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New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 16:59:01 2011.04.28
Certiorari Denied, March 14, 2011, No. 32,853
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2011-NMCA-033
Filing Date: January 19, 2011
Docket No. 29,058
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
TERRY PARRISH,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Michael T. Murphy, District Judge
Gary K. King, Attorney General
Santa Fe, NM
Ralph E. Trujillo, Assistant Attorney General
Albuquerque, NM
for Appellant
Hugh W. Dangler, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM
for Appellee
OPINION
GARCIA, Judge.
{1} Defendant Terry Parrish was charged with aggravated driving while under the
influence (DUI) and failure to have an operating license plate lamp. See NMSA 1978, § 66-
8-102(D)(3) (2004) (amended 2010); NMSA 1978, § 66-3-805 (1978). The State appeals the
district court’s order dismissing Defendant’s charges based upon a violation of Defendant’s
1
Sixth Amendment right to a speedy trial. We hold that Defendant’s right to a speedy trial
was not violated. As a result, we reverse the district court and remand Defendant’s case for
trial.
BACKGROUND
{2} Defendant was arrested on November 24, 2006, issued both DUI and traffic citations,
and instructed to appear in magistrate court upon the court’s order. After posting a $1,750
bond, Defendant was released approximately seven and one-half hours later with eight
restrictions, including not leaving Doña Ana County without permission of the court, not
possessing firearms or dangerous weapons, and not possessing or consuming alcohol or
entering liquor establishments.
{3} On November 28, 2006, the State filed a criminal complaint in magistrate court,
charging Defendant with aggravated DUI and failure to have an operating license plate lamp.
On January 24, 2007, the State refiled those same charges in district court and then dismissed
the charges in magistrate court two days later. Defendant waived arraignment in district
court and entered a plea of not guilty on February 8, 2007. The district court set Defendant’s
bond at $1,000 and imposed twelve restrictions, including not driving a motor vehicle
without a valid driver’s license.
{4} The next four months included discovery, substitution of counsel, and reassignment
of judges. On February 22, 2007, the State produced discovery, identified witnesses, and
requested discovery from Defendant. The State substituted counsel on March 15, 2007.
Additionally, on April 10, 2007, the district court reassigned Defendant’s case from the
Honorable Douglas R. Driggers to the Honorable Michael T. Murphy for administrative
reasons.
{5} In June 2007, Defendant’s trial was scheduled for August 2, 2007. The parties agree
that neither of them received notice of the trial. According to the State, on June 7, 2007, the
district court misinformed the State that trial could not be held before the expiration of the
six-month rule on August 8, 2007, and advised the State to request an extension of time.
Consequently, the State filed a petition for an extension of time on August 1, 2007. At a
hearing on August 10, 2007, the district court denied the State’s petition for an extension of
time and issued an oral ruling dismissing Defendant’s case for violation of the six-month
rule pursuant to Rule 5-604 NMRA (2007). The State subsequently filed a motion for
reconsideration, and Defendant filed a motion to dismiss for violation of the six-month rule.
On September 7, 2007, the district court heard both motions and issued oral rulings denying
the State’s motion for reconsideration and granting Defendant’s motion to dismiss. The
district court entered a written order dismissing the charges against Defendant with prejudice
on September 24, 2007.
{6} The State appealed the district court’s denial of its petition for extension of time and
order of dismissal on September 26, 2007. On March 11, 2008, this Court filed a
memorandum opinion reversing the district court, reasoning that judicial error constituted
good cause for an extension of time. This Court then issued a mandate to the district court
2
for further proceedings on May 5, 2008.
{7} On May 7, 2008, the State requested a trial setting, and trial was subsequently
scheduled for July 10, 2008. On the morning of trial, Defendant orally moved to dismiss his
case on speedy trial grounds. Defendant testified that he was concerned about how a DUI
conviction might affect his job and membership in a volunteer professional organization, and
that he also experienced hardship caused by the Motor Vehicle Department’s suspension of
his driver’s license. The district court issued an oral ruling dismissing Defendant’s charges
on speedy trial grounds and thereafter entered a written order of dismissal on October 17,
2008. The court entered the following findings: Defendant’s case was a simple case in
which the applicable guideline for a presumption of prejudice was nine months, Defendant’s
case had been pending for over eleven months at the time of the scheduled trial, Defendant’s
testimony regarding the prejudice caused by the delay was credible, and Defendant did not
make a written demand for a speedy trial. As a result, the court dismissed Defendant’s case
for violation of his Sixth Amendment right to a speedy trial, and the State appealed.
DISCUSSION
{8} The State argues that the district court erred in determining that Defendant’s speedy
trial right was violated. Specifically, the State contends that the length of delay was not
presumptively prejudicial. The State further argues that even if this Court determines that
the delay was presumptively prejudicial, Defendant’s speedy trial right was not violated
because he failed to assert his right and was not prejudiced by the delay.
A. Sixth Amendment Right to a Speedy Trial
{9} The Sixth Amendment of the United States Constitution provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” U.S.
Const. amend. VI. Thus, the speedy trial right is implicated “when the defendant becomes
an accused, that is, by a filing of a formal indictment or information or arrest and holding to
answer.” State v. Maddox, 2008-NMSC-062, ¶ 10, 145 N.M. 242, 195 P.3d 1254 (internal
quotation marks and citation omitted). “The heart of the right to a speedy trial is preventing
prejudice to the accused.” State v. Garza, 2009-NMSC-038, ¶ 12, 146 N.M. 499, 212 P.3d
387. The right includes three core concerns: (1) preventing undue and oppressive pre-trial
incarceration prior to trial, (2) minimizing the anxiety and concern associated with public
accusation, and (3) limiting the possibilities that long delay will impair the defense of the
accused. Id.
{10} In analyzing whether Defendant’s speedy trial right was violated, we review the
particular facts and circumstances to determine whether an “actual and articulable
deprivation” of Defendant’s right to a speedy trial occurred. Id. ¶¶ 11-12. We conduct our
analysis by balancing four factors: (1) the length of the delay in bringing the defendant to
trial, (2) the reasons for the delay, (3) the defendant’s assertion of his right to a speedy trial,
and (4) the actual prejudice suffered by the defendant as a result of the delay. Id. ¶ 13
(relying on Barker v. Wingo, 407 U.S. 514, 530 (1972)). Although we defer to the district
court’s factual findings, we review de novo the question of whether a violation of a
3
defendant’s speedy trial right occurred. State v. Valencia, 2010-NMCA-005, ¶ 11, 147 N.M.
432, 224 P.3d 659. We evaluate speedy trial claims on a case-by-case basis, independently
balancing the four factors and considering no individual factor as talismanic. Id. Over time,
the balancing test has been adapted to the varying circumstances presented in each case
involving a claim of a speedy trial violation. Garza, 2009-NMSC-038, ¶ 14. Following the
rule set out in Garza, if Defendant fails to make a particularized showing of prejudice, the
other three factors must weigh heavily in Defendant’s favor. Id. ¶ 39.
B. Speedy Trial Implications of Dismissal of Charges and the State’s Appeal
{11} As a preliminary matter, we address the State’s argument that the time during which
no charges were pending against Defendant while the State appealed the dismissal of all
charges should be excluded when considering Defendant’s speedy trial claim. Defendant
responds that the time on appeal should be considered because he was fully aware of the
State’s right to appeal, continued to retain the services of his attorney, filed a memorandum
during the appeal, and knew that he was still facing possible future prosecution.
{12} In United States v. Loud Hawk, 474 U.S. 302, 310-11 (1986), the Supreme Court
addressed the speedy trial implications of the district court’s dismissal of the defendants’
indictments followed by the government’s appeal. The Court determined that the time
during which the defendants were no longer under indictment or restraint while the state
appealed the dismissal should be excluded when considering their speedy trial claim. Id.
The Court reasoned that after the charges against the defendants were dismissed, the
defendants suffered no actual restraints on their liberty and were no longer the subjects of
public accusation. Id. at 311-12; see also United States v. MacDonald, 456 U.S. 1, 9 (1982)
(reasoning that after charges have been dismissed, a defendant no longer suffers restraints
on his liberty and is no longer the subject of public accusation). The Court further
concluded that the defendants’ need for counsel and the court’s order to appear during the
appeal did not reach the level of restraint required to apply the speedy trial clause. Loud
Hawk, 474 U.S. at 312. In reaching this conclusion, the Court reasoned that impairment of
liberty is the core concern of the speedy trial clause and that the speedy trial right does not
shield a defendant from all anxiety, inconvenience, or expense associated with criminal
defense. Id. Instead, time where a defendant is neither under arrest nor indictment is
appropriately analyzed under the due process clause of the Fifth Amendment of the United
States Constitution. MacDonald, 456 U.S. at 7.
{13} Our appellate courts have followed the United States Supreme Court’s reasoning in
Loud Hawk and MacDonald. In State v. McCrary, 100 N.M. 671, 674-75, 675 P.2d 120,
123-24 (1984), the state dismissed the defendants’ charges, the defendants’ were released
from custody, the state subsequently filed new indictments, and the defendants filed an
interlocutory appeal contesting the new charges. Our Supreme Court relied on MacDonald
to conclude that during intervals where the “charges are dropped in good faith, the delay is
not scrutinized by the speedy trial clause of the Sixth Amendment.” McCrary, 100 N.M. at
675, 675 P.2d at 124. Similarly, in State v. Hill, 2005-NMCA-143, ¶¶ 3, 6, 13, 138 N.M.
693, 125 P.3d 1175, the state dismissed the defendant’s charges, the defendant was released
from custody, and the state reinstated the charges approximately thirteen years later after
4
new evidence came to light. This Court held that the defendant’s speedy trial right did not
run during the interval because the defendant was not an “accused” and no charges were
pending against him. Id. ¶ 15. Finally, in State v. Wittgenstein, 119 N.M. 565, 567, 893 P.2d
461, 463 (Ct. App. 1995), this Court specifically addressed delay caused by judicial review
where the defendant was convicted, the defendant successfully appealed the conviction, and
the charges were dismissed and reinstated for new trial. Our Court relied on Loud Hawk to
hold that “delay caused by judicial review . . . should not be considered under a speedy-trial
claim until the defendant meets the heavy burden of showing an unreasonable delay caused
by the prosecution in that [review], or a wholly unjustifiable delay by the [reviewing] court.”
Wittgenstein, 119 N.M. at 570, 893 P.2d at 466 (alteration in original) (internal quotation
marks and citation omitted). Instead, delay while no charges are pending and a defendant’s
liberty is unrestrained is appropriately analyzed under the due process clause of the Fifth
Amendment of the United States Constitution. Hill, 2005-NMCA-143, ¶¶ 11-12.
{14} Based upon the reasoning in Loud Hawk and our appellate cases, we determine that
the time during which no charges were pending against Defendant while his case was on
appeal shall be excluded when considering Defendant’s speedy trial claim. Procedurally,
Defendant’s case is analogous to Loud Hawk where the district court dismissed Defendant’s
charges, the State successfully appealed, and Defendant’s charges were reinstated. 474 U.S.
at 307-08. Defendant argues that the time on appeal implicated his speedy trial rights
because he knew of the possibility of prosecution and also retained counsel and filed a
memorandum during that time. However, consistent with Loud Hawk, we conclude that
Defendant’s anxiety about possible prosecution, retention of counsel, and filing of a
memorandum does not trigger the application of the speedy trial clause. See id. at 312.
{15} Defendant also argues that time on appeal may be counted for speedy trial purposes
under certain circumstances, such as when charges are formally dismissed for tactical
reasons. See United States v. Lara, 520 F.2d 460, 464-65 (D.C. Cir. 1975) (holding that
where the government’s dismissal of an indictment in one jurisdiction and refiling in another
jurisdiction was attributable to governmental forum shopping, the time during which no
charges were pending counted under the speedy trial analysis); but see McCrary, 100 N.M.
at 674-75, 675 P.2d at 123-24 (distinguishing Lara and excluding the time on appeal where
the state dismissed and refiled the charges in good faith in order to charge the defendants
with the appropriate crime). Here, Defendant failed to demonstrate unreasonable delay on
the part of the State and failed to argue any unjustifiable delay by the reviewing court. See
Wittgenstein, 119 N.M. at 570-71, 893 P.2d at 466-67 (reasoning that time on appeal should
not be considered in the speedy trial analysis unless the defendant demonstrates
unreasonable delay by the state or wholly unjustifiable delay by the reviewing court). On the
contrary, the State was successful in an expeditious appeal. As a result, we conclude that
the delay caused by the State’s appeal was not unreasonable. See id. at 570, 893 P.2d at 466
(reasoning that appellate review safeguards the rights of public justice as well as the rights
of defendants).
{16} Finally, Defendant relies upon out-of-state cases to argue that time on appeal should
trigger the speedy trial analysis even though it ultimately does not weigh against the state.
See Kramer v. State, 652 S.E.2d 843, 846 (Ga. Ct. App. 2007) (counting the time during the
5
state’s appeal as part of the length of delay factor to trigger the Sixth Amendment speedy
trial analysis but concluding that the delay should not be weighed against the state); see also
State v. Shaw, 113 P.3d 898, 909-13 (Or. 2005) (en banc) (determining that an appeal by the
state may prejudice the defense under certain circumstances, but ultimately concluding that
the delay did not violate the defendant’s speedy trial right under the Oregon constitution and
Oregon statute). However, Defendant cites no New Mexico precedent supporting this
proposition. Consequently, we rely upon the United States Supreme Court’s decision in
Loud Hawk and New Mexico case law. We also note that the Tenth Circuit Court of Appeals
has followed Loud Hawk in excluding time where charges have been dismissed from the
speedy trial analysis. United States v. Reardon, 787 F.2d 512, 514, 518 (10th Cir. 1986)
(relying on Loud Hawk to hold that the time between the state’s dismissal of the original
charge and reindictment with that same charge should be excluded from the Sixth
Amendment speedy trial analysis). As a result, we hold that the time during which no
charges were pending against Defendant and his liberty was unrestrained while his case was
on appeal should be excluded from the speedy trial analysis.
C. Calculating the Presumptive Period of Delay
{17} The time frame for the Sixth Amendment period of delay must now be calculated to
determine whether the threshold presumptive period of delay has been exceeded in this case.
At the district court level, Defendant argued that the time period on appeal should begin to
be calculated when the final written order dismissing his charges was entered on September
24, 2007. However, Defendant later conceded that the court’s oral ruling of dismissal was
final on the date of the district court’s hearing on September 7, 2007, and that a calculation
of days could begin on that date. On appeal, Defendant now argues that the applicable date
for calculation of days is the date of the final order, although there is some confusion in the
pleadings about the actual date the order was final. This Court is not bound by Defendant’s
concession where he properly raised the issue below. See State v. Garcia, 110 N.M. 419,
423, 796 P.2d 1115, 1119 (Ct. App. 1990) (reasoning that this Court was not bound by the
state’s concession that the defendant’s speedy trial right attached at arrest). We conclude
that the order of dismissal was final when the written order was entered on September 24,
2007, and we begin the calculation of the number of days when no charges were pending on
that date. See State v. Vaughn, 2005-NMCA-076, ¶¶ 23, 25, 137 N.M. 674, 114 P.3d 354
(stating the general rule that oral rulings are ineffective and not final judgments, and
concluding that the limited exceptions to this rule do not include verdicts). We further
conclude that Defendant was again an “accused” for speedy trial purposes beginning on May
5, 2008, when this Court issued a mandate to the district court reversing and remanding the
case for further proceedings against Defendant. See State v. Brown, 2003-NMCA-110, ¶¶
5, 15, 134 N.M. 356, 76 P.3d 1113 (restarting the clock for speedy trial purposes on the date
of this Court’s mandate to remand the case to the district court). Accordingly, we exclude
the 224 days from September 24, 2007 to May 5, 2008, from the speedy trial analysis
because no charges were pending against Defendant and his liberty was unrestrained.
{18} We must now examine whether the length of the delay is presumptively prejudicial.
Valencia, 2010-NMCA-005, ¶ 13. A threshold determination that a presumptively
prejudicial delay occurred simply triggers an inquiry into the remaining Barker factors, but
6
does not create a presumption that a defendant’s speedy trial right has been violated. Garza,
2009-NMSC-038, ¶ 21.
{19} When the district court dismissed this case on speedy trial grounds, the applicable
guideline for a presumption of prejudice in a simple case was nine months. See Maddox,
2008-NMSC-062, ¶ 9. Our Supreme Court, however, recently adopted new guidelines
under which a delay of one year is considered presumptively prejudicial in a simple case.
Garza, 2009-NMSC-038, ¶¶ 48-50. These new guidelines apply to speedy trial motions to
dismiss initiated on or after August 13, 2007. Id. ¶ 50. Here, the district court determined,
and neither party contests, that Defendant’s case was a simple case. Additionally, Defendant
moved to dismiss his case on speedy trial grounds on July 10, 2008, after the effective date
of the new Garza guidelines. Consequently, we apply the Garza guideline setting a one-year
threshold for the presumption of prejudice in a simple case.
{20} The speedy trial right attaches “when the defendant becomes an accused, that is, by
a filing of a formal indictment or information or arrest and holding to answer.” Maddox,
2008-NMSC-062, ¶ 10 (internal quotation marks and citation omitted). Defendant argues
that his speedy trial right attached at the time of his arrest on November 24, 2006. The State
argues, however, that Defendant’s speedy trial right did not attach until Defendant was
indicted in district court on January 24, 2007. We agree with Defendant. On the day of his
arrest, Defendant posted bond, and the court imposed eight restrictions, including the
inability to travel outside of Doña Ana County without the court’s permission.
Consequently, we conclude that Defendant’s liberty was impaired and his speedy trial right
attached on November 24, 2007. See Kilpatrick v. State, 103 N.M. 52, 52-53, 702 P.2d 997,
997-98 (1985) (determining that the speedy trial right attached on the day of arrest where the
defendant posted bond on that date); see also State v. Jacquez, 119 N.M. 127, 130, 888 P.2d
1009, 1012 (Ct. App. 1994) (reasoning that the right to a speedy trial prevents both lengthy
incarceration preceding trial and “reduced impaired liberty while an accused is released on
bail”).
{21} The total time from Defendant’s arrest on November 24, 2006, to the day of
Defendant’s scheduled trial on July 10, 2008, was 594 days. As previously discussed, we
exclude the 224 days from the speedy trial analysis where no charges were pending against
Defendant and his liberty was unrestrained. Consequently, we determine that the length of
delay was 370 days, after deducting the time where no charges were pending while the case
was on appeal. Applying the threshold one-year guideline under Garza for this simple case,
the delay of five days over the twelve month threshold is presumptively prejudicial and
triggers further evaluation under the four Barker factors.
D. Length of the Delay
{22} We weigh the length of delay factor only minimally in Defendant’s favor because the
delay of five days over the twelve-month guideline barely exceeded the minimum threshold
to trigger a speedy trial analysis. See Garza, 2009-NMSC-038, ¶¶ 23-24 (holding that a
delay of one month and six days over the nine-month threshold to trigger a speedy trial
analysis “scarcely” crossed the bare minimum to trigger the analysis, was not extraordinary,
7
and did not weigh heavily in the defendant’s favor).
E. Reasons for the Delay
{23} Analysis of the government’s reason for the delay is closely related to analysis of the
length of the delay. Id. ¶ 25. Reasons for periods 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. We weigh deliberate delay heavily against the state. Garza, 2009-NMSC-
038, ¶ 25. Negligence or administrative delay, including delay caused by overcrowded
dockets, is weighed less heavily against the state. Id. ¶ 26. Finally, when considering valid
reasons for delay, including inevitable pretrial delay, 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.” Id. ¶ 27 (internal quotation marks and citation omitted). Consequently, the State
bears the burden of demonstrating why each period of delay was “both inevitable and wholly
justifiable, and whether a case has moved toward trial with customary promptness.”
Valencia, 2010-NMCA-005, ¶ 19 (internal quotation marks and citations omitted).
{24} We first analyze the two-month delay from Defendant’s arrest on November 24,
2006, to the State’s filing of charges against Defendant in district court on January 24, 2007.
During this period, the State dismissed the original charges in magistrate court and refiled
those same charges in district court. We conclude that this two-month period is negligent
delay that weighs slightly against the State. See Garza, 2009-NMSC-038, ¶ 28 (concluding
that the state’s decision to dismiss charges in magistrate court and refile in district court was
negligent delay that weighed against the state).
{25} We next examine the approximately four and one-half month delay between
Defendant’s indictment on January 24, 2007 and June 7, 2007, when the district attorney
asserted that it was misinformed by the district court that trial could not be scheduled before
the six-month rule ran. During this period, judges were reassigned and the State produced
discovery, identified witnesses, and requested discovery from Defendant. Consequently, we
determine that the case progressed with customary promptness during this period, and we
weigh this time period neutrally. See State v. Moreno, 2010-NMCA-044, ¶ 13, 148 N.M.
253, 233 P.3d 782 (concluding that delay during which a case moves forward with
customary promptness should be held against neither party), cert. denied, 2010-NMCERT-
005, 148 N.M. 574, 240 P.3d 1048; see also State v. Benavidez, 1999-NMCA-053, ¶ 35, 127
N.M. 189, 979 P.2d 234 (noting that a delay of less than one month attributed to the
reassignment of judges in the district court should not be allocated to either party), rev’d on
other grounds by 1999-NMSC-041, 128 N.M. 261, 992 P.2d 274.
{26} Three and one-half months elapsed between the delay beginning on June 7, 2007, and
the dismissal of Defendant’s case on speedy trial grounds on September 24, 2007. As a
result of the district court’s alleged misinformation, the State filed an unsuccessful petition
for extension of time on August 1, 2007. The State argues and the record reflects that the
State was ready to proceed with trial and had already identified its witnesses, but the State
was waiting for an available trial date on the court’s docket. Consequently, we attribute the
8
remaining three and one-half months delay slightly against the State as administrative error.
See Garza, 2009-NMSC-038, ¶¶ 26, 29 (concluding that administrative burdens such as
overcrowded courts constitute a more neutral reason such as negligence, which is weighed
less heavily against the state).
{27} After the State appealed and this Court issued a mandate to the district court for
further proceedings on May 5, 2008, the State promptly requested a trial setting on May 7,
2008. Defendant’s case was scheduled for trial on July 10, 2008. On the day of trial,
Defendant orally moved to dismiss on speedy trial grounds, and the district court granted
Defendant’s motion. We conclude that Defendant’s case proceeded with customary
promptness following the remand to the district court and weigh this two-month period
against neither party.
{28} In considering the delay of just over twelve months, we weigh five and one-half
months slightly against the State as negligent administrative delay, and we weigh the
remaining six and one-half months as neutral time that weighs against neither party. Since
the only delay in this case was negligent, the extent that it ultimately weighs against the State
depends upon the length of delay. Id. ¶¶ 26, 30. As previously discussed, the delay in this
case barely exceeded the minimum threshold to trigger the speedy trial analysis. As a result,
we conclude that the negligent administrative reasons for delay in Defendant’s case weigh
only slightly in Defendant’s favor. See id. (holding that where the length of delay only
slightly exceeded the threshold for triggering a speedy trial analysis and negligence caused
the delay, the reasons for delay factor weighed only slightly in favor of the defendant).
F. Assertion of the Right
{29} In reviewing Defendant’s assertion to his right to a speedy trial, we assess both the
timing of the assertion and the manner in which Defendant asserted the right. Id. ¶ 32. We
give weight to this factor based upon the “frequency and force” of the defendant’s objections
to the delay. Id.; see Barker, 407 U.S. at 529.
{30} The district court determined that Defendant did not make a written demand for a
speedy trial. Instead, Defendant orally moved to dismiss his case on speedy trial grounds
on the morning of trial. Moreover, Defendant acknowledges that he did not file a request
for a speedy trial in conjunction with his waiver of arraignment. However, Defendant argues
that he asserted his right to a speedy trial by opposing the State’s petition for extension of
time at the hearing on August 10, 2007.
{31} In general, “the closer to trial an assertion is made, the less weight it is given.”
Moreno, 2010-NMCA-044, ¶ 33. We recognize that an objection to an extension of time is
persuasive, but not conclusive, evidence that Defendant asserted his right to a speedy trial.
See State v. Gallegos, 2010-NMCA-032, ¶ 24, 118 N.M. 182, 231 P.3d 1124. We note that
Defendant’s opposition to the State’s petition for an extension of time occurred after the date
of his first scheduled trial in conjunction with his motion to dismiss for violation of the six-
month rule. Moreover, the record reflects that Defendant specifically asserted his right to
a speedy trial for the first time in an oral motion on the morning of his second scheduled
9
trial. As a result, we conclude that Defendant’s assertion of his speedy trial right was neither
timely nor forceful. Accordingly, we weigh Defendant’s assertion of his right to a speedy
trial only slightly in his favor.
G. Prejudice to Defendant
{32} When considering the prejudice factor of the balancing test, we evaluate the three
core interests of the speedy trial right: (1) preventing oppressive pretrial incarceration, (2)
minimizing a defendant’s anxiety and concern, and (3) limiting the possibility of impairment
to the defense. Garza, 2009-NMSC-038, ¶ 35. In evaluating the first two types of prejudice,
we recognize that some degree of oppression and anxiety is inherent for every defendant
who is awaiting trial. Id. Consequently, we weigh this factor in Defendant’s favor only
where the pretrial incarceration or anxiety is undue. Id. In comparison, prejudice to the
defense is “the most serious . . . because the inability of a defendant adequately to prepare
his case skews the fairness of the entire system.” Valencia, 2010-NMCA-005, ¶ 28 (internal
quotation marks and citation omitted). Defendant bears the burden of demonstrating and
substantiating prejudice. Id. If Defendant fails to make a particularized showing of
prejudice, the other three factors must weigh heavily in Defendant’s favor. Garza, 2009-
NMSC-038, ¶ 39.
{33} Defendant argues that he suffered unduly harsh conditions of release and undue
anxiety due to his travel restrictions, restrictions on handling firearms, and concerns that his
job or professional membership might be affected by a conviction. Defendant further argues
that the district court specifically found that Defendant suffered anxiety and concern over
and above normal anxiety for average defendants. We note, however, that the district court’s
order of dismissal specifically redacted this finding. Defendant has the burden of showing
that he suffered particularized prejudice that went beyond the generalized prejudice inherent
in the delay between arrest and trial. See id. ¶¶ 35-37. Here, Defendant’s alleged prejudice
is similar to the disruptions that any accused person might suffer and does not demonstrate
particularized prejudice. See id. ¶ 37 (concluding that where the defendant spent several
hours in jail and was released with normal bond conditions, he failed to demonstrate
particularized prejudice).
{34} Defendant also argues that his defense was prejudiced by the delay. Specifically, he
contends that the passage of time resulted in difficulty remembering the events surrounding
his case, as evidenced by his inability to remember all of the conditions of his release when
questioned by the court. We recognize that prejudice may result if defense witnesses are
unable to accurately recall events of the distant past. Id. ¶ 36. Defendant, however, neither
argues nor substantiates how any alleged memory loss prevented exculpatory testimony that
would have otherwise been offered. See id. (reasoning that where a defendant claims that
delay impaired his defense by resulting in the unavailability of a witness, the defendant must
identify with particularity what exculpatory testimony would have been offered had the
delay not occurred). Consequently, Defendant failed to demonstrate any particular
impairment to his defense, and we will not speculate as to an impairment based on
Defendant’s broad claim that his memory was diminished. See Valencia, 2010-NMCA-005,
¶ 29 (declining to speculate as to a defense impairment based upon the defendant’s broad
10
claim that the delay compromised the reliability of the trial without substantiation of any
particular impairment). As a result, we hold that Defendant failed to make a particularized
showing of prejudice that is cognizable under the prejudice factor. See Garza, 2009-NMSC-
038, ¶ 37 (holding that the defendant made no cognizable showing of prejudice where he
failed to demonstrate particularized prejudice).
H. Balancing of the Barker Factors
{35} In general, a defendant must show particularized prejudice in order for this Court to
determine that a speedy trial violation has occurred. Id. ¶ 39. If, however, both the length
and reasons for the delay “weigh heavily in [the] defendant’s favor and [the] defendant has
asserted his [speedy trial] right and not acquiesced to the delay, then the defendant need not
show [particularized] prejudice for a court to conclude that the defendant’s right has been
violated.” Id. Under such heightened circumstances, the “burden to show particularized
prejudice could be excused.” Id. ¶ 38.
{36} As in Garza, Defendant failed to show particularized prejudice, and the other factors
do not weigh heavily in his favor. See id. ¶ 40. Consequently, we conclude that Defendant’s
speedy trial right was not violated.
CONCLUSION
{37} For the foregoing reasons, we reverse the district court’s dismissal of Defendant’s
charges and remand to the district court to reinstate the charges against Defendant.
{38} IT IS SO ORDERED.
______________________________________
TIMOTHY L. GARCIA, Judge
WE CONCUR:
______________________________________
MICHAEL D. BUSTAMANTE, Judge
______________________________________
CELIA FOY CASTILLO, Judge
Topic Index for State v. Parrish, Docket No. 29,058
CT CONSTITUTIONAL LAW
CT-ST Speedy Trial
CA CRIMINAL PROCEDURE
CA-PJ Prejudice
CA-RD Right to Speedy Trial
11
CA-SP Speedy Trial
12