{ "id": 4240075, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. JOHN ERIC OCHOA, Defendant-Appellant", "name_abbreviation": "State v. Ochoa", "decision_date": "2014-06-06", "docket_number": "No. 34,630; Docket No. 31,243", "first_page": "205", "last_page": "212", "citations": [ { "type": "official", "cite": "2014-NMCA-065" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2003-NMCA-048", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15780 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 42" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0495-01" ] }, { "cite": "2010-NMCA-044", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4247862 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 36-37" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0253-01" ] }, { "cite": "2003-NMCA-144", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 77156 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 29" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0648-01" ] }, { "cite": "2009-NMCA-020", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4242554 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 27" } ], "opinion_index": 0, 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"case_paths": [ "/us/407/0514-01" ] }, { "cite": "2009-NMSC-038", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243125 ], "weight": 20, "year": 1972, "pin_cites": [ { "page": "\u00b6 10" }, { "page": "\u00b6 23" }, { "page": "\u00b6 21" }, { "page": "\u00b6 48" }, { "page": "\u00b6 24" }, { "page": "\u00b6 48" }, { "page": "\u00b6 24" }, { "page": "\u00b6\u00b6 25-27" }, { "page": "\u00b6 32" }, { "page": "\u00b6 39" }, { "page": "\u00b6 35" }, { "page": "\u00b6 39" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0499-01" ] } ], "analysis": { "cardinality": 903, "char_count": 20620, "ocr_confidence": 0.78, "pagerank": { "raw": 6.438528682255365e-08, "percentile": 0.3974893903080836 }, "sha256": "c8c0b2db21c41bbc035b98f375d867c3b57f0f4f06ec4c6e69966874a2914b6e", "simhash": "1:f96af3a907b30fa3", "word_count": 3296 }, "last_updated": "2023-07-14T17:19:17.637489+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MICHAEL E. VIGIL, Judge", "WE CONCUR:", "TIMOTHY L. GARCIA, Judge", "M. MONICA ZAMORA, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. JOHN ERIC OCHOA, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nVIGIL, Judge.\n{1} Convicted of two counts of criminal sexual contact of a minor and one count of interference with communications, Defendant appeals. Because we agree with Defendant that his constitutional right to a speedy trial was violated, we reverse.\nANALYSIS OF A SPEEDY TRIAL CLAIM\n{2} \u201cThe right to a speedy trial is a fundamental right of the accused,\u201d guaranteed by the \u201cSixth Amendment to the United States Constitution, [and] applicable to the states through the Fourteenth Amendment.\u201d State v. Garza, 2009-NMSC-038, \u00b6 10, 146 N.M. 499, 212 P.3d 387; see U.S. Const. amend. VI; N.M. Const. art. II, \u00a7 14. To determine whether this right was violated, we consider the following four factors discussed in Barker v. Wingo, 407 U.S. 514, 530-32 (1972): \u201c(1) the length of the delay, (2) the reasons given for the delay, (3) the defendant\u2019s assertion of the right to a speedy trial, and (4) prejudice to the defendant.\u201d State v. Collier, 2013-NMSC-015, \u00b6 39, 301 P.3d 370 (internal quotation marks and citation omitted).\n{3} We first determine whether the length of pretrial delay is \u201c\u2018presumptively prejudicial.\u2019\u201d Garza, 2009-NMSC-038, \u00b6 23 (quoting Barker, 407 U.S. at 533). Only when the length of delay is presumptively prejudicial, do we proceed to consideration of the Barker factors. See Garza, 2009-NMSC-038, \u00b6 21 (\u201c[A] \u2018presumptively prejudicial\u2019 length of delay is simply a triggering mechanism, requiring further inquiry into the Barker factors.\u201d).\n{4} DefendantwasarrestedonMay 12,2008. His trial occurred just over two years later, on May 17-20, 2010. The twenty-four-month delay between Defendant\u2019s arrest and his trial surpasses the eighteen-month threshold for even the most complex cases, thereby triggering the need to weigh all of the Barker factors. See Garza, 2009-NMSC-038, \u00b6 48 (\u201c[Ejighteen months may be presumptively prejudicial for complex cases.\u201d).\nSTANDARD OF REVIEW\n{5} \u201cIn considering each of the factors, we defer to the district court\u2019s factual findings but review de novo the question of whether [the defendant's constitutional right to a speedy trial was violated.\u201d State v. Montoya, 2011-NMCA-074, \u00b6 9, 150 N.M. 415, 259 P.3d 820. Whether the right to a speedy trial has been violated is determined by the circumstances of each particular case. State v. Spearman, 2012-NMSC-023, \u00b6 16, 283 P.3d 272. We now turn to the Barker factors.\nDISCUSSION\n1. Length of the Delay\n{6} \u201cIn determining the weight to be given to the length of delay, we consider the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the [speedy trial] claim.\u201d State v. Wilson, 2010-NMCA-018, \u00b6 26, 147 N.M. 706, 228 P.3d 490 (internal quotation marks and citation omitted); see also Garza, 2009-NMSC-038, \u00b6 24 (same). The district court made a finding that this case is complex, making the threshold eighteen months. See id. \u00b6 48.\n{7} Because the delay between Defendant\u2019s date of arrest and his trial was slightly over twenty-four months, the delay stretches six months beyond the presumptively prejudicial threshold for complex cases. See Garza, 2009-NMSC-038, \u00b6 48. Although this delay is not so extraordinary as to weigh heavily in Defendant\u2019s favor, it nonetheless weighs in his favor; see also id. \u00b6 24 (\u201cConsidering the length of delay as one of the four Barker factors, the greater the delay the more heavily it will potentially weigh against the [s]tate.\u201d); compare State v. Stock, 2006-NMCA-140, \u00b6 18, 140 N.M. 676, 147 P.3d 885 (concluding that the three and one-half years delay was \u201cparticularly egregious\u201d and weighing the factor heavily in the [defendant's favor), with Garza, 2009-NMSC-038, \u00b6 24 (concluding that a delay of one month beyond the threshold \u201cwas not extraordinary and does not weigh heavily in [the defendant's favor\u201d), and Wilson, 2010-NMCA-018, \u00b6 29 (stating that delay of five months beyond the guideline for a simple case was not so extraordinary or protracted as to compel weighing the length of delay factor against the state more than slightly).\n2. Reasons for the Delay\n{8} \u201cBarker identified three types of delay, indicating that different weights should be assigned to different reasons for the delay.\u201d Spearman, 2012-NMSC-023, \u00b6 25 (internal quotation marks and citation omitted). These are: (1) deliberate or intentional delay; (2) negligent or administrative delay; and (3) delay for which there is a valid reason. Garza, 2009-NMSC-038, \u00b6\u00b6 25-27.\n{9} Deliberate delay is to be \u201cweighted heavily against the government.\u201d Id. \u00b6 25 (internal quotation marks and citation omitted). On the other hand, \u2018\u201c[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.\u2019\u201d Id. \u00b6 26 (quoting Barker, 407 U.S. at 531). Indeed, \u201cnegligence ... stilf falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun.\u201d Id. (internal quotation marks and citation omitted). \u201cThe degree of weight we assign against the [s]tate for negligent delay is closely related to the length of delay[.]\u201d Id. \u201cIntermediate categories of delay, such as bureaucratic indifference or failure to take reasonable means to bring a case to trial, are considered more culpable and weigh more heavily against the [sjtate, especially if the defendant has sought to safeguard his rights.\u201d State v. Gallegos, 2010-NMCA-032, \u00b6 22, 148 N.M. 182, 231 P.3d 1124 (alteration in original) (internal quotation marks and citation omitted).\n{10} The record reflects that ten months of delay was due to negligence and for administrative reasons. Defendant\u2019s trial was set and reset eight times before he was finally tried. Several of the trial settings were vacated because the trial was set for a three-day period when three days were not actually available. The first trial, which was set for approximately six months after Defendant had been arrested, was reset due to one of the days falling on a holiday, causing a delay over one month long. Another trial setting was vacated because the trial was erroneously set for one day, causing a five-month delay. Another trial setting was vacated because the third day fell on a furlough for state employees ordered by the Governor, which would have left the defense counsel without any support staff. This caused a two-month delay. The State argues that this last period should weigh against Defendant because Defendant requested the continuance and defense counsel, having had notice of the furlough day, could have made alternate arrangements. However, the district court granted the continuance, acknowledging that it was necessary \u201cto ensure that [d]efense [c]ounsel has adequate support staff to prepare a defense.\u201d The district court also stated at the hearing on Defendant\u2019s motion to continue that it was \u201caware of the mandatory furlough\u201d and as a policy had \u201cnot been setting public defender trials on that day\u201d but that it may not have entered its mind when setting Defendant\u2019s trial. Another trial setting was vacated because of a pending defense motion that had not been heard, causing a two-month delay. All of this ten-month delay, though negligent and administrative, weighs against the State. See Gallegos, 2010-NMCA-032, \u00b6 23 (\u201c[BJecause the state has the burden of bringing a case to trial, we weigh unreasonable periods of delay against the state.\u201d (alterations, internal quotation marks, and citation omitted)).\n{11} The State argues that Defendant caused a period of delay by moving to continue the second trial date, but we disagree and also weigh this delay against the State. Defendant\u2019s motion cites to his expert having inadequate time to prepare her report due to three postponements of interviews with the State\u2019s witnesses. Defense counsel was supposed to interview the witnesses on August 11, 2008, but did not get to interview the witnesses untilNovember 10,2008, which left slightly more than a month until the scheduled trial. Defendant requested a continuance to ensure adequate time to prepare and review the expert report in addition to reviewing any other evidence the State had yet to disclose. The State concurred with the request and did not file a response opposing Defendant\u2019s stated grounds. The district court granted Defendant\u2019s request. The State now asserts on appeal that defense counsel had to cancel the first interviews and the times the State cancelled after that were for good reasons. The State also alleges that Defendant\u2019s expert was not disclosed until sixteen days before the scheduled trial, and the expert needed the safehouse interviews to prepare for trial. W e refuse to consider this attempt to attack Defendant\u2019s stated reasons for requiring a continuance when the State failed to attack them below and, in fact, concurred. Although Defendant made the request, the three-month delay caused by the continuance weighs against the State.\n{12} There are two additional periods of delay that neither party argues should count against the other. One trial setting was vacated by the district court due to a death in the judge\u2019s family, causing a three-month delay. Another delay was caused when trial was aborted after a prospective juror made inflammatory comments during voir dire that were heard by the entire jury panel. Fearing that the jury pool was tainted, Defendant requested that the trial be vacated and reset, which the district court granted. We do not weigh either of these delays against any party.\n{13} The State is therefore responsible for most ofthe twenty-four-month delay, although there is nothing in the record demonstrating that the delay was purposeful. Because none of the delay in this case is attributable to Defendant, we weigh this factor in Defendant\u2019s favor.\n3. Defendant\u2019s Assertion of the Right\n{14} In considering Defendant\u2019s assertion of his right to a speedy trial, \u201cwe assess the timing of the defendant\u2019s assertion and the manner in which the right was asserted.\u201d Garza, 2009-NMSC-038, \u00b6 32. In doing so, \u201cwe accord weight to the frequency and force ofthe defendant\u2019s objections to the delay .\u2019\u2019Id. (internal quotation marks and citation omitted). \u201cWe also analyze the defendant\u2019s actions with regard to the delay.\u201d Id.\n{15} Defendant was arrested on May 12, 2008, and trial commenced on May 17, 2010. Defendant repeatedly asserted his right to a speedy trial throughout this two-year delay. He first demanded a speedy trial on January 28, 2009, after eight months of incarceration. He demanded that this right be recognized again on June 22, 2009, and again on September 9, 2009, and again on September 17,2009, and finally oncemore onNovember 23, 2009.\n{16} Defendant filed a total of four motions to dismiss, asserting his right to a speedy trial was being violated. The first time Defendant moved to dismiss the case for speedy trial purposes was approximately two months after the State secured a Supreme Court order granting a six-month extension pursuant to Rule 5-604 NMRA, which Defendant had opposed, fee Rule 5-604(B)(l) (requiring the commencement of a trial six months after the waiver of arraignment in district court); see also State v. Savedra, 2010-NMSC-025, \u00b6 9, 148 N.M. 301, 236 P.3d 20 (withdrawing the six-month rule provisions set forth in Rule 5-604(B)-(E) effective for all cases pending as of May 12, 2010). The district court denied Defendant\u2019s motion to dismiss.\n{17} The State then moved the district court to order another six-month extension to commence trial, and the district court granted the motion over Defendant\u2019s objection. A few days later, Defendant made one of his speedy trial demands and thereafter filed his second motion to dismiss asserting a violation of his right to a speedy trial. The court denied this motion as well. Defendant ultimately moved to dismiss the cases for speedy trial violations two more times after further delay. The first was on February 11,2010, twenty-two months after his arrest. Although the order is not in the record, the district court apparently denied this motion as well. After the seventh trial setting was vacated, Defendant filed his final motion to dismiss on April 20, 2010, which the district court also denied. W e accord weight to the frequency and force of these repeated assertions.\n{18} In considering Defendant\u2019s actions in relation to the delay, we acknowledge that some of the delay in this case was at Defendant\u2019s behest, yet we do not view those occasions as contrary to his repeated assertions. Contra Coffin, 1999-NMSC-038, \u00b6 67 (observing that the defendant\u2019s assertion of his speedy trial right was not meaningful when he objected to the rule extension but also represented that he was not prepared for trial); State v. Fierro, 2012-NMCA-054, \u00b6 54, 278 P.3d 541 (giving little weight to the defendant\u2019s assertions after considering the defendant\u2019s \u201cactions in contributing to the delay and being unready for trial while simultaneously asserting his speedy trial right\u201d), cert. denied, 2012-NMCERT-004, 293 P.3d 886. Even though the trial date was reset at the behest of Defendant more than once, we cannot conclude that Defendant\u2019s repeated assertions were artificial.\n{19} Indeed, the majority of Defendant\u2019s requests to postpone or reset the trial were the result of legitimate concerns for securing a fair trial. The second continuance requested by Defendant was to vacate the sixth trial setting due to the last day of trial falling on a furlough day, which we already noted the district court found necessary \u201cto ensure the [djefense [cjounselhas adequate support staff to prepare a defense.\u201d As far as Defendant\u2019s request to vacate the seventh trial setting after the juror made inflammatory comments, although the State insisted that another jury could be empaneled, the district court found that \u201cthe only proper and safe remedy and the one requested by the defense was to vacate the trial and reset it.\u201d We defer to the district court\u2019s findings. A defendant should not be required to choose between inadequately supported counsel or a potentially tainted jury of his peers and his right to a speedy trial. He must be able to effectively balance his desire for a fair trial and the ability to present a meaningful defense with his desire to speedily enjoy his day in court.\n{20} Accordingly, we view Defendant\u2019s repeated assertions as attempts to proceed to trial as quickly as possible and weigh this factor in Defendant\u2019s favor.\n4. Prejudice to Defendant\n{21} In Garza, our Supreme Court explained the manner in which prejudice affects how heavily the other Barker factors weigh in a defendant\u2019s favor to find a speedy trial violation. See Garza, 2009-NMSC-038, \u00b6 39. The Court held that \u201cgenerally a defendant must show particularized prejudice of the kind against which the speedy trial right is intended to protect.\u201d Id. The Court went to explain that \u201cif the length of delay and the reasons for the delay weigh heavily in [a] defendant\u2019s favor and [the] defendant has asserted his right and not acquiesced to the delay, then the defendant need not show prejudice for a court to conclude that the defendant\u2019s right has been violated.\u201d Id.\n{22} \u201cThe heart of the right to a speedy trial is preventing prejudice to the accused.\u201d Id. \u00b6 12. \u201cPrejudice should be evaluated in light of the interest of the defendant, which the right was designed to protect.\u201d State v. O'Neal, 2009-NMCA-020, \u00b6 27, 145 N.M. 604, 203 P.3d 135. The United States Supreme Court identified three such interests in Barker. (1) \u201cto prevent oppressive pretrial incarcerationf,]\u201d (2) \u201cto minimize anxiety and concern ofthe accused[,]\u201d and (3) \u201cto limit the possibility that the defense would be impaired'.\u201d 407 U.S. at 532. \u201cAs to the first two types of prejudice, some degree of oppression and anxiety is inherent for every defendant who is jailed while awaiting trial.\u201d Garza, 2009-NMSC-038, \u00b6 35 (alterations, internal quotation marks, and citation omitted). \u201cThe 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.\u201d Id.\n{23} Here, Defendant was prejudiced by being incarcerated for the entire two-year period between his arrest and trial. See id. (\u201c[I]t cannot be denied that two-and-one-half years of pretrial incarceration ... one\u2019s life on indefinite hold, waiting for one\u2019s trial to commence \u2014 is very substantial prejudice, of the precise kind that the Speedy Trial Clause was meant to avoid.\u201d (alteration and omission in original) (internal quotation marks and citation omitted)). \u2018\u201cThe 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 or rehabilitative programs. The time spent in jail is simply dead time.\u2019\u201d Id. (quoting Barker, 407 U.S. at 532-33). \u201cWith respect to pretrial incarceration, the question is whether the length of time was unacceptably long in that it became unduly prejudicial so as to factor into the analysis.\u201d State v. Laney, 2003-NMCA-144, \u00b6 29, 134 N.M. 648, 81 P.3d 591. This Court previously concluded that a delay of twenty-two months prejudiced a defendant. See State v. Moreno, 2010-NMCA-044, \u00b6\u00b6 36-37, 148 N.M. 253, 233 P.3d 782 (considering twenty-two months of pretrial incarceration as the main factor in determining that the defendant was prejudiced). Here, Defendant was incarcerated even longer. This is the \u201cprecise kind\u201d of prejudice the speedy trial right was intended to prevent.\n{24} Having determined that Defendant was prejudiced by his lengthy pre-trial incarceration, per Garza it is not necessary for all of the other factors to weigh heavily in Defendant\u2019s favor. See 2009-NMSC-038, \u00b6 39. Nevertheless, we have concluded that they all weigh in Defendant\u2019s favor.\n5. Balancing the Barker Factors\n{25} The total delay in this matter was slightly over twenty-four months. This amount of delay was presumptively prejudicial, triggering further analysis of the Barker factors. For the reasons stated herein, we conclude: (1) the length of delay, (2) the reason for the delay, (3) Defendant\u2019s assertion of the right to a speedy trial, and (4) prejudice to Defendant all weigh in Defendant\u2019s favor in this case. Moreover, because Defendant was prejudiced by his lengthy incarceration, the first three factors need not weigh heavily in Defendant\u2019s favor. Having examined the case in its entirety, we conclude that Defendant\u2019s constitutional right to a speedy trial was violated.\nCONCLUSION\n{26} Defendant\u2019s convictions are reversed. In light of our disposition herein, it is not necessary to discuss Defendant\u2019s remaining issues on appeal.\n{27} IT IS SO ORDERED.\nMICHAEL E. VIGIL, Judge\nWE CONCUR:\nTIMOTHY L. GARCIA, Judge\nM. MONICA ZAMORA, Judge\nDefendant argues that the case is of intermediate complexity, which would make the threshold nine months. See id. \u00b6 48 (\u201cFifteen months may be presumptively prejudicial for intermediate cases.\u201d). However, \u201c[tjhe question of the complexity of a case is best answered by a trial court familiar with the factual circumstances, the contested issues and available evidence, the local judicial machinery, and reasonable expectations for the discharge of law enforcement and prosecutorial responsibilities.\u201d State v. Plouse, 2003-NMCA-048, \u00b6 42, 133 N.M. 495, 64 P.3d 522 (internal quotation marks and citation omitted). Defendant fails to articulate a reason why we should disagree with the district court\u2019s determination. We therefore \u201cgive due deference to the district court\u2019s findings as to the level of complexity.\u201d See id.; State v. Coffin, 1999-NMSC-038, \u00b6 57, 128 N.M. 192, 991 P.2d 477; butef. Wilson, 2010-NMCA-018, \u00b6 24 (choosing not to give deference to the district court\u2019s determination that a case was intermediate and instead deciding that it was simple).", "type": "majority", "author": "VIGIL, Judge." } ], "attorneys": [ "Gary K. King, Attorney General Santa Fe, NM Sri Mull\u00eds, Assistant Attorney General Albuquerque, NM", "for Appellee", "Jorge A. Alvarado, Chief Public Defender Nina Lalevic, Assistant Appellate Defender Santa Fe, NM", "for Appellant" ], "corrections": "", "head_matter": "Certiorari Granted, June 6, 2014,\nNo. 34,630\nDocket No. 31,243\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2014-NMCA-065\nFiling Date: March 11, 2014\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. JOHN ERIC OCHOA, Defendant-Appellant.\nGary K. King, Attorney General Santa Fe, NM Sri Mull\u00eds, Assistant Attorney General Albuquerque, NM\nfor Appellee\nJorge A. Alvarado, Chief Public Defender Nina Lalevic, Assistant Appellate Defender Santa Fe, NM\nfor Appellant" }, "file_name": "0205-01", "first_page_order": 221, "last_page_order": 228 }