a speedy trial.

2
{7} The Court of Appeals reversed the district court in a memorandum opinion, which
held that the ten-month and six-day delay between Defendant’s arrest and the final trial
setting, violated his constitutional right to a speedy trial. State v. Garza, No. 27,731, slip op.
at 2 (N.M. Ct. App. Oct. 5, 2007). The Court’s opinion relied on the “presumption of
prejudice” created by the delay, stating that “[e]ven though Defendant had just barely passed
the nine-month threshold for triggering the presumption of prejudice, application of the
remaining factors did not rebut this presumption.” Id. The Court concluded, “Because the
factual findings in this case tip all of the four factors in favor of Defendant, we do not
believe that it is necessary to engage in an in-depth balancing that might occur when one or
more factors weigh against a defendant. Accordingly, we reverse.” Id. at 3.

{8} We granted the State’s petition for writ of certiorari, which raises one issue: whether
the Court of Appeals erred by holding that Defendant’s right to a speedy trial was violated
because the Court essentially applied a bright-line rule that nine months was the maximum
length of delay permissible for a simple case. We also asked the Office of the Public
Defender to file an amicus brief, addressing the issue of whether we should change the
current guidelines for determining when the length of delay becomes “presumptively
prejudicial,” and we permitted the State to respond to that issue. Because we conclude that
our holding on this latter issue does not apply to the present case, we address it separately.
II. WHETHER THE COURT OF APPEALS ERRED BY HOLDING THAT
DEFENDANT’S RIGHT TO A SPEEDY TRIAL WAS VIOLATED

{9} The State claims that the Court of Appeals erred in concluding that Defendant’s right
to a speedy trial was violated by a ten-month and six-day delay. The State argues that “[t]he
Court of Appeals’ analysis is most at fault in its treatment of prejudice and presumed
prejudice,” because “[i]f a delay of one month over the presumptively prejudicial
minimum—together with common bond restrictions—were sufficient, the Barker test would
become essentially a bright-line rule.” We agree with the State that, in cases such as the
present one in which all of the factors from Barker v. Wingo, 407 U.S. 514 (1972), appear
to weigh neutrally or minimally in the defendant’s favor, the threshold determination of
“presumptively prejudicial” delay may become essentially a bright-line rule. Because we
perceive this result as contrary to the purpose of the speedy trial right, we undertake a review
of our speedy trial case law and attempt to clarify its application.
A. Purpose of the Speedy Trial Right

{10} The right to a speedy trial is a fundamental right of the accused. Barker, 407 U.S.
at 515. The Sixth Amendment to the United States Constitution, applicable to the states
through the Fourteenth Amendment, Klopfer v. North Carolina, 386 U.S. 213, 222-23
(1967), provides:

In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district wherein
the crime shall have been committed, which district shall have been
previously ascertained by law, and to be informed of the nature and cause of
the accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.

3
U.S. Const. amend. VI; see also N.M. Const. art. II, § 14.1

{11} The speedy trial right, however, escapes precise definition. “The speedy-trial right
is ‘amorphous,’ ‘slippery,’ and ‘necessarily relative.’” Vermont v. Brillon, __ U.S. __, 129
S. Ct. 1283, 1290 (2009) (citation omitted). “It is consistent with delays and depends upon
circumstances. It secures rights to a defendant. It does not preclude the rights of public
justice.” Barker, 407 U.S. at 522 (internal quotation marks and citation omitted). Though
speed is an important attribute of the right, “[i]f either party is forced to trial without a fair
opportunity for preparation, justice is sacrificed to speed.” Frankel v. Woodrough, 7 F.2d
796, 798 (8th Cir. 1925). As the United States Supreme Court stated in Barker, “It is . . .
impossible to determine with precision when the right has been denied. We cannot definitely
say how long is too long in a system where justice is supposed to be swift but deliberate.”
Barker, 407 U.S. at 521. Therefore, the substance of the speedy trial right is defined only
through an analysis of the peculiar facts and circumstances of each case.
{12} Barker recognized that the right to a speedy trial is “generically different from any
of the other rights enshrined in the Constitution for the protection of the accused,” because
there is a societal interest in bringing an accused to trial. Id. at 519. However, “[t]he Bill
of Rights . . . does not speak of the rights and interests of the government.” Richard Uviller,
Barker v. Wingo: Speedy Trial Gets a Fast Shuffle, 72 Colum. L. Rev. 1376, 1378 (1972);
see 5 Wayne R. LaFave et al., Criminal Procedure § 18.1(b) (3d. ed. 2007) (“[I]t is rather
misleading to say . . . that this ‘societal interest’ is somehow part of the right.”). The heart
of the right to a speedy trial is preventing prejudice to the accused.

[T]his constitutional guarantee has universally been thought essential to
protect at least three basic demands of criminal justice in the
Anglo-American legal system: (1) to prevent undue and oppressive
incarceration prior to trial, (2) to minimize anxiety and concern
accompanying public accusation and (3) to limit the possibilities that long
delay will impair the ability of an accused to defend himself.

Smith v. Hooey, 393 U.S. 374, 377-78 (1969) (footnote, internal quotation marks and citation
omitted). Therefore, the speedy trial right requires actual and articulable deprivation of a
defendant’s constitutional right. Barker, 407 U.S. at 530.

1

Article II, Section 14 of the New Mexico Constitution provides:

In all criminal prosecutions, the accused shall have the right to appear
and defend himself in person, and by counsel; to demand the nature and
cause of the accusation; to be confronted with the witnesses against him; to
have the charge and testimony interpreted to him in a language that he
understands; to have compulsory process to compel the attendance of
necessary witnesses in his behalf, and a speedy public trial by an impartial
jury of the county or district in which the offense is alleged to have been
committed.

We have not previously decided, and Defendant does not argue here, whether New
Mexico’s speedy trial guarantee should be interpreted differently than the Sixth
Amendment. See State v. Maddox, 2008-NMSC-062, ¶ 6, 145 N.M. 242, 195 P.3d
1254.

4
{13} Violation of the speedy trial right is only determined through a review of the
circumstances of a case, which may not be divorced from a consideration of the State and
the defendant’s conduct and the harm to the defendant from the delay. Id. Accordingly, we
have adopted the balancing test created by the United States Supreme Court in Barker,
which delineates the following analytical framework for evaluating a claimed speedy trial
violation:

In Barker, the United States Supreme Court created a balancing test, in which
the conduct of both the prosecution and the defendant are weighed. The
Court identified four factors: (1) the length of delay, (2) the reasons for the
delay, (3) the defendant’s assertion of his right, and (4) the actual prejudice
to the defendant that, on balance, determines whether a defendant’s right to
a speedy trial has been violated.
State v. Maddox, 2008-NMSC-062, ¶ 7, 145 N.M. 242, 195 P.3d 1254 (internal quotation
marks and citation omitted). Barker’s formulation “necessarily compels courts to approach
speedy trial cases on an ad hoc basis.” Barker, 407 U.S. at 530. This analysis specifically
rejects inflexible, bright-line approaches to analyzing a speedy trial claim. Id. at 529-30.

{14} In adopting the Barker analysis, this Court has similarly rejected bright-line analyses
of the right to a speedy trial. Barker, however, was far from the model of clarity and has not
provided a comprehensive analysis of this “slippery” right. Consequently, our courts have
endeavored to adapt the Barker analysis to the unique factual circumstances presented in
each case. In the present case, we revisit certain aspects of the speedy trial right in light of
Barker’s extensive progeny with a focus on the underlying purpose of Barker, to provide a
functional analysis of the right to a speedy trial.
B. The Length of Delay: “Presumptively Prejudicial” Delay

{15} Barker is ambiguous as to what role the length of delay plays on the balancing test
as a whole. See id. The extent of Barker’s discussion of this issue is as follows:

The length of the delay is to some extent a triggering mechanism. Until there
is some delay which is presumptively prejudicial, there is no necessity for
inquiry into the other factors that go into the balance. Nevertheless, because
of the imprecision of the right to speedy trial, the length of delay that will
provoke such an inquiry is necessarily dependent upon the peculiar
circumstances of the case. To take but one example, the delay that can be
tolerated for an ordinary street crime is considerably less than for a serious,
complex conspiracy charge.

Id. at 530-31 (footnote omitted). The Court’s use of the phrase “presumptively prejudicial
delay” has been the source of confusion, because it suggests that this threshold determination
creates a presumption that may be determinative, but such a presumption is at odds with
Barker’s ad hoc, flexible balancing test. Id. at 530. The issue in the present case is whether,
and to what extent, a determination that the length of delay is “presumptively prejudicial”
carries forward into the balance of the factors and the determination of whether a defendant’s
right to a speedy trial has been violated.
{16} With Barker’s limited guidance, our cases have attempted to decipher the function
of “presumptively prejudicial” delay on the overall inquiry into whether a defendant’s right

5
has been violated. In Zurla v. State, this Court held that a “presumptively prejudicial” length
of delay creates an overall presumption that the defendant’s right to a speedy trial has been
violated. 109 N.M. 640, 646, 789 P.2d 588, 594 (1990). Therefore, “[o]nce the defendant
has demonstrated presumptively prejudicial delay and thus triggered the Barker v. Wingo
analysis, the presumption of prejudice does not disappear. Rather, the burden of persuasion
rests with the State to demonstrate that, on balance, the defendant’s speedy trial right was
not violated.” Id.

{17} Work v. State, 111 N.M. 145, 803 P.2d 234 (1990), a plurality opinion, called the
holding in Zurla into question. In Work, the plurality followed Zurla and explicitly rejected
the function of the presumption of prejudice as “merely a ‘triggering mechanism’ that
necessarily brings into play an inquiry of the other three Barker factors.” Work, 111 N.M.
at 147, 803 P.2d at 236. The plurality argued that the presumption of prejudice “‘carries
forward’ and serves to shift to the [S]tate the burden to demonstrate that, on balance, the
defendant’s speedy trial right has not been violated.” Id. Justice Ransom, in a specially
concurring opinion, “agree[d] with the principles of the continuing presumption of prejudice,
weight, balancing, and burdens as relied upon in the opinion announced by the Court today,”
but concluded that the presumption of prejudice was entitled to little weight under the facts
of that case. Id. at 149, 803 P.2d at 238 (Ransom, J., specially concurring).

{18} Justices Baca and Wilson dissented from the Work plurality. Writing for the dissent,
Justice Wilson argued that Zurla erroneously “carried forward” the presumption of
prejudice. Work, 111 N.M. at 152, 803 P.2d at 241 (Wilson, J., dissenting). The dissent
further argued that Barker offered no support for the plurality’s characterization of the
presumption of prejudice, because Barker’s balancing test “evenhandedly weigh[s] each
piece of evidence without a compelling presumption tipping the scales one way or another.”
Work, 111 N.M. at 153, 803 P.2d at 242. On this issue, Justice Wilson concluded:

In my view, the better rule is to hold that the question of actual
prejudice is a factor which must be determined on balance. If a defendant
brings forth evidence of prejudice, the [S]tate will have the burden of
rebutting such evidence. If no evidence of prejudice is offered, then the
scales are balanced. In this latter situation the question of actual prejudice
would be neither for nor against either party, but neutral.
Id.

{19} Salandre v. State, 111 N.M. 422, 806 P.2d 562 (1991), resolved the disagreement
expressed in Work. Salandre cited the Work plurality with approval and reaffirmed the
holding in Zurla. Salandre reiterated that

“[p]resumptively prejudicial delay” refers to prejudice to the fundamental
right to a speedy trial, not to specific prejudice covered by the fourth
[Barker] element, much less simply to impairment of the defense at trial. .
. . [O]nce the defendant demonstrates existence of presumptively prejudicial
delay, “the burden of persuasion rests with the [S]tate to demonstrate that, on
balance, the defendant’s speedy trial right was not violated.”
Id. at 427, 806 P.2d at 567 (quoting Zurla, 109 N.M. at 646, 789 P.2d at 594). By holding
that “presumptively prejudicial” delay creates the presumption that a defendant’s right to a
speedy trial has been violated, Zurla, Work, and Salandre require that the State affirmatively

6
sway the balance of factors in its favor, otherwise the reviewing court must conclude that a
defendant’s right to a speedy trial has been violated. Under this rule, where the State fails
to meet its burden, the defendant is entitled to a dismissal of all charges based solely on the
threshold determination that the length of delay was “presumptively prejudicial.”

{20} While other courts and commentators have struggled with this issue, the
overwhelming majority have rejected an interpretation of Barker that creates the kind of
presumption that our cases have adopted. Uviller, supra, at 1384-85. (“Whether or not such
a shift in the vital burden is wise, it seems clear that it is unintended by the Court. Rather,
it is likely that the choice of the term ‘presumptively prejudicial’ in the duration discussion
was simply inadvertent. Probably, the Court meant to say simply that a claim of denial of
speedy trial may be heard after the passage of a period of time which is, prima facie,
unreasonable in the circumstances.”). Though Barker’s limited treatment of this issue leaves
room for various interpretations, no federal circuit courts have adopted a rationale similar
to ours, in which the determination of presumptive prejudice creates a presumption that the
defendant’s right has been violated. See 5 LaFave et al., supra, § 18.2(b) (“The reference
to ‘delay which is presumptively prejudicial’ contributes to this confusion, but viewing the
case in its entirety it seems fair to say that this phrase does not mean a period of time so long
that it may actually be presumed the defense at trial would be impaired. Nor does it mean
that once a sufficient time has been shown the prosecution has the burden of establishing that
in fact there was no prejudice.” (footnote omitted)). The Circuit Courts of Appeals uniformly
treat the threshold inquiry of whether the delay is “presumptively prejudicial” as merely a
triggering mechanism and do not carry forward any presumption based on this
determination. See United States v. Harris, __ F.3d __, 2009 WL 1065970, 6 (5th Cir.
2009); United States v. Erenas-Luna, 560 F.3d 772, 776 (8th Cir. 2009); United States v.
Mendoza, 530 F.3d 758, 764 (9th Cir. 2008) (holding that rather than carrying prejudice
forward from “presumptively prejudicial” delay, prejudice to the defendant may only be
presumed “‘when the delay is great and attributable to the government’” (quoting United
States v. Shell, 974 F.2d 1035, 1036 (9th Cir. 1992)); United States v. Oriedo, 498 F.3d 593,
597-600 (7th Cir. 2007); United States v. Yehling, 456 F.3d 1236, 1243 (10th Cir. 2006);
United States v. Ingram, 446 F.3d 1332, 1336-37 (11th Cir. 2006) (holding that the threshold
determination of “presumptively prejudicial” delay merely “entitle[s the defendant] to a
presumption of prejudice sufficient to proceed with the other considerations in the Barker
analysis”); United States v. Batie, 433 F.3d 1287, 1290 (10th Cir. 2006) (“The first factor,
length of delay, functions as a gatekeeper.”); United States v. Trueber, 238 F.3d 79, 87 (1st
Cir. 2001); United States v. Carini, 562 F.2d 144, 148-49 (2nd Cir. 1977) (“[L]ength alone
is not dispositive, the length of the delay . . . does unquestionably ‘trigger’ our review of the
three other factors enumerated in Barker and our consideration of such other circumstances
as may be relevant.” (internal quotation marks and citations omitted)); United States v.
Jones, 524 F.2d 834, 849 (D.C. Cir. 1975); Ricon v. Garrison, 517 F.2d 628, 632-33 (4th
Cir. 1975) (replacing “presumptively prejudicial” delay with “sufficiently unusual delay”).

{21} In Zurla, Work, and Salandre, we considered only Barker’s ambiguous language and
failed to consider the manner in which the rule announced in Barker consistently has been
applied by the Circuit Courts of Appeals and interpreted by scholarly commentators. In light
of the overwhelming consensus among the federal Circuit Courts of Appeals and our policy
of providing a functional analysis based on the facts and circumstances of each case, we
abolish the presumption that a defendant’s right to a speedy trial has been violated based
solely on the threshold determination that the length of delay is “presumptively prejudicial.”
We hold instead that a “presumptively prejudicial” length of delay is simply a triggering
mechanism, requiring further inquiry into the Barker factors.

7
{22} We, therefore, modify the standards set forth in Zurla, Work, and Salandre to the
extent they are inconsistent with this holding. However, where the defendant proves actual
prejudice, see infra Part II.E, the State retains its burden of persuasion on the ultimate
question of whether the defendant’s right to a speedy trial has been violated.
{23} If a court determines that the length of delay is “presumptively prejudicial,” then it
should consider the length of delay as one of four factors in the analysis, none of which
alone are sufficient to find a violation of the right. Barker, 407 U.S. at 533. As discussed
in Part III of this Opinion, we are enacting new guidelines to aid district courts in
determining when the length of delay may become “presumptively prejudicial.” However,
for purposes of this case, because the district court relied on our prior guidelines, we review
the court’s holding according to those guidelines. The district court found that the present
case is a “simple” case in which nine months was considered “presumptively prejudicial.”
Maddox, 2008-NMSC-062, ¶ 9. Therefore, the delay of ten months and six days was
sufficient to trigger inquiry into the Barker factors.

{24} 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. The delay in this case
scarcely crosses the “bare minimum needed to trigger judicial examination of the claim.”
Doggett v. United States, 505 U.S. 647, 652 (1992). Therefore, the delay was not
extraordinary and does not weigh heavily in Defendant’s favor. See id. at 657-58 (holding
that six years of delay attributable to the Government’s negligence “far exceeds the threshold
needed to state a speedy trial claim; indeed, we have called shorter delays ‘extraordinary’”);
United States v. Serna-Villarreal, 352 F.3d 225, 232 (5th Cir. 2003) (holding that a three-
year and nine-month delay was too short to weigh heavily in the defendant’s favor); United
States v. Bergfeld, 280 F.3d 486, 489-91 (5th Cir. 2002) (holding that delay over five years
weighed heavily in the defendant’s favor); Shell, 974 F.2d at 1036 (“Five years delay
attributable to the government’s mishandling of Shell’s file, like the eight year delay in
Doggett, creates a strong presumption of prejudice.”).
C. Reasons for the Delay

{25} “Closely related to length of delay is the reason the government assigns to justify the
delay.” Barker, 407 U.S. at 531. “The reasons for a period of the delay may either heighten
or temper the prejudice to the defendant caused by the length of the delay.” Maddox, 2008-
NMSC-062, ¶ 13. Barker identified three types of delay, indicating that “different weights
should be assigned to different reasons” for the delay. Barker, 407 U.S. at 531. First,
Barker held that “[a] deliberate attempt to delay the trial in order to hamper the defense
should be weighted heavily against the government.” Id. A defendant is more likely to
prevail “if [the defendant can] show that the Government had intentionally held back in its
prosecution of him to gain some impermissible advantage at trial.” Doggett, 505 U.S. at 656.
“Barker stressed that 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. (citation omitted).

{26} Second, Barker distinguished intentional delay from negligent or administrative
delay, and held that “[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 circumstances must rest with the government rather than with the
defendant.” Barker, 407 U.S. at 531. “Although negligence is obviously to be weighed
more lightly than a deliberate intent to harm the accused’s defense, it still falls on the wrong

8
side of the divide between acceptable and unacceptable reasons for delaying a criminal
prosecution once it has begun.” Doggett, 505 U.S. at 657. The degree of weight we assign
against the State for negligent delay is closely related to the length of delay: “[O]ur
toleration of such negligence varies inversely with its protractedness, and its consequent
threat to the fairness of the accused’s trial.” Id. at 657 (citation omitted).

{27} Finally, “a valid reason, such as a missing witness, should serve to justify appropriate
delay.” Barker, 407 U.S. at 531; see Doggett, 505 U.S. at 656 (“Our speedy trial standards
recognize that pretrial delay is often both inevitable and wholly justifiable. The government
may need time to collect witnesses against the accused, oppose his pretrial motions, or, if he
goes into hiding, track him down.”). Accordingly, we balance the reasonableness of the
manner in which the State has moved a case toward trial “against the costs of going forward
with a trial whose probative accuracy the passage of time has begun by degrees to throw into
question.” Doggett, 505 U.S. at 656.
{28} The record reflects that the delay in the present case was negligent. The State asserts
that the delay of four months in which this case sat in magistrate court before the State
dismissed the charges and refiled in district court, were predicated on this Court’s opinion
in State v. Heinsen, 2005-NMSC-035, 138 N.M. 441, 121 P.3d 1040. In Heinsen, we held
that, generally, the State will receive a new six-month period under Rule 5-604 upon
dismissing a case from magistrate court and refiling in district court, unless the State lacks
“a good and sufficient reason for doing so.” Id. ¶ 25. However, as it concerns the speedy
trial right, the State’s discretion to dismiss a criminal case in magistrate court and reinstate
charges in district court does not justify the delay. There is nothing in the record to suggest
that the State caused this four-month delay intentionally or in bad faith. Therefore, we hold
that this delay was negligent and weighs against the State.

{29} The remainder of the delay is attributable to the multiple reassignments of judges in
the district court. This delay falls within the administrative burdens on the criminal justice
system, such as overcrowded courts, Barker, 407 U.S. at 531, congested dockets or the
unavailability of judges, State v. Davis, 474 A.2d 776, 778-79 (Conn. 1984), or an
understaffed prosecutor’s office, Strunk v. United States, 412 U.S. 434, 436 (1973). For
purposes of analyzing a speedy trial claim, this type of delay is considered negligent delay
and is weighed against the State accordingly. Id.

{30} Because the delay was negligent, the extent to which it weighs against the State
depends on the length of the delay. As described above, the delay in this case extends only
slightly beyond the threshold to trigger the speedy trial inquiry, and therefore, is not
extraordinary. Accordingly, because the delay was negligent but not protracted, this factor
weighs only slightly in Defendant’s favor.
D. Assertion of Defendant’s Right

{31} In Barker, the United States Supreme Court rejected “the rule that a defendant who
fails to demand a speedy trial forever waives his right.” Barker, 407 U.S. at 528. Instead,
the Court held that “the better rule is that the defendant’s assertion of or failure to assert his
right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation
of the right.” Id. This factor is closely related to the other Barker factors, because “[t]he
strength of [the defendant’s] efforts will be affected by the length of the delay, to some
extent by the reason for the delay, and most particularly by the personal prejudice, which is
not always readily identifiable, that [the defendant] experiences.” Id. at 531.

9
{32} Generally, we assess the timing of the defendant’s assertion and the manner in which
the right was asserted. Maddox, 2008-NMSC-062, ¶ 28. Thus, we accord weight to the
“frequency and force” of the defendant’s objections to the delay. Barker, 407 U.S. at 529.
We also analyze the defendant’s actions with regard to the delay. See United States v.
Sarvis, 523 F.2d 1177, 1182 (D.C. Cir. 1975) (mitigating the force of the defendant’s
assertions of his right where motions asserting the right “followed closely other defense
motions which were bound to slow down the proceedings,” such as a motion for additional
time to file motions, a motion for appointment of new counsel, and a motion to reset the trial
date); Sisneros v. State, 121 P.3d 790, 800 (Wyo. 2005) (weighing the third Barker factor
neutrally where the defendant demanded a speedy trial throughout the proceedings, but “also
engaged in procedural maneuvers which had the result of delaying the trial”). But see
McNeely v. Blanas, 336 F.3d 822, 831 (9th Cir. 2003) (holding that the defendant’s two
successful motions “disqualifying the trial court at precisely the point when the case was
ready for trial” had merit, and therefore, did not harm the defendant’s assertion of his right).
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. United States
v. Netterville, 553 F.2d 903, 914 (5th Cir. 1977).

{33} It is necessary, therefore, to closely analyze the circumstances of each case. For
example, a court should assign “different weight to a situation in which the defendant
knowingly fails to object, from a situation in which his attorney acquiesces in long delay
without adequately informing his client, or from a situation in which no counsel is
appointed.” Barker, 407 U.S. at 529. Similarly, a defendant “cannot be blamed for not
invoking his right to a speedy trial before” he was aware of the charges against him. United
States v. Schreane, 331 F.3d 548, 557 (6th Cir. 2003).

{34} In the present case, Defendant’s single demand for a speedy trial, preceding his
motion to dismiss, tucked within the waiver of arraignment and not guilty plea, was
sufficient to assert his right. This assertion was not especially vigorous nor was it mitigated,
however, by any apparent acquiescence to the delay on Defendant’s part. Therefore, this
factor weighs slightly in Defendant’s favor. See Maddox, 2008-NMSC-062, ¶ 31 (“We
weigh this factor slightly in Defendant’s favor, but note that Defendant’s assertions were
neither timely nor forceful.”).
E. Prejudice to the Defendant

{35} “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.” Id. ¶ 32 (internal quotation marks and citation omitted). As to the first
two types of prejudice, “[s]ome degree of oppression and anxiety is inherent for ever[y]
defendant who is jailed while awaiting trial.” Id. ¶ 33 (alterations in original) (internal
quotation marks and citation omitted). Therefore, we weigh this factor in the defendant’s
favor only where the pretrial incarceration or the anxiety suffered is undue. Id. 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. Barker, 407 U.S. at 532-33 (“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

10
or rehabilitative programs. The time spent in jail is simply dead time. Moreover, if a
defendant is locked up, he is hindered in his ability to gather evidence, contact witnesses, or
otherwise prepare his defense.” (footnote omitted)); see also Hartridge v. United States, 896
A.2d 198, 227 (D.C. 2006) (“[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.”);
State v. Urban, 2004-NMSC-007, ¶ 17, 135 N.M. 279, 87 P.3d 1061 (holding that where the
defendant was incarcerated on other charges he “was not subject to oppressive pretrial
incarceration”); Berry v. State, 93 P.3d 222, 237 (Wyo. 2004) (weighing pretrial
incarceration heavily in the defendant’s favor where the defendant was not free on bond, and
“[the defendant’s] extended incarceration necessarily impacted his employment
opportunities, financial resources and association”). 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. See Maddox, 2008-NMSC-062, ¶ 32
(“Defendant does bear the burden of production on this issue . . . .”); see also Jackson v. Ray,
390 F.3d 1254, 1264 (10th Cir. 2004) (“The burden of showing all types of prejudice lies
with the individual claiming the violation and the mere ‘possibility of prejudice is not
sufficient to support [the] position that . . . speedy trial rights [are] violated.’” (alterations
in original) (quoting United States v. Loud Hawk, 474 U.S. 302, 315 (1986)).

{36} The third type of prejudice is the “most serious.” Barker, 407 U.S. at 532. Again,
however, it is necessary for a defendant to substantiate this type of prejudice. For example,
Barker states that “[i]f witnesses die or disappear during a delay, the prejudice is obvious.
There is also prejudice if defense witnesses are unable to recall accurately events of the
distant past. Loss of memory, however, is not always reflected in the record because what
has been forgotten can rarely be shown.” Id. If the defendant asserts that the delay caused
the unavailability of a witness and impaired the defense, the defendant must “state[ ] with
particularity what exculpatory testimony would have been offered,” and “[t]he defendant
must also present evidence that the delay caused the witness’s unavailability.” Jackson, 390
F.3d at 1265 (first alteration in original) (internal quotation marks and citation omitted); see
also United States v. Richards, 707 F.2d 995, 998 (8th Cir. 1983) (“In order for the appellee
to carry his burden of showing prejudice, he must show that the missing witnesses could
have supplied material evidence for the defense.”); Davis, 474 A.2d at 780 (“To constitute
a speedy trial violation claimed prejudice to the defense of a criminal prosecution must relate
to a material fact in issue.”).
{37} Defendant, in the present case, spent two hours in jail and was then released with
normal bond restrictions. We acknowledge that the district court found “some actual
prejudice in the form of restrictions imposed by pre-trial conditions of release and stress.”
However, “some [non-particularized] prejudice” is not the type of prejudice against which
the speedy trial right protects. Therefore, we hold that Defendant has made no showing of
prejudice that is cognizable under the fourth Barker factor.
F. Balancing Test

{38} The primary issue raised by the facts of this case is whether a court can find a
violation of a defendant’s speedy trial right without a particularized showing of prejudice.
The United States Supreme Court’s opinion in Doggett is instructive on this point. Doggett
held that “affirmative proof of particularized prejudice is not essential to every speedy trial
claim.” Doggett, 505 U.S. at 655. The facts of Doggett as they relate to the Barker factors
are as follows: (1) the length of delay of eight and one-half years was “extraordinary”; (2)

11
the reason for the delay was the government’s negligence in prosecuting the defendant; (3)
the defendant sufficiently asserted his right and did not acquiesce to the delay; and (4) the
defendant failed to make a particularized showing of how he was prejudiced by the delay
between his indictment and trial. Id. at 657-58. The Court looked to the first three factors
to determine whether the defendant’s burden to show particularized prejudice could be
excused. The Court concluded, “When the Government’s negligence . . . causes delay six
times as long as that generally sufficient to trigger judicial review, and when the presumption
of prejudice, albeit unspecified, is neither extenuated, as by the defendant’s acquiescence,
nor persuasively rebutted, the defendant is entitled to relief.” Id. (citation and footnotes
omitted).

{39} Thus, Doggett seemed to adopt the position of many lower courts, which generally
require that defendants make an affirmative showing of particularized prejudice but excuse
that requirement and presume prejudice if the other Barker factors weigh heavily in the
defendant’s favor. See, e.g., Mendoza, 530 F.3d at 764 (“[N]o showing of prejudice is
required when the delay is great and attributable to the government. Instead, we presume
prejudice. Further, [t]he presumption that pretrial delay has prejudiced the accused
intensifies over time.” (second alteration in original) (internal quotation marks and citations
omitted)); Oriedo, 498 F.3d at 600 (holding that where the defendant conceded that he
suffered no particular prejudice, “in some circumstances, prejudice may be presumed. This
presumed prejudice, although insufficient to carry a speedy trial claim absent a strong
showing on the other Barker factors is nonetheless part of the mix of relevant facts in the
ultimate balancing analysis” (internal quotation marks and citations omitted)); United States
v. Mitchell, 769 F.2d 1544, 1547 (11th Cir. 1985) (“[T]he settled rule in this circuit is that
unless the first three Barker factors all weigh heavily against the government, the defendants
must demonstrate actual prejudice.”); Hill v. Wainwright, 617 F.2d 375, 379 n.4 (5th Cir.
1980) (“When the first three factors of the Barker balancing test are heavily weighed against
the government, the defendant does not have to demonstrate prejudice.”). We similarly hold
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 defendant’s favor and defendant has asserted his right and not
acquiesced to the delay, then the defendant need not show prejudice for a court to conclude
that the defendant’s right has been violated.

{40} In the present case, Defendant failed to show prejudice, and the other factors do not
weigh heavily in Defendant’s favor. Because Defendant failed to demonstrate particularized
prejudice as a consequence of the ten-month and six-day delay, we cannot conclude that
Defendant’s right to a speedy trial was violated. Accordingly, we reverse the Court of
Appeals.
III. CHANGE IN CURRENT GUIDELINES

{41} We asked the Public Defender’s office to file an amicus brief, and permitted the State
to respond, addressing the issue of whether we should change the current guidelines—nine
months for simple cases, twelve months for cases of intermediate complexity, and fifteen
months for complex cases—concerning “presumptively prejudicial” length of delay. In light
of our conclusion that Defendant’s right was not violated, we recognize that we need not
address the guidelines for determining when the length of delay becomes presumptively
prejudicial. However, we do so in the interest of providing guidance to the lower courts and
to recognize recent changes in the administration of our criminal justice system.

12
{42} We have provided broad guidelines for determining when the length of delay
triggers further inquiry into the claim of a violation of the right to speedy trial. Maddox,
2008-NMSC-062, ¶ 9. These guidelines provide a standard on which the district courts may
predicate a review of the merits of a defendant’s claim when the defendant shows that the
length of delay has crossed the threshold of reasonable delay. See Doggett, 505 U.S. at 651-
52.

{43} We implemented Rule 5-604(B) NMRA in response to Barker. “Rule 5-604(B),
commonly referred to as the six-month rule, requires the commencement of trial in a
criminal proceeding within six months of the latest of several different triggering events.”
Duran v. Eichwald, __-NMSC-__, ¶ 2, No. 31,372, slip op. at 1 (June 17, 2009). The six-
month rule is “designed to assure prompt disposition of criminal cases.” State v. Cardenas,
2003-NMCA-051, ¶ 12, 133 N.M. 516, 64 P.3d 543 (internal quotation marks and citation
omitted). As a case management tool, the six-month rule accounts for the amount of delay
considered reasonable in bringing cases to trial. Therefore, the six-month rule helps us
identify when the length of delay exceeds “customary promptness” for bringing a case to
trial. Doggett, 505 U.S. at 652.

{44} Over time, the minimum length of delay considered “presumptively prejudicial” and
the six-month rule have mirrored each other. This Court first held that a six-month delay is
sufficient to trigger the Barker balancing test. State v. Mendoza, 108 N.M. 446, 450, 774
P.2d 440, 444 (1989) (“Whenever there is a delay of more than six months between the time
of arraignment and the date of the trial, four factors are to be considered in determining
whether a defendant has been denied the right to a speedy trial.”). In Salandre, this Court
increased that threshold from six to nine months. 111 N.M. at 428. Salandre relied on
language from Barker, stating, “[Barker] recognized that, in a jurisdiction with a six-month
rule such as New Mexico, a nine-month delay may be unacceptable under certain
circumstances.” Salandre, 111 N.M. at 428; see Barker, 407 U.S. at 528. Salandre held that
nine months was the minimum length of delay considered presumptively prejudicial for
simple cases. Salandre, 111 N.M. at 428.

{45} When Salandre was decided, Rule 5-604(B) required that cases be tried within six
months but permitted extensions upon application to the Supreme Court. In 1998, we
amended Rule 5-604 to permit the district court to grant a three-month extension before
requiring parties to apply to this Court for an extension of time. Thus, the 1998 amendment
reflected the conclusion in Salandre that for simple cases, nine months was the minimum
length of delay considered presumptively prejudicial.

{46} On August 13, 2007, we amended Rule 5-604 by increasing the amount of time that
the trial court may grant as an extension from three to six months before the parties must
apply to this Court. That amendment demonstrates the need for greater flexibility in the trial
courts to grant extensions due to greater inherent delays involved in the prosecution of
criminal cases. With that amendment we no longer require application to this Court in which
the party must explain the “extreme circumstances” necessitating an extension until the
length of delay exceeds twelve months. In contrast, our speedy trial cases have continued
to indicate that a nine-month delay may be presumptively prejudicial, resulting in the
anomalous possibility that a defendant’s right to a speedy trial may be violated by delay that
is otherwise reasonable. The lack of congruence between our speedy trial standard and Rule
5-604 fails the purpose of our guidelines, which is “to provide the courts and the parties with
a rudimentary warning of when speedy trial problems may arise.” Salandre, 111 N.M. at
427-28 (internal quotation marks and citation omitted).

13
{47} We hold, therefore, that one year is the appropriate guideline for determining when
the length of delay for a simple case may be considered presumptively prejudicial. This is
consistent with the majority of other jurisdictions, both federal and state. The federal circuit
courts are of a general consensus that delay of approximately one year may be considered
presumptively prejudicial. See, e.g., United States v. Watford, 468 F.3d 891, 901 (6th Cir.
2006) (“We have stated that a delay is presumed prejudicial when it exceeds one year.”);
United States v. Titlbach, 339 F.3d 692, 699 (8th Cir. 2003) (“A delay approaching a year
may meet the threshold for presumptively prejudicial delay requiring application of the
Barker factors.”); United States v. Santiago-Becerril, 130 F.3d 11, 21 (1st Cir. 1997) (“The
Supreme Court has said that the lower courts have generally found postaccusation delay
‘presumptively prejudicial’ at least as it approaches one year. We shall assume, under the
foregoing, that the fifteen[-]month delay in this case was ‘presumptively prejudicial’ so as
to trigger further inquiry.” (citations omitted)); United States v. Walker, 92 F.3d 714, 717
(8th Cir. 1996) (“The court acknowledged that lower courts had concluded that, depending
on the charges, a delay that approaches one year would be ‘presumptively prejudicial,’
triggering the speedy trial inquiry and appeared to accept that conclusion. The 37-month
delay in this case is thus sufficient to trigger the speedy trial analysis.” (citations omitted));
Robinson v. Whitley, 2 F.3d 562, 568 (5th Cir. 1993) (“This circuit generally requires a delay
of one year to trigger speedy trial analysis.”). State courts are more divided on the
appropriate length of delay considered presumptively prejudicial, but the majority of states
consider a delay of one year as the benchmark for presumptive prejudice. See, e.g., State v.
Fischer, 744 N.W. 2d 760, 770 (N.D. 2008) (“A delay of one year or more is ‘presumptively
prejudicial,’ triggering an analysis of the other speedy trial factors.”); State v. Taylor, 781
N.E. 2d 72, 79 (Ohio 2002) (“The fact that appellant was brought to trial within a year of the
murders can hardly allow the delay to be characterized as ‘presumptively prejudicial.’”);
State v. Zmayefski, 836 A.2d 191, 194 (R.I. 2003) (“A delay longer than one year is
‘presumptively prejudicial.’”); State v. Tiegen, 744 N.W.2d 578, 585 (S.D. 2008) (“Delays
of over a year are presumptively prejudicial; delays of less than a year are not.”). But see
Murray v. State, 967 So.2d 1222, 1230 (Miss. 2007) (“This Court has previously stated ‘that
any delay of eight (8) months or longer is presumptively prejudicial.’” (citation omitted)).

{48} Consistent with the 2007 amendment to Rule 5-604 and the consensus of our sister
states and the federal Circuit Courts of Appeals, we adopt one year as a benchmark for
determining when a simple case may become presumptively prejudicial. Accordingly, we
also shift the guidelines for cases of greater complexity: Fifteen months may be
presumptively prejudicial for intermediate cases and eighteen months may be presumptively
prejudicial for complex cases.
{49} We emphasize that these guidelines should not be construed as bright-line tests.
Rather, they are meant to guide the district courts’ determination of “presumptively
prejudicial” delay. The situation may arise where a defendant alerts the district court to the
possibility of prejudice to his defense and the need for increased speed in bringing the case
to trial, i.e., the impending death of a key witness. Where that possibility is realized and the
defendant suffers actual prejudice as a result of delay, these guidelines will not preclude the
defendant from bringing a motion for a speedy trial violation though the delay may be less
than one year. However, it will then be up to the district court to decide whether the delay
was sufficient to require further inquiry into the speedy trial analysis.

{50} This shift in the applicable guidelines is predicated on the 2007 amendment to Rule
5-604, which became effective on August 13, 2007. This shift, therefore, was not
foreshadowed prior to that date, and the district courts were not on notice that the old

14
guidelines did not accurately represent the amount of delay that should trigger a speedy trial
inquiry. Because these time thresholds are merely guidance to the district courts, where the
courts have relied on the old guidelines prior to August 13, 2007, we will not apply the new
guidelines to our review on appeal. Therefore, these guidelines apply only to speedy trial
motions to dismiss initiated on or after August 13, 2007. Though it would make no
difference in the ultimate result, we have not applied the new guidelines in the present case,
because the district court heard and ruled on Defendant’s motion to dismiss on April 27,
2007.
IV. CONCLUSION

{51} For the above stated reasons, we reverse the judgment of the Court of Appeals and
affirm Defendant’s conviction and sentence.
{52} IT IS SO ORDERED.

____________________________________
PETRA JIMENEZ MAES, Justice

WE CONCUR:

____________________________________
EDWARD L. CHÁVEZ, Chief Justice

____________________________________
PATRICIO M. SERNA, Justice

____________________________________
RICHARD C. BOSSON, Justice

____________________________________
CHARLES W. DANIELS, Justice

Topic Index for State v. Garza, No. 30,715

CT CONSTITUTIONAL LAW

CT-ST Speedy Trial
CA CRIMINAL PROCEDURE

CA-PJ Prejudice
CA-RD Right to Speedy Trial
CA-TL Time Limitations

15