{ "id": 4189768, "name": "STATE OF NEW MEXICO, Plaintiff-Respondent, v. MARC ALAN SPEARMAN, Defendant-Petitioner", "name_abbreviation": "State v. Spearman", "decision_date": "2012-07-19", "docket_number": "Docket No. 32,800", "first_page": "264", "last_page": "274", "citations": [ { "type": "official", "cite": "2012-NMSC-023" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "104 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594892 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "3" }, { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/nm/104/0001-01" ] }, { "cite": "456 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182583 ], "year": 1982, "pin_cites": [ { "page": "8" } ], "opinion_index": 0, "case_paths": [ "/us/456/0001-01" ] }, { "cite": "404 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172901 ], "year": 1971, "pin_cites": [ { "page": "320" } ], "opinion_index": 0, "case_paths": [ "/us/404/0307-01" ] }, { "cite": "2008-NMSC-038", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4003109 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 32" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0424-01" ] }, { "cite": "2003-NMCA-110", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 77142 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0356-01" ] }, { "cite": "2011-NMCA-074", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4250449 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/150/0415-01" ] }, { "cite": "505 U.S. 647", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1480837 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "652" }, { "page": "656" } ], "opinion_index": 0, "case_paths": [ "/us/505/0647-01" ] }, { "cite": "1999-NMSC-038", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106481 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 59" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0192-01" ] }, { "cite": "2008-NMSC-062", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4242786 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 8" }, { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0242-01" ] }, { "cite": "407 U.S. 514", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9139028 ], "weight": 10, "year": 1972, "pin_cites": [ { "page": "530" }, { "page": "533" }, { "page": "531" }, { "page": "531" }, { "page": "531" }, { "page": "532" }, { "page": "532-33" } ], "opinion_index": 0, "case_paths": [ "/us/407/0514-01" ] }, { "cite": "2009-NMSC-038", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243125 ], "weight": 18, "pin_cites": [ { "page": "\u00b6\u00b6 2, 48" }, { "page": "\u00b6 39" }, { "page": "\u00b6 11" }, { "page": "\u00b6 13" }, { "page": "\u00b6\u00b6 47-48" }, { "page": "\u00b6 21" }, { "page": "\u00b6 48" }, { "page": "\u00b6 24" }, { "page": "\u00b6 25" }, { "page": "\u00b6 35" }, { "page": "\u00b6 35" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0499-01" ] }, { "cite": "2009-NMSC-002", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243280 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 1, "case_paths": [ "/nm/145/0473-01" ] } ], "analysis": { "cardinality": 1253, "char_count": 32562, "ocr_confidence": 0.829, "pagerank": { "raw": 2.113040324224011e-07, "percentile": 0.7634887207709793 }, "sha256": "aff378e2e06587f2d9280078280a362ac46aa1e2480998b33fd34c2e8fb3f80d", "simhash": "1:fd06fbb519e40ff2", "word_count": 5374 }, "last_updated": "2023-07-14T17:22:38.419741+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "RICHARD C. BOSSON, Justice", "PETRA JIMENEZ MAES, Chief Justice", "PATRICIO M. SERNA, Justice", "EDWARD L. CH\u00c1VEZ, Justice", "CHARLES W. DANIELS, Justice (specially concurring)", "CHARLES W. DANIELS, Justice" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Respondent, v. MARC ALAN SPEARMAN, Defendant-Petitioner." ], "opinions": [ { "text": "OPINION\nBOSSON, Justice.\n{1} Speedy trial analysis under the United States Constitution requires a balancing and weighing of several factors, including the length of delay, the cause of the delay, timely assertion of the right, and prejudice to the accused. When, as here, one of those factors \u2014 in this case the cause of the delay \u2014 weighs heavily against the State based on its own dilatory and deceptive conduct in prosecuting the case, the district court justly may dismiss the charges even though the remaining factors favor the accused only slightly. The district court did so in this instance, but was reversed by the Court of Appeals due to the lack of perceived prejudice to the accused. For the reasons that follow, we reverse the Court of Appeals and remand to the district court for a new speedy trial hearing.\nBACKGROUND\n{2} Marc Alan Spearman (Defendant) was charged by information with one count each of practicing architecture without a license, fraud, and forgery on December 3, 2008. The charges stemmed from allegations that Defendant, a licensed architectural draftsman with his own business, provided architectural services that he was not licensed to provide. The first count involved a dispute with a former client over whether Defendant had misrepresented himself as an architect. The second and third counts involved an allegation that he either had forged an architect\u2019s seal or altered a sealed design. Defendant has continuously maintained that he had never misrepresented himself as an architect and that the changes he made to the plans at issue were approved by a licensed architect, Charles Pearson. Defendant claims that Mr. Pearson disavowed his approval of the plans to \u201cavoid professional discipline,\u201d after those plans were rejected by the San Juan County Building Department.\n{3} Defendant was arrested but released on bond after spending one day in jail. On December 22, 2008, Defendant\u2019s attorney filed an entry of appearance and made a demand for a speedy trial. The case was then refiled in district court and a trial date was first set for August 4, 2009.\n{4} On June 30, 2009, the State filed its first motion to continue. As grounds for the continuance, the State claimed that a witness \u201cwill be out of town and unable to attend the trial.\u201d The court granted the motion and a new trial date was set for October 6, 2009.\n{5} In the interim, Defendant filed a motion to exclude witnesses and evidence. A hearing was set for that motion on July 15, 2009. Two days before the hearing the State filed a motion to continue, stating that counsel would be out of the country. According to that motion, \u201c[defense] counsel could not be reached by telephone on July 08, 2009.\u201d The hearing on the motion was rescheduled for September 15, 2009. The record does not contain any indication that a hearing was held on that day or that a hearing scheduled for that day was continued, and it is unclear why.\n{6} On September 29, 2009, seven days before the second trial date, the State again filed a motion to continue, claiming to need more time to respond to another of Defendant\u2019s motions. The district court rescheduled the trial, now the third trial setting, for January 7, 2010.\n{7} On December 18, 2009, the State filed its third motion to continue the trial, overall its fourth motion for a continuance in this case, on the ground that the \u201cState\u2019s key material witness . . . will be out of state . . . until January 14, 2010.\u201d The motion also stated that \u201c[ojpposing counsel takes no position.\u201d For the third time, the district court granted the motion to continue, and rescheduled the trial for February 9, 2010, the fourth trial date thus far.\n{8} On February 3, 2010, six days before the fourth trial setting, the State once again filed a motion to continue. This time the State claimed that the case was being reassigned to a new prosecutor who needed more time to prepare for trial. The motion was granted the next day, February 4, 2010. Although the motion stated that opposing counsel was unavailable, Defendant filed a response formally opposing the motion on that same day, claiming that \u201c[i]f the State\u2019s motion were granted, this would make the sixth hearing to be vacated as a result of the State. Five were continued at the State\u2019s direct request, and one was a result of [State\u2019s counsel] not providing discovery.\u201d Ultimately a new trial date was set for April 20, 2010.\n{9} On March 16, 2010, Defendant filed a motion to dismiss for violation of his constitutional right to a speedy trial. At this point, more than 15 months had passed since Defendant\u2019s indictment, and the trial was still another month away. In addition to the various delays previously discussed, the motion noted that the State had delayed discovery, which defense counsel finally received \u201cthe first week of July, three weeks after the first trial setting.\u201d Defendant also stated that, along with his written opposition to the motion to continue the February 9, 2010 trial setting, Defendant had also opposed \u201cthe second extension of time (filed January 11, 2010),\u201d although \u201cthe petition indicates \u2018opposing counsel takes no position.\u2019\u201d\n{10} The motion further alleged how these delays had prejudiced Defendant. Due to the nature of the pending charges, Defendant had been unable to work in his profession as a draftsman, and had \u201clost three different j obs as a result of the pending felony charges.\u201d Moreover, Defendant was compelled to file for bankruptcy and had to move as a result of his unemployment. The State never attempted to rebut these allegations of prejudice, and the district court scheduled a hearing on the motion to dismiss for April 14, 2010.\n{11} The State filed a written response to the motion two days before the hearing. The State argued that this was a complex case, and therefore, under State v. Garza, 2009-NMSC-038, \u00b6\u00b6 2, 48, 146 N.M. 499, 212 P.3d 387, the delay had not yet exceeded the eighteen-month threshold for a complex case, requiring the district court to reject the motion. In the alternative, the State argued that if the district court found the case was of intermediate complexity, the balancing test under Barker v. Wingo, 407 U.S. 514, 530 (1972), also required rejection of the motion.\n{12} The district court conducted a hearing which began with the judge asking defense counsel about the alleged prejudice to her client. Defense counsel responded by repeating the allegations in the written motion to dismiss, pertaining to lost job opportunities and bankruptcy. The court then inquired specifically about alleged prejudice to the ability to prepare a defense. In response, counsel conceded that Defendant had not suffered any actual prejudice to his defense.\n{13} After the short discussion about prejudice, the judge steered the hearing toward a discussion of whether the case should be classified as simple, intermediate, or complex. Defense counsel characterized the charges as simple, but the amount of documents provided during discovery might make it of intermediate complexity. The court opined that \u201cit appears to me that . . . this is not a very complicated case,\u201d and then later stated \u201cI think this is a simple case.\u201d The court laid out what the State needed to prove to win its case \u2014 \u201cIs he an architect? No. Did he represent himself as an architect? Yes. What was the damage? That doesn\u2019t sound complicated.\u201d\n{14} Ultimately, the court found a speedy trial violation and dismissed all of the charges against Defendant. While the district court did not find any prejudice to Defendant, it weighed the length of delay and the assertion of the right heavily against the State. The court weighed the reason for the delay \u201cextremely heavily\u201d against the State. In its order dismissing the charges, the district court stated:\nThe basis for the State\u2019s first Motion to Continue the trial was that a witness would be unavailable. This led the Court to believe that the State was otherwise prepared to proceed to trial. However after that continuance was granted, the State amended its witness list and its exhibit list, and provided Defense Counsel and the Court with multitudinous documents by way of discovery. The Court has since struck those documents from the record. The Court now finds that the State was not prepared to proceed to trial at the time the first continuance was filed. This Court also notes that the second Petition for Extension of Time was based on the allegation that the Court would not be able to set the trial prior to the expiration of the Six-Month Rule. However, this Court had set this matter for trial four previous times within the Rule and the first extension.\nThe district court ultimately found \u201cthat the State was dilatory in its pursuit of this matter,\u201d and dismissal was the appropriate remedy.\n{15} The Court of Appeals reversed in a memorandum opinion. State v. Spearman, No. 30,493, slip op. at 8 (N.M. Ct. App. Dec. 10, 2010). The Court of Appeals agreed with the district court that Defendant was not prejudiced and that the other three factors weighed against the State. Id, slip op. at 4, 5-6, 7. However, the Court of Appeals did not agree that the three other factors weighed heavily against the State, as they must under Garza, 2009-NMSC-038, \u00b6 39, to warrant dismissal of the charges. Spearman, No. 30,493, slip op. at 3. Accordingly, the Court of Appeals reversed the district court and ordered the charges reinstated.\nDISCUSSION\n{16} The right of the accused to a speedy trial is guaranteed by both the Sixth Amendment of the United States Constitution and Article II, Section 14 of the New Mexico Constitution. The right \u201cescapes precise definition\u201d and has been described as \u201camorphous, slippery, and necessarily relative.\u201d Garza, 2009-NMSC-038, \u00b6 11 (internal quotation marks and citation omitted). Therefore, any determination of whether the right has been violated depends on \u201can analysis of the peculiar facts and circumstances of each case.\u201d Id.\n{17} The United States Supreme Court gave four factors to consider in Barker, 407 U.S. at 530: (1) length of delay, (2) the reason for the delay, (3) the defendant\u2019s assertion of the right, and (4) prejudice to the defendant. Each of these factors is weighed either in favor of or against the State or the defendant, and then balanced to determine if a defendant\u2019s right to a speedy trial was violated. See Garza, 2009-NMSC-038, \u00b6 13.\n{18} The Barker Court concluded that the factors \u201chave no talismanic qualities,\u201d and none of them are \u201ca necessary or su, ficient condition to the finding of a [violation] of the right of speedy trial.\u201d Barker, 407 U.S. at 533. \u201cRather, they are related factors and must be considered together with such other circumstances as may be relevant.\u201d Id.\n{19} Ruling on a motion to dismiss due to a speedy trial violation requires the district court to \u201cmake certain factual determinations and legal conclusions.\u201d State v. Maddox, 2008-NMSC-062, \u00b6 8, 145 N.M. 242, 195 P.3d 1254, abrogated on other grounds by Garza, 2009-NMSC-038, \u00b6\u00b6 47-48. Thus, \u201cwe give deference to the [district] court\u2019s factual findings,\u201d but we review \u201cthe weighing and the balancing [of] the Barker factors de novo.\u201d Id.\nThe Length of Delay\n{20} The length of delay serves two purposes under the speedy trial analysis. First, the length of delay acts as a \u201ctriggering mechanism requiring further inquiry into the Barker factors\u201d once the delay has reached a specified amount of time, depending on the difficulty of the case. Garza, 2009-NMSC-038, \u00b6 21. Second, the length of delay remains one of the four Barker factors to be weighed and balanced in the final speedy trial inquiry. Id. % 23.\n{21} Whether or not the length of delay is presumptively prejudicial, triggering an inquiry into the Barker factors, depends on the complexity of the case. First, the court must classify the case as simple, intermediate, or complex. See Maddox, 2008-NMSC-062, \u00b6 9. A delay of trial of one year is presumptively prejudicial in simple cases, fifteen months in intermediate cases, and eighteen months in complex cases. See Garza, 2009-NMSC-038, \u00b6 48.\n{22} Returning to the case at bar, it is difficult to determine exactly how this case was classified. During the hearing, the district court referred to the case as \u201csimple\u201d multiple times. Yet on the final written order dismissing the case, the court crossed out the word \u201csimple\u201d and wrote \u201csimple to intermediate case.\u201d The charges were dismissed after a delay of sixteen months without going to trial, so in either case the delay was presumptively prejudicial, triggering an inquiry into the Barker factors.\n{23} A difficulty arises, however, when determining how heavily to weigh the delay against the State. When weighing \u201cthe length of delay, we consider \u2018the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.\u2019\u201d State v. Coffin, 1999-NMSC-038, \u00b6 59, 128 N.M. 192, 991 P.2d 477 (quoting Doggett v. United States, 505 U.S. 647, 652 (1992)). If this is a simple case, then the delay was four months past the presumptively prejudicial threshold, while if it is an intermediate case the delay was only one month past the threshold. By classifying the case as simple to intermediate, the district court provided no threshold guideline.\n{24} The district court weighed the length of delay heavily against the State. While we agree that the length of delay does weigh against the State, we cannot say that it does so heavily. In Garza, this Court stated that \u201cthe greater the delay the more heavily it will potentially weigh against the State.\u201d 2009-NMSC-038, \u00b6 24. Accordingly, this Court concluded that a delay of one month and ten days beyond the presumptively prejudicial period \u201cdoes not weigh heavily in Defendant\u2019s favor.\u201d Id.; see also State v. Montoya, 2011-NMCA-074, \u00b6 17, 150 N.M. 415, 259 P.3d 820 (stating that a delay of six months beyond the presumptive period weighed only slightly against the State); State v. Brown, 2003-NMCA-110, \u00b6 16, 134 N.M. 356, 76 P.3d 1113 (holding that a delay of three months beyond the presumptive minimum was weighed in the defendant\u2019s favor, although not heavily). Therefore, while the delay in this case does weigh against the State, be it a delay of one month or four months, the court erred in weighing that delay heavily against the State.\nReason for the Delay\n{25} \u201cBarker identified three types of delay, indicating that \u2018different weights should be assigned to different reasons\u2019 for the delay.\u201d Garza, 2009-NMSC-038, \u00b6 25 (quoting Barker, 407 U.S. at 531). On one end of the spectrum, \u201c\u2018a valid reason, such as a missing witness, should serve to justify appropriate delay.\u2019\u201d Id. \u00b6 27 (quoting Barker, 407 U.S. at 531). Negligent or administrative delay is weighed against the State, \u201c\u2018since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant,\u201d\u2019 but such a reason is not weighed heavily. Id. \u00b6 26 (quoting Barker, 407 U.S. at 531). Finally, \u201c\u2018Barker stressed that official bad faith in causing delay will be weighed heavily against the government,\u2019 and excessive bad-faith delay may present an overwhelming case for dismissal.\u201d Id. \u00b6 25 (quoting Doggett, 505 U.S. at 656) (emphasis added).\n{26} Here, the State was responsible for all of the delay. The State requested four trial continuances, at least one continuance of a motion hearing, and two extensions of time limits under Rule 5-604(B) NMRA. Defendant did not ask for any continuances and opposed at least one of the requests.\n{27} Not only was the State responsible for the entire delay, the district court also found that \u201cthe State was dilatory in its pursuit of this matter,\u201d as well as with its responsibility to provide timely discovery. In addition, the district court found that the State had misled the court in justifying certain continuances and other extensions of time. Ultimately, the court found a pattern of delay on the part of the State, and we agree with the court that this factor does weigh heavily against the State.\n{28} In a typical case, the State prepares much of the evidence against the accused even before filing charges. Early preparation may be necessary to get a grand jury indictment or a finding of probable cause at a preliminary hearing. Oftentimes, it is the accused and not the State who needs more time to prepare. In this case, however, it was the State that needed more time to prepare, at least in part because of \u201c900\u201d or \u201c1300\u201d pages of documents that the previous prosecutor attempted to add to the court file and provided to Defendant through discovery.\n{29} This reason for delay weighs against the State for two reasons. First, it was the State that unnecessarily complicated the case, as the district court ultimately excluded these documents, indicating that they were irrelevant. Second, even if the documents were relevant, it should not have taken the State months to review them, as the district court reasonably could have concluded.\n{30} Therefore, based on the State\u2019s conduct in this case, we agree that the reason for the delay should, in the words of the district court, weigh \u201cextremely heavily\u201d against the State. The district court was apparently offended by the State\u2019s dilatory conduct in this case, which the record supports.\nAssertion of the Right\n{31} Under this factor, \u201cwe assess the timing of the defendant\u2019s assertion and the manner in which the right was asserted.\u201d Garza, 2008-NMSC-038, \u00b6 32. \u201c[W]e accord weight to the frequency and force of the defendant\u2019s objections to the delay\u201d and \u201canalyze the defendant\u2019s actions with regard to the delay.\u201d Id. (internal quotation marks and citation omitted). Accordingly, we must \u201cclosely analyze the circumstances of each case.\u201d Id. \u00b6 33.\n{32} Here, Defendant first asserted the right by way of a motion filed on December 22, 2008, shortly after the State first filed charges against him. After this assertion of the right, Defendant did not oppose the initial delays requested by the State. It is unclear exactly when this position changed. Defendant claims to have opposed the State\u2019s second petition to extend the time limits under Rule 5-604, filed on January 11, 2010, when asked by the State for a position on the matter. However, the petition itself states that \u201c[Defendant does not take a position on this request.\u201d Defendant filed a written objection on February 4,2010 to the State\u2019s final motion to continue the trial. Defendant ultimately filed a motion to dismiss based on a violation of speedy trial rights on March 16, 2010.\n{33} The district court found that this was a sufficient assertion of his right, and we agree that it was adequate, though certainly not impressive or aggressive. We agree with the district court\u2019s characterization of the record that\u201c[w]hile [Defendant] did not aggressively assert [the right],. .. [h]e did not acquiesce to the delay.\u201d Accordingly, we weigh this factor against the State as well.\nPrejudice to Defendant\n{34} The United States Supreme Court has identified three interests that the right to a speedy trial protects: \u201c(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.\u201d Barker, 407 U.S. at 532. It is within this framework that we analyze prejudice to Defendant. See Garza, 2009-NMSC-038, \u00b6 35.\n{35} The district court and the Court of Appeals both concluded that Defendant suffered no prejudice. Spearman, No 30,493, slip op. at 7. Both courts focused on the first and third interests protected by the speedy trial guarantee. The Court of Appeals stated \u201cGarza makes clear that the kind of prejudice that is important is pretrial incarceration and possible impairment to the defense.\u201d Spearman, No 30,493, slip op. at 4. While those two consequences of delay are undeniably important, they are not exclusive.\n{36} In Garza, the focus of the discussion about prejudice was on pretrial incarceration and impairment of the defense, but it was not the entirety of the discussion. 2009-NMSC-038, \u00b6 35. Specifically, we stated that \u201cwe weigh this factor in the defendant\u2019s favor . . . where the pretrial incarceration or the anxiety suffered is undue.\u201d Id. (emphasis added). While the discussion of the anxiety and concern caused by the delay was intertwined with pretrial incarceration, we never intended Garza to hold that the second prong of the prejudice analysis \u2014 anxiety and concern caused by undue delay \u2014 is no longer relevant. The right to a speedy trial derives from the federal constitution and, to that extent, we are obliged to defer to the analysis of the United States Supreme Court. See U.S. Const. Art. VI.\n{37} In addition, an accused does not need to be incarcerated to suffer some of the same hardships and prejudice the right to a speedy trial was meant to prevent. In Barker, the United States Supreme Court stated the reasons that pretrial incarceration can be prejudicial, beyond the loss of liberty that necessarily accompanies it. 407 U.S. at 532-33. \u201cIt often means loss of a job; it disrupts family life; and it enforces idleness .... The time spent in jail is simply dead time.\u201d Id. The Court also made clear that an accused does not need to be in jail to sitffer prejudice, stating \u201ceven if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility.\u201d Mat 533. Barker was neither the first nor the last time that the United States Supreme Court recognized as much. In United States v. Marion, 404 U.S. 307, 320 (1971), the Court stated that\nthe major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused\u2019s defense. To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant\u2019s liberty, whether he is free on hail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.\n(Emphasis added.); accord United States v. MacDonald, 456 U.S. 1, 8 (1982) (\u201cThe speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.\u201d).\n{38} In the instant case, Defendant claims to have suffered some of the prejudice that normally flows from incarceration. According to defense counsel, Defendant \u201clost three different jobs as a result of the pending felony charges.\u201d Defendant was \u201ca licensed draftsman,\u201d but due to the nature of the charges \u201che can no longer be employed in that capacity.\u201d Defendant was \u201cunable to find work.\u201d Loss of employment, especially being unable to work in one\u2019s licensed profession, is a consequence of delay that a reviewing court cannot ignore. Additionally, Defendant \u201chad to file for bankruptcy\u201d and \u201chad to move as a result of losing employment.\u201d If these allegations are true, Defendant undeniably suffered some prejudice as a result of the pending charges against him. But, we are unable to determine from the record before us if the prejudice resulted from the delay in this case.\n{39} In this case, the claimed showing of prejudice came in the form of allegations of counsel, both in the written motion to dismiss and at the hearing. Allegations of counsel are not generally considered evidence. See Wall v. Pate, 104 N.M. 1, 3, 715 P.2d 449, 451 (1986). Defendant should have offered some actual evidence in the form of affidavits, testimony, or documentation in support of the allegations of lost employment and bankruptcy. Such evidence could have established that the delay in trial beyond the presumptive period caused the alleged prejudice as opposed to the original indictment. As it stands, however, there is simply no evidence in the record from which the district court, let alone this Court, can make a determination as to whether or not Defendant was prejudiced by the delay in bringing this matter to trial. Accordingly, an evidentiary hearing addressing the entire speedy trial issue is necessary in order to allow Defendant the opportunity to submit such evidence. Without such a causal link, Defendant has not shown that the delay in trial prejudiced him in any way and accordingly there would be no speedy trial violation.\nCONCLUSION\n{40} The Court of Appeals\u2019 opinion is hereby reversed and remanded to the district court for further proceedings consistent with this opinion.\n{41} IT IS SO ORDERED.\nRICHARD C. BOSSON, Justice\nWE CONCUR:\nPETRA JIMENEZ MAES, Chief Justice\nPATRICIO M. SERNA, Justice\nEDWARD L. CH\u00c1VEZ, Justice\nCHARLES W. DANIELS, Justice (specially concurring)\nDefendant does not assert thatNew Mexico\u2019s speedy trial guarantee should be interpreted differently from the Sixth Amendment, nor have we done so in the past. See Garza, 2009-NMSC-038^ 10,n.l. Therefore, we will treat both protections as the same for the puiposes of this opinion.", "type": "majority", "author": "BOSSON, Justice." }, { "text": "DANIELS, Justice,\nspecially concurring.\n{42} I agree with what the Court has written about the current law applicable to speedy trial motions in general and about the need in this particular case for a remand to the district court for an evidentiary hearing on Defendant\u2019s speedy trial motion to ensure that the final disposition is based on actual fact, instead of mere conjecture. I write separately to express my concerns about the existing record in this case and, perhaps more importantly in the long run, some thoughts about improved approaches to accommodating an accused\u2019s constitutional right to a speedy trial, the strong interest of the public in having criminal cases determined on their merits, and the judiciary\u2019s task of managing its caseloads responsibly.\n{43} There is nothing in the record that tells us when the claimed prejudice to this defendant occurred or whether the prejudice was caused by any inappropriate period of delay. As we have noted in Jones v. Murdoch, 2009-NMSC-002, \u00b6 18, 145 N.M. 473, 200 P.3d 523, the mere fact of a public criminal prosecution creates immediate and irreparable harm to one\u2019s reputation, employment opportunities, and economic circumstances, without regard to the final resolution of the case. There is no evidence to show that this defendant suffered those consequences in this case because of the last continuance or a previous one or any other particular delay in getting the case to trial. In fact, there is no evidence at all in the record. In assessing claimed prejudice from an alleged denial of the right to a speedy trial, timing is a necessary consideration for both the trial court and the reviewing appellate court.\n{44} I am also troubled by the district court\u2019s finding, or perhaps more accurately, supposition, that the prosecution had engaged in deceptive and misleading conduct to delay Defendant\u2019s trial. While fraudulent representations to a court by attorneys are obviously matters of serious concern that our courts must respond to and sanction, such serious accusations should not be made lightly. The district court apparently inferred that the prosecutors must have been lying about being ready for trial when they asked for one continuance by representing that a witness was unavailable, because they then worked further on improving their case after receiving the continuance. See, e.g., the remarks of the district court set forth in \u00b6 14 of the majority Opinion. Good trial lawyers do not stop working to improve their cases after getting a continuance, no matter what the reason for the continuance. Trial preparation is a never-ending work in progress. I can think of no good reason why our courts should condition a rescheduling request on a party\u2019s ceasing improvement of its case, but if we do intend to impose such a novel limitation, we certainly ought to require fair notice that this is going to be the new rule and not allow the prosecution to be blindsided with an outright dismissal as a sanction for working on its case. In any event, this is a matter that can be clarified at the hearing on remand.\n{45} On a matter of more systemic concern, I am troubled about the ways in which trial courts traditionally have tried to cope with speedy trial issues, often as a result of inadequate guidance from appellate courts. One set of problems is created by our historical attempts to pigeonhole cases into three judicially-created categories of complexity, followed by our application of three different standards of time measurement and prejudice assessment, depending on which artificial complexity pigeonhole we put the cases into. As exemplified by the uncertainty of categorization in this case, there is no reliable way to put cases into those rigid complexity categories. Each case should be examined as a unique entity, because in reality each case is different. Promulgation of artificial categories and formulas creates the danger that in using them we end up thinking words instead of thoughts and lose sight of what we are doing.\n{46} I am especially concerned about our judicial branch\u2019s aborting a criminal prosecution on speedy trial grounds after the dismissing court itself has approved all the requested discretionary continuances and, presumably, the validity of the grounds for the motions. In this case, if the trial court had refused to grant a requested continuance, eitherbecause the grounds were insufficient or because postponing the trial would have jeopardized Defendant\u2019s speedy trial rights, the prosecutors would have been on fair notice that they had to be in court on the scheduled date with whatever case they had, even with the inconvenience of substitute counsel or missing witnesses. They would have known that they had to put up or suffer the consequences. As it was, they had the rug pulled out from under them and never got to try. They were first told that the court approved rescheduling the trial and then told that their case was unexpectedly given a death sentence and dismissed without a fair trial, not because they did not appear with a case on the court-scheduled trial date, but because the court exercised its judicial discretion to agree to a change of the trial date before telling them that, as a result of that change, they could no longer prosecute the case at all.\n{47} The speedy trial guarantee is undeniably important and may often be insufficiently protected. Our courts must find fair ways to enforce it and all other important rights. But in doing so, we should always try to resolve cases on their true merits where possible. A better way to accommodate the rights of a defendant and the legitimate interests of the prosecution is for trial courts to consider, and if appropriate even formally rule on, the question whether a requested recalendaring will result in an infringement of a defendant\u2019s speedy trial rights before a continuance request is ruled on and before the prosecution is left unexpectedly with no alternative of any kind. Courts now have the broad discretion to exercise that kind of control over their own dockets, whether or not we ever revise our criminal procedure rules to mandate that judges inquire into speedy trial consequences before granting a continuance motion. In taking speedy trial concerns into account before postponing trials, instead of afterward, judges can better protect the accused\u2019s right to a speedy trial without sacrificing society\u2019s interest in enforcement of its criminal laws.\nCHARLES W. DANIELS, Justice", "type": "concurrence", "author": "DANIELS, Justice," } ], "attorneys": [ "Gary K. King, Attorney General Nicole Beder, Assistant Attorney General Ralph E. Trujillo, Assistant Attorney General Santa Fe, NM for Respondent", "Law Office of Scott M. Davidson Scott M. Davidson Albuquerque, NM Practicing Law Students of the University of New Mexico School of Law Kevin Nault Candra Rivers Andrea Salazar for Petitioner", "Law Office of Jamison Barkley LLC Jamison Barkley Santa Fe, NM For Amicus New Mexico Criminal Defense Lawyers Association" ], "corrections": "", "head_matter": "IN THE SUPREME COURT OF THE STATE OF NEW MEXICO\nOpinion Number: 2012-NMSC-023\nFiling Date: July 19, 2012\nDocket No. 32,800\nSTATE OF NEW MEXICO, Plaintiff-Respondent, v. MARC ALAN SPEARMAN, Defendant-Petitioner.\nGary K. King, Attorney General Nicole Beder, Assistant Attorney General Ralph E. Trujillo, Assistant Attorney General Santa Fe, NM for Respondent\nLaw Office of Scott M. Davidson Scott M. Davidson Albuquerque, NM Practicing Law Students of the University of New Mexico School of Law Kevin Nault Candra Rivers Andrea Salazar for Petitioner\nLaw Office of Jamison Barkley LLC Jamison Barkley Santa Fe, NM For Amicus New Mexico Criminal Defense Lawyers Association" }, "file_name": "0264-01", "first_page_order": 280, "last_page_order": 290 }