{ "id": 4241213, "name": "STATE OF NEW MEXICO, Plaintiff-Appellant, v. NIKOLOS MONTOYA, a/k/a NIKOLOS SOILES, a/k/a NIKOLOS SOLLES, Defendant-Appellee", "name_abbreviation": "State v. Montoya", "decision_date": "2015-02-25", "docket_number": "Docket No. 32,525", "first_page": "751", "last_page": "762", "citations": [ { "type": "official", "cite": "2015-NMCA-056" } ], "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": "2009-NMCA-074", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4243104 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 9" }, { "page": "\u00b6 9" }, { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0594-01" ] }, { "cite": "327 P.3d 1129", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2014-NMCA-069", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4239490 ], "pin_cites": [ { "page": "\u00b656" } ], "opinion_index": 0, "case_paths": [ "/nm-app/6/0232-01" ] }, { "cite": "347 Mont. 135", "category": "reporters:state", "reporter": "Mont.", "opinion_index": 0 }, { "cite": "2014 MT 55", "category": "reporters:neutral", "reporter": "MT", "case_ids": [ 4035850 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 52" } ], "opinion_index": 0, "case_paths": [ "/mont/374/0135-01" ] }, { "cite": "505 U.S. 647", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1480837 ], "year": 2012, "pin_cites": [ { "page": "652", "parenthetical": "\"[T]he presumption that pre[-]trial delay has prejudiced the accused intensifies over time.\"" } ], "opinion_index": 0, "case_paths": [ "/us/505/0647-01" ] }, { "cite": "111 N.M. 422", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715096 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/111/0422-01" ] }, { "cite": "1991-NMSC-016", "category": "reporters:neutral", "reporter": "NMSC", "weight": 3, "pin_cites": [ { "page": "\u00b6 32" }, { "page": "\u00b6 32" }, { "page": "\u00b6 18" } ], "opinion_index": 0 }, { "cite": "2008-NMSC-062", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4242786 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 33" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0242-01" ] }, { "cite": "2010 MT 195", "category": "reporters:neutral", "reporter": "MT", "case_ids": [ 3742717 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 54" } ], "opinion_index": 0, "case_paths": [ "/mont/357/0355-01" ] }, { "cite": "145 So. 3d 1143", "category": "reporters:state_regional", "reporter": "So. 3d", "case_ids": [ 6929273 ], "year": 2014, "pin_cites": [ { "page": "\u00b6\u00b6 22-23", "parenthetical": "recognizing that where the length of delay is presumptively prejudicial the state \"bears the burden of proving good cause for a speedy trial delay, and thus bears the risk of non-persuasion\" (internal quotation marks and citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/so3d/145/1143-01" ] }, { "cite": "2006-NMCA-140", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3671740 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0676-01" ] }, { "cite": "327 P.3d 1076", "category": "reporters:state_regional", 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"reporters:neutral", "reporter": "NMSC", "case_ids": [ 4335142 ], "pin_cites": [ { "page": "\u00b6 41" } ], "opinion_index": 0, "case_paths": [ "/nm-app/4/0080-01" ] }, { "cite": "283 P.3d 272", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMSC-023", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4189768 ], "weight": 17, "pin_cites": [ { "page": "\u00b6 17" }, { "page": "\u00b6 21" }, { "page": "\u00b6 21" }, { "page": "\u00b6 19" }, { "page": "\u00b6 19" }, { "page": "\u00b6 21" }, { "page": "\u00b6 25" }, { "page": "\u00b6 25" }, { "page": "\u00b6 21" }, { "page": "\u00b6 19" }, { "page": "\u00b6 39" }, { "page": "\u00b6 19" }, { "page": "\u00b6 37" }, { "page": "\u00b6 19" }, { "parenthetical": "recognizing the deference given to factual findings by the district court" }, { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0264-01" ] }, { "cite": "407 U.S. 514", "category": 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"word_count": 6086 }, "last_updated": "2023-07-14T17:10:55.229683+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "TIMOTHY L. GARCIA, Judge", "JONATHAN B. SUTIN, Judge", "M. MONICA ZAMORA, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellant, v. NIKOLOS MONTOYA, a/k/a NIKOLOS SOILES, a/k/a NIKOLOS SOLLES, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nGARCIA, Judge.\nA grand jury indicted Defendant Nikolos Montoya on multiple counts of criminal sexual penetration of a minor (CSPM) and related felonies. The State appeals the district court\u2019s order dismissing Defendant\u2019s charges based upon a violation of his right to a speedy trial under the United States and New Mexico Constitutions. We affirm.\nBACKGROUND\nOn May 13, 2010, a grand jury indicted Defendant on multiple counts of CSPM, sexual exploitation of a child, criminal sexual communication with a child, kidnapping, aggravated battery, and bribery of a witness, stemming from Defendant\u2019s alleged relationship with two teenaged girls. He was arrested three weeks after the indictment, on June 2, 2010. At his June 14, 2010 arraignment, he pleaded not guilty to the charges and his bond was set at $100,000. On June 23,2010, Defendant\u2019s counsel entered an appearance on his behalf, requested disclosures from the State, and asserted Defendant\u2019s right to a speedy trial.\nOn August 9, 2010, the State provided Defendant with its initial disclosures. On October 25, 2010, Defendant moved for a statement of facts, asserting that the indictment lacked details as to where and when the alleged crimes occurred, what specific acts allegedly took place, and on what evidence the State intended to rely in proving each count. At the hearing on this motion, defense counsel stated that he \u201creviewed all of the discoveryf,]\u201d the discovery referred to \u201cimages\u201d in the State\u2019s possession, and he asked that the State specify which images related to which counts. He also asked that the State be \u201cexplicit as to what activity or what averment applie[d] to which count.\u201d The district court granted the motion. In doing so, it recognized that the prosecutor had not yet familiarized herself with the evidence and that providing a statement of facts to Defendant, although not required by the rules, would help \u201cthings start to make sense.\u201d Two months later, the State provided a detailed statement of facts.\nOn December 3, 2010, after spending about six months in jail, Defendant was released on bond. Other than notices concerning two pre-trial conferences that were to take place in April 2011 and June 2011, the record shows no further activity in this case until June 2011, at which time the district court filed a notice setting the trial for November 7, 2011.\nOn October 25, 2011, about two weeks before the tidal was scheduled to begin, Defendant moved to dismiss the case on the ground that the State had failed to respond to his requests to conduct pre-trial interviews with the victims. On November 2, 2011, five days before trial, the State moved to continue the trial because the attorney who had been prosecuting the case left the district attorney\u2019s office, and the new prosecuting attorney needed more time to either consider a plea offer or schedule pre-trial interviews with the victims. Defendant amended his motion to dismiss to include copies of email communications between defense counsel and the previous prosecutor. These emails showed that:\n\u2022 Defense counsel first wrote the prosecutor on October 1, 2010, over a year before he filed his motion to dismiss, asking for documents that appeared to be missing from discovery, whether any safe house interviews had been conducted, whether he could have access to any records concerning the victims\u2019 counseling, and expressing his intention to schedule pre-trial interviews with the victims once he had all of the State\u2019s discovery. The prosecutor responded the same day, reminding defense counsel, \u201cthat once [pre-trial interviews] of [Victims] are done\u201d the policy is \u201cthat there is no plea[.]\u201d\n\u2022 Defense counsel emailed the prosecutor two a half months later on December 14, 2010, telling her that he wanted to set the pre-trial interviews \u201cat [her] earliest convenience[,]\u201d such as \u201cthe week after [Christmas]\u201d or \u201cthe first week in [January 2011].\u201d The prosecutor responded that she would not be able to set them until mid-to-late January 2011.\n\u2022 On January 6, 2011, defense counsel emailed the prosecutor again telling her .that he was \u201cready to schedule the [pretrial interviews]\u201d and to \u201clet [him] know the time frame [she]\u2019d like to schedule them[.]\u201d The prosecutor responded, only to remind defense counsel again that \u201c[i]f we schedule [the pre-trial interviews with the alleged victims] \u2014 there is no plea. You do know that is the policy here, correct? Is that what your intent is? Otherwise, I\u2019d suggest we start with other witnesses and work our way to the [alleged victims].\u201d Defense counsel replied that he did not intend to interview anyone other than the alleged victims and suggested that the prosecutor \u201cmake a plea offer first (and soon)\u201d and \u201c[i]f that is rejected, then we can schedule the [pretrial interviews].\u201d\n\u2022 Six months later, on June 21, 2011, defense counsel emailed the prosecutor again. He asked if she \u201cplanfned] to make a plea offer[]\u201d and if so, when he could expect it. He also told her that they \u201cshould put this [case] on the trial calendar.\u201d The prosecutor apparently did not respond.\n\u2022 Two months later, on August 26, 2011, defense counsel emailed the prosecutor telling her that he was \u201cstill waiting for [her] to get back to [him] on the [pre-trial interviews]\u201d and to \u201cgive [him] dates when the two [alleged victims] are available to be interviewed any time [during] the first half of September.\u201d The prosecutor apparently did not respond.\n\u2022 A few weeks later, on September 13, 2011, defense counsel emailed the prosecutor again, noting that she had not responded to his last email and asking for possible dates on which to set the pre-trial interviews \u201cbetween now and October 10 so that we can complete the [pre-trial interviews] of the two [alleged victims] in time to have them transcribed before trial which is set for November 7.\u201d The prosecutor responded that she could set pre-trial interviews with witnesses other than the victims during the \u201clast week of September.\u201d (Emphasis added.) Defense counsel reminded her that he wanted to interview the alleged victims and asked again when th.ey could schedule those interviews. The prosecutor responded once again to remind defense counsel, \u201cYou know that means, according to [the State\u2019s CACU] policy, that there will be no plea offer[]?\u201d\nAt a hearing on December 7, 2011, the district court denied Defendant\u2019s motion to dismiss and granted the State\u2019s motion to continue the trial. In doing so, it ordered the State to either make a plea offer or set up pretrial interviews with the victims by the end of December 2011, so that there would be \u201c[n]o more messing around on the State\u2019s part.\u201d\nThe record shows no further activity in this case for seven more months, until July 9, 2012, when the district court entered a notice rescheduling the trial for September 10,2012. This new trial date was about ten months after the trial was originally scheduled and about twenty-seven months after Defendant was arrested.\nOn July 23, 2012, seven weeks before trial, Defendant filed several pre-trial motions, including a motion to dismiss for violation of his speedy trial right. About a week later, on July 31, 2012, the State and defense counsel filed a stipulated motion and order requiring mental health providers to release one of the victim\u2019s counseling records. During a status conference on August 21,2012, requested by the State, the prosecutor told the court that he could not attend the hearing on Defendant\u2019s pre-trial motions because another case that he was prosecuting had been rescheduled for trial on that date. Because the court could not reschedule the motions hearing to another date before the September 10, 2012, trial, it rescheduled trial for September 24, 2012, and rescheduled the motions hearing for September 13, 2012. After the hearing on the speedy trial motion, the district court granted it and dismissed the indictment. The State appeals.\nDISCUSSION\nA. General Principles and Standard of Review\nThe Sixth Amendment of the United States Constitution provides that \u201c[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial[.]\u201d U.S. Const, amend. VI. The New Mexico Constitution affords a similar right: \u201cIn all criminal prosecutions, the accused shall have the right to ... a speedy public trial.\u201d N.M. Const, art. II, \u00a7 14. \u201cThough speed is an important attribute of the right,\u201d the right \u201cdoes not preclude the rights of public justice\u201d \u2014 \u201cif either party is forced to trial without a fair opportunity for preparation, justice is sacrificed to speed.\u201d State v. Garza, 2009-NMSC-038, \u00b6 11, 146 N.M. 499, 212 P.3d 387 (alteration, internal quotation marks, and citations omitted). We therefore analyze \u201cthe peculiar facts and circumstances of each case.\u201d Id.\nIn determining whether a defendant\u2019s speedy trial right was denied, our Supreme Court has adopted the balancing test that the United States Supreme Court created in Barker v. Wingo, 407 U.S. 514 (1972). Garza, 2009-NMSC-038, \u00b6\u00b6 9, 13. Under the Barker framework, we weigh \u201cthe conduct of both the prosecution and the defendant\u201d under the guidance of four factors: (1) the length of the delay, (2) the reasons for the delay, (3) the timeliness and manner in which the defendant asserted his speedy trial right, and (4) the particular prejudice that the defendant actually suffered. Garza, 2009-NMSC-038, \u00b6\u00b6 13, 32, 35 (internal quotation marks and citation omitted). \u201cEach of these factors is weighed either in favor of or against the [sjtate or the defendant, and then balanced to determine if a defendant\u2019s right to a speedy trial was violated.\u201d State v. Spearman, 2012-NMSC-023, \u00b6 17, 283 P.3d 272. Because none of these factors is talismanic, we analyze speedy trial claims on a case-by-case basis. State v. Palacio, 2009-NMCA-074, \u00b6 9, 146 N.M. 594, 212 P.3d 1148\nBefore applying this balancing test, we first assess whether the length of the delay was \u201cpresumptively prejudicial,\u201d depending on the complexity of the case. Spearman, 2012-NMSC-023, \u00b6 21; 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). \u201cA delay of trial of one year is presumptively prejudicial in simple cases, fifteen months in intermediate cases, and eighteen months in complex cases.\u201d Spearman, 2012-NMSC-023, \u00b6 21. Because the State concedes that the length of the delay was presumptively prejudicial regardless of the level of complexity assigned to the case, we proceed to inquire into the Barker factors. See Garza, 2009-NMSC-038, \u00b6 21.\nIn analyzing these factors, we defer to the district court\u2019s factual findings concerning each factor as long as they are supported by substantial evidence, we independently review the record to determine whether a defendant was denied his speedy trial right, and we weigh and balance the Barker factors de novo. Spearman, 2012-NMSC-023, \u00b6 19; Palacio, 2009-NMCA-074, \u00b6 9; see State v. Collier, 2013-NMSC-015, \u00b6 41, 301 P.3d 370 (recognizing that the Barker factors themselves are \u201cfactually based\u201d); cf. State v. Bloom, 1977-NMSC-016, \u00b6 7, 90 N.M. 192, 561 P.2d 465 (stating that, in reviewing a district court\u2019s factual findings related to a motion to suppress, the appellate court determines \u201conly whether the evidence, viewed in the light most favorable to the finding and considering the degree of proof required, substantially supports the finding\u201d (internal quotation marks and citation omitted)).\nB. Discussion and Weighing of the Factors\n1. Length of Delay\nIn determining what weight to give to the length of delay, we consider the extent to which the delay stretched beyond the presumptively prejudicial period. State v. Ochoa, 2014-NMCA-065, \u00b6 6, 327 P.3d 1102, cert. granted, 2014-NMCERT-006, 328 P.3d 1188. \u201c[T]he greater the delay[,] the more heavily it will potentially weigh against the State.\u201d Garza, 2009-NMSC-038, \u00b6 24. A delay that \u201cscarcely crosses the bare minimum needed to trigger judicial examination of the claim\u201d will \u201cnot weigh heavily in [a defendant's favor.\u201d Id. \u00b6\u00b6 23-24 (internal quotation marks and citation omitted); compare State v. Steinmetz, 2014-NMCA-070, \u00b6 6, 327 P.3d 1145 (concluding that a delay of twenty-eight months beyond the presumptive threshold weighed \u201cmoderately\u201d against the State in a case of intermediate complexity), cert. denied 2014-NMCERT-006, 328 P.3d 118, with State v. Urban, 2004-NMSC-007, \u00b6 20, 135 N.M. 279, 87 P.3d 1061 (concluding that an eighteen-month delay beyond the presumptive threshold weighed heavily against the State in a simple case), State v. Marquez, 2001-NMCA-062, \u00b6 12, 130 N.M. 651, 29 P.3d 1052 (concluding that a nine-month delay beyond the presumptive threshold weighed heavily against the State in a simple case), and State v. Montoya, 2011-NMCA-074, \u00b6 17, 150 N.M. 415, 259 P.3d 820 (concluding that a six-month delay beyond the presumptive threshold weighed slightly against the State in a case of intermediate complexity).\nThe district court found that this was a case of intermediate complexity. In making this finding, it considered the fact that the victims were teenagers, as opposed to young children, thereby \u201cdiminish[ing] the difficulty of the case}.]\u201d On appeal, the State argues that substantial evidence does not support the district court\u2019s finding that this was an intermediately complex case because the court \u201chad very little familiarity with the facts of the ... case and relied solely on the victims\u2019 ages, rather than the overall complexity of the case[.]\u201d It also noted that during previous hearings on other matters, the district court had characterized the case as \u201cserious\u201d and \u201ctangled.\u201d We conclude that, viewed in the light most favorable to the district court\u2019s finding, substantial evidence supports the finding that the case was of intermediate complexity. See Bloom, 1977-NM S C-016, \u00b6 7. At the hearing in the district court, the State\u2019s sole argument in support of its position that this was a complex case was that the case involved \u201ctwo alleged victims, [and] delayed disclosure [by] both of them.\u201d It also stated that \u201cintermediate .. . [was] the absolute floor for any case involving these types of charges.\u201d The fact that the district court had previously commented at other hearings that this case was \u201cserious\u201d and \u201ctangled\u201d does not detract from its ultimate finding that the case was of intermediate complexity. Nothing in the record explains why the delayed disclosure by the two teenagers complicated this case and, if it did, to what degree and why. Thus, we defer to the district court\u2019s finding that the case was one of intermediate complexity, because it was in the best position to make that determination. See Spearman, 2012-NMSC-023, \u00b6 19; State v. Coffin, 1999-NMSC-038, \u00b6 57, 128 N.M. 192, 991 P.2d 477; State v. Johnson, 2007-NMCA-107, \u00b6 7, 142 N.M. 377, 165 P.3d 1153.\nThe parties and the district court agreed that the length of delay was twenty-seven months. This delay extends twelve months beyond the fifteen-month presumptive threshold for intermediate cases. See Spearman, 2012-NMSC-023, \u00b6 21. We conclude that this delay is significant and that it weighs more than slightly in favor of Defendant. See Urban, 2004-NMSC-007, \u00b6 20; Steinmetz, 2014-NMCA-070, \u00b6 6; Montoya, 2011-NMCA-074, \u00b6 17; Marquez, 2001-NMCA-062, \u00b6 12. Accordingly, we weigh this factor moderately to heavily in Defendant\u2019s favor.\n2. Reasons for Delay\nWe assign different weight to different types of delay. See Spearman, 2012-NMSC-023, \u00b6 25. There are three types: \u201c(1) deliberate or intentional delay},] (2) negligent or administrative delay[,] and (3) delay for which there is a valid reason.\u201d Ochoa, 2014-NMCA-065, \u00b6 8. \u201cDeliberate delay is to be weighted heavily against the government.\u201d Id. \u00b6 9 (internal quotation marks and citation omitted). Negligent or administrative delay weighs against the state, though not heavily. Spearman, 2012-NMSC-023, \u00b6 25. The government\u2019s failure to make witnesses available to the defense upon request constitutes \u201cbureaucratic indifference\u201d that \u201cweighs against the [s]tate.\u201d State v. Moreno, 2010-NMCA-044, \u00b6 29, 148 N.M. 253, 233 P.3d 782 (alterations, internal quotation marks, and citation omitted); see also Johnson, 2007-NMCA-107, \u00b6\u00b6 12-15 (weighing the entire first twelve months of delay against the state where \u201cthe [s]tate failed to make its witnesses available for pretrial interviews so that [the defendant could prepare for trial\u201d); State v. Talamante, 2003-NMCA-135, \u00b6\u00b6 12-13, 134 N.M. 539, 80 P.3d 476 (weighing the reasons for the delay against the state because \u201c[t]he [s]tate\u2019s delay in producing its witnesses for defense interviews was unreasonable and cannot be condoned\u201d). Furthermore, delay that results from lack of diligence on the part of the state weighs more heavily than do \u201c \u2018 [institutional delays\u2019 that are inherent in the criminal justice system.\u201d State v. MacGregor, 2013 MT 297, \u00b6 33, 372 Mont. 142, 311 P.3d 428 (weighing delays attributable to the state\u2019s lack of diligence \u201csignificantly against the [sjtate\u201d).\nThe district court found that the State was \u201cresponsible for the entire delay although there was no bad faith on its part},]\u201d and it weighed this factor in Defendant\u2019s favor. The State argues on appeal that the reasons for the delay should not be weighed against the State because much of the delay was \u201ccustomary,\u201d Defendant delayed the proceedings when he unnecessarily moved for a statement of facts, the State was not obligated to make a plea offer or to make witnesses available without a court order, and Defendant further delayed trial in his efforts to obtain the victims\u2019 counseling records. We are not persuaded by the State\u2019s argument for several reasons.\nFirst, a twenty-seven-month delay in the prosecution of an intermediately complex case is not customary; to the contrary, any delay beyond fifteen months in such a case is presumptively prejudicial. See Spearman, 2012-NMSC-023, \u00b6 21.\nSecond, the district court granted the motion for a statement of facts in order to move the case forward \u2014 it recognized that seven months after the indictment the prosecutor had not yet familiarized herself with the evidence and that preparing a statement of facts would help \u201cthings start to make sense.\u201d\nThird, the State \u2014 not Defendant \u2014 moved to continue the trial from its original November 2011 setting because it had not yet made the victims available for pretrial interviews despite Defendant\u2019s numerous requests to interview the victims over the course of fourteen months. It is clear from the emails between the prosecutor and defense counsel that Defendant intended to move the case forward for trial and the prosecutor resisted \u2014 the prosecutor repeatedly tried to dissuade defense counsel from conducting witness interviews by insinuating that a plea offer would be forthcoming and that conducting interviews would eliminate the chance of that plea offer under its \u201cCACU policy.\u201d The district court\u2019s order continuing the trial and ordering the State to make witnesses available to the defense by the end of December 2011 was another effort on the court\u2019s part to move the case forward in specific response to the State\u2019s failure to do so. We are not persuaded by the State\u2019s assertion that our Supreme Court\u2019s decision in State v. Harper precludes us from considering the State\u2019s failure to make witnesses available for defense interviews in a speedy trial analysis. See 2011-NMSC-044, \u00b6 21, 150 N.M. 745, 266 P.3d 25 (reversing the district court\u2019s \u201csevere sanction\u201d of excluding the State\u2019s primary witnesses because the State did not make them available for defense interviews by the deadline imposed by the district court).\nFourth, the record does not support the State\u2019s explanation on appeal of why trial was delayed an additional nine months after the pre-trial interviews were finished. The State argues that, because it was helping-Defendant obtain the victims\u2019 counseling records, requesting a trial setting before getting these records would have been \u201cfutile}.]\u201d In support of this argument, the State cites to a comment that the district court made during a previous hearing that \u201cthe trial setting is somewhat contingent on [defense \u25a0counsel\u2019s] ability to . . . defend [his] client.\u201d Although the parties\u2019joint efforts to obtain the victims\u2019 counseling records could have been a cause for some delay, we do not know whether any of this delay can be attributed to Defendant because the State made no record of it. Therefore, we reject the factual basis for this argument as it is purely speculative. See State v. Ortega, 2014-NMSC-017, \u00b6\u00b6 57, 59, 327 P.3d 1076 (declining to address arguments that are speculative and unsupported by the record). \u201c[I]t is ultimately the State\u2019s responsibility to bring a defendant to trial in a timely manner.\u201d State v. Stock, 2006-NMCA-140, \u00b6 17, 140 N.M. 676, 147 P.3d 885. \u201cA defendant has no duty to bring himself to trial}.]\u201d Barker, 407 U.S. at 527. Thus, we defer to the district court\u2019s finding that the State was entirely responsible for the delay in this case. See Spearman, 2012-NMSC-023, \u00b6 19. We further conclude that the State\u2019s failure to timely schedule witness interviews despite defense counsel\u2019s persistent efforts to otherwise move the case forward on its own accord without judicial intervention constitutes \u201cunacceptable ... indifference\u201d to its duty to bring Defendant to trial in a timely manner. Moreno, 2010-NMCA-044, \u00b6 29; see MacGregor, 2013 MT 297, \u00b6 33 (recognizing that delays arising from the state\u2019s lack of diligence are weighed significantly against the state). The assertion of a \u201cCACU policy\u201d regarding witness interviews being delayed because the State had not yet considered making a plea offer to a defendant is not good cause for delaying trial and shall be held against the State in weighing the reasons for delaying a trial in a speedy trial analysis. See generally Myers v. State, 145 So. 3d 1143, \u00b6\u00b6 22-23 (Miss. 2014) (recognizing that where the length of delay is presumptively prejudicial the state \u201cbears the burden of proving good cause for a speedy trial delay, and thus bears the risk of non-persuasion\u201d (internal quotation marks and citation omitted)). Therefore, we also weigh this factor moderately to heavily against the State.\n3. Assertion of the Right\nIn determining the weight to assign a defendant\u2019s assertion of his speedy trial right, we \u201cassess the timing of the defendant\u2019s assertion and the manner in which the right was asserted.\u201d Garza, 2009-NMSC-038, \u00b6 32. We consider \u201cwhether a defendant was denied needed access to speedy trial over his objection or whether the issue was raised on appeal as [an] afterthought.\u201d Id. The effect of a defendant\u2019s assertion of his speedy trial right may be diluted where his own actions caused the delay. Id.\nThe district court found that Defendant asserted his speedy trial right three times: first, at the same time that his counsel entered an appearance on his behalf; second, when he filed his first motion to dismiss on the grounds that the State failed to schedule pretrial interviews; and third, when he filed his specific speedy trial motion. The State argues that these assertions \u201cweigh only slightly in Defendant\u2019s favor\u201d because the first was \u201csimply pro forma language in an entry of appearance less than a month after Defendant\u2019s arrest\u201d; the second was not an explicit assertion of his speedy trial right, but rather a motion to dismiss for discovery violations; and the third \u2014 his motion to dismiss for violation of his speedy trial right \u2014 was made less than two months before trial was set to begin.\nMindful of Justice Daniels\u2019 special concurrence in Spearman, we agree with the State that these three combined assertions should weigh less heavily in Defendant\u2019s favor. See 2012-NMSC-023^46 (Daniels, J., specially concurring) (suggesting that cases should not be dismissed on speedy trial grounds without putting the State on notice that it \u201chad to put up or suffer the consequences\u201d). However, we are also mindful that Defendant was in custody facing a $100,000 bond and serious charges that carried the potential penalty of decades in prison and the permanent stigma of sex offender registration. Although our Supreme Court has stated that a defendant\u2019s assertion of his speedy trial right that \u201c[comes] as part of the pro forma pre[-]trial motions [the defendant\u2019s counsel file[s] upon entering his appearance [is] generally afforded relatively little weighty\u201d See Urban, 2004-NMSC-007, \u00b6 16, we do not consider Defendant\u2019s initial request for a speedy trial to be insignificant in light of the overall circumstances in this case. We also consider Defendant\u2019s persistence over the course of fourteen months to proceed to trial by seeking to ensure that the State had made all required disclosures and his attempts to obtain pre-trial interviews with the victims in time for the original trial setting. This behavior on Defendant\u2019s part was consistent with his first request to move the case to a timely trial and enhanced his original assertions for a speedy trial, unlike other cases in which a defendant\u2019s dilatory behavior negates the effect of his verbal or other early assertions. See Garza, 2009-NMSC-038, \u00b6 32 (considering actions taken by the defendant in pursuing or delaying trial in addition to his verbal assertions of his speedy trial right); see also State v. Charlie, 2010 MT 195, \u00b6 54, 357 Mont. 355, 239 P.3d 934 (considering the defendant\u2019s \u201cresponses to the ' delay[,]\u201d including \u201ctimeliness, persistence[,] and sincerity of any objection to the delay,\u201d in recognizing that \u201c[cjonduct evidencing a desire to be brought to trial promptly weighs in the defendant\u2019s favor\u201d (alteration, internal quotation marks, and citations omitted)). Given Defendant\u2019s assertions, his persistent efforts to prepare his defense for a timely trial, and the district court\u2019s several admonishments to the State regarding its failure to move the case forward, we conclude that the State was on clear notice of the need to timely fulfilHts obligations to the defense, including providing access to witnesses and timely proceeding to trial in this case. Accordingly, we weigh the assertion factor slightly to moderately in Defendant\u2019s favor.\n4. Prejudice\nThe \u201cheart\u201d of the speedy trial right \u201cis preventing prejudice to the accused.\u201d Garza, 2009-NMSC-038, \u00b6 12. We analyze prejudice under three interests: (1) preventing oppressive pre-trial incarceration, (2) minimizing anxiety and concern of the accused, and (3) limiting the possibility that the defense will be impaired. Id. \u00b6 35. We are mindful that \u201csome degree of. . . anxiety is inherent for every defendant . . . awaiting trial.\u201d State v. Maddox, 2008-NMSC-062, \u00b6 33, 145 N.M. 242, 195 P.3d 1254 (alterations, internal quotation marks, and citation omitted), abrogated on other grounds by Garza, 2009-NMSC-038, \u00b6\u00b6 47-48. \u201cTherefore, we weigh this factor in the defendant\u2019s favor only where ... the anxiety suffered is undue.\u201d Garza, 2009-NMSC-038, \u00b6 35. A defendant is not required to show that he experienced \u201cgreater anxiety and concern than that attending most criminal prosecutions.\u201d Salandre v. State, 1991-NMSC-016, \u00b6 32, 111 N.M. 422, 806 P.2d 562, holding modified on other grounds by Garza, 2009-NMSC-038. \u201cThe operative question is whether the anxiety and concern, once proved, has continued for an unacceptably long period.\u201d Id. \u201cIt is for the court to determine whether the emotional trauma suffered by the accused is substantial and to incorporate that factor into the balancing calculus.\u201d Id. The evidence must also establish that the alleged prejudice occurred as a result of the delay in trial beyond the presumptively prejudicial threshold as opposed to the earlier prejudice arising from the original indictment. Spearman, 2012-NMSC-023, \u00b6 39. Because the presumption of prejudice intensifies the longer that the delay extends beyond the presumptive threshold, less proof of prejudice is required from Defendant, and more proof of lack of prejudice is required from the State where the delay is significant. See Doggett v. United States, 505 U.S. 647, 652 (2012) (\u201c[T]he presumption that pre[-]trial delay has prejudiced the accused intensifies over time.\u201d); State v. Redlich, 2014 MT 55, \u00b6 52, 347 Mont. 135, 321 P.3d 82 (noting that, because a delay of 285 days beyond the presumptive threshold was significant, the court \u201crequirefd] less proof of prejudice from the defendant, and a greater showing of lack of prejudice from the State\u201d).\nAt the hearing on the speedy trial motion, Defendant\u2019s mother testified that during the time that the charges were pending, Defendant was \u201cparanoid[,]\u201d \u201cextremely depressedf,]... lost almost 30 pounds[,]\u201d had not \u201cbeen able to go to church every Sunday, like he used to,\u201d had become \u201cconstantly confused[,]\u201d and had become \u201cdistanced\u201d from his daughter and his son. Defendant testified on direct examination that after spending sixmonths in jail and being released, he had problems finding employment as a plumber because he \u201clost all [his] equipment, all [his] tools,\u201d he was \u201ckicked out\u201d of the union because he \u201ccouldn\u2019t pay [his] dues\u201d while he was in jail, and that other independent plumbing companies would not hire him because he had previously been in the union. He testified that before he was arrested, he was \u201cextremely close\u201d with his daughter. After the arrest, his daughter moved out of his home and he only had limited contact with her. He said that since the charges had been pending, he isolated himself because he was \u201cvery paranoid\u201d that others would \u201cmisconstrue\u201d his words and bring \u201cfalse accusations\u201d upon him; he had become depressed and began receiving treatment and taking medications for his depression; he stopped being affectionate toward his daughter; and he had not seen his son in over two years.\nOn cross-examination, Defendant admitted that he would be reinstated into the union if he paid his back dues. When the prosecutor asked him if he had sought other types of employment, Defendant testified that he \u201cwas a tattoo artist at one time,\u201d but that \u201cnobody [was] hiring\u201d because of \u201call this on [his] record}.]\u201d He said that he \u201cdid have a job\u201d with a landscaping company for a few months about a year before the hearing. On redirect, Defendant testified that the police \u201cconfiscated\u201d all of his tattoo equipment prior to his arrest, and he had not gotten it back.\nThe district court found that Defendant \u201cwas prejudiced by the delay\u201d in that he \u201csuffered from depression as a result of these charges pending against him\u201d; \u201c[t]he depression [had] caused Defendant to be prejudiced within the meaning of Barker and Spearman\u201d-, and he was unable \u201cto be licensed as a tattoo artist while this case was pending.\u201d It also found that \u201cthis prejudice was originally caused by the charges pending against... Defendant, [but] that the prejudice was [exacerbated] by excessive pre[-]trial delay.\u201d\nWe agree with the State that the record does not support the district court\u2019s finding that Defendant was unable to be licensed as a tattoo artist while the case was pending. Defendant testified that he \u201cwas a tattoo artist at one time,\u201d but he also testified that at the time of his arrest he had been a union plumber with the intention of taking over the family plumbing business. The record shows that he gave permission to the police to confiscate his tattoo equipment before he was arrested, but it does not show that he expressed any desire to have that equipment returned until he filed a motion to recover it after the district court dismissed the case on speedy trial grounds. He testified at the hearing on the speedy trial motion that his tattoo equipment had not been-returned, but nothing in the hearing transcript or the record indicates that he was unable to be licensed as a tattoo artist because of the pending charges or was otherwise prejudiced by the fact that the police had confiscated his tattoo equipment.\nAdditionally, the district court did not make any findings about Defendant\u2019s inability to work as a plumber while the indictment was pending. Our independent review of the record, see Palacio, 2009-NMCA-074, \u00b6 9, reveals that the prejudice Defendant suffered with respect to employment occurred during the first six months after his indictment and while he was in jail when his union membership was revoked for failure to pay dues. The subsequent delay in trial had no effect on his union status because Defendant\u2019s membership in the union was dependent on repaying his dues, not on being tried or acquitted of the charges. Further, because Defendant did not say how he lost his plumbing tools and equipment, we cannot determine whether they were lost as a result of the pending charges. Although Defendant was unable to obtain employment as a plumber during the twenty-seven months after his indictment, we do not weight that hardship as a significant factor in our analysis.\nHowever, we defer to the district court\u2019s findings that Defendant suffered other types of prejudice from the delay and conclude that these findings are supported by substantial evidence in the record. See Spearman, 2012-NMSC-023, \u00b6 19; cf Bloom, 1977-NMSC-016, \u00b6 7 (reserving the resolution of conflicts in the evidence to the district court). We further conclude that this prejudice was \u201cactual,\u201d \u201cparticularized,\u201d and that it may be considered \u201cundue\u201d because it \u201ccontinued for an unacceptably long period.\u201d Garza, 2009-NMSC-038, \u00b6\u00b6 13, 35; Salandre, 1991-NMSC-016, \u00b6 32. Defendant and his mother testified that Defendant had become depressed, paranoid, and isolated; that his participation in his church and his relationship with his children deteriorated; that he lost about thirty pounds due to the anxiety of the pending charges. The State did not present evidence, nor did it demonstrate during cross-examination of Defendant and his mother, that Defendant did not suffer these types of prejudice.\nWe recognize that various aspects of the harm Defendant suffered initially resulted from having been indicted on these charges in the first place. However, we conclude that this initial harm was unnecessarily prolonged by the State\u2019s failure over the course of fourteen months to make its witnesses available to the defense and to otherwise move this case forward to a timely trial. The personal hardship and anxiety type of prejudice to be protected against is separate and distinct from the loss of liberty caused by incarceration or the possible prejudice to an accused\u2019s defense. See Spearman, 2012-NMSC-023, \u00b6 37; see also Salandre, 1991-NMSC-016, \u00b6 18 (stating that the speedy trial right \u201cprotects against interference with a defendant\u2019s liberty, disruption of employment, curtailment of associations, subjection to obloquy, and creation of undue anxiety\u201d); State v. VigilGiron, 2014-NMCA-069, \u00b656, 327 P.3d 1129 (stating that \u201canxiety, loss of employment, continued inability to find work, and . . . public humiliation\u201d suffered by the defendant \u201care forms of prejudice that the speedy trial right is intended to curtail\u201d), cert. denied, 2014-NMCERT-006,328 P.3d 1188. We also consider how Defendant\u2019s incarceration for the first six months after being indicted intensified the overall hardship and anxiety he suffered due to the subsequent delay in moving forward to a timely trial. Defendant testified that his incarceration \u201cwas the worst experience in [his] life\u201d and that while he was in jail he \u201centertain[ed] . . . suicidal thoughts . . . [a]lmost every day.\u201d Defendant faced the possibility of being incarcerated for decades more over the next twenty-one months during which this case was pending, and during which the State was indifferent to and lacked diligence in bringing the case to tidal. Thus, the evidence presented to the district court identified the types of disruptions and hardships that can be weighed in Defendant\u2019s favor. The district court was in the best position to assess the credibility of the witnesses and determine the severity of the hardships and anxiety suffered by Defendant during the additional twelve-month period after the speedy trial threshold had passed. See Spearman, 2012-NMSC-023, \u00b6 19. Based upon the sufficiency of the evidence presented to show that Defendant suffered undue prejudice and the lack of evidence presented by the State showing that Defendant was not unduly prejudiced, we will not substitute the State\u2019s view of the severity of Defendant\u2019s personal hardships and anxiety level for that of the district court. See id. (recognizing the deference given to factual findings by the district court). Under these circumstances, we agree with the district court that the prejudice factor weighed in Defendant\u2019s favor, and we further conclude that it should be weighed slightly to moderately in his favor.\nC. Balancing the Factors\nWe weigh the length of delay and the reasons for the delay moderately to heavily in Defendant\u2019s favor. We weigh the assertion factor and the prejudice suffered slightly to moderately in Defendant\u2019s favor. None of the factors weigh in the State\u2019s favor. Therefore, we conclude that, on balance, the Barker factors weigh in Defendant\u2019s favor, and the district court appropriately dismissed Defendant\u2019s charges on speedy trial grounds. See Spearman, 2012-NMSC-023, \u00b6 17.\nCONCLUSION\nWe affirm the district court\u2019s order dismissing this case with prejudice.\nIT IS SO ORDERED.\nTIMOTHY L. GARCIA, Judge\nWE CONCUR:\nJONATHAN B. SUTIN, Judge\nM. MONICA ZAMORA, Judge", "type": "majority", "author": "GARCIA, Judge." } ], "attorneys": [ "Hector H. Balderas, Attorney General James W. Grayson, Assistant' Attorney General Santa Fe, NM for Appellant", "Jorge A. Alvarado, Chief Public Defender Mary Barket, Assistant Appellate Defender Santa Fe, NM for Appellee" ], "corrections": "", "head_matter": "IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2015-NMCA-056\nFiling Date: February 25, 2015\nDocket No. 32,525\nSTATE OF NEW MEXICO, Plaintiff-Appellant, v. NIKOLOS MONTOYA, a/k/a NIKOLOS SOILES, a/k/a NIKOLOS SOLLES, Defendant-Appellee.\nHector H. Balderas, Attorney General James W. Grayson, Assistant' Attorney General Santa Fe, NM for Appellant\nJorge A. Alvarado, Chief Public Defender Mary Barket, Assistant Appellate Defender Santa Fe, NM for Appellee" }, "file_name": "0751-01", "first_page_order": 767, "last_page_order": 778 }